Wei v Minister for Immigration, Local Government and Ethnic Affairs
[1991] FCA 268
•22 MAY 1991
Re: WEI JIANXIN; ZHAO SHIJI; HONG LIJIAN; SHI XUEHUA and LIU ZHIBIN
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Nos. ACT G3, 4, 5, 6 and 7 of 1991
FED No. 268
Administrative Law
29 FCR 455
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)
CATCHWORDS
Administrative Law - Judicial review - Application for the grant of permanent resident status on humanitarian grounds - Duty to make decision upon application - Decision upon application one to which Administrative Decisions (Judicial Review) Act 1977 (Cth) applies - No law prescribing period within which decision to be made - Whether unreasonable delay in making decision - Considerations to be taken into account.
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.7(1), 16(3)
Migration Act 1958 (Cth)
Migration Legislation Amendment Act 1989 (Cth)
Migration Legislation Amendment (Consequential Amendments) Act 1989 (Cth)
Migration Legislation Amendment Act (No.2) 1989 (Cth) Migration Regulations
HEARING
CANBERRA
#DATE 22:5:1991
Counsel for each of the aplicants: Dr G. Flick
Solicitors for each of the applicants: Gallens Crowley and Chamberlain
Counsel for he respondent: Mr K. Bell
to each application
Solicitor for the respondent: Australian Government Solicitor to each application
ORDER
No. ACT G3 of 1991
The application be dismissed.
There be no order as to the costs of the application.
No. ACT G4 of 1991
1. Declares that there has been unreasonable delay within the meaning of that expression in s.7(1) of the Administrative Decisions (Judicial Review) Act) 1977 (Cth) in making a decision upon the application for the grant of permanent resident status on humanitarian grounds lodged by the applicant on 15 October 1989.
2. Orders that within the period of eight weeks from the date of this order the respondent make a decision, or ensure that an officer of the Department of Immigration, Local Government and Ethnic Affairs having authority to do so makes a decision, upon the said application.
3. Orders that the respondent pay the applicant's costs of the application.
No. ACT G5 of 1991 1. Declares that there has been unreasonable delay within the meaning of that expression in s.7(1) of the Administrative Decisions (Judicial Review) Act) 1977 (Cth) in making a decision upon the application for the grant of permanent resident status on humanitarian grounds lodged by the applicant on 6 November 1989.
2. Orders that within the period of eight weeks from the date of this order the respondent make a decision, or ensure that an officer of the Department of Immigration, Local Government and Ethnic Affairs having authority to do so makes a decision, upon the said application.
3. Orders that the respondent pay the applicant's costs of the application.
No. ACT G6 of 1991 1. Declares that there has been unreasonable delay within the meaning of that expression in s.7(1) of the Administrative Decisions (Judicial Review) Act) 1977 (Cth) in making a decision upon the application for the grant of permanent resident status on humanitarian grounds lodged by the applicant on 27 February 1989.
2. Orders that within the period of eight weeks from the date of this order the respondent make a decision, or ensure that an officer of the Department of Immigration, Local Government and Ethnic Affairs having authority to do so makes a decision, upon the said application.
3. Orders that the respondent pay the applicant's costs of the application.
No. ACT G7 of 1991 1. Declares that there has been unreasonable delay within the meaning of that expression in s.7(1) of the Administrative Decisions (Judicial Review) Act) 1977 (Cth) in making a decision upon the application for the grant of permanent resident status on humanitarian grounds lodged by the applicant on 27 February 1989.
2. Orders that within the period of eight weeks from the date of this order the respondent make a decision, or ensure that an officer of the Department of Immigration, Local Government and Ethnic Affairs having authority to do so makes a decision, upon the said application.
3. Orders that the respondent pay the applicant's costs of the application.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
These five applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") were, by consent, heard together. The applicants, each of whom is a citizen of the People's Republic of China, are Wei Jianxin, Zhao Shiji, Hong Lijian, Shi Xuehua and Liu Zhibin. The respondent to each application is the Minister for Immigration, Local Government and Ethnic Affairs.
Dr Shi entered Australia in January 1984, Messrs Wei, Zhao and Hong in December 1986 and Mr Liu in March 1987. They came to Australia in order to pursue certain studies at the Australian National University at Canberra. Upon entry, each was granted a temporary entry permit under s.6 of the Migration Act 1958 (Cth). The term of each permit was extended from time to time. It is common ground that the applicants remained lawfully in Australia during the period 4-20 June 1989, each of them then being the holder of a temporary entry permit that was in force. The significance of this fact will emerge later in these reasons.
Each of the applicants has applied for permanent resident status on humanitarian grounds. Dr Shi and Mr Liu applied on 27 February 1989, Mr Zhao on 15 October 1989, Mr Hong on 6 November 1989 and Mr Wei on 14 March 1990. Each of the applicants other than Mr Hong has also applied to the Minister for a determination that he or she has refugee status within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967. The present proceedings do not raise for decision any question in relation to the latter applications. Each applicant complains only that no decision has been made upon his or her application for permanent resident status on humanitarian grounds and each seeks an order of review under s.7(1) of the Judicial Review Act in respect of the failure to make a decision on that application. The ground upon which each applicant relies is that there has been unreasonable delay in making the decision.
Section 7(1) of the Judicial Review Act provides:
"(1) Where:
(a) a person has a duty to make a decision to which this Act applies;
(b) there is no law that prescribes a period within which the person is required to make that decision; and
(c) the person has failed to make that decision; a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision."
Section 16(3) of that Act, so far as material, provides:
"(3) On an application for an order of review in respect of a failure to make a decision ..., the Court may, in its discretion, make all or any of the following orders:
(a) an order directing the making of the decision;
(b) an order declaring the rights of the parties in relation to the making of the decision;
(c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties."
The applications by the applicants other than Mr Wei were made under s.6A(1)(e) of the Migration Act in the form in which it stood at the time each of those applications was made. Mr Wei's application was made under the amended provisions of that Act to which reference will hereafter be made. At all material times prior to their repeal by s.6 of the Migration Legislation Amendment Act 1989 (Cth), a provision which came into operation on 19 December 1989, ss.6 and 6A and 7 of the Migration Act, so far as relevant for present purposes, provided:
"6. (1) ...
(2) An authorised officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.
(2A) ...
(3) An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both.
(4) ...
(5) An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to section 6A, after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of this Part).
(6) An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions. ...
6A.(1) An entry permit shall not be granted to a non- citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -
(a) ...
(b) ...
(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;
(d) ...
(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.
(2) ...
(3) Subject to sub-section (2), an entry permit shall not be granted to a non-citizen after his entry into Australia otherwise than by -
(a) the Minister; or
(b) an officer authorized by the Minister, by instrument in writing, to be an authorized officer for the purposes of this section.
...
(8) In this section, a reference to an entry permit shall be read as a reference to an entry permit other than a temporary entry permit.
7. (1) ...
(2) At any time while a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder and, where such a further entry permit is granted while a temporary entry permit is in force, the further entry permit shall come into force only upon the expiration or cancellation of the existing entry permit.
(2A) ...
(3) Upon the expiration or cancellation of a temporary entry permit, the person who was the holder of the permit becomes a prohibited non-citizen unless a further entry permit applicable to him comes into force upon that expiration or cancellation."
Shortly after 4 June 1989, the Minister for Immigration, Local Government and Ethnic Affairs announced that nationals of the People's Republic of China who were legally in Australia on 4 June 1989 would, upon application, be granted any necessary extension of their temporary entry permits to permit them to remain in Australia until 31 July 1989. Within a short time after the first announcement, that date was extended to 31 July 1990. The automatic extension of a temporary entry permit was to be subject to certain conditions to which it is unnecessary to refer. It may be noted, however, that the relevant documentation appears to have used the words "national" and "citizen" as interchangeable terms. The significance of the date 4 June 1989 is that that was the date upon which the event which has become known as the Tiananmen Square massacre occurred at Beijing, the capital of the People's Republic of China.
The Migration Legislation Amendment Act received the Royal Assent on 19 June 1989. Part 2 of that Act (comprising ss.3-35 inclusive) as amended by the Migration Legislation Amendment (Consequential Amendments) Act 1989 (Cth) and the Migration Legislation Amendment Act (No.2) 1989 (Cth) made significant amendments to the Migration Act. Section 2(4) of the Migration Legislation Amendment Act provided that, subject to s.2(5), certain provisions of the Act, including the provisions of Part 2 other than s.35, were to commence on a day to be fixed by Proclamation. By virtue of s.2(5), if a provision of Part 2 other than s.35 had not commenced within the period of 6 months beginning on the day on which the Act received the Royal Assent, that provision was to commence on the first day after the end of that period. Section 2(6) provided that s.35 was to commence on the day after the provisions of the Act referred to in s.2(4) commenced. Pursuant to s.2(5), the provisions of Part 2 other than s.35 commenced on 19 December 1989. Pursuant to s.2(6), s.35 commenced on 20 December 1989. That section provided for the renumbering and re-lettering of the provisions of the Migration Act as amended by the provisions contained in Part 2 other than s.35. I shall refer to the provisions in force on and after 19 December 1989 by reference to the provisions as so renumbered or re-lettered.
As has already been mentioned, s.6 of the Migration Legislation Amendment Act repealed ss.6, 6A and 7 of the Migration Act as in force immediately prior to 19 December 1989. However, the amending Act provided that, in spite of the repeal of those sections, the provisions of the Migration Act relating to the granting of visas and entry permits as in force immediately before 19 December 1989 were to continue to have effect on and after that date for the purposes of applications for visas or entry permits made before that date (Migration Legislation Amendment Act, s.6(4)). Thus, the provisions in force immediately before 19 December 1989 continue to apply to the applications for permanent resident status made by the applicants other than Mr Wei.
Since the coming into operation on 19 December 1989 of the relevant provisions of the Migration Legislation Amendment Act, the provisions relating to the issue of entry permits have been contained in Division 3 of Part 2 of the Migration Act. Section 33 within that Division provides, inter alia, that the regulations may make provision in relation to the granting of entry permits, including the granting of entry permits subject to conditions or subject to a limitation as to the time the holder is authorised to remain in Australia (s.33(1)(a)) and in relation to the effect and operation of entry permits (s.33(1)(c)). The regulations may provide for different classes of entry permits (s.33(2)). They may also provide that, subject to ss.40 and 45 (which have no relevance for present purposes), a person is to be entitled to be granted an entry permit of a particular class if that person satisfies all the prescribed criteria in relation to that class (s.33(2)). Section 33(4), so far as relevant, provides:
"(4) The conditions subject to which temporary entry permits may be granted pursuant to regulations made under paragraph (1)(a) include, but are not limited to:
(a) the condition that the temporary entry permit will be taken not to be a valid temporary entry permit for the purposes of section 47;
(b) ...; and
(c) a condition imposing restrictions about the work that may be performed in Australia by the holder, including restrictions on performing:
(i) any work;
(ii) work other than specified work; or
(iii) work of a specified kind; without the permission in writing of the Secretary."
Section 34(3) provides that, 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 is, subject to Division 3 of Part 2 of the Act, to grant the applicant such an entry permit.
By virtue of s.47(1), a provision also within Division 3 of Part 2 of the Act, a permanent entry permit is not to be granted to a non-citizen after entry into Australia unless at least one of the lettered paragraphs in that sub-section applies to the non-citizen. For present purposes it is sufficient to refer to pars.(d), (f) and (g), those paragraphs being in the following terms:
"(d) he or she is the holder of a valid temporary entry permit and the Minister has determined, in writing, that the non-citizen has the status of refugee within the meaning of:
(i) the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951; or
(ii) the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;" "(f) he or she is the holder of a valid temporary entry permit and there are strong compassionate grounds for the grant of a permanent entry permit to him or her;
(g) he or she is the holder of a valid temporary entry permit and there are strong humanitarian grounds for the grant of a permanent entry permit to him or her."
The Migration (Criteria and General) Regulations, being Statutory Rules 1989 No. 365, came into operation on 18 December 1989. Those regulations were amended by the Migration (Criteria and General) Regulations (Amendment) Regulations, being Statutory Rules 1989 No. 414, which came into operation on 21 December 1989. The amendments so made included an amendment changing the title of the regulations to the Migration Regulations and amendments consequent upon the renumbering and re-lettering of the Migration Act effected by s.35 of the Migration Legislation Amendment Act. It is not necessary to refer to the regulations as they stood prior to being so amended.
Regulation 21 prescribes the classes of entry permits for the purposes of s.33(2)(a) of the Migration Act. Prior to its amendment by reg.4 of the Migration Regulations (Amendment) Regulations, being Statutory Rules 1990 No.371, a provision which commenced on 10 December 1990, those classes of entry permits were the classes of entry permits specified in Column 2 in Schedule 3 to the regulations and the classes of entry permits specified in Division 4, 5 and 6 respectively of Part 3. Since that date the classes have been those specified in Schedule 3, that being the Schedule as substituted by Statutory Rules 1990 No. 371 or that schedule as subsequently amended. Regulation 42(1) provides that, subject to ss.40 and 45 of the Act (sections which are not presently relevant), a person is entitled to be granted an entry permit of a class specified in the regulations if the person satisfies the prescribed criteria in relation to that class of entry permits.
The regulations prescribe criteria in respect of various classes of entry permits. Division 4 of Part 3 (which commences with reg.108) prescribes criteria in relation to entry permits in certain special cases. Division 5 of Part 3 (which commences with reg.120) prescribes criteria in relation to temporary entry permits granted only in Australia and Division 6 of Part 3 (which commences with reg.133) prescribes criteria in relation to certain classes of permanent entry permits granted only after entry to Australia.
Prior to the substitution, with effect on and from 10 December 1990, of the new schedule by the Migration Regulations (Amendment) Regulations, being Statutory Rules 1990 No. 371 notified in the Commonwealth of Australia Gazette on 30 November 1990, Schedule 3 consisted of 3 Parts. Part 1 prescribed classes of entry permits to which no additional prescribed criteria applied, Part 2 prescribed classes of entry permits to which additional prescribed criteria applied and Part 3 prescribed further classes of entry permits. One of the classes of entry permits prescribed in Part 2 of Schedule 3 was described as "humanitarian grounds". That class was referred to as item number 8 and had assigned to it the code number 807. Regulation 141, as amended by Statutory Rules 1990 No. 1, provided:
"141.(1) The additional criteria in relation to a humanitarian grounds entry permit are the following criteria:
(a) the applicant meets the requirements of at least one of the paragraphs of subsection 47(1) of the Act;
(b) the Minister is satisfied that:
(i) there are strong humanitarian grounds for granting the entry permit; and
(ii) resettlement in Australia is the most appropriate course for the applicant; and
(iii) such resettlement would not be contrary to the interests of Australia; and
(iv) there is no country (other than the country in which the applicant is resident) in which the applicant is entitled to reside.
(2) In this regulation, a reference to strong humanitarian grounds is a reference to any of the following grounds:
(a) a substantial political upheaval involving individual danger to the applicant:
(i) has taken place in the applicant's usual country of residence; and
(ii) has been specified by the Minister by notice published in the Gazette as such an upheaval; or
(b) a major natural disaster, involving the destruction of the applicant's home and livelihood:
(i) has taken place in his or her usual country of residence;
(ii) has been specified by the Minister by notice published in the Gazette as such a disaster; or
(c) significant changes, involving significant repression of a political, social, religious or ethnic group or body of which the applicant is a member:
(i) have taken place in the applicant's usual country of residence; and
(ii) have been specified by the Minister, by notice published in the Gazette, as such significant changes; or
(d) the grounds constituted by the additional criteria specified in regulation 107;
with the result that there is a substantial probability that the applicant personally will suffer serious and lasting consequences.
(3) A ground constituted by an event referred to in a paragraph of subregulation (2) is not to be taken to be a strong humanitarian ground unless the event occurred after the arrival of the applicant in Australia."
There is nothing in the material before the Court to suggest that any relevant notice was ever published in the Commonwealth of Australia Gazette in relation to the events in the People's Republic of China in June 1989 so as to satisfy the requirements of par. (a), (b) or (c) of reg.141(2). Paragraph (d) of that sub-regulation has no relevance to the circumstances of any of the applicants.
On 8 December 1989, the Minister had publicly foreshadowed that regulations would be made to permit nationals of the People's Republic of China who were in Australia illegally on 20 June 1989 to receive, on application, a special temporary entry permit which would be valid until 31 January 1991. The Minister also announced that nationals of that country who currently held valid temporary entry permits and who were in Australia on 20 June 1989 could apply to extend their permits until 31 January 1991. The relevant regulations are the Migration Regulations (Amendment) Regulations (being Statutory Rules 1990 No.1) which were notified in the Commonwealth of Australia Gazette on 15 January 1990. By those regulations Part 3 of Schedule 3 was amended by adding at the end of that Part the items - "extended eligibility (PRC) entry permit" and "PRC citizen entry permit". The former was referred to as item number 28 and had assigned to it the code number 829: the latter as item number 29 with the code number 434. The regulations were also amended to insert regs 119D and 119E reading as follows:
"119D. (1) The following criteria are prescribed in relation to an extended eligibility (PRC) entry permit:
(a) the applicant is a citizen of the People's Republic of China;
(b) the applicant was present in Australia on 20 June 1989 and was the holder, on that day, of a valid temporary entry permit;
(c) the applicant applies in Australia for the entry permit not later than 31 March 1990.
(2) An extended eligibility (PRC) entry permit is not to be granted except:
(a) as a temporary entry permit; and
(b) in respect of a period ending not later than 31 January 1991.
119E. (1) The following criteria are prescribed in relation to a PRC citizen entry permit:
(a) the applicant is a citizen of the People's Republic of China;
(b) the applicant was present in Australia on 20 June 1989 and was, on that day, an illegal entrant;
(c) the applicant applies in Australia for the entry permit not later than 31 March 1990.
(2) A PRC citizen entry permit is not to be granted:
(a) except as a temporary entry permit; and
(b) except in respect of a period ending not later than 31 January 1991; and
(c) unless granted subject to the condition specified in paragraph 33(4)(a) of the Act."
As already mentioned, the condition specified in par.33(4)(a) of the Act is a condition that the temporary entry permit is to be taken not to be a valid temporary entry permit for the purposes of s.47, that section setting out the circumstances in which permanent entry permits may be granted to non-citizens after entry into Australia.
By the Migration Regulations (Amendment) Regulations, being Statutory Rules 1990 No.34 notified in the Commonwealth of Australia Gazette on 20 February 1990, reg.119D was amended by omitting par.(1)(b) and substituting the following paragraph:
"(b) either:
(i) the applicant was present in Australia and the holder of a valid temporary entry permit at any time during the period commencing on 4 June 1989 and ending at the end of 20 June 1989; or
(ii) the applicant:
(A) was the holder of a valid temporary entry permit; and
(B) had made before 21 June 1989 an application for a temporary entry permit that was subsequently granted;".
By the Migration Regulations (Amendment) Regulations, being Statutory Rules 1990 No.75 notified in the Commonwealth of Australia Gazette on 16 March 1990, reg.119D was further amended by omitting from sub-subparagraph (1)(b)(ii)(B) "subsequently granted" and substituting "granted on or after 21 June 1989" and reg.119E was amended by omitting from par.(1)(b) "an illegal entrant" and substituting "a prohibited non-citizen under the Act". The amendment to reg.119D was to be taken to have commenced on 20 February 1990 and the amendment to reg.119E on 15 January 1990.
Statutory Rules 1990 No.34 also amended Part 2 of Schedule 3 to the regulations to include the following as a prescribed class of entry permits -
"PRC citizen (permanent)".
That class of entry permits was identified by the item number 10 and was assigned the code number 809. The regulations were also amended to insert reg.142A. That regulation was repealed and a new regulation substituted by the Migration Regulations (Amendment) Regulations, being Statutory Rules 1990 No.69 also notified in the Commonwealth of Australia Gazette on 20 February 1990. The substituted reg.142A read as follows:
"142A. The additional criteria in relation to a PRC citizen
(permanent) entry permit are as follows:
(a) the applicant is a citizen of the People's Republic of China and was present in Australia on or before 20 June 1989; and
(b) the applicant meets the requirements of at least one of the paragraphs of subsection 47(1) of the Act; and
(c) the applicant:
(i) holds a valid extended eligibility (PRC) entry permit; or
(ii) holds a temporary entry permit that is not subject to the condition referred to in paragraph 33(4)(a) of the Act; and
(d) the Minister is satisfied that, at the time when the application is decided:
(i) resettlement in Australia is the most appropriate course for the applicant; and
(ii) resettlement would not be contrary to the interests of Australia; and
(iii) there is no country (other than the country in which the applicant is normally resident) in which the applicant is entitled to reside; and
(iv) if the applicant is not resettled in Australia, there is a substantial probability that, because of circumstance involving individual danger to the applicant, the applicant will personally suffer serious and lasting consequences."
Regulation 142A was repealed with effect on and from 27 June 1990 by the Migration Regulations (Amendment) Regulations, being Statutory Rules 1990 No.204.
By the Migration Regulations (Amendment) Regulations, being Statutory Rules 1990 No.75 notified in the Commonwealth of Australia Gazette on 16 March 1990, the regulations were also amended by inserting reg.22B. Sub-section (1) of that section provided:
"(1) An application by a citizen of the People's Republic of China for a humanitarian grounds entry permit also has effect as an application for a PRC citizen (permanent) entry permit."
That sub-section was to be taken to have commenced on 20 February 1990 (see Statutory Rules 1990 No.75, reg.1(3)).
By the Migration Regulations (Amendment) Regulations, being Statutory Rules 1990 No.237 notified in the Commonwealth of Australia Gazette on 12 July 1990, Schedule 3 was amended, inter alia, by omitting from Part 2 items 8 and 10, by omitting from Part 3 items 26, 27, 28 and 29 and by adding, as the new item 26 in Part 3, a class of entry permits described as "PRC (temporary)". That class was assigned the code number 437. The regulations were also amended by repealing regs 22B, 119D, 119E and 141 and by inserting reg. 119H in the following terms:
"119H.(1) The following criteria are prescribed in relation to a PRC (temporary) entry permit:
(a) the applicant is a citizen of the PRC;
(b) movement records kept by the Department show that the applicant entered Australia on or before 20 June 1989 and was in Australia on that day;
(c) the applicant has undergone:
(i) a medical examination carried out by a medical officer of the Australian Government Health Service; and
(ii) a chest X-ray examination conducted by a medical practitioner who qualified as a radiologist in Australia;
(d) the applicant satisfies applicable prescribed public interest criteria.
(2) A PRC (temporary) entry permit is not to be granted to a person who is an applicant for a visa or entry permit of another kind.
(3) A PRC (temporary) entry permit is not to be granted except:
(a) as a temporary entry permit; and
(b) for a period ending on 30 June 1994.
(4) A PRC (temporary) entry permit is granted on the condition that it is not taken to be a valid temporary entry permit for the purposes of section 47 of the Act."
Regulation 119H commenced on 1 August 1990 (see Statutory Rules 1990 No.237, reg.1(7)). The other amendments came into operation on 12 July 1990. Regulation 119H was amended by the Migration Regulations (Amendment) Regulations, being Statutory Rules 1990 No.320 notified in the Commonwealth of Australia Gazette on 18 October 1990. It is, however, unnecessary for present purposes to refer to that amendment.
Numerous other amendments have been made to the Migration Regulations but it appears to be unnecessary to refer to them for the purpose of determining the issues that arise in these proceedings.
Affidavits were filed on behalf of each of the applicants and on behalf of the respondent. No objection was raised on behalf of any party to the admission of each of those affidavits into evidence and they were so admitted with the exception of par.3 of the affidavit of Mr Hong affirmed on 24 January 1991 which paragraph was not read. In the course of the oral evidence subsequently given by Wayne Julian Gibbons and Sue Patricia Ingram, both officers of the Department of Immigration, Local Government and Ethnic Affairs, certain paragraphs of their respective affidavits were amended. It was agreed between the parties that the evidence received in respect of any one application was to be treated, so far as relevant, as evidence in each of the other applications.
Reference has already been made to the fact that the applications for permanent resident status by the applicants other than Mr Wei were made prior to 19 December 1989 when the provisions of Part 2 other than s.35 of the Migration Legislation Amendment Act came into operation. Mr Wei's application for permanent resident status was not made until 14 March 1990. It appears from the documents signed by Mr Wei that his application was for an entry permit within the class referred to as "humanitarian grounds" with the code number 807 (see regs 21 and 141 and Schedule 3, Part 2, item 8). However, by virtue of reg.22B(1), a regulation which was notified in the Commonwealth of Australia Gazette on 16 March 1990, that is to say two days after Mr Wei's application was made, an application by a citizen of the People's Republic of China for a humanitarian grounds entry permit was also to have effect as an application for a PRC citizen (permanent) entry permit. The latter class of permit was item number 10 in Part 2 of Schedule 3 to the regulations with the code number 809. As mentioned above, reg.22B was to be taken to have commenced on 20 February 1990. It was, however, repealed with effect on and from 12 July 1990. Further, items 8 and 10 in Part 2 of Schedule 3 and reg. 141 were repealed with effect on and from 12 July 1990. Regulation 142A, which prescribed additional criteria in relation to a PRC citizen (permanent) entry permit was repealed with effect on and from 27 June 1990. Nothing was said in the repealing regulations concerning applications which had previously been made for entry permits of the classes mentioned but in respect of which no decision had been made when the relevant repeal took effect. For completeness it should be mentioned that on 14 March 1990 Mr Wei also applied for an extended eligibility (PRC) entry permit (code number 829). That application was apparently granted but such a permit could only be granted for a period ending not later than 31 January 1991 (see reg.119D(2)(b)). The only other applicant to apply for an extended eligibility (PRC) entry permit (code number 829) was Mr Zhao. None of the applicants has applied for a PRC (temporary) entry permit (code number 437). None of the applicants is at present the holder of an entry permit that is in force. Each of them has, therefore, become an illegal entrant.
In the light of the repeal of the regulations that operated to include humanitarian grounds entry permits (code number 807) and PRC citizen (permanent) entry permits (code number 809) in the classes of entry permits that might be granted by the Minister and the repeal of regs 22B, 141 and 142A, the question arises whether, upon the application made by Mr Wei on 14 March 1990, the Minister may now grant to him an entry permit within either of those classes. As this aspect of the matter had not been fully explored at the hearing, I requested counsel for Mr Wei and for the Minister to consider the matter further and to furnish written submission thereon. This has now been done, counsel for both parties submitting that, by making his application on 14 March 1990, a right had been acquired by, or had accrued to, Mr Wei within the meaning of s.50(a) of the Acts Interpretation Act 1901 (Cth) to have the application dealt with under the regulations as they stood before their repeal and that, by virtue of the operation of that provision, such right was not affected by the repeal. The right which is said to have been acquired or to have accrued prior to the repeal of the relevant regulations is a right to have the application dealt with by the Minister as if the repealed regulations were still in force. Thus the Minister would be required to determine, in terms of s.34(3) of the Migration Act, whether it appears to him that Mr Wei is, under the terms of the regulations as they existed prior to their repeal, entitled to be granted an entry permit within either of the classes mentioned. The matter is further complicated by the circumstance that the application lodged on 14 March 1990 was for a humanitarian grounds entry permit (code number 807), a class of entry permit for which Mr Wei appears not to have been eligible by reason of the absence of the publication of any relevant notice so as to satisfy the requirements of par.(a), (b) or (c) of reg.141(2). It thus becomes necessary for him to rely on the since repealed reg.22B to have his application treated as an application for a PRC citizen (permanent) entry permit (code number 809).
The matter seems to me to be far from clear but, as the Court was informed that the Minister proposes to consider Mr Wei's application on the basis that at the time of the repeal of the relevant regulations, he had a right to have his application dealt with under their provisions and that such right is preserved by s.50(a) of the Acts Interpretation Act, I shall refrain from expressing an opinion on the question.
The essence of the case made on behalf of each of the applicants is, in terms of s.7(1) of the Judicial Review Act, that the respondent has a duty to make a decision upon his or her application for the grant of permanent resident status, that such a decision is a decision to which the Judicial Review Act applies, that there is no law prescribing a period within which the respondent is required to make that decision, that the respondent has failed to make that decision, that the applicant is a person who is aggrieved by the failure of the respondent to make that decision and that there has been unreasonable delay in making the decision.
The respondent has made a number of concessions for the purposes of the present applications. A summary of the position is deposed to in par.4 of the affidavit, affirmed on 12 February 1991, of Wayne Julian Gibbons who holds a position of Deputy Secretary in the Department of Immigration, Local Government and Ethnic Affairs. That paragraph is in the following terms:
"In summary, the position of government in relation to the issue of delay brought into question in the applications herein is that it is accepted that the applicants have a right to have processed and determined their various applications for permanent residence of Australia and refugee status. Indeed, for the purposes of the applications herein it is accepted by the Minister that he has a duty to process and determine these applications within a reasonable time."
It is also not in dispute that no decision has been made upon any of the relevant applications and that a decision whether or not to grant permanent resident status is a decision to which the Judicial Review Act applies. Thus, the sole question for determination in relation to each of the applications is whether, by reason of the admitted delay on the part of the respondent, there has been unreasonable delay within the meaning of that expression in s.7(1) of the Judicial Review Act in making a decision on that application.
The respondent has acknowledged and accepted that the delay in making a decision upon each of the applications is unsatisfactory, undesirable and regrettable but has submitted that it has been unavoidable and unavoidable for reasons beyond the respondent's control. In par.4 of the affidavit to which reference has already been made, as amended in his oral evidence, Mr Gibbons puts the matter thus:
"... the applicants are but five of many thousands of PRC citizens who have made similar applications, and many more thousands of persons who are not PRC citizens have made application for permanent residence or for refugee status since 1989. Special provision has been made by the government for the residence and well-being of PRC citizens over and beyond what is normally provided for non-citizens of Australia because of the government's acceptance of the special circumstances created by their plight. But in relation to their applications for permanent residence and refugee status, it has been necessary to consider their applications in the context of the unexpected massive increase in applications for permanent residence and refugee status generally. It has been decided to apply the available resources of the Department to the processing of applications from non-PRC citizens in fairness to the circumstances of these persons because PRC citizens who were in Australia on 20 June 1989 have access to special provisions to which these persons do not have access. The Department has now obtained additional resources from the Department of Finance to enable the reduction of processing times for all applicants. Every attempt has been and will continue to be made to minimise the practical affect of the processing priority decision on the five applicants herein and on all other PRC citizens who have made similar applications, and they certainly will not be deported unless they seriously breach Australia (sic) laws, consistent with the government's undertaking. Otherwise, regrettably, the Minister considers for the reasons set out in the affidavits filed on his behalf in the applications herein that other applications must be afforded processing priority."
It appears from an earlier paragraph of the affidavit that "PRC" is an abbreviation for People's Republic of China.
Counsel for the respondent submitted that the number of applications for the grant of permanent resident status together with the number of applications for the determination of refugee status has strained the resources of the Department "well over the limit" and that this has inevitably led to decisions being taken that some applications not be dealt with, that the remaining applications be dealt with according to a system of priorities and that extra staff be obtained.
To establish what he referred to as "the broader picture", counsel for the respondent referred to statistical material that had been adduced in evidence. The material on which the respondent relies (Exhibit "A") shows that at the beginning of February 1990 there were on hand within the various regional offices of the Department of Immigration, Local Government and Ethnic Affairs awaiting final determination 27,790 cases for the grant of permanent resident status affecting 32,329 persons. Of those, 8,844 cases affecting 10,928 persons were grouped under the heading "Humanitarian". Of those 10,928 persons, 5,120 were shown as being nationals of the People's Republic of China. Counsel for the respondent also referred to the evidence of Alfonso Reina, a Director of the Determination of Refugee Status Secretariat, that as at 12 February 1991 the number of cases on hand in which a determination of refugee status was awaited was estimated to be 13,000; that, of those, 8,000 cases related to citizens of the People's Republic of China; that a majority of the 13,000 cases had been received since December 1989 and that the situation was to be compared "with an historical trend in refugee applications numbering around 500 per annum".
In addition to the statistical material upon which counsel for the respondent specifically relied in his closing address, there is other statistical material before the Court to which some reference should be made.
Annexure "N" to Mr Gibbons' affidavit shows the number of applications for the grant of permanent resident status (including those received from citizens of the People's Republic of China) during each of the months of January 1989 to December 1990 (inclusive). During the period from 1 January 1989 to 30 November 1989, the monthly total varied but in no month did it exceed 2,500. In some months during that period the number was considerably smaller. In December 1989, however, the number of such applications received exceeded 11,000. The number received each month fell away in 1990, the total for the year being approximately 12,000. Mr Gibbons states in his affidavit that, while an increasing number of applications for permanent resident status were determined over the period 1 January 1989 to 31 December 1990 (as to which see annexure "O" to his affidavit), little impact was made upon what was referred to as "the backlog". The statistical material to support the latter statement is not in evidence. The correctness of the statement was not, however, challenged.
The number of applications for the grant of permanent resident status received from citizens of the People's Republic of China during each of the months of June to December 1989 inclusive is shown (see Annexure "P" to Mr Gibbons' affidavit) to have been:
June 247
July 238
August 277
September 228
October 280
November 388
December 5,399
7,057
Of the applications for permanent resident status in respect of citizens of the People's Republic of China that were unresolved as at February 1990, applications affecting 6,155 persons or 82% of the total had been lodged at regional offices of the Department in New South Wales, applications affecting 806 persons had been lodged at regional offices in Victoria and applications affecting 495 persons had been lodged at offices in other parts of Australia (see Exhibit "A"). Mr Gibbons, in cross-examination, agreed that less than 2 per cent. of the total number of such applications had been lodged at the regional office of the Department in the Australian Capital Territory. He further agreed that the percentages remained substantially the same throughout 1990.
As at April 1990, the number of applications for permanent resident status by citizens of the People's Republic of China that remained unresolved related to 8,079 persons, details being shown (Exhibit "C") as follows:
New South Wales 6,272 Victoria 1,314 Queensland 175 South Australia 87 Western Australia 96 Tasmania 10 Northern Territory 4 Australian Capital Territory 121 8,079
A table contained in the statistical material as at February 1990 (Exhibit "A"), classifies the unresolved applications for the grant of permanent resident status, totalling 30,153, according to the length of time since the applications were lodged. What is set out below reproduces the information contained in the table referred to, column 1 representing the number of months since the applications were lodged and column 2 the number of applications unresolved:
Column 1 Column 2 0-2 12,493
2-3 1,608
3-4 1,652
4-5 2,070
5-6 1,498
6-7 1,558
7-8 1,256
8-9 1,240
9-10 976
10-11 886
11-12 780
12-13 646
13-14 515
14-15 480
15-16 379
16-17 277
17-18 292
18-24 847
24+ 700
30,153
Of the total number of unresolved applications, more than 20,000 had been lodged at regional offices of the Department in New South Wales, some 7,000 at regional offices in Victoria and of the order of 600 to 700 at the regional office in the Australian Capital Territory.
Other material within Exhibit "A" shows that, in respect of the period July to December 1989, the processing times for approval in principle, and for final decision, of applications for the grant of permanent resident status were in New South Wales approximately 10 months and 22 months respectively, in Victoria approximately 12 months and 31 months and in the Australian Capital Territory 5 months and 12 months. Over the whole of Australia the respective times were approximately 10 months and 22 months. It is obvious that these statistical figures must be used with caution: the processing times for a particular application could be longer or shorter than the times shown depending on the circumstances of the particular case.
Counsel for the applicants also asked questions of Mr Gibbons concerning the number of applications for permanent resident status received at the regional office of the Department in the Australian Capital Territory, the staff available in that office to deal with those applications and the level of performance of that office in dealing with such applications to finality compared with the comparable level of performance of other regional offices of the Department. I do not think it is necessary to set out Mr Gibbons' answers in these reasons. The questions were clearly prompted by the circumstance that each of the applicants at present before the Court lodged his or her application for permanent resident status at the regional office of the Department in the Australian Capital Territory.
Between June 1989 and May 1990 (see Annexure "Q" to Mr Gibbons' affidavit), 1,098 applications were received from citizens of the People's Republic of China for the determination of refugee status, the number of applications received in each month being:
1989
June 24
July 41
August 37
September 12
October 40
November 10
December 73
1990
January 121
February 181
March 262
April 124
May 173
1,098
Counsel for the respondent also submitted that the Court should have regard to what were referred to as the measures taken by the government following upon the events in the People's Republic of China in June 1989 to afford special protection to citizens of that country who were in Australia on 20 June 1989. Those measures, it was said, were designed to strike a balance between "the government's humanitarian obligations and its responsibility to maintain control over the size and structure of the general immigration program". The essential features of those measures, some administrative and others legislative, are referred to earlier in these reasons.
Special emphasis was placed upon the amendments to the Migration Regulations that included in the classes of entry permits that might be granted the class of entry permits described as "PRC (temporary)" with the code number 437 and that prescribed the criteria for the grant of entry permits of that class. A permit within that class entitles the holder to remain in Australia until 30 June 1994 (see reg.119H(3)). Paragraphs 33 and 34 of the affidavit of Mr Gibbons to which reference has already been made summarises the position put in this regard on behalf of the respondent:
"33. The arrangements in the Migration Regulations provided for PRC citizens whether they were in Australia legally or illegally on 20 June 1989, but greater provision was made for those who were in Australia legally on policy grounds. This is also set out in greater detail elsewhere.
34. I emphasise that the special arrangements made under the Old Migration Act and the Migration Regulations are additional to those applying to non-citizens of Australia generally. They offered to PRC citizens, whether legally or illegally in the country, much greater protection than is afforded to other non-citizens, and this is consistent with government policy on the PRC citizens plight. In particular, the Class 437 permit confers on PRC citizens who were in Australia on 20 June 1989 an almost automatic entitlement to residence for four years, together with a generous range of social services and other benefits which go beyond provision of mere survival benefits and contemplate long-term residence in Australia. This effectively confers on them as a group the same status as refugees who, under the present Migration Regulations, are also entitled only to four years' residence. The Class 437 permit is properly seen as an additional benefit for PRC citizens who were in Australia on 20 June 1989 that is provided due to their unique situation. Take-up of the Class 437 permit, and the consequent enjoyment of its additional benefits is voluntary. PRC citizens may pursue all of the usual or other additional courses made available under the Migration Regulations..."
The reference to the "Old Migration Act" is a reference to the Act as it stood prior to the coming into operation on 19 December 1989 of Part 2 other than s.35 of the Migration Legislation Amendment Act.
In her affidavit affirmed on 12 February 1991, Sue Patricia Ingram, a senior officer of the Department of Immigration, Local Government and Ethnic Affairs, deposes (pars 20 and 21) as follows:
"20. Holders of the Class 437 TEP have access to a range of social welfare and other benefits that are not available to others who are awaiting determination of their permanent residence or refugee status applications. This legislative initiative followed on from the earlier initiatives introducing new Classes of entry permits for PRC citizens.
21. The Class 437 TEP gives PRC citizens the opportunity to extend their stay in Australia until 30 June 1994 under the current Migration Regulations. It also enabled the holder and members of his or her family to obtain the following:
(a) Special Benefit, Family Allowance and Family Allowance Supplement under the Social Security Act 1947;
(b) benefits under the National Health Act 1953 (i.e. Medicare);
(c) unrestricted permission to work;
(d) access to the labour market and skills enhancement programs offered by the Department of Employment, Education and Training;
(e) access to the Adult Migration Education Program, and English language courses where needed;
(f) sponsorship of overseas immediate family members from 1 February 1991;
(g) educational subsidies in respect of part-completed courses to which subsidies already attach;
(h) study at tertiary institutions on the usual payment basis if no subsidy was currently being paid; and
(i) access to primary and secondary education for dependant children.
Other applicants for permanent residence could only obtain permission to work or, if they had a substantial claim for refugee status, consideration for the discretionary grant of a Special Benefit under the Social Security Act 1947. Normally such persons are expected to support themselves in most respects, and clearly this causes all such persons considerable hardship by comparison with the holder of a Class 437 permit. This was the basis upon which the decision was made to give priority to applications from other than PRC citizens who were present in Australia on 20 June 1989..."
"TEP" is an abbreviation for "temporary entry permit".
Two comments must, however, be made in relation to the PRC (temporary) (code number 437) class of entry permits. The first is that a permit of that class is not to be issued to a person who is an applicant for an entry permit of another kind (see reg. 119H(2)), so that, before any of the applicants could receive such a permit, it would be necessary for that applicant to withdraw his or her application for permanent resident status. The second is that a PRC (temporary) entry permit (code number 437) may only be granted on condition that it is not to be taken to be a valid temporary entry permit for the purposes of s.47 of the Act (reg. 119H(4)). In those circumstances, the applicants could not apply for permanent resident status if they were to apply for and obtain a PRC (temporary) entry permit.
Mr Gibbons, in his affidavit (par.42), refers to the insufficiency of the resources within the Department of Immigration, Local Government and Ethnic Affairs to deal with the increased number of applications for permanent resident status and for the determination of refugee status. He deposes (par.44) to the fact that the Department sought to ameliorate the situation by seeking an increase in its resources and by determining a set of priorities for dealing with the unresolved applications. According to Mr Gibbons (par.45 of his affidavit), it was considered to be "more equitable for priority to be given in the first instance to those cases concerning sponsorship by spouses and other immediate family members and to cases involving claims of marriage or de facto marriage". He further deposes (par.46) that it was then decided "that priority should be given to those cases in which the applicants for permanent residence did not have access to the group protection and benefits available to PRC citizens who were in Australia on 20 June 1989". Paragraph 47 of his affidavit reads:
"47. A second factor that supported the argument for giving priority to applicants for permanent residence who did not have access to the Class 437 permit was the difficulty of obtaining information from the PRC. In order properly to determine applications for permanent residence based on humanitarian grounds and applications for DORS, the Department requires reliable and comprehensive information on the applicant's country of origin. In the case of applications made by PRC citizens this information concerns the general political situation in the PRC and that particular information has been slow in coming owing to the continuing uncertainty surrounding that country's political situation. It is also necessary to obtain information that relates to specific applications for permanent residence in order to verify the particular claims made by the applicants. It has been very difficult to obtain this information for the same reason."
Ms Ingram deposes (par.10 of her affidavit) that by the middle of 1990 the Central Office of the Department could no longer provide to the regional offices the service necessary to deal efficiently with the number of applications for the grant of permanent resident status on humanitarian grounds. She further deposes (par.11) that a series of meetings was held "over a period of some months in mid- 1990" which ultimately led to the negotiation of what is referred to as a "Resource Agreement" between the Department and the Department of Finance. It became necessary, she said (par.12), in late 1990 "to consider how the backlog might be most efficiently processed", asserting that up to that time "applications were dealt with roughly in chronological order". This statement cannot be taken at face value so far as the applications by Dr Shi and Mr Liu are concerned. According to her affidavit (par.13), it was in December 1990 that the Minister decided "that applications for permanent residence on humanitarian grounds from PRC citizens in Australia on 20 June 1989 should have a lower processing priority". It was considered appropriate, she said (par.14), "to clear the backlog of applications from applicants who did not have the special temporary entry permit before those applications from PRC citizens who were eligible for the special temporary entry permit (i.e. those in Australia on 20 June 1989)".
In his affidavit sworn on 12 February 1991, Eric Brookbanks, an Assistant Secretary in the Department of Immigration, Local Government and Ethnic Affairs, states (par.3) that in the 1989-90 budget context, the Department was given additional resources of 35 times the amount of money needed to pay for one officer for one year at an average salary level "to process an increasing trend in residence applications and implement revised procedures arising from the Report of the Committee to Advise on Australia's Immigration Policies". No further details have been given. Mr Brookbanks also states (par.8) that, following recommendations made in December 1990, a Resource Agreement was agreed between the Department and the Department of Finance providing for substantial additional funds to the Department in the financial years 1990-91 and 1991-92. Paragraph 8 of the affidavit concludes:
"These resources should allow 57,000 cases to be completed to the decision-in-principle stage for the two year period ending June 1992, with the pre-19 December 1989 cases being completed to decision-in-principle stage by 30 June 1991. After June 1992 the processing caseload should return to an on-going level of around 5,000 cases on hand."
The basis for this prognosis is not explained.
Mr Reina, in his affidavit affirmed on 12 February 1991, refers (par.4) to the lack of sufficient resources to deal with the number of applications for the determination of refugee status that have been received. He further states (par.7) that the Determination of Refugee Status Secretariat "has sought to overcome the problem of insufficient resources by setting in train a process to recruit an additional 160 officers". There is no evidence that any of those officers have been recruited. Paragraph 8 of his affidavit reads:
"DORS officers are very conscious of the importance of obtaining reliable, comprehensive and up-to-date information on the political and human rights situation on which to base an assessment of an individual's application for refugee status. The Department expects DORS officers to be fastidious in this respect and to address each claim made by an applicant in the context in which it is put to us and with due regard to the political and other developments in the country of origin. The situation in China is very complex, not only because of the changes taking place there, but also because of the differences in conditions and developments in different parts of the country. For example, conditions at the local level in a remote province may be very different from those prevailing in Beijing. Obtaining this kind of information is however difficult and slow."
It is abundantly clear on the evidence that, at the date of the hearing, no steps had been taken to consider and determine the applications for permanent resident status lodged by the five applicants presently before the Court. The case for the respondent is that the question whether there has been unreasonable delay within the meaning of s.7(1) of the Judicial Review Act in making a decision upon each of those applications must be considered in the context of the large number of applications for such status that have been received. The evidence, however, fails to establish that the Department of Immigration, Local Government and Ethnic Affairs has taken any steps to deal with the applications of that kind lodged by citizens of the People's Republic of China. The only evidence of any steps having been taken in relation to the determination of applications lodged by such citizens is that given by Mr Reina in cross-examination and re-examination in relation to applications for the determination of refugee status. His evidence is that no steps were taken in relation to refugee status applications lodged by citizens of the People's Republic of China until November 1990, when a small number of additional case officers was recruited to the Determination of Refugee Status Secretariat. Action was then commenced to choose at random 100 applicants as being a representative group of citizens of the People's Republic of China who were applying for refugee status. It was proposed that each of those applicants would be interviewed. Mr Reina further said that Mr Liu, one of the applicants before the Court, was chosen as a member of the group and in January 1991 Mr Palmer, an officer of the Department, had a telephone conversation with Mr Liu's solicitor concerning a proposal that Mr Liu be interviewed by Mr Palmer sometime in February or March 1991. In re- examination, Mr Reina was asked to explain the purpose of the proposed interview and said:
"The intention - this is an exercise we started back in November. The intention is to get as much information in one go from the embassies overseas that are relevant to the claims that are actually being made by applicants in Australia, because we realised it's impracticable to refer each individual case to the post for comment on their specific claims. And so it was decided to get a sample together, try and distil all the claims as presented in the application, and also as elaborated upon at the interview and to get these details to the overseas post so that they could then do their research and send us a comprehensive briefing on the up-to-date situation that would enable us to then begin to process these individual applications and address their specific claims."
He expressed the hope that the interviewing process and the collation of the material to be sent overseas would be furnished within 6 or 7 weeks. Although there is no direct evidence on the point, it may be assumed that at least some of the information thus obtained would be relevant to applications by citizens of the People's Republic of China for permanent resident status on humanitarian grounds.
In my opinion, the various matters to which I have referred are relevant to the consideration of the question whether there has been unreasonable delay in determining the applications for permanent resident status. The weight to be given to any particular aspect is, of course, quite a different matter. It follows that I am not prepared to accept the submission advanced by counsel for the applicants that, as the applications for permanent resident status were lodged at the regional office of the Department in the Australian Capital Territory, the Court should confine its attention to the situation that prevailed during the relevant time within that office. It would, I think, be unrealistic to adopt that approach. I am also unable to accept the further submission by counsel for the applicants that any explanation offered as to the reasons for the delay in making a decision is not relevant to the question whether the delay that has occurred is unreasonable. A sufficient justification for rejecting that submission is to be found in the decision of Fisher J. in Thornton v. Repatriation Commission (1981) 52 FLR 285.
Counsel for the applicants also submitted that one of the matters to be considered in determining whether there has been unreasonable delay in making a decision upon the applications is the assertion, deposed to by each of the applicants, that, while in Australia, they were very active politically protesting the actions of the Chinese Government both prior to and following the events in Tiananmen Square at Beijing in June 1989 as a result of which they obtained what was referred to as "a high profile in the media". I have, however, given little weight to this consideration. The fact that a person who has been permitted to enter this country solely for the purpose of pursuing a course of study deliberately engages in conduct which subsequently provides the foundation for an application for the grant of permanent resident status on humanitarian grounds or for the determination of refugee status is not, so it seems to me, a matter of any real significance in determining whether delay in dealing with that person's applications is unreasonable.
In relation to the cases of Dr Shi and Mr Liu, I am satisfied that there has been unreasonable delay within the meaning of s.7(1) of the Judicial Review Act in making a decision upon their applications. The first significant matter in relation to those applications is that they were lodged as long ago as 27 February 1989 so that a period of two years and three months has elapsed without a decision, even a decision in principle, having been reached.
Secondly, the evidence before the Court is open to no other conclusion than that no steps whatever have been taken to obtain whatever information the respondent may consider necessary in order to make a decision upon the applications. In saying that, I have not overlooked Mr Reina's evidence that in November 1990 some action was initiated towards interviewing a representative group of applicants for refugee status and that Mr Liu was one of those selected for interview. But even by the date of the hearing, Mr Liu had not been interviewed and clearly no request for relevant information had been made to Australian representatives in the People's Republic of China. These are not cases in which reasonable steps to obtain the necessary information have been taken but, by reason of circumstances beyond the Australian Government's control, the information has not been forthcoming. Further, although general statements have been made by Mr Gibbons and Mr Reina concerning the difficulty of obtaining information from the People's Republic of China, the evidence is not specific. The evidence does not show that any request for information was made nor does it provide any basis for concluding that, had a request been made, it would not have been productive.
Thirdly, no explanation of any kind has been offered why no steps were taken in relation to the applications of Dr Shi and Mr Liu between February 1989 and December 1989, that is to say, prior to the dramatic increase in the number of applications for permanent resident status.
Fourthly, no satisfactory explanation has been offered why that increase in numbers resulted in no action being thereafter taken upon applications lodged a considerable period of time prior to that increase occurring. Emphasis has been placed by the respondent on the availability to Dr Shi and Mr Liu of a PRC (temporary) entry permit (code number 437). Permits of that class, however, did not become available until 12 July 1990, almost eighteen months after their applications for permanent resident status were lodged and, in any event, in order to be eligible for such a permit Dr Shi and Mr Liu would have had to withdraw their applications for permanent resident status lodged on 27 February 1989. Further, the holding of a PRC (temporary) entry permit would not have satisfied the criterion for the grant of permanent resident status in s.47(1) of the Migration Act. In those circumstances, the availability of a PRC (temporary) entry permit (code number 437) provides no satisfactory basis upon which to determine that no further action would be taken upon the applications for permanent resident status. To require, as appears to be the case, that consideration of their applications be postponed until the applications of all persons who are not eligible for the grant of a PRC permit (code number 437) have been dealt with seems to me to be demonstrably unreasonable.
Fifthly, a relevant matter is that, by reason of the delay in dealing with their applications, Dr Shi and Mr Liu have become illegal entrants.
Sixthly, I consider the evidence concerning the steps taken to remedy the perceived deficiency in the resources of the Department of Immigration, Local Government and Ethnic Affairs to deal with the increased number of applications for permanent resident status and for the determination of refugee status to be unsatisfactory. That Department and the Department of Finance appear to have been slow to react to the need to put in place sufficient resources to deal with the number of applications being received. Further, while the evidence refers to additional funds being made available to the Department of Immigration, Local Government and Ethnic Affairs in 1989-90 and 1990-91, the evidence is silent (except for Mr Reina's statement that additional resources were made available to the Determination of the Refugee Status Secretariat in February/March 1990 and his further statement that a small number of additional case officers had been recruited to that Secretariat in or about November 1990) as to what additional staff had been made available to deal with such applications. Clearly, it is not for the Court to dictate to the Parliament or the Executive what resources are to be made available in order properly to carry out administrative functions under legislative provisions. Equally clearly, however, the situation cannot be accepted in which the existence of a right created by the Parliament is negatived, or its value set at nought, by a failure to provide the resources necessary to make the right effective.
Lest it be thought that I have overlooked the matter, I should say that the applications by Dr Shi and Mr Liu for the determination of refugee status were lodged under cover of a letter dated 27 February 1989 from Brian Murray and Associates. The letter referred to the fact that both Dr Shi and Mr Liu intended to lodge an application for the grant of permanent resident status. The letter proceeded:
"It is my understanding, and my clients' wish, that action on their change of status applications will be deferred until a decision is made on their refugee applications."
In circumstances where, despite the length of the delay, no decision has been made on the applications for the determination of refugee status, the terms of the letter provide no answer to the claims by those applicants that there has been unreasonable delay in determining their applications for permanent resident status on humanitarian grounds.
Although the time which has elapsed since the applications by Mr Zhao and Mr Hong were lodged is less than in the case of Dr Shi and Mr Liu (Mr Zhao's application having been lodged on 15 October 1989 and Mr Hong's on 6 November 1989), I have, in relation to their applications, reached the same conclusion as I have reached in relation to the applications by Dr Shi and Mr Liu. In other words, I am satisfied that the delay in reaching a decision upon their applications is also unreasonable.
In reaching that conclusion I have taken into account that their applications, although lodged at a time when the number of applications for permanent resident status was trending upwards (from 247 in June 1989 to 280 in October 1989 and 388 in November 1989), their applications were lodged prior to the dramatic increase that occurred in December 1989. That consideration apart, the other matters to which I have referred in relation to the applications by Dr Shi and Mr Liu are equally applicable in relation to Mr Zhao and Mr Hong.
I should, however, mention an additional matter relied on by Mr Hong. In an affidavit sworn on 23 January 1991, Marion Rose Le deposes (par.13) to a meeting she had on 20 December 1990 with the Secretary to the Department of Immigration, Local Government and Ethnic Affairs (Mr C. Conybeare) and Ms Ingram at which a file of papers relating to Mr Hong was tabled. Ms Le further deposes that, after some discussion of Mr Hong's application for permanent resident status, Mr Conybeare said:
"Obviously this case is a priority. I will see it is in the Regional Office this afternoon as a first priority."
Ms Le further says that she subsequently told Mr Hong to contact the Regional Office the next day. Ms Le was not cross-examined. Mr Conybeare did not give evidence in the proceedings but Ms Ingram, in her affidavit affirmed on 12 February 1991, in par.9 says:
"It is alleged by Ms Marion Le in her affidavit sworn on 23 January 1991 which I have read, that the Secretary directed that one of the applicants, Mr HONG, should have his application for permanent residence assessed as a processing priority. This is not my recollection. The Secretary acknowledged the concern about Mr HONG's specific circumstances and indicated that we would examine the policy issues relating to his and the other cases. He did not direct that the application itself should be determined as a priority, and the Secretary made no comment about the merits of Mr HONG's or any other applicant's case."
Ms Ingram was not cross-examined in relation to what was said at the meeting. In the absence of oral evidence as to what took place at the meeting in relation to Mr Hong's application, I do not think it appropriate to make any finding in that regard.
It remains to consider Mr Wei's application. He stands in a somewhat different situation. His application for permanent resident status was not lodged until 14 March 1990. By that time the dramatic increase in applications had occurred and I am not satisfied on the evidence that his case presents any special features which warrant it being dealt with ahead of applications which had been lodged earlier than his. That applications should, in the absence of special circumstances, be dealt with in chronological sequence according to the date on which they were lodged seems to me to be a reasonable approach.
Notwithstanding the criticism I have made of the manner in which the Department of Immigration, Local Government and Ethnic Affairs and the Department of Finance have approached the resolution of the problems arising from the large increase in applications requiring consideration, I am not satisfied that the delay which has occurred in dealing with Mr Wei's application can, at this juncture, be characterised as unreasonable within the meaning of that expression in s.7(1) of the Judicial Review Act.
Each of the applicants other than Mr Wei is, therefore, entitled to a declaration that there has been unreasonable delay within the meaning of s.7(1) of the Judicial Review Act in making a decision upon his or her application for permanent resident status on humanitarian grounds. Each of the applicants is also entitled to an order directing the making of a decision upon his or her application. Counsel for the applicants submitted that that order should direct that a decision be made on each application forthwith. To make such an order would, in my opinion, be unrealistic. The order I propose to make is to direct that a decision upon the application of each of the applicants other than Mr Wei for the grant of permanent resident status be made within the period of eight weeks from the date of the Court's order. The respondent must pay the costs of the applicants other than Mr Wei.
The application by Mr Wei is dismissed. It is appropriate, in all the circumstances, that there be no order as to costs in relation to his application.
Before parting with the cases, I should add that nothing that is said in this judgment is to be taken as expressing an opinion upon the merits or otherwise of the applications under the Migration Act that have been made by the five applicants in these proceedings. That is not a matter for the Court. It is a matter for those charged under the relevant legislative provisions with making a decision on those applications.
8
1
0