Trent, H.c. v The Minister for Immigration, Local Government & Ethnic Affairs
[1993] FCA 754
•20 OCTOBER 1993
HARVEY CLAY TRENT v. THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. VG104 of 1993
FED No. 754
Number of pages - 14
Immigration
(1993) 45 FCR 531
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
BLACK CJ, HEEREY AND BEAZLEY JJ
CATCHWORDS
Immigration - appeal - refusal to grant Extended Eligibility (Temporary) Entry Permit (spouse) - statutory construction - appellant an illegal entrant - statutory construction - time at which criterion prescribed by reg.42(3) Migration Regulations to be satisfied - whether regulation had retrospective operation - whether operation of regulation absurd or irrational - whether regulation should be construed according to its terms - source of power to grant entry permit to illegal entrant.
Cooper Brookes (Wollongong) Pty. Ltd. v. The Commissioner of Taxation of the Commonwealth of Australia (1980-1981) 147 CLR 297.
Migration Act 1958 (Cth) ss.14(2), 20, 34, 35(2)
Migration Regulations regs.35AA, 42(1A) (2) (3), 126, Part 1 Schedule 3
HEARING
MELBOURNE, 9 August 1993
#DATE 20:10:1993
Counsel for the Appellant: Mr. T. Hurley
Solicitor for the Appellant: Erskine J. Rodan
Counsel for the Respondent: Mr. T. Ginnane
Solicitor for the Respondent: Australian Government Solicitor
ORDER
The Court Orders That:
1. The appeal be dismissed.
2. The appellant pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BLACK CJ, HEEREY AND BEAZLEY JJ This is an appeal from a decision of a single judge of this court dismissing an application for judicial review of the decision of a delegate of the Minister, refusing the appellant's application for an Extended Eligibility (Temporary) Entry Permit (EETEP) (spouse) and the consequential decisions that the appellant be deported, and that he be arrested and detained, pending the implementation of the deportation order.
At the commencement of the appeal, the appellant sought and was granted leave to file and serve a further amended notice of appeal, raising grounds which had not been argued before the trial judge. No submissions were advanced in support of the grounds of appeal raised in the original and earlier amended notices of appeal. This left as the essential matter for determination whether the appellant was entitled to the grant of an entry permit under s.34 of the Migration Act 1958 (the Act), having regard to the proper construction and operation of reg.35AA, reg.42(1A), (2) and (3) and reg.126 of the Migration Regulations (the Regulations) as they were in force at the relevant time.
Background facts
3. The appellant is a citizen of the United States of America. He married an Australian citizen in Los Angeles on 24 August 1989. On 18 December, 1989 he applied for a visa to visit Australia. When filling out the visa application form, the appellant made two responses, which provide the relevant context for these proceedings. In answer to a question requiring disclosure of "previous alternative names", the appellant answered "none". In response to the requirement that details be provided of convictions for criminal offences, the appellant responded "12 years ago possession of amphetamines USA LA". Both answers were false. The appellant had, at least during the period 1980 to 1981 used a number of aliases including "Terry Blunt", "Clay Harvey Wagoner" and "Harvey Clay Wagoner". Between 1974 and 1978, he had been convicted of a number of offences for which he had been sentenced to varying periods of imprisonment. One such conviction, in 1976, was for robbery for which the appellant was sentenced to 365 days imprisonment.
On 18 December 1989, the appellant was granted a six month visa to stay in Australia, subject to the grant of an entry permit upon arrival. He arrived in Australia on 24 December, at which time he was granted a six month temporary entry permit, being a tourist permit under Item 48 of Part 1 in Schedule 3 to the Migration Regulations. On 28 June 1990, four days after the apparent expiry of the temporary entry permit, he applied for an EETEP on the basis of his marriage to an Australian citizen. We say "apparent expiry" because the temporary entry permit had been cancelled by operation of the provisions of s.35 of the Act to which we shall refer later. In the EETEP application, the appellant provided more details of his aliases and criminal history than he had provided in his visa application. He was arrested on 8 August 1990, but was eventually released from custody pursuant to orders made by this court. On 8 August he gave a notice under s.20 of the Act. However, the applicant's entry permit was never endorsed pursuant to the provisions of ss.20(4) or (5). On 13 August, the appellant was advised that his application for an EETEP was refused and on 30 August, a deportation order was made.
Statutory framework
5. As the appellant's case is based entirely upon the proper construction of the Migration Act and Regulations it is convenient at this point to refer to the relevant statutory scheme.
The Migration Act
6. By the operation of s.14(2) of the Act as in force at the relevant time, a person to whom ss.20(1) or (2) applied, who had entered Australia, became an illegal entrant at any time whilst not the holder of a properly endorsed valid entry permit.
Section 20(1) applied to a person who, when or before a visa was granted, had made a materially false statement to an officer or person performing functions under the Act: s.20(1)(c)(ii); or who, at the time the person entered Australia, had been convicted of a crime and sentenced to imprisonment for a period of at least one year: s.20(1)(d)(ii). Section 20(2) applied to a person who, after entry into Australia, had been granted an entry permit and who made a materially false statement in respect of the grant of the permit to an officer performing functions under the Act.
Section 20(3) provided that a person to whom s.20(1) or (2) applied could give to the Secretary a notice in the prescribed form, stating that the person was, for reasons specified in the notice, a person to whom the subsection concerned would or did apply. If an entry permit was thereafter granted to that person, s.20(5) required that the entry permit be endorsed with a statement that the person granting the permit recognised the holder to be a person to whom s.20(1) or (2), as the case required, applied, for the reasons set out in the s.20 notice.
If a person was an illegal entrant by operation of s.14(2), that person's entry permit was taken to have been cancelled: s.35(2).
Regulations could be made under the Act in respect of entry permits: s.33. Section 34(4) then provided:
"Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit".
The relevant Migration Regulations at the time were as follows:
"35AA(1) The Minister may, in spite of any provision of these Regulations ... grant a temporary entry permit to a person who is an illegal entrant if:
...
(c) in the case of a person who entered Australia on or after 19 December 1989:
(i) the person applies for the entry permit:
(A) where the person became an illegal entrant before 20 January 1990 - not later than 16 February 1990; or
(B) where the person became an illegal entrant on or after 20 January 1990 - not later than 28 days after becoming an illegal entrant; and
...
(iii) the person satisfies the prescribed criteria in relation to the relevant class of entry permits (other than, if applicable, the prescribed criteria that the person is the holder of a valid temporary entry permit and that the person is not an illegal entrant); and
(iv) the Minister is satisfied:
(A) that the person became an illegal entrant because of factors beyond his or her control; and
(B) that there are compelling reasons for granting the entry permit; and
(C) that the person complied substantially with any conditions subject to which any such entry visa or entry permit was granted (other than a condition of which the person was in breach solely because of the expiry of any entry visa or entry permit); and
(D) that the person would have been entitled to be granted an entry permit of the class applied for if he or she had applied for such an entry permit immediately before becoming an illegal entrant; and
(E) that the person intends to comply with any conditions subject to which the entry permit is granted." "42(1) ... a person is entitled to be granted an entry permit of a class specified in these Regulations if the person satisfies the prescribed criteria in relation to that class of entry permits".
"42(1A) The following criteria are prescribed in relation to entry permits other than entry permits in relation to which the criteria in subregulation (2) or the criterion in subregulation (6) applies:
...
...
(b) Where the applicant for the entry permit is an illegal entrant who has not been arrested under section 92 or 93 of the Act:
(i) ...
(ii) that the applicant has lodged the application for the entry permit not more than 12 months after becoming an illegal entrant."
The appellant was an illegal entrant and had not been arrested under ss. 92 or 93.
"42(2) The following criteria are prescribed on application before entry for an entry permit of a class specified in Part 1 in Schedule 3 by the holder of a visa, namely, that at the time when the application is decided:
(a) the visa is a valid visa, other than an entry visa; and
(b) the entry permit applied for is of a class equivalent to that of the visa held by the applicant; and
(c) the Minister is satisfied that it would be consistent with the interests of Australia to grant the entry permit.
(3) In relation to the class of entry permits specified in Column 2 of Part 1 in Schedule 3, the following criterion is prescribed, in addition to the criteria prescribed under subregulation (2), on application for a permit of that class by a person who has given the Secretary a section 20 notice, namely, the Minister is satisfied that it would be reasonable to excuse the fact that the applicant is a person to whom subsection 20(1) or (2) of the Act, as the case requires, applies, having regard to:
(a) the circumstances in which the event or conduct took place by reason of which the relevant subsection became applicable to the person; and
(b) the subsequent behaviour of the person in relation to the matter; and
(c) the time that has elapsed since the event or conduct took place by reason of which the relevant subsection became applicable to the person; and
(d) the circumstances of the person at the time of the application; and
(e) whether the application is in respect of a temporary entry permit or a permanent entry permit; and
(f) any likelihood that the granting of the entry permit would involve a risk of activities disruptive to, or violence threatening harm to, the Australian community".
The prescribed criteria for the EETEP for which the appellant had applied were contained in reg.126, including that:
"1(d) The applicant is not an illegal entrant ...".
Decision under review
14. The findings of the delegate in refusing the EETEP were set out in the statement of reasons provided pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977. So far as it is relevant to the appeal, the delegate's findings were that when applying for his visa, the appellant's statements as to his aliases and criminal convictions were false and misleading in a material particular in contravention of s.20(1)(c)(ii); that because of the 12 month sentence for the robbery conviction, the appellant fell within s.20(1)(d)(ii); that the applicant had become an illegal entrant on 24 December 1989, that is the date on which he entered Australia, by operation of s.14(2) of the Migration Act; that the appellant did not meet reg.35AA and therefore was unable to satisfy the prescribed criterion of reg.126(1)(d) that he not be an illegal entrant. The delegate concluded therefore that the Minister was required by the provisions of s.34(4) of the Migration Act to refuse to grant an entry permit.
The Appeal
15. It was common ground between the parties that by the combined effect of ss.14(2) and 20(1), the appellant was an illegal entrant at the time he entered Australia on 24 December 1989, both because of the false statements made in the visa application (s.20(1)(c)(ii)) and because he had been convicted of a crime and sentenced to imprisonment for a period of at least one year (s.20(1)(d)(ii)). The effect of his being an illegal entrant was that his temporary entry permit was cancelled at the time it was granted, which was also the time he entered Australia (s.35(2)). It was also common ground that the EETEP for which the appellant had applied fell within Part 3 in Schedule 3 to the Regulations. However, because the appellant was an illegal entrant, he did not satisfy the criteria prescribed by reg.126(1)(d).
Counsel for the appellant submitted that the decision refusing the EETEP was wrong in law, first, because the delegate failed to consider the application of reg.42(3) at the time the appellant gave the s.20 notice, the basis of this submission being that there was no time specified in the regulations as to when the criteria of reg.42(3) must be satisfied; secondly, it was submitted that reg.42(3) should be construed as not being limited to Schedule 3 Part 1 permits but as extending to Schedule 3 Part 3 (which includes EETEP (spouse)); and thirdly, it was submitted that the appellant satisfied reg.42(1A) which should be construed independently of reg.35AA, the latter regulation not being the only source of power whereby an illegal entrant could be granted an entry permit.
Time at which reg.42(3) had to be satisfied
17. Counsel for the appellant submitted that as the appellant had given a s.20 notice on 8 August 1990, reg.42(3) operated in relation to the temporary entry permit which was granted to the appellant on entry into Australia on 24 December 1989, adding an additional criterion to those prescribed under reg.42(2) on application for a permit of that class. It was submitted that the regulation was silent as to the point of time at which the Minister had to be satisfied that it would be reasonable to excuse the fact that the applicant was a person to whom s.20(1) or (2) applied. The effect of the submission was that the criterion could be satisfied at any time. Thus, when considering the appellant's application for an EETEP, the Minister should first have directed his attention to reg.42(3) and if satisfied thereunder, should have considered himself so satisfied as at 24 December 1989, the date of the grant of the temporary entry permit. It was argued that the Minister should then have re-considered the initial application for an entry permit made by the appellant at the airport upon arrival in Australia, being an application for a permit under Schedule 3 Part 1, and endorsed that entry permit. The effect of the endorsement would have been that the appellant would not then have been an illegal entrant. It followed, according to this argument, that had the appellant applied for an EETEP before 24 June 1990 (the date on which his six month temporary entry permit expired), he would have been entitled to the grant of that entry permit as he satisfied the criteria specified in reg.126(1). However, as the application was lodged four days after the "now nunc pro tunc s.20(5) endorsed TEP expired", the appellant once again had become an illegal entrant, as he was no longer the holder of a valid entry permit. But, in that case, it is said the application for the EETEP would have been made within the time prescribed by reg.35AA(1)(c)(i)(B), that is 28 days after the expiry of such a valid entry permit, such that the Minister should have considered whether, in the exercise of the discretion given by reg. 35AA(1), the appellant should be granted an entry permit.
Regulation 42(3) must be construed in its context. Regulation 42(2) specified that "on application" for an entry permit to which Part 1 in Schedule 3 applies, certain criteria have to be satisfied. Regulation 42(3) provided an additional criterion to that specified in reg.42(2), where the applicant for a Schedule 3 Part 1 permit was a person to whom s.20(1) or (2) applied and who had given a s.20 notice. In the case of reg.42(2), the time specified for the satisfaction of the criteria was "... the time when the application is decided". No such phrase or other time specification appears in reg. 42(3). However, reg.42(3) imposed a criterion additional to the criteria of reg.42(2). Regulation 42(3) picked up the criteria (a), (b) and (c) of reg.42(2) and added something extra. The logical reading is to apply the requirement of reg.42(2) that criteria be determined at the time of decision to the reg.42(2) plus reg.42(3) application in the same way as it applied to the reg.42(2) simpliciter application.
Quite apart from the relationship between regs.42(2) and (3), the terms of reg.42(3) point against any retrospective construction. The applicant must be a person who "has given" a s.20 notice. The Minister had then to be satisfied it "would be reasonable to excuse" the applicability of s.20(1) or (2) having regard to specified circumstances, some past, (e.g. the circumstances in which s.20(1) or (2) became applicable) some present, (the circumstances of the person at the time of the application) and some future (the likelihood of disruptive activities or violence). It would distort the structure and meaning of reg.42(3) to have it applied at a point in time before the s.20 notice was given.
It would require clear words for the regulation to have the effect for which counsel for the appellant contends. There is nothing in the scheme of the Act which suggests that, contrary to the natural order of things, the Minister should re-decide an application for an entry permit after the permit had been issued (ignoring for the moment its statutory cancellation pursuant to s.35) and more particularly, after its term had expired.
We are of the opinion that having regard to its context, including its relationship to reg.42(2), the criterion specified in reg.42(3) must be satisfied at the same time that the criteria in subreg.(2) is to be satisfied, that is, at the time when the application is decided.
The proper construction of reg.42(3)
22. Even if, contrary to our opinion, reg.42(3) had the application contended for, the appellant faced a further hurdle. The regulation did not apply to the class of permit which he sought. We should now consider the argument advanced to overcome this problem. Regulation 42(2) applied to permits before entry of a class specified in Part 1 in Schedule 3. Regulation 42(3) applied, according to its terms, to entry permits specified in Column 2 of Part 1 in Schedule 3. On their face, neither regs.42(2) nor (3) applied to the appellant's application for an EETEP (spouse), which fell within Part 3 in Schedule 3 (see item 23). However, the appellant submitted that reg.42(3) as first promulgated contained an error and should be read as if the words "in Column 2 of Part 1" were not included. Assistance was sought to be derived for this argument by reference to the amendment to reg.42(3), made by statutory rule No. 279 of 1990, which took effect from 30 August 1990. That amendment in fact omitted the words from subreg.(3) to which we have just referred. It was submitted that this amendment was made to remove the error so that s.20 came to bear upon the whole of reg.42. Counsel for the appellant tendered the Explanatory Statement to Statutory Rule No. 279 of 1990 where it was stated that:
"The purpose of the Regulations is to amend the Migration Regulations to
. make a number of technical and stylistic amendments. ...".
The amendment to reg.42 was explained in paragraph 6 of the Explanatory Statement as follows:
"This regulation amends regulation 42(3) as its operation should extend to all entry permits in Schedule 3 and not just those in Part 1 of Schedule 3".
However, the amendment was not expressed to be retrospective. The question thus becomes whether, upon its proper construction, the regulation should be read as if the words deleted by the amendment made on 30 August in fact were never intended to be part of it, or whether the regulation should be construed literally, according to its terms.
It is of course legitimate to construe a regulation other than by giving words their ordinary meaning where, for example, the result of doing so "may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case" (per Gibbs CJ in Cooper Brookes (Wollongong) Pty. Ltd. v. The Commissioner of Taxation of the Commonwealth of Australia (1980-1981) 147 CLR 297 at 304). However, as the Chief Justice said in Cooper Brookes, this is not the case:
"... if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient and unjust." (at p.305)
Mason and Wilson JJ stated the principle in these terms, at p.320:
"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.
... If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature. On the other hand, when the judge labels the operation of the statute as "absurd", "extraordinary", "capricious", irrational" or "obscure" he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions".
Counsel for the appellant contended that the effect of giving a literal construction to reg.42(3) was that it was only an applicant for a temporary entry permit before entry who had given a s.20 notice, who would potentially receive any benefit from it. It was argued that this could not have been the intention of the legislature in enacting s.20, as the operation of that section was always intended to extend to the potential grant of any type of entry permit, whether before entry (s.20(1)(c)), or after entry (s.20(1)(d)).
However, the effect of s.20 is, first, to identify certain persons, who having regard to their conduct, attain the status of illegal entrant under s.14(2), and to then provide a mechanism whereby a person could seek to overcome that status (s.20(3)). It is a reasonable construction of reg.42(3) that it was intended that the s.20(3) mechanism was only to operate in relation to limited classes of entry permits, that is those permits specified in Part 1 in Schedule 3. It cannot be said therefore that the operation of reg.42(3) in the form as it stood prior to 30 August 1990, was absurd or irrational, or necessarily did not reflect the intention behind it. The fact that at a later point of time it was seen fit not to so restrict the effect of the operation of a s.20 notice, does not mean that that was the intention at the time the regulation was first made. Accordingly we reject this argument which, as we have pointed out, only arises if reg.42(3) is given the application contended for.
Application of reg.42(1A)
29. Finally it was submitted on behalf of the appellant that his case was governed by the provisions of reg.42(1A), as he satisfied the criteria specified therein in relation to an entry permit, having lodged his application for an EETEP on 28 June 1990, that is within 12 months of becoming an illegal entrant.
However, reg.42(1A) prescribed additional criteria. There is nothing in it which removed the criteria of reg.126(1), and in particular subparagraph (d). This is not to deprive reg.42(1)(A) of any operation, as "not being an illegal entrant" was not part of the prescribed criteria for all entry permits: see, for example reg.127, which prescribed the criteria for an Extended Eligibility (Family) Entry Permit. As the appellant had entered Australia after 19 December 1989, and had become an illegal entrant at the time of entry, he did not satisfy the requirement of reg. 35AA(1)(c)(i)(A) that he lodge an application for an entry permit not later than 16 February 1990. Accordingly, no occasion arose for the Minister to consider the exercise of discretion pursuant to reg. 35AA. Even if it did, the evidence does not disclose how the Minister could conceivably be satisfied that the appellant became an illegal entrant because of factors beyond his control: see reg.35AA(1)(c)(iv) A.
Accordingly, we dismiss the appeal with costs.
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