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."

1. 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 erred in law in refusing to entertain the application and thus constructively failed to exercise the relevant statutory jurisdiction.

The Tribunal's reasons
3. In her reasons, the respondent said:

"Mr Zangzinchai's latest specialist (overseas) entry permit was valid to 1 March 1992. As this was a Sunday, there is a question as to whether section 36 of the Acts Interpretation Act 1901 operates in such a way that Mr Zangzinchai either remained 'lawfully present in Australia' on the next working day (the Monday on which he lodged the application for the entry permit) or that permitted the application to be lodged on the Monday without incurring any penalty. Whether section 36 applies in a similar circumstance (in a case where there was standing to apply to the Tribunal but where the penalty of additional criteria was imposed) was discussed by the Tribunal in Re Sekido (IRT decision N91/00033, 6 March 1992:

'..section 36...would appear to be irrelevant in the present case since its application depends, according to the terms of the section, upon the prescription of the period of doing something and the Act and the Regulations do not contain any such prescription for the making of an application for an entry permit. An application for a further temporary entry permit may be made at any time, even if, as in the present case, the applicant is an illegal entrant in which case however certain further criteria must be satisfied.' (A fuller reference to these reasons is made below.) The period ending on 1 March 1992 was not a period allowed by the Migration Act for making an application for an entry permit, it was a period during which Mr Zangzinchai was permitted to stay in Australia. In the normal course of events, the expectation was that Mr Zanzinchai would leave Australia on or before 1 March 1992 or seek permission to extend his stay. That he left the making of his application for another entry permit until 2 March 1992 did not mean he was prevented from making an application, it meant that additional criteria might be imposed (depending on the type of entry permit) and that review rights would be limited. On this basis, I made a finding of fact that Mr Zangzinchai was not lawfully present in Australia on 2 May 1992."

1. (Section 36(2) of the Acts Interpretation Act 1901 relevantly provides:
   

"(2) where the last day of any period prescribed or allowed by an Act for the doing of anything falls on....a Sunday..., the thing may be done on the first day following......")

The relevant legislative provisions
5. By s. 116(1)(c) of the Act the regulations may provide for persons who may apply for review of decisions by the Tribunal.

1. At material times, Reg. 21(3)(a) of the Migration (Review) Regulations 1989 provided that an applicant for an entry permit may apply to the Tribunal for review of a decision to refuse an entry permit if, inter alia, "the applicant was lawfully present in Australia when he or she lodged the application." (Emphasis added)

2. By s. 14 of the Act, on entering Australia, a non-citizen becomes an illegal entrant unless:
   

"(a) he or she is holder of a valid entry permit..."

1. By s. 14(3), a non-citizen who is the holder of a valid entry permit "becomes an illegal entrant if he of she stops being the holder of a valid entry permit while he or she is in Australia."

2. By s. 33(1)(c) of the Act, the regulations may make provision in relation to the effect and operation of entry permits.

3. At material times, by reg. 24(1)(d), it was provided that an entry permit granted by the Minister under s. 34 of the Act, in the case of a temporary entry permit:
   

"(i) may specify the period during which it is to have effect: and

(ii) may be expressed to authorise the holder to remain in Australia only for that period."

1. Reg. 27(2)(a) provided that a valid entry permit "ceased to be in force on the expiration of the period in respect of which the entry period was granted."

The applicant's submissions
12. On behalf of the applicant two submissions were made. First, it was said that the provisions of s.36(2) applied here. Reliance was placed upon the reasoning of Harris J in Thomson v Les Harrison Contracting Co (1976) V R 238. There, an action in which a writ claiming damages for negligence was issued on a Monday, one day after the period of limitations had expired, was held not to be statute-barred by reason of the Victorian counterpart of s. 36(2), s. 31A of the Acts Interpretation Act 1958 (Vic) as follows:

"(1) Where the time limited by any Act for the doing of any act or thing expires or falls upon a holiday the act or thing may be done on the day next following that is not a holiday.

(2) In this section `holiday' means a Saturday or Sunday or a day which is a public holiday or a bank holiday in the place in which the act or thing is to be done or may be done."

1. (By s. 5(6) of the Limitation of Actions Act 1958 (Vic) it was provided that - "no action for damages for negligence nuisance or breach of duty....where the damages claimed... include damages in respect of personal injuries...shall be brought after the expiration of three years after the cause of action accrued.")

2. Harris J said (at 242):
   

"What s.31A speaks of is 'the time limited by any Act for the doing of any act or thing'. The expression 'for the doing of any act or thing' is a very wide one. In my opinion, the inclusion of the word 'for' in the phrase in s.31A(1) even having regard to the words 'is to be or may be done' in s.31A(2), is insufficient to lead to construing the section as only applying to cases where the provisions of an Act positively require a person to do an act or thing within a limited time. In my opinion, the language is just as apt to cover cases where the time which is limited for the doing of the act or thing is a time within which a person has to do the act or thing, if he is going to do it at all."

1. (The applicant also submits that, even if s.36(2) did not apply, he was still "lawfully present" in Australia on 2 March 1992 because, on that day, he could have decided to leave Australia or to make an application for another permit. This argument was not really developed. It is without substance and I reject it.)

2. An alternative submission was advanced, based on waiver (see Commonwealth of Australia v. Verwayen (1990) 170 CLR 394) by reason of the circumstance that in communicating his decision on 27 April 1992, the Minister's delegate said:
   

"You became an illegal entrant on 2/3/92. However, as you are considered to have made this application before your TEP expired your period of grace does not commence until 5 working days after the day this letter is posted. The period of grace in your particular case is due to expire on 2/6/92 and you are expected to depart Australia by this date."

Conclusions
17. It is convenient to deal with the applicant's arguments in turn.

(a) Did s.36(2) of the Acts Interpretation Act apply?
18. Although the approach in Thomson v Les Harrison Contracting was followed recently, in a similar context, a Full Court in the Supreme Court of Queensland (see Price v J.F. Thompson (Qld) Pty Ltd (1970) 1 Qd R 278), I do not think that this approach provides a useful analogy here, both as a matter of principle and in terms of the language of the respective statutes. (It will be noted that, in material respects, the Victorian interpretation legislation differs from the Commonwealth Act.) The better view of the present situation, so far as concerns the possible application of s.36(2), is, in my opinion, provided in the reasoning in Re Sekido, above. There, Professor L Certoma, Senior Member said (at 11-12):

"However, s.36 of the Acts Interpretation Act 1901 (Cth) would appear to be irrelevant in the present case since its application depends, according to the terms of the section, upon the prescription of a period for the doing of something and the Act and Regulations do not contain any such prescription of time for the making of an application for an entry permit. An application for a further temporary entry permit may be made at any time, even if, as in the present case, the applicant is an illegal entrant in which case however certain further criteria must be satisfied. The lawful The lawful status of a non-citizen cannot exist without, and is a quality arising from, the possession of an entry permit. Therefore lawful status is lost by a temporary resident as a passive act through the expiry of an entry permit and can only be regained or maintained by the grant of, and not the application for, a further temporary entry permit in respect of which, as already noted, there is no time prescription in the Act or Regulations. Indeed, as already noted, the legislative provisions contemplate that even persons who have become illegal entrants may seek an entry permit and to that end have provided additional criteria that must be satisfied by such applicants. Therefore s.36 of the Acts Interpretation Act 1901 (Cth) cannot be considered as extending the time within which an application for an entry permit may be made nor, consequently, as preserving the lawful status of an applicant. It follows that the Principal must be considered an illegal entrant on the date of application for the further temporary entry permit on 21 May 1990."

1. In other words, we are concerned here with a statutory provision dealing with question of status (that is, being "lawfully present in Australia") judged as at a particular point of time (2 March 1992), rather than a statutory limitation provision which provides for the barring of a remedy if a step is not taken within a prescribed period. In this respect, the bankruptcy cases, concerned as they are, with status, provide a better analogy for present purposes (see Re Tavella (1953) 16 ABC 559; Re Arba, 28 April 1982, Fitzgerald J, unreported).

2. In McPherson v Lawless (1960) VR 363, Sholl J correctly analysed the essential reasoning in Re Tavella, above, as follows (at 369):
   

"In Re Tavella ... Clyne, J had to deal with the wording of s.55(1)(c) of the Bankruptcy Act, which required that the act of bankruptcy relied upon should have occurred within six months before the presentation of the petition. There the petition was presented six months and one day after the act of bankruptcy relied upon, but the six months expired on a Sunday. His Honour pointed out that the statute was not prescribing an act to be done by the creditor but was describing the essential characteristic, or an essential characteristic, of the act of bankruptcy, and therefore he held that a petition presented on the Monday was too late."

1. In my view, this reasoning should be applied here also. I cannot accept the applicant's submission.

(b) Waiver
22. Here also I have difficulty in accepting the applicant's contention. Even assuming that waiver of a statutory provision of this kind were permissible as a matter of law or in equity, the conduct relied upon for this purpose occurred on 27 April 1992, that is, after 1 March. By 2 March 1992, the applicant had become a person who was not "lawfully present in Australia". Any opinion that the Minister's delegate might express on that question on 27 April 1992 could not relevantly affect that status as at 2 March. It is not necessary to consider what might have been the position if the delegate had spoken before 2 March.

Orders
23. The application is dismissed, with costs.