Valentini, Manueli v Minister for Immigration, Local Government & Ethnic Affairs
[1996] FCA 203
•4 Apr 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) VG 75 of 1994
)
GENERAL DIVISION )
BETWEEN: MANUELI VALENTINI
(Applicant)
AND: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
(Respondent)
CORAM: Ryan J
DATE: 4 April 1996
PLACE: Melbourne
MINUTES OF ORDER
THE COURT ORDERS:
That the application be dismissed, with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) VG 75 of 1994
)
GENERAL DIVISION )
BETWEEN: MANUELI VALENTINI
(Applicant)
AND: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
(Respondent)
CORAM: Ryan J
DATE: 4 April 1996
PLACE: Melbourne
REASONS FOR JUDGMENT
RYAN J: The applicant, a citizen of Fiji born on 11 August 1956, seeks a review of the decision of the delegate of the respondent Minister dated 12 February 1994 refusing an application for an entry permit endorsed under s.20(5) of the Migration Act 1958 ("the Act"). The application had been made on 30 October 1990 pursuant to Reg. 128 of the Migration (1989) Regulations for an extended eligibility (economic) entry permit. The applicant further or alternatively seeks review of the Minister's decision, or conduct between 15 June 1993 and 12 February 1994, constituted by the failure to invite the applicant to complete a notice to the respondent under s. 20(3) of the Act.
Background Facts
On 24 March 1988 the Harlequin Club (Inc), a Victorian Rugby Union First Division club, obtained approval of its sponsorship of the applicant to enter Australia as a distinguished sportsman. By application dated 14 June 1988 and lodged on 16 June 1988 at the Australian High Commission in Suva, Fiji, the applicant applied for entry for temporary residence in Australia. Question 12 on the application form asked, "Have you or any other person included in this application ever been convicted of any crime or offence or placed on probation or committed to a place of detention in any country?" In answer the applicant ticked the "yes" box. Question 12 continued, "if `YES' give the following details; full name, date, name of court and sentence". In response the applicant merely gave his full name.
On 29 June 1988, the applicant and his wife and three children were granted a visa to travel to Australia. On 14 July 1988 he arrived at Melbourne Airport and was granted an entry permit valid until 30 October 1988. Further entry permits were granted the last of which expired on 31 October 1990.
On 30 October 1990, the applicant lodged an application for an extended eligibility (economic) entry permit under Reg. 128 of the Migration (1989) Regulations which, so far as is relevant, provided:
128.(1)The following criteria are prescribed in relation to an extended eligibility (economic) entry permit:
(a)the applicant:
(i)is not, and during the period of 10 years immediately proceeding the day of the application has not been, a prescribed non-citizen; and
(ii)is not the holder of a visitor visa or entry permit, or an illegal entrant; and
(iii)is any of the following:
(A)a person who has held 1 or more than 1 temporary entry permit, permitting temporary residence in Australia for an aggregate period of more than 12 months (other than a retirement, domestic worker (diplomatic or consular) or expatriate entry permit) and has permission to work under an entry permit in force at the time of the application; or
(B)is the holder of a student (formal course) entry permit and has completed a formal course of study at a higher education institution while the holder of such an entry permit; or
(C)is the holder of a working holiday entry permit; and
(iv)satisfies the prescribed criteria in relation to any of the following classes of visas, namely, labour agreement, employer nomination, business (joint venture), business (general), distinguished talent (Australian support) or distinguished talent (independent);
(b)the applicant satisfies public interest criteria as applicable and the prescribed health criteria specified in item 9 in Schedule 1.
After he had lodged his application of 30 October 1990 the applicant was granted processing entry permits.
On 23 October 1992 a Police Certificate was provided to the Department of Immigration, Local Government and Ethnic Affairs ("the Department") detailing offences committed by the applicant in Fiji from 1974 to 1987 and the sentences imposed. It is common ground that the applicant had been imprisoned in Fiji for more than twelve months.
By letter dated 15 June 1993 the Department relevantly advised the applicant that:
I am writing to inform you about your status in Australia due to the operation of Section 20 of the Migration Act 1958 (the "Act").
Section 20 of the Act applies to you for the following reasons;
20(1)(d)(ii)In that on any occasion when you entered Australia you were a person who had been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year.
Under Subsections 14(2) and 35(2) of the Act you are an illegal entrant from the date of your entry into Australia as your entry permit was cancelled by operation of sub-section 35(2) of the Act.
You currently have an application before the Department and this application will be considered against the relevant legislation.
If you are legally entitled to be granted an entry permit you will be invited to complete a notice to the Secretary of the Department in which you will be required to specify the reasons as to why you have come within the scope of Section 20 of the Act. You should note that if you do not submit this notice, you will be precluded from the grant of a properly endorsed entry permit if eligible.
By letter dated 12 February 1994 the applicant was advised by the Department that his application had been refused. In the relevant part of the decision record the delegate, Mr Giaveris, noted:
Assessment and Decision
Regulation 128 prescribes the following criteria for the grant of an extended eligibility (economic) entry permit:
"(a)the applicant:
(i)...; and
(ii)is not the holder of a visitor visa or entry permit, or an illegal entrant; and
(iii)either:
(A)has held 1 or more than 1 temporary entry permit permitting temporary residence in Australia for an aggregate period of more than 12 months ... and has permission to work under an entry permit in force at the time of the application;"
The applicant is an illegal entrant from the date of his entry to Australia because of the operation of Section 14(2) of the Migration Act and any entry permits that were issued to him after his entry are taken to have been cancelled by the operation of Section 35(2) of the Act. That being the case he does not satisfy the criteria prescribed by subregulation 128(1)(a)(iii) as conveyed above.
I have decided not to assess the application against other prescribed criteria as no useful purpose would be served because for an application to be successful all prescribed criteria must be satisfied.
Contentions of the Parties
On behalf of the applicant it was submitted that the Department's letter of 15 June 1993 represented that, if found on the merits to be eligible for an extended eligibility (economic) entry permit, the applicant would, before refusal of his application for that permit, be given an opportunity to regularise his position by submitting a notice under s. 20 of the Act. That representation was said to have been contradicted by the terms of the decision of 12 December 1994 which fastened on the applicant's status as an illegal entrant without giving him an opportunity to correct it.
Mr Bell of Counsel for the respondent argued that, on the proper construction of the Regulations, the applicant, in the events which have happened, could never have satisfied the criterion prescribed by Reg. 128(1)(a)(iii)(A). Accordingly, so the argument went, he could never have been granted a permit even if a favourable view had been taken of his application putting to one side the matters which a notice under s. 20 would have addressed. The delegate correctly understood the consequences of the factual situation in which the applicant found himself as is demonstrated by the reference in the letter of 12 February 1994 to the applicant's failure to "satisfy the criteria prescribed by subregulation 128(1)(a)(iii)". Accordingly, the delegate did not fasten merely on the applicant's status as an illegal entrant which was curable by resort to Reg. 35AA, but on his failure to hold a temporary entry permit or permits permitting residence in Australia for an aggregate of more than twelve months. That failure, on Mr Bell's argument, was not curable by the exercise of any discretion available under the Act or the Regulations.
Which Contention is to be preferred?
The resolution of this application thus turns on the narrow question of whether a person in the position of the applicant could possibly have been granted a permit had he given the requisite notice under s. 20 at some time between 15 June 1993 and 12 February 1994.
Among the prescribed criteria for the relevant entry permit were the negative or disqualifying criteria in sub-paras. (i) and (ii) of Reg. 128(1)(a) which included that the applicant be "not ... an illegal entrant". All the criteria specified by Reg. 128(1), including the negative or disqualifying elements to which I have just referred, fall to be applied as at the date of the application, ie 30 October 1990. That is the consequence of Reg. 34A which provided:
Unless these Regulations otherwise provide, an applicant for a visa or an entry permit must satisfy the prescribed criteria in relation to the relevant class of visas or entry permits (other than public interest criteria and prescribed health criteria) at the time of application and as applicable at that time.
The first question which therefore has to be answered in resolving the issue raised by these proceedings is whether the applicant could, by any action open to him, have shed the status of an illegal entrant on or before 12 February 1994.
The concept of "illegal entrant" was embodied in these terms in s. 14 of the Act before its amendment, with effect from 1 September 1994, by the Migration Legislation Amendment Act 1994 (No. 60 of 1994):
(1)On entering Australia, a non-citizen becomes an illegal entrant unless:
(a)he or she is the holder of a valid entry permit; or
(b)the entry was authorised by section 17.
(2) Where a person to whom subsection 20(1) applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she:
(a)remains in Australia;
(b)is not a citizen; and
(c)does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa.
(2A)If:
(a)because of the production of a bogus document, or the making of a statement, in respect of the grant of an entry permit, subsection 20(2) applies to a person who has entered Australia (whether before or after the commencement of this section); and
(b)subsection 20(1) does not apply to the person;
then, at and after:
(c)that commencement; or
(d)the grant of that permit;
whichever is later, the person is an illegal entrant at any time while he or she:
(e)remains in Australia; and
(f)is not a citizen; and
(g)does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa.
(3) A non-citizen who is the holder of a valid entry permit becomes an illegal entrant if he or she stops being the holder of a valid entry permit while he or she is in Australia.
(4)An exempt non-citizen becomes an illegal entrant if:
(a)while he or she is in Australia, he or she stops being an exempt non-citizen; and
(b)at that time, he or she is not the holder of a valid entry permit
Section 20 of the Act, so far as is relevant, provided:
(1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if:
(a)the person has ever evaded an officer for the purpose of entering Australia; or
(b)when, or before, the person entered Australia on any occasion, he or she:
(i)produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry:
(A)a bogus document; or
(B)a passenger card containing information that was false or misleading in a material particular; or
(ii)made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry, a statement that was false or misleading in a material particular; or
(c)when, or before, a visa was granted or issued on any occasion in respect of the person, he or she:
(i)produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a bogus document; or
(ii)made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a statement that was false or misleading in a material particular;
...
(d)on any occasion when the person entered Australia, the person was:
(i)suffering from a prescribed disease or a prescribed physical or mental condition;
(ii)a person who had been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year;
(iii)a person who had been convicted of 2 or more crimes and sentenced to imprisonment for periods that add up to at least one year if:
(A)any period concurrent with part of a longer period is disregarded; and
(B)any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(C)the crimes were of the same kind; or
(D)the crimes were committed at the same time; or
(E)the convictions were at the same time; or
(F)the sentencings were at the same time; or
(G)the periods were consecutive;
(iv)a person who had been charged with a crime and either:
(A)found guilty of having committed the crime while of unsound mind; or
(B)acquitted on the ground that the crime was committed while the person was of unsound mind;
(v)a person who has been deported from Australia or another country; or
(vi)a person who has been excluded from another country in prescribed circumstances.
...
(3)A person:
(a)to whom subsection (1) would apply if the person entered Australia; or
(b)to whom subsection (1) or (2) applies
may give to the Secretary a notice in the prescribed form stating that the person is, for reasons specified in the notice, a person to whom the subsection concerned would apply, or applies, as the case requires.
(4)Where:
(a)a person has given the Secretary a section 20 notice; and
(b)a visa is granted to the person;
the person granting the visa must endorse the visa with a statement that he or she recognises the holder of the visa to be a person to whom subsection 20(1) applies or would apply for the reasons set out in the section 20 notice.
(4A)if:
(a)the holder of a visa gives the Secretary a section 20 notice; and
(b)the visa is not cancelled by an authorised officer at a proclaimed port;
the authorised officer must endorse the visa with a statement that he or she recognises the holder of the visa to be a person to whom subsection 20(1) applies, or would apply, for the reasons set out in the notice.
...
(5)Where:
(a)a person gives the Secretary a section 20 notice; and
(b)an entry permit is granted to the person;
the person granting the entry permit shall endorse the entry permit with a statement that he or she recognises the holder of the entry permit to be a person to whom subsection 20(1) or (2), as the case requires, applies for the reasons set out in the section 20 notice.
...
(15)In this section:
...
"crime" means an offence punishable:
(a)by death;
(b)by imprisonment for life; or
(c)by imprisonment for a maximum period of at least 6 months;
"officer" includes a person who was an officer for the purposes of the Immigration Restriction Act 1901;
"visa" includes:
(a)a visa or similar notation, or a form of provisional authority to enter Australia, that was issued on behalf of the Commonwealth before 1 November 1979; and
(b)a document or notation that was issued on behalf of the Commonwealth before 1 November 1979 in respect of the return of a person to Australia.
Section 20(1), as I have just reproduced it, applied to Mr Valentini because, when he entered Australia, he was a person who had been convicted of a crime and sentenced to imprisonment for a period of at least one year. He therefore became, by force of s. 14(2), an illegal entrant from the time of his arrival in Australia and retained that status at all times while his application for an extended entry permit was being processed by the Department.
The Minister had a discretion to grant the applicant an entry permit notwithstanding his presence in Australia as an illegal entrant provided that he satisfied the other criteria prescribed for the relevant kind of entry permit at the date of his application. Counsel for the respondent contended that the Ministerial discretion to regularize the applicant's status by granting him a temporary entry permit notwithstanding that he was an illegal entrant was governed by Reg. 35AA(1) which at the relevant time was in these terms:
The Minister may, in spite of any provision of these Regulations except subregulation (2) and subregulations 42(1A), (1B) and (1C), grant a temporary entry permit to a person who is an illegal entrant if:
(a)in the case of a person to whom paragraph 42(1C) (a), (b) or (c) applies:
(i)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
(ii)the Minister is satisfied that the person:
(A)has not departed from Australia since that entry; and
(B)has developed close personal ties with Australia; or
(b)in the case of a person who entered Australia before 19 December 1989, not being a person referred to in paragraph (a):
(i)the person applies for the entry permit not later than 31 October 1990; and
(ii)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
(iii)the Minister is satisfied that there are compelling reasons for granting the entry permit;
Regulation 35AA(2) at all relevant times provided:
The Minister is not to grant an entry permit to a person under subregulation (1) on more than 1 occasion.
Regulation 42(1A) prescribed criteria applicable to illegal entrants by stipulating:
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:
(a)where the applicant for the entry permit:
(i)has been an illegal entrant for less than 12 months; and
(ii)has been arrested under section 92 or 93 of the Act;
that the applicant lodges the application for the entry permit not more than 2 working days after being first so arrested;
(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)that the applicant is a prescribed applicant; or
(ii)that the applicant has lodged the application for the entry permit not more than 12 months after becoming an illegal entrant.
It is common ground that the applicant had been an illegal entrant continuously from his entry into this country until the making of his application for an extended entry permit on 30 October 1990. It is also accepted that he was not a prescribed applicant as defined by Reg. 42(1C). Thus he had not satisfied the requirement of Reg. 42(1A)(b)(ii) that he should have lodged his application for an entry permit within twelve months after becoming an illegal entrant.
Counsel for the applicant, however, points to Reg. 35AA(1A) which came into force on 15 April 1991 and which stipulated:
Despite any other provision in these Regulations, except sub-regulation (2), the Minister may grant an entry permit to a person who:
(a)is an illegal entrant by reason only of the operation of sub-section 14(2) of the Act; and
(b)satisfies the prescribed criteria in relation to that kind of entry permit (other than, if applicable, the prescribed criterion that the person be the holder of a valid entry permit and the criteria prescribed by sub-regulation 42(1A));
if the person applies for the entry permit before being served, or before the expiry of seven working days after the day on which he or she is served, with a notice by the Minister to the effect that the person is an illegal entrant.
The obstacle to reliance on that new sub-regulation posed by the terms of Reg. 34A is sought to be overcome by saying that Reg. 34A referred only to prescribed criteria to be found in Part 3 of the Regulations and had no application to what were called "the general ameliorative provisions" in Part 2. That entailed that the applicant's satisfaction of the criteria prescribed by Reg. 128 fell to be adjudged as at 30 October 1990. By contrast, Reg. 35AA(1A) was in the present tense so as to be available, it was said, in an ambulatory way to allow the Minister a discretion to exercise a "general ameliorative power" irrespective of when the application for the permit had been made. In other words, in terms of Reg. 34A, the Regulations "otherwise provided" by Reg. 35AA(1A) conferring on the Minister from 15 April 1991, a power of the kind just described.
The new sub-reg. 35AA(1A) is expressly conditioned upon an application for a permit being made before, or within seven days of, service of a notice to the effect that the applicant is an illegal entrant. It therefore preserves scope for the operation of Reg. 34A. I consider, contrary to the submission of Counsel for the applicant, that the use of the present tense throughout Reg. 35AA(1A) signifies that its operation is
prospective and not applicable to applications made before it came into force. Had it been intended to govern the Minister's discretion in respect of all applications whenever made it would have been easy for the draftsman to have inserted the expression "or has applied" after the words "if the person applies" appearing immediately after the end of para (b).
The requirement in Reg. 34A that an applicant "must satisfy the prescribed criteria in relation to the relevant class of visas or entry permits" extends to the criteria prescribed by Reg. 42(1A). Regulation 34A on its face contains no limitation on the prescribed criteria which must be satisfied, except for the requirement that they be "in relation to" the relevant class of entry permits. It is not to be imagined that, when inserting Reg. 35AA(1A) in such close proximity to Reg. 34A, the framers of the new sub-regulation intended, without saying so, that it should not attract the application of Reg. 34A but that the latter Regulation should be confined in its operation to criteria prescribed only by Regulations appearing in Part 3.
In light of the conclusion which I have just reached, it is, strictly speaking, unnecessary for me to consider the alternative argument advanced on behalf of the applicant that the criterion prescribed by Reg. 128(1)(a)(iii) did not require that the temporary entry permits permitting temporary residence in Australia for an aggregate period of more than twelve months should be valid permits. The physical holding of permits purporting to permit residence for more than the requisite period was said to be sufficient. Out of deference to the careful submissions which have been addressed to that alternative argument, I propose to indicate the view which I have taken of it.
I discern nothing in the language of Reg. 128(1)(a)(iii)(A) for reading the reference there to a temporary entry permit as including a purported temporary entry permit. Sub-paragraph (iii) may be taken to use expressions like "temporary entry permit" in the same sense as that in which they are used in the Act; (see Acts Interpretation Act 1901 s. 46(a)). "Entry permit" is defined by s. 4 of the Act as meaning "permission to enter or remain in Australia". By force of s. 35(2) of the Act, the entry permit issued to the applicant is taken to have been cancelled when he entered Australia. It is true that s. 4 of the Act also contains definitions of "valid entry permit" and "valid temporary entry permit" which could have been used in Reg. 128(1)(a)(iii)(A) had it been intended to confine that prescribed criterion to a holder for more than twelve months of a permit which had not been cancelled by operation of s. 35. However, "entry permit" is used in Reg. 128(1)(a)(ii) in juxtaposition with "illegal entrant" in a way which indicates that it must be taken as referring to a "valid entry permit".
It was argued by Mr Hurley of Counsel for the applicant that, if "temporary entry permit" in Reg. 128(1)(a)(iii)(A) be not read in the way for which he contends, then an entrant to whom s. 20 applies could never hold a valid temporary permit. That much may be conceded, but as Mr Hurley acknowledged in the course of further discussion, the difficulty could have been cured by a successful application for an endorsed entry permit in accordance with s. 20(5). In the same context, it is to be remembered that Reg. 128(1)(a)(ii) prescribed as one of the disqualifying negative criteria, that the applicant not be an illegal entrant. Thus, if attention is confined to the terms of Reg. 128 itself, no occasion arises for considering the holding of permits for an aggregate period of more than twelve months if the status of being an illegal entrant had not earlier been cured under s. 20(5). Recognition of the discretion under Reg. 35AA to relieve an applicant from the status of being, at the time of the application, an illegal entrant, or of not being the holder of a valid temporary entry permit, does not detract from this consideration as an aid to construction of the expression "temporary entry permit" in Reg. 128(1)(a)(iii)(A). Moreover, account must be taken of the conjoint requirement in the same sub-paragraph (which cannot be disregarded under Reg. 35AA(1)) that the applicant have "permission to work under an entry permit in force at the time of the application".
On the view which I have taken of this alternative argument advanced on behalf of the applicant, it will be seen that he could not succeed even if the new sub-reg. 35AA(1A) were ambulatory in the way contended for by Mr Hurley. The applicant would have remained unable to satisfy the prescribed criterion in relation to an extended eligibility (economic) entry permit that he should have held one or more temporary entry permits permitting residence in Australia for an aggregate period of more than twelve months.
Conclusion
For the reasons just explained, I have been unable to uphold either of the arguments by which the applicant has sought to preserve, as applicable to him, some discretion in the Minister to grant the permit which he sought. Accordingly, the application must be refused with costs.
I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.
Associate:
Date:
Counsel for Applicant : Mr T. Hurley
Solicitors for Applicant : Baker & Armstrong
Counsel for Respondent : Mr K. Bell
Solicitors for Respondent : Australian Government Solicitor
Date of Hearing : 21 February 1996
Date of Judgment : 4 April 1996
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