Tuitavuki, S.L.L v Minister for Immigration Local Government and Ethnic Affairs

[1990] FCA 801

JUDGMENT No. 8C) I l ?Q-.

JN THE FEDERAL COURT OF AUSTRALIA )

W )

Ry ) No. NG 543 of 1990

)

GENERAL DIVISION )

BETWEEN:	SIAKIMI	LEA	' AE	LIKr
TUITAWKI

Applicant

AND :  MINISTER FOR IMMIGRATION
AFFAIRS

Respondent

GQ~AMZ HILL J
E?i&x: SYDNEY

RUE$ 18 SEPTEMBER 1990

MPORE REASONS FOR JUDGMENT

The applicant, Mr Tuitavuki, moves the court for an order that the respondent Minister for Immigration, Local Government and Ethnic Affairs be restrained until further order from taking any action in reliance upon a deportation order dated 12 September 1990. The application is made as an interlocutory matter pending the hearing of an application for an order sought under the provisions of the Administrative Decisions (Judicial Review) Act to review the decision of the Minister to serve that deportation notice upon the applicant and or to execute that notice. The relief sought in the substantive application includes an order that the decision to issue the deportation notice be set aside and a consequential order that the

deportation notice itself be set aside.

For the purposes of the present application I am obliged to determine whether there is an arguable issue and to consider the balance of convenience in accordance with the ordinary principles applicable to interlocutory proceedings.

The facts as they appear, and in particular from material which has been provided by the representative of the respondent from the bar table but which is not in dispute, show that the applicant came to Australia some time ago on a valid visitors visa valid for a period of three months. That visa expired on or about 12 March 1988. The applicant remained in Australia after the expiry and became by virtue of the provisions of the Uaration Act then in force, a prohibited non-citizen.

In December 1989 the provisions of the

1958 ("the Act") were substantially amended. Those provisions took effect for relevant purposes on 19 December 1989. On 16 August 1990 the applicant was arrested and taken to the Detention

applicant was given notification of the necessity that he lodge	Centre at Villawood where he presently is. On 17 August 1990 the
within a period of two days an application for a visa if he so desired. The applicant, or some person on his behalf, sought a further extension of time for the making of this application, which extension of time was granted. The seven day period thence arising expired on 27 August 1990.
Although the applicant's de facto spouse was informed on 27 August that this was the last day on which an application could be made, no application was forthcoming. Ultimately an application was made on 7 September 1990, that is to say well outside the period of seven days. The application, it is said, was lodged in a different name and the department was unaware that such an application had been lodged. Whether that is factually true is not a matter at this stage that I need to consider, nor do I consider for present purposes the provisions of reg.34(1) of the Migration Regulations which require a person lodging an application on behalf of a person in custody to notify the fact of lodgment. It does not seem that such notification was given, but it is unclear from the regulation what the consequences are if that notification be not given.
The evidence presently before me suggests that at the time the Minister or his delegate made the decision to deport the applicant on 12 September 1990, the material in the application of 7 September 1990 and in particular material which made it
clear that the applicant had a de facto relationship was not taken into account.
If the application of 7 September 1990 is a matter which can have any effect at all now upon the decision to make a deportation order, it would be clear that the failure to consider the material in the application could vitiate the deportation decision.
However reg.42(1A) of the Migration Regulations makes it clear in respect of a person who applies for a visa while in Australia, as an illegal entrant, that an entry permit cannot be granted unless an application for the entry permit is lodged within two working days after the time of arrest in the case of a person arrested under 68.92 or 93 of the Miaration m.

Regulation 42(1A)(a) provides relevantly as follows:

prescribed in relation to entry permits, " (1A) The following criteria are

other than entry pennits in relation to which the criterion in sub-regulation (2) or the criterion in sub-regulation (6) applies:

(a)

where the applicant for the entry

permi	t :
(i)	has been an illegal entrant for less than 12 months, and
(ii)	has been arrested under S. 92 or 93 of the Act;

that the applicant lodges the
application for the entry permit :

(iii) within 2 working days after being first so arrested; or

(iv) where within 2 working days after first so arrested, the applicant asks the Minister in writing to be allowed to lodge the appl ice tion within 7 such working days - within

those 7 working days. "

For the purposes of this application at least it was common ground that if the applicant were not an illegal entrant then the limitation period of two or seven days, as the case may be, would have no application to him.

There is no definition as such of the expression

" i l l e g a l entrant" in the Act.

The terms of 8.14 of the Act on their face are inapplicable to the applicant. Sub-section (1) of that section concerns a person who enters Australia after the Act commenced in 1989; aub-s.(2) likewise on its face is concerned with a person who entered Australia, whether before or after the commencement of that section, and ensures that that person is an illegal entrant at any time while he or she remains in Australia, ia not a citizen, and does not hold a valid entry permit, provided that person is a person to whom sub-ss.20(1) or (2)

appliee .

It does not seem that the provisions of ss. 20(1) or (2) have application in the present case.	Sub-section (3) can have
no application because it concerns a person who is a non-citizen	at the commencement of the legislation or thereafter, but who is
the holder of a valid entry permit at that time and thereafter becomes an illegal entrant.
Sub-section (4) is concerned with the case of an exempt non-citizen, and has no application to the present case.

Thus without more, the applicant would not it would

seem be an illegal entrant. However there is also to be considered the provisions of s.ll(ZL) of the m r a t i o n

1989, sub-s.(2) of which provides,

inter alia:

"A	person	who	immediately	b e f o r e	the
commencement	o f	t h i s	s e c t i o n	was	a

prohib i ted non-ci t i z e n :

( a ) becomes an i l l e g a l en trant a t t h a t

commencement. "

Those words are precisely applicable to the applicant. He was before 19 December 1989 a prohibited non-citizen. Accordingly by force of s.ll(ZL)(2)(a) he became an illegal entrant on 19 December 1989.

He is accordingly a person who has been an illegal entrant for less than twelve months, so that the provisions of reg.42(1A)(a) have application to him. It was submitted on behalf of the respondent however, that at the commencement of the

that the words " i l l e g a l en trant" had some normal meaning and

1989 legislation the applicant was already an illegal entrant and

comprehended a person who is a prohibited non-citizen. In my opinion that argument is not tenable. The purpose or one of the purposes at least of s.ll(ZL) is to act to clarify what would otherwise have been a difficulty in the provisions of 6.14. The amendment clearly operates for the purposes, inter alia, of reg.42. The words " i l l e g a l en trant" have no ordinary meaning, rather they have the meaning given to them by 8.14 of the Act, but supplemented by the provisions of s.ll(ZL).

In my opinion, the fact that the Minister or his delegate failed to take into account a matter in an application made after the seven day period, cannot avail the applicant, and there is little chance of the applicant succeeding in the main application for review. Had I been of the view that the applicant had an arguable issue to be tried I would have seen the balance of convenience as favouring the granting of an injunction in the present case.

Accordingly I would refuse to grant the applicant the interlocutory relief presently sought.

I will make an order that the costs of the application be the respondent's costs in the proceeding.

I certify that this and the
preceding nix (6) pages
are a true copy of the Reasons

for Judgment herein of his Honour

Aesociate:	Mr Justice p~
Date:	18 deptember 1990
Solicitors	Mr B. Slater for
for Applicant:	Slater Loder
Solicitors	Me K. Hugh for the
for Respondent:	Australian Government Solicitor
Date of Hearing:	18 September 1990
Date Judgment Delivered:	18 September 1990