Xie v Immigration Department

[1999] FCA 1493

FEDERAL COURT OF AUSTRALIA

Xie v Immigration Department [1999] FCA 1493

IMMIGRATION – application for declaration of entitlement to Bridging Visa – whether any applications by applicant for an entry permit had “not been finally determined” – whether applicant entitled to Bridging Visa under Regulation 10 of the Migration Reform (Transitional Provisions) 1994 Regulations.

XIE v IMMIGRATION DEPARTMENT

WG 172 of 1998

CARR J
29 OCTOBER 1999
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 172 OF 1998

BETWEEN:	XIE WEI MING Applicant
AND:	IMMIGRATION DEPARTMENT Respondent
JUDGE:	CARR J
DATE OF ORDER:	29 OCTOBER 1999
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 172 OF 1998

BETWEEN:	XIE WEI MING Applicant
AND:	IMMIGRATION DEPARTMENT Respondent

JUDGE:	CARR J
DATE:	29 OCTOBER 1999
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. By his application, as amended at trial, the applicant seeks a declaration that he held as at 16 April 1998 (when he was taken into detention at his request by the respondent), and continues to hold, a Bridging Visa Sub-Class C (“the Bridging Visa”), in particular by the operation of Regulation 10 of the Migration Reform (Transitional Provisions) 1994 Regulations (“the Transitional Regulations”).  That regulation relevantly provided that a non-citizen in Australia who was in Australia immediately before 1 September 1994 and had applied for an entry permit on or after 19 December 1989 and before 1 September 1994 being an application that “has not been finally determined”, was taken to have been granted a Bridging Visa of one or other of the classes identified in that regulation.  The applicant’s case is that he satisfies the requirements of Regulation 10.  He claims that he had applied for three entry permits on 18 January 1990 and a further entry permit on 8 July 1993 and that none of them had been finally determined before 1 September 1994.  The applicant lodged his application without legal assistance.  I shall refer to the respondent as if it were the Minister for Immigration and Multicultural Affairs.

   The Factual Background and Legislative Framework

2. The applicant is a citizen of the People’s Republic of China. Until the events which I am about to describe, he was a seaman employed by the China Ocean Going Shipping Company. On 5 November 1985 he deserted the vessel “Tian Ling”, at Port Hedland. The ship left port on 6 November 1985. The applicant thereby became a “prohibited non-citizen” – see ss 6(1), 8(1)(d) and 8(3)(c)(i) of the Migration Act 1958 (Cth) (“the Act”) as applicable on 6 November 1985. The applicant disappeared into the Australian community. On 18 November 1988 a delegate of the Minister, acting under s 18 of the Act, signed an order that the applicant be deported from Australia. Under the provisions of s 6(2)(a) of the Migration Legislation Amendment Act (No. 59 of 1989), which came into force on 19 December 1989, the applicant, being a prohibited non-citizen immediately before the commencement of that section, became “an illegal entrant”.

3. On 18 January 1990 the applicant applied for a Class 434 PRC citizen entry permit being an entry permit for certain persons who were illegal entrants in Australia on 20 June 1989.  I shall refer to that entry permit as a “Class 434 entry permit”.  The applicant contends that he applied for other entry permits as well on 18 January 1990 – a subject to which I return below.  The Class 434 entry permit was added to the Migration (1989) Regulations by the Migration Regulations (Amendment) Regulations (Statutory Rules 1990 No. 1 dated 12 January 1990).  Regulation 18 of those amending regulations inserted regulations which included a new Regulation 119E, which in sub-regulation 119E(1) specified the following criteria as being prescribed in relation to what was described in that sub-regulation as a “PRC citizen entry permit”, namely:

   “(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; and

   (c)the applicant applies in Australia for the entry permit not later than 31 March 1990.”

4. The applicant satisfied these criteria and was thus entitled to be granted a Class 434 entry permit.

5. Sub-regulation 119E(2) further provided that a PRC citizen entry permit was not to be granted except as a temporary entry permit, and except in respect of a period ending not later than 31 January 1991.  As at 31 January 1991, the applicant’s application for a Class 434 entry permit had been neither granted nor refused.

6. On 19 May 1993 and again on 15 June 1993 the respondent’s State Director for Western Australia sent to the applicant a “Form 889”. That form was an application for a Class 437 PRC (temporary) entry permit. I shall refer to that as a Class 437 entry permit. On 16 June 1993 the applicant lodged an application for a Class 437 entry permit. This class of permit was created by the Migration Regulations (Amendment) Regulations (Statutory Rules 1990 No 237 dated 11 July 1990). Regulation 22 of those amending regulations repealed Regulation 119E of the Migration (1989) Regulations. Regulation 23 inserted a new Regulation 119H which prescribed the criteria in relation to the new PRC (temporary) entry permit. Regulation 38 amended Schedule 3 to the Migration (1989) Regulations to include this new category of entry permit as Class 437. Regulation 23 commenced on 1 August 1990 (see Regulation 1(7) of Statutory Rules 1990 No. 237). Regulation 22 (repealing Regulation 119E) came into effect when notified in the Commonwealth of Australia Gazette on 12 July 1990. On 8 July 1993 the deportation order issued against the applicant on 18 November 1988 was revoked. It is part of the respondent’s case that, on the same date, the applicant was granted a Class 437 entry permit which permitted him to stay in Australia until 30 June 1994. The applicant denies this and says that his application was never determined. Regulation 119H(3) provided that a PRC (temporary) entry permit was not to be granted except as a temporary entry permit, and for a period ending on 30 June 1994. It would have been open for the applicant until that date to have applied for a PRC (permanent) entry permit. Part 815.512 of the Migration (1993) Regulations relevantly provided that an application for a PRC (permanent) entry permit (also known as a “Class 815 entry permit”) had to be made on or before 30 June 1994. That was an entry permit which had effect without limitation as to time (see Part 815.521). If, as the respondent contends, the applicant was issued a Class 437 entry permit, he would have satisfied the criteria for that entry permit, [see 815.721(1) and (2)(a)]. He would also have satisfied those criteria because he was a citizen of the People’s Republic of China, had been recorded as having entered Australia before 20 June 1989 and was in Australia on 20 June 1989 [see 815.721(3)]. However, there is no evidence that the applicant applied for a Class 815 entry permit, and it seems to be common ground that he did not do so. Had he so applied, then the period of any Class 437 entry permit issued to him would have extended until a decision was made on that application and he had been notified [see Part 437.52 of the Migration (1993) Regulations]. In any other case, the period of a Class 437 entry permit was until 30 June 1994. Subject to the matter of whether the applicant was granted a Bridging Visa Sub-Class C on 1 September 1994, the applicant ceased to have a valid entry permit as at 30 June 1994 and thus became an “illegal entrant” under s 6(3) [subsequently re-numbered as s 14(3)] of the Act. I now turn to the issues which have to be decided.

   THE ISSUES TO BE DECIDED

   Was there any relevant application, made by the applicant on 18 January 1990, which had “not been finally determined” as at 1 September 1994 within the meaning of Sub-Regulation 10(1)(a) of the Transitional Provisions Regulations?

7. The applicant contended that, on 18 January 1990 he had applied for more than one visa or entry permit.  Mr M J Hawkins of counsel appeared for the applicant without charge.  I record the Court’s gratitude to him for doing so.  Mr Hawkins referred to the particular forms which the applicant had filled in and submitted to the respondent on 18 January 1990.  They can be found at pp 16-19 (both inclusive) of Exhibit A2 and pp 5-8 (both inclusive) of Exhibit R2.  I mention both exhibits because (for the benefit of a reader who is referring to the documents) it is necessary to examine both of those exhibits to get a completely legible set of the documentation.  However, I shall refer only to the pages of Exhibit A2.  Mr Hawkins acknowledged that the document at p 17 of Exhibit A2 was an application on the applicant’s part for a Class 434 entry permit, but he pointed to the fact that, on the next page, the applicant had ticked a box which conveyed the message that he was applying in Australia for permanent residence.  Mr Hawkins also pointed out that on p 19 (being the other side of the same form on which the applicant had ticked that box) there was a part which was headed “Applicants for Permanent Residence or Further Entry Permits Only” which the applicant had completed.  He then referred me to p 16 which was a photocopy of a document headed “Application for a Further Entry Permit”.

8. I have decided that the proper course is to read those three documents (comprising four pages in all) together. First, because each of them was signed by the applicant and lodged on 18 January 1990. It is clear from p 17 that the applicant applied for a Class 434 entry permit. Such a permit could only be granted in respect of a period ending not later than 31 January 1991, that is, about one year from the date upon which the applicant was lodging these documents with the respondent. At p 16 (the document headed “Application for a Further Entry Permit”) the applicant requested that he be granted an extension of stay in Australia for one year. In my view, the completion of that form was part and parcel of his application for a Class 434 entry permit. The third document (pp 18 and 19) was headed “Personal Particulars for Character Assessment”. It seems sufficiently clear to me that this was filled in by the applicant in support of his application for a Class 434 entry permit and I so find. The application for that permit refers to “information you give in this form”. The only information given on p 17 was the applicant’s name, date of birth and the fact that he was applying for a Class 434 entry permit. The personal particulars form was designed for the provision of information by applicants for visas or entry permits to Australia. That was its function, not to serve as an application in its own right. In my opinion, the fact that the applicant ticked (in paragraph 1 of that form) a box indicating that he was applying in Australia for permanent residence did not thereby constitute that document as an application for an entry permit “of a particular class”, i.e. a class other than a Class 434 entry permit, within the meaning of s 34 of the Act. When read as a whole, the four pages which the applicant completed on 18 January 1990 amounted to an application only for a Class 434 entry permit.

9. The next question is whether that application had “not been finally determined” as at 1 September 1994.  Relevantly, Sub-Regulations 10(1)(a) and 10(2)(c) of the Transitional Regulations provided that:

   “10(1)   This regulation applies to a non-citizen in Australia (other than an illegal entrant in custody within the meaning of section 11 of the old Act) who was in Australia immediately before 1 September 1994.

   (a)if he or she applied for an entry permit (other than a processing entry permit) on or after 19 December 1989 and before 1 September 1994 and the application has not been finally determined; or

   . . .

   (2)   A non-citizen to whom this regulation applies is taken to have been granted a bridging visa on 1 September 1994 of a class worked out as follows:

   (a)     . . .

   (b)     . . .

   (c)     if:

   (i)at the time of primary application, he or she was a prohibited non-citizen or an illegal entrant; and

   (ii)immediately before 1 September 1994, he or she was not subject to a reporting condition;

   a bridging visa, Class C.” (Emphasis added) 

10. It is common ground that the applicant was not granted a Class 434 entry permit.  His case is that, as he was neither granted nor refused such a permit, his application had not been finally determined as at 1 September 1994, within the meaning of the above regulation and that accordingly he is to be taken to have been granted a Bridging Visa. 

11. I acknowledge that there is some initial appeal in such a literal construction of the phrase “not been finally determined”.  It can be seen as a useful expression encompassing determinations, in the sense of decisions in relation to an application, which have not been subject to review or appeal or (if the subject to review or appeal) such review or appellate process has been exhausted.

12. However, common to both those examples is the fact that an application has been brought to an end.  That is, of course, one of the senses in which the noun “determination” is used – see The New Shorter Oxford English Dictionary at 651.  In my view, there were two matters which brought the applicant’s application for a Class 434 entry permit to an end or caused it to be finally determined by 1 September 1994.  The first was that such a permit could never have been granted in respect of a period ending later than 31 January 1991 – see Regulation 119D(2)(b).  The second is that on 12 July 1990, Regulation 119E itself was repealed by Regulation 22 of Statutory Rules 1990 No. 237.  The combination of those two factors, in my view, means that no question of accrued rights arises.  No Class 434 entry permits could be granted after the latest date upon which such entry permits ceased to have effect, namely 31 January 1991.  In my opinion, viewing the situation as at 1 September 1994, it must be concluded that the applicant’s application for his Class 434 entry permit had by that date been finally determined.

    Whether the applicant was granted a Class 437 entry permit on or about 8 July 1993, or whether that application had not been finally determined as at 1 September 1994?

13. In my view, the evidence establishes that, on a balance of probabilities, the respondent issued a Class 437 entry permit to the applicant on or about 8 July 1993.  The evidence shows that on 10 June 1996 the applicant was medically examined by Dr J Lee of the Australian Government Health Service who thereupon signed, on that date, the relevant medical examination Form 26.  On 11 June 1993 Dr E J Lim of the Perth Chest Clinic signed a radiological report (Form 160) in respect of the applicant, which form was marked “Pass”.  The application for the Class 437 entry permit was lodged on 16 June 1993.  There is evidence of a file note made by a Mr P Williamson of the respondent’s Department on 22 June 1993 which noted that the applicant met the criteria for issue of a Class 437 entry permit, and sought revocation of the 1988 deportation order.  Mr Hawkins referred to a form (p 38 of Exhibit R2) which bears Mr Williamson’s signature apparently approving the application and bearing date 22 June 1993, as casting some doubt on the accuracy of the respondent’s records.  I do not think that that is an appropriate inference.  The evidence is that this form was a file cover sheet on the inside cover of the departmental file, without a folio number on it.  As I read it, Mr Williamson, on 22 June 1993, was recording in two places on the one file the fact that, so far as he was concerned, the applicant met the necessary criteria for a Class 437 entry permit.  On 30 June 1993 a Mr Malcolm Richardson of the respondent’s Department requested a Mr Beavis to arrange for a submission to him (Mr Richardson) for the revocation of the deportation order then still current in respect of the applicant.  There is in evidence a minute dated 8 July 1993 recommending that the deportation order be revoked.  Endorsed on that minute, and also dated 8 July 1993, is a notation “deportation order signed on 18 November 1988 is hereby revoked”.  The endorsement is signed by Mr Richardson.  Also on 8 July 1993 Mr Williamson wrote a note to another of the respondent’s officers which read:

    “Can you please issue a Class 437 entry permit as per Folio 65, then advise client passport ready for collection on return file to CCD?”

14. On the same date (8 July 1993) a receipt was generated by computer which indicated that the fee of $30 payable in respect of the Class 437 entry permit was, so far as the respondent’s Department was concerned, discharged by applying the sum of $30 paid by the applicant in January 1990 in respect of his application for a Class 434 entry permit.

15. At p 43 of Exhibit R2 there is a photocopy of a computer-generated record.  The record is dated 20 September 1993 and indicates that on 8 July 1993 an entry permit was granted to the applicant.  There is some evidence that the respondent returned to the applicant his seaman’s book (No. 24377) which, in his case, served as a passport.  The applicant referred to that seaman’s book in his application dated 7 May 1998 for a protection visa (an application with which these proceedings are no longer concerned in view of amendments made to the originating application at trial).  At p 53 of Exhibit A2 the applicant gives details of the most recent Australian Immigration Authorisation granted to him as being “A temporary entry visa, for details see seaman’s book”.  In the same application (at p 49 of Exhibit A2) the applicant stated that the seaman’s book was returned to him around 19 May 1993 with a visa attached to it, being a temporary entry permit of about one year’s duration.  He stated that the book also contained a receipt for $30 “for the first time I lodged a form with the Immigration Department around the end of 1989 or 1990” and a receipt for “around $60 for the medical check-up”.

16. The third page of annexure “MAC1” to Exhibit R1 also indicates that the applicant was issued with a temporary entry permit on 8 July 1993.  That is a computer print-out dated 16 April 1998.

17. There is some evidence that that application had not been granted as at that date.  It comprises the second, fourth, fifth and sixth pages of annexure MAC1, also being computer print-outs dated 16 April 1998.

18. These four pages record an application for a temporary entry permit as having been made by the applicant on 8 July 1993.  On three of those pages a number has been recorded in respect of that application.  The number is the same as the number of the application shown on the third page of the annexure which records the application as having been granted on 8 July 1993.  I think that it is significant that that third page also refers to the applicant’s passport by giving the number of his seaman’s book (24377), identifies the category of entry permit by reference to the figures “437” and states its expiry date as 30 June 1994, which, as I have mentioned above, was the date upon which all Class 437 entry permits had to expire.  There was evidence that a seaman’s book served purposes similar to a passport, including being the appropriate document in which to record the grant of an entry permit.

19. Mr Hawkins submitted that as the applicant was not told the result of his application for the Class 437 temporary entry permit, that application was still pending and had not been determined.  I think that there are two answers to that submission.  The first is that the applicant’s own evidence, being his references to, and in relation to, his seaman’s book at the time of his application for a protection visa last year, strongly suggest (and I so find) that he was informed that the application had been granted.  Secondly, in my view, if an application for an entry permit has been granted, the fact that such grant has not been communicated to the applicant does not mean that the application has not been determined.  In the case of an unconditional grant, such determination would relevantly be a final determination.

1. I accept the evidence of Mr Michael Cain (the deponent to Exhibit R1) to the effect that pages 1 and 2 of annexure MAC1 incorrectly recorded that the applicant had an application for an entry permit receipted on 8 July 1993 which was not finalised and that as a consequence he was the holder of a Bridging Visa Class C granted on 1 September 1994.  I think that the most likely explanation of what caused such a computer record to be generated was the one suggested by Mr P R Macliver, counsel for the respondent.  That is, when the computer registered the processing and transfer of the receipt for $30 from the applicant’s January 1990 application to his June 1993 application on 8 July 1993, it treated that date as being the date upon which the latter application had been made, not the date upon which it was granted.  Fees for entry permits are usually paid on the date of application.  However, I do not have to make a factual finding in that regard.  In my view, the overwhelming weight of evidence is to the effect that the applicant was issued with a Class 437 entry permit on or about 8 July 1993.  I find that on the balance of probabilities and being acutely conscious of the seriousness of such a finding, the applicant was issued with a Class 437 entry permit on 8 July 1993.  Accordingly the applicant’s application for that entry permit had been finally determined as at 1 September 1994 within the meaning of Regulation 10(1)(a) of the Transitional Regulations.  The applicant’s alternative basis for the declaration which he seeks is not made out.  The evidence establishes, in my view, that he was never entitled to a Bridging Visa under Regulation 10(1)(a).

   Conclusion

2. For the foregoing reasons, the application will be dismissed with costs.

   Postscript

3. So much for the law. The applicant, Mr Xie, has been in Australia for almost fourteen years. Throughout that period he has been self-supporting. Mr Xie is an able seaman, a cook and a handyman. There is no evidence of any anti-social behaviour on his part. It would seem that the respondent is obliged by s 198 of the Act to remove the applicant from Australia because he is “an unlawful non-citizen”. That label, while legally accurate, tells less than half the story. If, at any time between 8 July 1993 and 30 June 1994 (during which period he was lawfully in Australia as the holder of a Class 437 entry permit) Mr Xie had applied for a permanent entry permit (the Class 815 entry permit to which I have referred earlier in these reasons), he would have been legally entitled, i.e. as of right, not by virtue of any ministerial discretion, to the grant of such a permit. That permit would have entitled him to remain in Australia indefinitely. He did not make such an application. Perhaps it might be said that that was his fault. But Mr Xie’s education, limited as it was, took place in China. When it was time for him to apply for the Class 437 temporary entry permit (in May 1993) the respondent’s Department sent him the necessary forms under a covering letter. When the letter was returned undelivered, the Department (in my view, commendably) made enquiries as to his whereabouts and, on 9 June 1993, two Department officers visited him at his new address. As a result Mr Xie immediately attended the two required medical examinations (which he passed), and lodged his application for a temporary entry permit which was granted soon afterwards. It seems very likely that Mr Xie assumed, mistakenly, that he had done all that was required of him in order to remain in Australia.

4. On 10 August 1998 the Minister for Immigration and Multicultural Affairs decided not to exercise his discretion under s 417 to substitute a more favourable decision than that made by the Refugee Review Tribunal on 26 June 1998 that Mr Xie was not a refugee.  But that was, obviously, an entirely different issue.  If there are any administrative or regulatory means whereby the consequences of Mr Xie’s failure to complete the necessary paperwork, namely removal from Australia to China, can be averted, then the case seems overwhelmingly strong for putting such administrative procedures or regulations to work.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Associate:

Dated:             29 October 1999

Counsel for the Applicant:	Mr M J Hawkins
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 October 1999
Date of Judgment:	29 October 1999