Tuiqilai, T.M. v The Minister of State for Immigration & Ethnic Affairs

[1993] FCA 943

TREVOR MICHAEL TUIQILAI v. THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC
AFFAIRS
No. NG290 of 1993
FED No. 943/93
Number of pages - 7
Administrative Law
(1993) 47 FCR 287
(1993) 35 ALD 393 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
DAVIES J

CATCHWORDS

Administrative Law - immigration - judicial review - application for review of the decision not to grant a December 1989 (temporary) entry permit - whether applicant precluded from applying for permit by s.37 of the Migration Act 1958 - whether applicant had made a previous application - whether inclusion in a principal person's application constitutes an application.

Migration Act 1958 (Cth) - ss.34, 37

Migration Regulations Regs. 22, 108

HEARING

SYDNEY, 23 November 1993

#DATE 9:12:1993

Solicitor for the applicant: Mr C.H. Levingston of Levingstons

Counsel for the respondent: Mr J.S. Hilton

Solicitor for the respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. Time be extended so as to validate the

lodgment of the application on 11 May 1993.

2. The application be dismissed.

3. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DAVIES J This application seeks judicial review of a decision notified by letter dated 16 March 1993, the reconsideration of which was refused by letter dated 14 April 1993. The decision refused to grant to the applicant, Mr T.M. Tuiqilai, and to his wife, Mrs E. Tuiqilai, who was included in his application, a December 1989 (temporary) entry permit.

1. The application to the Court was out of time, not being lodged until 11 May 1993. But as the applicant promptly sought reconsideration of the decision of 16 March 1993, and, on advice that the matter would not be reconsidered, promptly lodged an application for review, and as the application raises a point of law which was crucial to the challenged decision, I am of the view that time should be extended so as to validate the lodgment of the application from 11 May 1993. Needless to say, there was no prejudice resulting from the delay.

2. The decision-maker took the view that Mr Tuiqilai was precluded from making an application for the entry permit which he sought. The decision-maker referred to the provisions of s.37 of the Migration Act 1958 (Cth) ("the Act") which read:-
   

"(1) This section applies to an illegal entrant who -

(a) has entered, and remains in, Australia;

(b) while in Australia, has been refused an entry permit; and

(c) is not a person to whom section 36 applies because of section 121.

(2) Where this section applies to a person, the person is not entitled to make any further application for an entry permit while he or she remains in Australia unless:

(a) there has been a prescribed change in the person's circumstances since he or she last applied for an entry permit; and

(b) no deportation order has been made in respect of that person under section 59"

The prescribed circumstances, as set out in Regulation 40(1)(k) of the Migration Regulations, which at the time of the lodging of the application of 21 December 1992 relevantly read:-

"40. (1) For the purposes of paragraphs 36(1)(a) and 37(2)(a) of the Act, each of the following changes in circumstances is prescribed in relation to a person to whom section 36 or 37 of the Act applies:

...

(k) the person:

(i) was a prohibited non-citizen on or before 18 December 1989 and

(ii) was in Australia, and has not left Australia since, 18 December 1989; and

(iii) has not previously applied for a December 1989

(temporary) entry permit or a December 1989

(permanent) entry permit; and

(iv) lodges an application for a December 1989 (temporary) entry permit or a December 1989 (permanent) entry permit and pays the fee in respect of the entry permit."

As can be seen, the relevant prescribed change in circumstances was that a person who had not previously applied for a December 1989 (temporary) entry permit did so and paid the fee in respect thereof.

1. The decision-maker took the view that Mr Tuiqilai's application failed in that, for the purposes of s.37(1)(b), he had, whilst in Australia, been refused an entry permit and that, for the purposes of s.37(2), there had not been a prescribed change in his circumstances.

2. The issue in the case is whether Mr Tuiqilai had previously applied for a December 1989 (temporary) entry permit and whether that application had been refused.

3. Section 34 of the Act provides:-
   

"(1) This section applies where,

and only where:

(a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and

(b) any fee payable in respect of the application is paid.

(2) Unless this section applies, the Minister:

(a) is not required to consider an application at all; and

(b) shall not in any circumstances grant an entry permit.

(3) Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall, subject to this Division, grant the applicant such an entry permit.

(4) 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."

Regulation 22 provided, inter alia:-

"(1) Subject to this regulation and regulation 34, an application for an entry permit is in accordance with these Regulations:

(a) where the applicant applies after entering Australia:

(i) if the application is in the form approved by the Minister for the purposes of this provision: and

(ii) if the relevant fee has been paid; ... ..."

1. The ordinary criteria prescribed in relation to a December 1989 (temporary) entry permit are set out in reg. 131A. However reg. 108, which is the first regulation in Division IV of Part 3, a division which specifies criteria in relation to special cases, provided for the grant of visas and entry permits to family unit members. Regulation 108 provided inter alia:-
   

"108. (1) In this regulation, 'principal person' means a person who:

(a) who is:

(i) an applicant for a visa or an entry permit; or

(ii) the holder of:

(A) a valid temporary entry permit; or

(B) an entry visa operating as a temporary entry permit; or

(C) a visa which would permit the applicant to enter Australia on a temporary basis; or

(D) a valid diplomatic visa; and

(b) who is applying for, or holds, the visa or entry permit other than under this regulation.

(2) This regulation applies to an applicant who is a member of the family unit of a principal person and who applies for a visa or entry permit of the same class as that held, or applied for, by the principal person, where:

(a) the principal person has satisfied the prescribed criteria for the relevant class of visa or entry permit; and

(b) the applicant:

(i) is included in the principal person's application; or

(ii) applies at the same time as the principal person; or

(iii) is lawfully in Australia as a member of the family unit of the principal person; or

(iv) did not accompany the principal person when that person entered Australia and intends to join the principal person as a member of that person's family unit; ...

...

(3) Subject to subregulations (5) and (6), in spite of any prescribed criteria for a visa or entry permit of the class applied for, or held by, the principal person in relation to an applicant to whom this regulation applies, that applicant is, upon satisfying the criteria prescribed under subregulation (4), entitled to be granted a visa or entry permit of that class.

(4) The following criteria are prescribed for an application under this regulation for a visa entry permit, namely, the applicable public interest criteria, the applicable prescribed criteria in relation to health and any other criteria applicable to the applicant.

(5) Where a member of the family unit of a principal person is entitled to be granted a visa or entry permit under subregulation (3), the visa or entry permit must not be granted unless a visa or entry permit of the same kind has already been granted to the principal person."

1. As can be seen, a person, who was a member of the family unit of a principal person who applied for an entry permit, could apply for an entry permit of the same class by, inter alia, being included in the principal person's application or by applying at the same time as the principal person. If the principal person satisfied the criteria for that entry permit, then the family member was, upon satisfying the criteria prescribed under regulation 108(4), entitled to be granted an entry permit of that class. But under regulation 108(5), the entry permit was not to be granted until an entry permit of the same kind had been granted to the principal person.

2. The effect of this regulation was that a member of the family unit of a principal person could become entitled to an entry permit though he or she did not comply with the criteria applicable to the permit sought, provided that the principal member complied with those criteria and the family member complied with the criteria specified in reg. 108(4).

3. However, to become entitled in this way to the benefit of reg. 108, the member of the family unit of a principal person had to apply for the entry permit by being included in the principal person's application or by applying at the same time as the principal person. If the applicant did so and satisfied reg. 108, then the applicant was entitled to be granted the permit sought and s.34(3) provided that, in such circumstance, the Minister must grant to the applicant such an entry permit.

4. The Department of Immigration and Ethnic Affairs provided a form for persons seeking to apply for a December 1989 (temporary) entry permit. This form made provision for an applicant to include in the application members of the family unit. Paragraph 8 had the heading "Family members applying" and required the applicant to "Give details of all the family members included in this application who are in Australia and wish to remain permanently." The form included a form of statutory declaration and a note to it stated "this Declaration must be signed by you, your spouse, and ALL persons aged 18 or over included in this application." I infer that the form was approved by the Minister for the purposes of reg. 22.

5. On 16 October 1991, Mrs E. Tuiqilai lodged such an application with the Department of Immigration and Ethnic Affairs. In para. 8, details were specified for herself, Mr T.M. Tuiqilai and two children under 18 years of age, Jane Cynthia Daveta and Elizabeth Fiona Daveta. The declaration was signed and made by both Mrs Tuiqilai and Mr Tuiqilai in the presence of a justice of the peace.

6. It is not disputed that Mr Tuiqilai was included in Mrs Tuiqilai's application.

7. That application was refused on 27 October 1992 in a letter to Mrs Tuiqilai that read, inter alia:-
   

"As you are not in possession of an entry permit valid for Section 47 of the Migration Act consideration was given under Migration Legislation pertaining to December 1989

(temporary) entry permit criteria.

Under those provisions it is required that an applicant meet the prescribed criteria under Regulations. It is not considered that you meet the legal requirements for a December 1989 (temporary) entry permit and your application is therefore refused under Section 34 of the Migration Act

1958. As a consequence of that refusal the concurrent application for a December 1989 (permanent) entry permit is also refused.

This decision also includes Trevor Michael Tuiqilai."

1. It was on these facts that the decision-maker, who in March 1993 rejected Mr Tuiqilai's subsequent 1992 application, took the view that Mr Tuiqilai had previously applied for and been refused an entry permit and therefore, by reason of s.37 of the Act, was not entitled to make a further application.

2. Mr C.H. Levingston, solicitor for Mr Tuiqilai, has submitted that the 1991 application was made by Mrs Tuiqilai and not by Mr Tuiqilai and that reg. 108 had no application for it dealt only with the grant of applications and that, as Mrs Tuiqilai's application was not approved, it did not apply. Mr Levingston submitted that Mr Tuiqilai had not, prior to 1992, applied for an entry permit and that no application of his had been refused and, therefore, that he was not precluded by s.37 from making his application in 1992.

3. I prefer, however, the submissions of Mr J.S. Hilton, counsel for the Minister.

4. Regulation 22 provided that an application for an entry permit is in accordance with the regulations if, where the applicant applies after entry into Australia, the application is in the form approved by the Minister and if the relevant fee has been paid. Regulation 108 expressly stipulated that a member of a family unit may apply for a permit by being included in an application by a principal person. And the form provided by the Department, which I take to be a form approved by the Minister, made specific provision for the inclusion of family members in the application.

5. That a form so completed served as an application by both the principal member and by the named members of the family unit cannot be doubted, for the form was so expressed and reg. 108 so provided. Regulation 108(2) stipulated that the regulation applied to an applicant "who applies for a visa or entry permit of the same class as that held, or applied for, by the principal person." I am satisfied that Mr Tuiqilai made an application in that way in 1991, for he joined in Mrs Tuiqilai's application by completing the required statutory declaration. I am also satisfied that the application was refused by the letter of 27 October 1992.

6. Mr Levingston did not expressly submit but he inferred that Mr Tuiqilai's application was not refused but lapsed when the application of the principal person, Mrs S. Tuiqilai, was refused. However, the decision was expressed as a refusal, and this would accord with s.34(4) which provides that, if an applicant is not entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit.

7. By the application of 16 October 1991, in which he joined, Mr Tuiqilai made application for an entry permit of a particular class. However, the basis on which the application was made, that Mrs E. Tuiqilai satisfied the substantive criteria for the permit, was not met. As a result, the 1991 application made by Mr Tuiqilai was refused. The 1992 application necessarily failed by reason of s.37 of the Act.

8. In these circumstances, the decision under challenge was correct in law. For these reasons I shall dismiss the application with costs.