Yuen, R.S.C v Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 704

THE FEDEBBL COURT OF AUSTRALIA - JUDGMENTNa 1.04-1s

DJ	)
VICTORIA D I s w c T R E G I s a	i NO. VG 102 of 1992
1 1
B E T W E E N :
W N D SO CH1 YUEN

Applicant

A N D :

TER FOR IMMIGRATION

~ O C A L GOVERNMENT AND ETHNI~

AFFAIRS

JUDGE W N G ORDER KEELY J

- MELBOURNE
22 SEPTEMBER 1992

COURT ORDERS THAT:

Order -36 of the-Federal- Court rules;=

COURT OF AUS- )

1. Application be dismissed.

2.    The applicant pay the costs of the respondent.

Note :  Settlement and entry of orders is dealt with in

)

VICTORIA DIST-	R	1	No. VG 102 of 1992
1

DIVISIa	1
B E T W E E N :

m N D SO CH1 YUEN

Applicant

A N D :

M I N I S T E R	F 8 8
-RATION.	LOCAh

W	Q	C
AFFAIRS

Respondent

22 SEPTEMBER, 1992 KEELY J .

=SONS FOR JUDGMENT

Raymond So Chi Yuen ("the applicant") by his amended

the respondent's delegates on 25 June 1991, 16 September 1991	application seeks an order to review three decisions, made by	and 12 December 1991 respectively. During the hearing those
de~Leion*wff-referre*tr=m ccm-msl-f or& both part-ies=aslthe==
first, third- and- fourth decisions- respectively -and it is
convenient to -use those -descriptions--in these reasons; the - challe:..~ KO the second decision, which was made in the - application before .it was amended,-was--not pursued. The first -
decision was the refusal of a temporary entry permit; the

third was the refusal to consider an application to review the first decision; the fourth decision was a decision that the applicant's application for a further entry permit, lodged on 18 November 1991, was "impermissible due to section 37 of the Migration Act".

The applicant also contended, in the alternative, that each of the first, third and fourth decisions was made on 6 March 1992. It is convenient to deal immediately with that

- contention; - it was based: upon the contents of a letter - -

(Exhibit SD 15) dated 6 March 1992, to the applicant's solicitors from Ms. Jennifer Norwick, an officer of the

Melbourne Central Region of the respondent's Department . The

applicant's counsel (transcript 62-66) relied on that letter "as evidence of a further decision". Relying "on the face of the document and the language used" he submitted that the third paragraph of that letter contained the first, third and fourth decisions, saying that, although they confirmed the prior decisions, "nevertheless they were made and communicated

your "request for a statement of reasons ... [has] been	to the applicant". He pointed out that the letter said that	refused ...". I accept his submission that the letter of 6
March 1992 was-not-a-statement-of'-reasons7

-

Having considered carefully the terms~of the letter and the submissions of counsel for both parties, in my opinion the letter does not show that any relevant-decisions were made in relation to the applicant on or about-6 March-1992; the letter

was referring to the three decisions which had been made previously, namely on 25 June, 16 September and 12 December '1991 respectively and to the request by the applicant's solicitors for statements of reasons in respect of them.

It was accepted by the applicant's counsel (transcript 66) that, if his submission that there were three decisions on or shortly before 6 March 1992 was rejected, it would not be necessary for the court to rule upon certain submissions by him as- to changes in the felevant law before- 6 March 1992;	-	-
accordingly, they are not dealt with in these reasons.

In the opening address by the applicant's counsel it was submitted that the respondent had misled the applicant by wrongly stating on the applicant's passport that his entry

permit was only until 1 March 1990 (instead of 1 March 1991) ;

further, that the respondent was estopped from seeking to rely on the date 1 March 1991 as that expiration date. It was also put that the respondent had represented to the applicant "that

be amended by the department without reference to strict	entry permit dates stamped in passports are flexible [and] may
rules". It was submitted that the court should conclude "that the applicant was induced to believe- in. thaaflexTbT4ityrandi
that - he . was* thus- reasonably lax A in making t a further: appilzation* for: an- entry-permit- . . . and he relied on that to
his G .--zimenW.
Thet.'i do.: no-evidence (1) that the applicx?t :<%S :nduc?d to -

believe anything by reason of the dates in his passport; (2) that he believed that the Department was unlikely to enforce compliance with the periods in entry permits; (3) that "he was thus reasonably lax in making a further application for an entry pennit . . . and he relied on that to his detriment". No affidavit by the applicant was put before the court. Nor was there any evidence from which any inference could be drawn in support of items (1) (2) or (3) above. The evidence was that the application for a further entry pennit (which was lodged by the- applicant's emplopr-j -- was lodged outside the prescribed - -

time "because of an administrative reorganisation and an oversight on the part of [the applicant 'S employer] " ; see letter from the applicant's solicitor to Ms. Arcari at the Migration Internal Review Office of the respondent's Department - exhibit ES 2 to the affidavit of Erica Strugnell, solicitor, sworn 28 May 1992. In his reply (transcript 119) the applicant's counsel said ".. . having heard my learned friend . . . I withdraw the submission of estoppel . . . on the basis that the attempt to submit to the court an inferred

reliance cannot be sustained".

Counsel continued:

"I do not-abandorEthC-points... that-the-effect-of that change*

[of the date -from -1990; to 1991 1 is a unilateral demonstration

by th.r .-y?ztment that-these datee are flexible, accepting that V

ther. - reliance or-no misleading, I neverthelams may that

~t .- . * , - - - d procedurally unfair to amount to an

err... . ... V - L - - 3 on the one hand accepted its own power

to fr. " . . . L -??try permit expiry dates to then mtrictly

admrrt > , - h r -=. . -. .. . permit expiry date it considers

appr&>- .. L ~ :.n an unlawful act, an act beyond power ~ ~ l

- - r.-st computer processor to change the date

... u15- . .

1 2

. . . :.--= - ?=onable in the Wednesbury sense and

amor; S. :  : 3 . 6 - l bxfairnese, and has committed an error of

law ... c - - - rhe decieion-maker on the lateness of

application cannot be sustained and that vitiates this first
decision ...".

Having considered those submissions I am unable to accept (1) that there was a lack of procedural fairness (2) that there was an unlawful act (3) that the action was unreasonable within the meaning of the principle in

p t (1948) l 1 223,

233) or (4) that there was an error of law; nor do I accept that the decision-maker took into account any irrelevant considerations or failed to take into account any relevant

--

consideration. - -.

As to the third decision, in addition to relying on the grounds advanced in relation to the first decision, the applicant's counsel submitted that the delegate had "wrongly

... relied upon Migration Regulation 21A when considering the

Applicant's application ... received on 16 April 1991 [which

Regulation had been] repealed on 15 April 1991". Counsel's contention that the delegate had relied upon the repealed Regulation 21A was based upon a letter from the delegate

Sarkis Derstepanian, the General Manager of the applicant's	(exhibit SD 9 to the affidavit, sworn 31 May 1992, by Mr.
employer) . In that letter, dated 16 September 1991, the
delegate stated "that a person whose -application3 f or.- an entry-
permit hasbeen:refused may apply for review-providedithat the
applicant= for- the entry permit was lawfully - present in
Australia at the- time he made the app! ; - a t :?nn . That
statement- was correct but she wrongly r4= **:F I . L in the letter
to review regulation 21A as the goverzer.:: oro-~l S ion ; instead

of review regulation 21.

In her statement of reasons, dated 29 April 1992, the delegate, in Part C paragraph 6, correctly stated that the governing provision was review regulation 21 and added "prior

to 15 April 1991, see reg. 21A(2) (b) ". The applicant could

have objected to the admission into evidence of that statement of reasons or objected to it unless the delegate was to attend for cross -examination ( see Minister for Immigration, Local

Government and Ethnic ~ffgirs v Taveli (1990) 94 &R 177 at -

--

183 (per Davies J.) and at 204 (per Hill J.). It may be added that in his reply the applicant's counsel (transcript 125) said that he was "not in the slightest suggesting malafides or

deceit [by the delegate in her statement of S. 13 reasons] ...

I am just saying it is not open to a decision maker in 1992 to change the basis of a decision made in 1991".

Having considered the letter of 16 September 1991, the statement of reasons and the submissions of both counsel, in

my opinion it is proper to infer that the wrong regulation was	cited in the letter and that the statement of reasons
correctly stated that the delegate, in reaching her decision,
had regardmto-regulationz-21 and not regulation' 21A. - The-
applicant's attack-upon the third decision cannot be upheld.;
As to the fourth decision- I accept7 the2 submission by the respondent's counsel :(transcript=104-105) that the respon+c-
did not advise the applicantds* solicitor: that - the four f c--

forwarded to the solicitor were the only forms needed; the respondent did not "confirm" that those forms would

"suffice" - as sought in the letter dated 21 September 1991 from the applicant's solicitor to the respondent. Further, his department was under no duty to give advice to the applicant's solicitor; it is for an applicant to make out his case in support of any application to the respondent. I reject the contention that the applicant "was thereby denied natural justice".

-

--.

- - -

I also accept the respondent's submission (transcript 106)

that the application was not at large and related to any part of regulation 40. Accordingly I reject the applicant's contention that the "delegate failed to consider whether the applicant satisfied- other sub sections of Regulation 40". It may be added that it was accepted by the applicant's counsel in his reply (transcript 126) that the applicant was of British nationality and was a citizen of Hong Kong; he was not a citizen of the People's Republic of China (cf. regulation

40(1)(~))

The respondent submitted that even if the court found that an

error, of law had occurred- it-- shouldidecline3 to refer= any=

decision back to the delegate because -of the futility of

-

ordering a reconsideration of the matter. Both parties filed

. written submissions on that srlbject - on 6 ~ugust' and 12

Auc~st 1992 respectively. There is much force= in the

respondent's submission that the court should decline. to-refer- the decision back to the delegate. However, in the light of the conclusions that I have reached it is unnecessary for me to form any concluded opinion on that submission.

The application will be dismissed and the applicant ordered to pay the costs of the respondent.

I certify that this and the seven (7) preceding

pages are a true copy of the Reasons for

Judgment of Mr Justice Keely.

Associate:  drl+ : -

Dated: 2.2 &,Qk*k/ / !72- .

Counsel for the Applicant	. Mr: B.A. Keon-Cohen
Solicitors for the Applicant :	Anderson Rice
Counsel for the Respondent	Mr. R. Downing
Solicitors for the Respondent : Australian	Government

Solicitor

Dates of Hearing	:	29, 30 July 1992
Date of Judgment	22 September 1992