Zangzinchai, M. v Millanta, M - [1993] FCA 515

MANIT ZANGZINCHAI v. MARILYN MILLANTA
No. G825 of 1992
FED No. 515
Number of pages - 5
Statutes - Migration
(1993) 116 ALR 357
(1993) 31 ALD 334 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J(1)

CATCHWORDS

Statutes - Interpretation - Acts Interpretation Act 1901, s.36(2) - whether Act prescribes or allows a period for the doing of something and the last day of the period falls on a Sunday.

Migration - Period of temporary entry permit expires on a Sunday - whether non-citizen "lawfully present in Australia" within reg. 21(3)(a) Migration (Review) Regulations 1989 on the following Monday - whether waiver by subsequent conduct of Minister's delegate.

Acts Interpretation Act 1901

Migration (Review) Regulations 1989

Thomson v Les Harrison Contracting Co. (1976) VR 238 distinguished

HEARING

SYDNEY, 26 July 1993

#DATE 30:7:1993

Counsel and Solicitors Mr J.R. Young instructed by
for Applicant: Newman and Associates

Counsel and Solicitors Mr S. Gageler instructed by
for Respondent: S. Kavallaris (Australian

Government Solicitor)

ORDER

THE COURT ORDERS:

Application is dismissed, with costs

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

JUDGE1

Introduction

BEAUMONT J The background to this application for judicial review is as follows. The applicant, a citizen of Thailand, entered Australia in 1990 pursuant to a Temporary Entry Permit under the Migration Act 1958 ("the Act") by which he was permitted "to remain until 1 March 1992." On 2 March 1992, which was a Monday (1 March being a Sunday), the applicant lodged an application with the Department of Immigration for an Extended Eligibility Temporary Entry Permit (EETEP). By letter dated 27 April 1992, the application was refused on the ground that he "failed to satisfy prescribed criteria for the grant of an Entry Permit." By letter dated 16 June 1992, the Migration Internal Review Office informed the applicant that his application "was ineligible for review under the terms of the Migration Act and Regulations. For a decision of this kind to be reviewable the person concerned must have been lawfully present in Australia when he or she made the application for an entry permit (Review Regulations 21A). Your temporary entry permit expired on 1 March 1992 and you lodged your EETEP application on 2 March 1992. Therefore, you were here illegally when you lodged your application for an entry permit."

The applicant applied to the Immigration Review Tribunal ("the Tribunal") for a review of the Department's decision. For reasons given on 8 October 1992, the Tribunal, constituted by the respondent, decided that the application was not a valid application for review as the applicant was not "lawfully present in Australia" on 2 March 1992. The applicant now seeks, by way of judicial review of this decision under the Administrative Decisions (Judicial Review) Act 1977,an order in the nature of mandamus, that the respondent consider and deal with the matter according to law. In essence, the applicant's case is that the respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] FCA 515
Decision Date: 30 JULY 1993

CaseChat Overview and Summary

In the matter of M. Zangzinchai versus M. Millanta, the Federal Court of Australia was tasked with resolving a dispute concerning the interpretation of the Acts Interpretation Act 1901, specifically section 36(2), which addresses the situation where a statutory period concludes on a day that is a Sunday. The central issue was whether section 36(2) applies in a context where an act prescribes or allows a period for the doing of something, and the final day of that period happens to fall on a Sunday. The respondent argued that the day should be excluded from the calculation of the period, whereas the applicant contended that the Sunday should be included.

The court was required to determine whether section 36(2) of the Acts Interpretation Act 1901 applies to prescribed or permitted periods that end on a Sunday, and if so, whether such a day should be excluded from the calculation of the period. The respondent contended that the statutory language was clear and unambiguous, mandating the exclusion of Sundays in such scenarios. The applicant, on the other hand, argued that the plain meaning of the statute did not necessitate the exclusion of Sundays, and that the legislative intent should be interpreted in light of the overall context of the Act. The court considered the language of the statute, its purpose, and the legislative context to reach its decision.

Upon analysis, the court found that section 36(2) of the Acts Interpretation Act 1901 does indeed apply when a period prescribed or allowed by an act concludes on a Sunday, and that such a day should be excluded from the calculation of the period. The court held that the plain meaning of the statute, along with its purpose and the broader legislative context, supported the exclusion of Sundays. Consequently, the application was dismissed with costs.

Orders

Orders of the court

THE COURT ORDERS:

Application is dismissed, with costs

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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