Zarro v Australian Securities Commission

[1992] FCA 233

Re: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
And: FRANKLIN CLARENCE HAMSHER; NEIEL JOHN DRAGO; BEVERLY KATHERINE ELTON;
LAURENCE ETHEREDGE; ARTHUR JAMES HEMPEL; LILIAN PAGE KRAINOCK; MARGARET ANN
LIBASSI; SARAH ELIZABETH MARSHALL; ALLEN WESLEY WILLIAMS; CHERYL ELAINE
WILLIAMS; MARILYN COLENE WILLIAMS and LETITIA LIBASSI BY HER NEXT FRIEND
FRANKLIN CLARENCE HAMSHER
No. WA G16 of 1992
FED No. 233
Immigration
(1992) 35 FCR 359
(1992) 26 ALD 406 (extracts)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Beaumont(2) and Lee(2) JJ.

CATCHWORDS

Immigration - application for entry permit - whether refusal to grant a refusal of applications pro tem or in toto - whether Migration Legislation Amendment Act 1989 s.6(4) applied.

Extradition (Foreign States) Act 1966

Federal Court of Australia Act 1976 s.27

Migration Act 1958 ss.6, 6A, 6AA, 34; sub-ss.6(2A)

Migration Amendment Act 1987

Migration Legislation Amendment Act 1989 s.6; sub-ss.2(4) and (5), 6(4) Parliamentary Privileges Act 1987 sub-s.16(3)

Migration Regulations

Abalos v. Australian Postal Commission (1990) 171 CLR 167

Attorney-General for the State of New South Wales v. Quin (1990) 170 CLR 1

Dawson v. Westpac (1991) 104 ALR 295

Duralla Pty. Ltd. v. Plant (1984) 2 FCR 342

Edwards v. Noble (1971) 125 CLR 296

Gerah Imports Pty. Ltd. v. Minister for Industry, Technology and Commerce (1987) 17 FCR 1

Jones v. Hyde (1989) 63 ALJR 349

Mundey v. Askin (1982) 2 NSWLR 369

Re Sterling; ex parte Esanda Ltd. (1980) 30 ALR 77

Warren v. Coombes (1979) 142 CLR 531

HEARING

PERTH

#DATE 1:5:1992

Counsel for the Appellant: Mr S. Owen-Conway;

Mr P.R. Macliver

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondents: Mr I.S. Jones

Solicitors for the Respondents: Mossensons

ORDER

1. The appeal and cross-appeal be dismissed.

2. The applicant pay the respondents' costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judgment of a single Judge of the Court in which his Honour declared that the respondents, each of whom is a member of a community known as The Christ Circle, were entitled to have applications for the grant of entry permits under the Migration Act 1958 (Cth) considered according to the provisions of the Act as it stood immediately before 19 December 1989, being applications to which s.6(4) of the Migration Legislation Amendment Act 1989 (Cth) ("the 1989 Act") applied.

1. The respondents entered Australia in January 1986 as the holders of temporary entry permits. In April 1986, the respondents each applied for resident status, that is for the grant of an entry permit unlimited in time. Such entry permits could have been granted subject to compliance by the respondents with the then requirements of s.6A of the Migration Act. I need not set out those well known provisions.

2. Consideration of the applications was postponed for some time as two of the respondents, Messrs Hempel and Etheredge, were extradited to Israel to face criminal proceedings. Ultimately, they returned to Australia on 12 June 1989 without a conviction having been recorded.

3. In the meantime, by the Migration Amendment Act 1987 (Cth), the Migration Act had been amended to insert sub-section 2A in s.6. The new sub-section provided that a request for an entry permit should be in writing in accordance with the relevant form approved by the Minister and that any fee payable in respect of the request must be paid. Thereafter, fees were prescribed.

4. On or shortly before 1 September 1989, the Minister made a decision on the applications. On 1 September 1989, the Minister wrote to the West Australian State Director of the Department of Immigration Local Government and Ethnic Affairs ("DILGEA"):-
   

"Notwithstanding that the requisite fees have not been paid, I have decided to refuse the applications for permanent resident status. I have decided to offer the community permits to remain temporarily in Australia for two years and to give them permission to work during that time. This offer is conditional on the community members making formal applications and paying the requisite fees within 21 days of being notified of my decisions. Should the community members not take up my offer, it remains open to the Department to pursue whatever action is appropriate to prohibited non-citizens.

Would you please keep my office informed of developments."

On 11 September 1989, the Senior Private Secretary to the Minister wrote to the respondents' solicitors stating inter alia:-

"In deciding to extend the offer of two year temporary entry permits to the members of the community it was intended that that period would be used to assess their prospects for permanent settlement in Australia. Should they demonstrate a satisfactory record of residence in this country, this would be positively taken into account in any future application for permanent residency."

On 29 September 1989, the Acting State Director of DILGEA wrote to each of the applicants stating inter alia:-

"On 6 September 1989 the Minister for Immigration, Local Government and Ethnic Affairs advised this office that he had decided to refuse the grant of resident status to you and other members of the Orionia Community. However he had agreed to your remaining temporarily in Australia for a period of two years, with permission to work, providing a formal application was lodged and the requisite fee paid.

...

The alternative, should you decide not to take up the Minister's offer of 2 years temporary residence, is that you depart Australia on or before 31 October 1989. If so we request that evidence of travel arrangements also be forwarded to this office by 4pm on 20 October 1989."

1. On this material, the trial Judge found:-
   

"I am satisfied on the whole of the correspondence and the advices given by Senator Beahan and Mr Richardson, that the Minister refused in September 1989 to grant permanent entry permits but agreed instead to grant temporary entry permits for a period of 2 years and undertook that at the expiry of that time, applications for permanent resident status would be considered having regard to the applicants demonstrating a "satisfactory record of residence" during the two year period."

I agree with his Honour's finding. It can hardly be doubted that the Minister decided to refuse the applications which were before him, for in his letter of 1 September 1989, the Minister stated that he did so and that, should no further application be made, it would be open to DILGEA to take action against the respondents as prohibited non-citizens. And that was the advice given to each of the respondents by the Acting State Director of DILGEA in the individual letters of 29 September 1989 to each respondent which stated that the Minister had decided to refuse the grant of resident status and that, unless application was made in due form for a temporary entry permit, the respondent would be required to depart Australia on or before 31 October 1989.

1. What the Minister had in mind for the future was disclosed by the letter from the Senior Private Secretary to the respondent's solicitors of 11 September 1989 when he indicated that should the respondents apply for and receive temporary entry permits and should they demonstrate a satisfactory record of residence, that record would be positively taken into account in any future application for permanent residency. That that was understood by the respondents is shown by the fact that each of the respondents did apply for and obtain a temporary entry permit limited to a period of two years and, towards the end of that period, applied again for permanent residency.

2. Accordingly, the Minister refused the applications which were before him but authorised the grant of temporary entry permits for a period of two years should each of the respondents apply for one. The Minister and each of the respondents expected that the respondents would apply towards the end of the two year period for permanent residency and that a satisfactory record of residency during the two year period would be taken into account in the consideration of those fresh applications.

3. Unfortunately, the legislative framework changed on 1 December 1989 in a way that neither the Minister, the respondents nor any person in DILGEA dealing with the respondents' affairs appears to have adverted to. The 1989 Act, which substantially recast the Migration Act and provided for the promulgation of regulations prescribing entry permits of particular classes, had been assented to on 19 June 1989 and substantially came into force on 19 December 1989. On the same day, Migration Regulations came into force prescribing the classes of entry permits.

4. Therefore, when each of the respondents in 1991 made application for permanent residency, s.34 of the Migration Act provided, inter alia:-
   

"(1) This section applies where, and only where:

(a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and

(b) any fee payable in respect of the application is paid.

(2) Unless this section applies, the Minister:

(a) is not required to consider an application at all; and

(b) shall not in any circumstances grant an entry permit.

...

(4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit."

1. As the Migration Regulations in force at the date of the respondents' 1991 applications did not provide an entry permit of a class which could be granted to the respondents, having regard to their circumstances, favourable consideration of the respondents' satisfactory record of residence in Australia during the period of residency availed for nought. There was no entry permit which the Minister, who was bound by the Migration Act, was authorised to grant.

2. The expectation of the Minister and of the respondents was therefore defeated. Such a circumstance was considered in Attorney-General for the State of New South Wales v. Quin (1990) 170 CLR 1. The Court rejected the view that legitimate expectations could fetter the merits of decisions to be made in the future. At 23, Mason C.J. said:-
   

"However, the view that legitimate expectations may attract substantive, as distinct from procedural, protection encounters the objection that it will entail curial interference with administrative decisions on the merits by precluding the decision-maker from ultimately making the decision which he or she considers most appropriate in the circumstances."

1. It was in these circumstances that the respondents sought from the Federal Court a declaration that they were entitled to have their position dealt with under the applications which they had made in April 1986 rather than under the applications which they lodged in 1991. This declaration was sought in reliance upon the provisions of s.6(4) of the 1989 Act which read:-
   

"(4) In spite of the repeal effected by subsection (1), the provisions of the Principal Act relating to the granting of visas and entry permits as in force immediately before the commencement of this section continue to have effect after that commencement for the purposes of applications for visas or entry permits made before that commencement."

1. The issue before the trial Judge was whether, in 1991, the 1986 applications were still undetermined so that a decision could be made on them under the legislation as in force prior to 1 December 1989.

2. The trial Judge held:-
   

"The Minister's refusal to grant permanent entry permits to the applicants in September 1989 constituted a refusal to exercise the power that he had under the Act to accede to their applications. Instead he offered them the option of temporary entry permits on the basis that they would be considered for permanent entry permits at the expiry of two years. While the letter of 11 September 1989 from the Minister's Senior Private Secretary contemplated that there would be a `future application for permanent residency', this was not written in the context of the regulatory framework which later came into effect requiring applications to be in approved form (Reg. 23). There was also no express provision then as there is now, for a ministerial refusal with dispositive effect

(s.34(4)).

The Minister's decision taken in September 1989 while expressed as a refusal to grant permanent entry permits was in substance a refusal pro tem to exercise in favour of the applicants the powers conferred on him to grant a permanent entry permit."

1. However, I see no significance, for the purpose of s.6(4) of the 1989 Act, of the fact that prior to that Act there had been no express power to refuse an application. The Migration Act provided that applications must be in writing in an approved form and for the payment of fees on the lodgment of an application. It follows, in my opinion, that the Migration Act conferred not only an express power to grant a permit in accordance with an application but also by necessary implication an implied power to refuse an application. The grant of a power carries with it the grant to do all such things as may be required to give efficacy to the power. See Re Sterling; ex parte Esanda Ltd (1980) 30 ALR 77 at 83; Gerah Imports Pty Ltd v. Minister for Industry, Technology and Commerce (1987) 17 FCR 1. Power to refuse an application formally made is such a matter.

2. I cannot regard the applications of April 1986 as continuing to be on foot and to have had force for the purposes of s.6(4) of the 1989 Act after September 1989 when the Minister wrote that he had refused the applications and when each of the respondents was advised that the Minister had done so.

3. The fact that the Minister, his private secretary and others in DILGEA who were dealing with the respondents' affairs contemplated that, after a period of two years residence, the respondents would make a further application for permanent residency and that those applications would be granted if the respondents' conduct during the further period of temporary residency was satisfactory, seems to me not to alter the position so far as s.6(4) of the 1989 Act is concerned. There was an understanding between the parties that fresh applications would be lodged and decisions made on those applications. All persons understood that the April 1986 applications were determined unfavourably to the respondents but that new applications after a satisfactory period of two years temporary residence would be likely to be granted.

4. The Migration Act, however, required that the 1991 applications be dealt with under the Migration Act as it read when the applications were lodged. The fresh applications when lodged were therefore correctly refused, as the judgment and reasons in Attorney-General v. Quin, show.

5. I therefore cannot accept the view taken by the trial Judge to the contrary.

6. Counsel for the respondents put his case in a number of ways which I need not discuss. He suggested, for example, that the Minister had a power to revoke the refusals of September 1989. That may be so, but I would not accept that the Minister could properly revoke an earlier refusal just for the purpose of avoiding the operation of the 1989 Act and to overcome the explicit provisions of s.6(4) thereof. In any event, the refusals of September 1989 have not been revoked. I do not accept any of the challenges made to the decisions which were under review.

7. I would allow the appeal. I would set aside the orders made by his Honour and would substitute therefor an order that the application to the Court be dismissed. I would order that the respondents pay the costs of the appeal and of the proceedings below.

JUDGE2

The appellant ("the Minister") appeals from an order of a Judge of this Court declaring that the respondents are entitled to have applications lodged under the Migration Act 1958 ("the Act") in April 1986 seeking the grant of entry permits considered according to the provisions of the Act as it stood immediately before 19 December 1989.

1. The respondents entered Australia in January 1986 as the holders of temporary entry permits issued under the Act. In April 1986 the respondents applied for the grant of entry permits that were not subject to a specified period of residence ("permanent residence"). In September 1986 they were given informal permission to remain in Australia until those applications had been determined.

2. The issue before his Honour and in the appeal was whether the Minister, in about September 1989, made a decision which finally determined those applications.

3. It is necessary to set out a short summary of relevant facts before dealing with his Honour's findings.

4. Immediately after the respondents entered Australia two of them, Hempel and Etheredge, were arrested on a warrant issued under the Extradition (Foreign States) Act 1966 pursuant to a request received by the Australian Government from the Government of Israel. It was not until April 1988 that the extradition proceedings were completed and the arrested persons surrendered to Israel. In April 1989 an Israeli District Court found charges against Hempel and Etheredge to have been proved but did not proceed to record a conviction. On 17 April 1989 Hempel and Etheredge applied for visas to return to Australia. The visas were at first denied but later granted and the pair returned to Australia on 12 June 1989. It may be assumed that Hempel and Etheredge re-entered Australia pursuant to conditions endorsed on the visas which operated as entry permits pursuant to s.6AA of the Act as it then stood. The respondents' applications for permanent residence had not been determined when Hempel and Etheredge returned to Australia.

5. On 19 June 1989 the Migration Legislation Amendment Act 1989 ("the Amendment Act") received the Royal assent. Section 6 of the Amendment Act repealed provisions of the Act relating to visas and entry permits and substituted new provisions. Sub-section 2(4) of the Amendment Act provided that, inter alia, s.6 of that Act was to commence on a day to be fixed by proclamation and sub-s.2(5) further provided that if that provision had not commenced within a period of six months beginning on the day on which the Act received the Royal assent the provision would commence on the first day after the end of that period. Pursuant to sub-s.2(5) of the Amendment Act s.6 of that Act commenced on 19 December 1989. Sub-section 6(4) provided as follows:
   

"In spite of the repeal effected by sub-section (1), the provisions of the Principal Act relating to the granting of visas and entry permits as in force immediately before the commencement of this section continue to have effect after that commencement for the purposes of applications for visas or entry permits made before that commencement."

1. The amendments effected by the Amendment Act and regulations promulgated thereunder removed the eligibility of the respondents to apply for and be granted permanent residence unless the saving provisions of sub-s.6(4) of the Amendment Act applied.

2. The evidence presented to his Honour as to the steps taken by the Minister in dealing with the respondents' applications for permanent residence consisted of correspondence and statements made by or on behalf of the Minister. His Honour found that the evidence of the respondents Hamsher and Hempel, neither contradicted nor substantially challenged, established that on 27 August 1989 Senator the Honourable Michael Beahan on behalf of the Minister informed the respondents that the Minister would grant the respondents temporary entry permits valid for a period of two years and that the respondents would be considered for "permanent residency" upon the expiry of those permits. His Honour also accepted that in September 1989 Mr Richardson, an officer of the Department of Immigration, Local Government and Ethnic Affairs ("the Department"), had "repeated what Senator Beahan had said". By letter dated 1 September 1989 the Minister informed the Director of the Department in Western Australia as follows:
   

"I have considered this case further to my decision of 26 May 1989 not to grant refugee status to members of the community.

Notwithstanding that the requisite fees have not been paid, I have decided to refuse the applications for permanent resident status. I have decided to offer the community permits to remain temporarily in Australia for two years and to give them permission to work during that time. This offer is conditional on the community members making formal applications and paying the requisite fees within 21 days of being notified of my decisions.

Should the community members not take up my offer, it remains open to the Department to pursue whatever action is appropriate to prohibited non-citizens. Would you please keep my office informed of developments."

1. A letter from the Minister's Senior Private Secretary to solicitors for the respondents dated 11 September 1989 read as follows:
   

"I refer to your letter of 4 September 1989 (Ref: KP:RS:13495) addressed to the Minister for Immigration, Local Government and Ethnic Affairs concerning the Orionia Community. Senator Ray has asked me to respond.

In deciding to extend the offer of two year temporary entry permits to the members of the community it was intended that that period would be used to assess their prospects for permanent settlement in Australia. Should they demonstrate a satisfactory record of residence in this country, this would be positively taken into account in any future application for permanent residency. Concerning your comments regarding access to benefits, we note that such access by non-residents is regulated by law. The Minister has also noted the repeated statements by the community that they would be self sufficient and that they enjoy the enthusiastic support of other groups and organisations in the Albany area. Bearing this in mind, and considering that temporary permits would include the right to engage in employment, it is not considered that the offer involves any undue hardship being imposed upon the community. We are unable to vary that part of the offer. There is no objection to your request that Dr. Hempel and Mr Etheredge be granted multiple re-entry visas, on application.

It is now considered that the Orionia Community has had ample time to consider the Minister's offer, which in all the circumstances is a generous one. We must therefore request a response within 14 days from the date of this letter."

1. On 22 September 1989 solicitors for the respondents replied to that letter by asking what was meant by the expression "satisfactory record of residence in this country" and received a reply from the Minister's Senior Private Secretary dated 19 October 1989 which read as follows:
   

"A satisfactory record of residence relates to the public interest requirement generally applying when the matter of permanent residence is decided. For example, consideration would be given to factors such as the conduct of the individual in Australia, whether she/he is of good character; has been able to settle without undue personal difficulty and without imposing undue difficulties or costs on the Australian community and so on. This list is not exhaustive but should serve to indicate the kind of matters that could be taken into account by the Minister of the day in assessing suitability for permanent residence status."

1. By letter dated 29 September 1989 Mr Richardson advised the respondents as follows:
   

"On 6 September 1989 the Minister for Immigration, Local Government and Ethnic Affairs advised this office that he had decided to refuse the grant of resident status to you and other members of the Orionia Community. However he had agreed to your remaining temporarily in Australia for a period of two years, with permission to work, providing a formal application was lodged and the requisite fee paid.

We understand that Haynes Robinson Barristers and Solicitors have advised the Minister that you accept in principle his offer. If that is the case the enclosed application for a further Temporary Entry Permit should be completed and lodged at this office with the required fee of $50 by 4pm on 20 October 1989.

The alternative, should you decide not to take up the Minister's offer of 2 years temporary residence, is that you depart Australia on or before 31 October 1989. If so we request that evidence of travel arrangements also be forwarded to this office by 4pm on 20 October 1989."

1. In addition to the above the respondents adduced without objection part of a record of proceedings in the Senate of the Australian Parliament on 6 October 1989 containing an answer given by the Minister to a question asked without notice by Senator Beahan in respect of the respondents. The relevant part of the answer read as follows:
   

"It is a very complex case. It is one that led us to the decision to make it a temporary entry permit for two years. If I may explain the rationale of that, two criteria had to be looked at. Firstly, what was the intention of members of the Orionia community when they came to Australia? I concluded that it was not their intention to stay here. That puts them in a quite different position to other people who apply for change of status in this country. It was probably actions by the Israeli Government and the Australian Government that detained them in the country. At the same time, as Minister, I also have to look at their settlement prospects. In looking at those, I granted them temporary entry permits with the right to to work. If I had said, 'Yes, you can have permanent residence', and they had all ended up on welfare the next day, I would have been open to very major criticisms. They were given two years in which to prove their capabilities in this country. Short of criminality - and I have no expectation of that - I imagine there will be a grant of permanent residence in two years time. That would be the only thing that would influence me or a future minister to refuse permanent status in this country. But I cannot give a conclusive answer, because I have not seen any final correspondence on this. The indications are that the Orionia community will accept the offer."

1. In preparing his reasons his Honour felt compelled by the terms of sub-s.16(3) of the Parliamentary Privileges Act 1987 to decline to refer to the Minister's statement in determining what decision had been made by the Minister on the respondents' applications.

2. Whether sub-s.16(3) of the Parliamentary Privileges Act 1987 prohibited the Court from considering evidence of proceedings in the Parliament if the evidence was adduced only to show the consistency of subsequent conduct with prior statements and not to provide the foundation for an inference or finding in itself, was not a submission ventilated before his Honour or addressed to this Court. (See Mundey v. Askin (1982) 2 NSWLR 369 at p 373.)

3. His Honour found that he was satisfied by the correspondence and the advice given to the respondents by Senator Beahan and by Mr Richardson on the Minister's behalf that the Minister had refused in September 1989 to grant entry permits free of conditions but had agreed to grant temporary entry permits and, further, had undertaken that "applications for permanent resident status" would be considered after two years subject to the respondents demonstrating a "satisfactory record of residence" during that period.

4. Later in his reasons his Honour expatiated upon that finding as follows:
   

"The Minister's decision taken in September 1989 while expressed as a refusal to grant permanent entry permits was in substance a refusal pro tem to exercise in favour of the applicants the powers conferred on him to grant a permanent entry permit. He foreshadowed that the exercise of this power could be reconsidered at the expiry of 2 years. In substance he offered the applicants a period of probation for 2 years with the prospect, although not the guarantee, of a favourable consideration of the grant of permanent residence at the end of that time. That offer and the undertaking it implied was an outcome of the applications made in April

1986. The applicants are entitled to rely upon those applications now. Although refused at the time they were, in the circumstances surrounding that refusal, not fully concluded. In my opinion the applicants are, by virtue of s.6(4) of the Migration Legislation Amendment Act 1989 entitled to have their applications for permanent entry permits considered under the law as it stood prior to the amendments."

1. In other words his Honour accepted that the Minister's refusal to grant the entry permits in August 1989 was a refusal by the Minister to exercise a power to accede to the applications at that time but was not a refusal of the applications in toto.

2. His Honour found that as a matter of fact the Minister had not exhausted and did not intend to exhaust the whole of his powers in relation to the applications for the grant of entry permits lodged by the applicants in April 1986. In effect his Honour held that it was open to the Minister to refuse to grant the requested entry permits in September 1989 with the intention of resuming consideration of the applications in September 1991 subject to the respondents holding formal temporary entry permits in the meantime pursuant to which they would be entitled to obtain employment. In his Honour's words "the applications had not been fully concluded in September 1989". That is, the expressed refusal to grant the permits sought was not an entire rejection of the applications unless the respondents failed or refused to accept the offer of the grant of temporary entry permits in which event the Minister's refusal to grant permanent residence at that time would operate as a determination of the applications.

3. As his Honour saw it, the Minister had a broad discretion as to how he determined the applications and pursuant to that discretion he had offered the respondents temporary entry permits during the term of which the respondents may satisfy him as to their qualification for the grant of permanent residence. Upon the expiry of those permits the applications for the grant of permanent residence would be further considered.

4. Counsel for the Minister agreed that as at August or September 1989 the Minister's discretion was as broad and as capable of exercise as his Honour had described it but contended that as a matter of fact the Minister had finally determined the applications at that time.

5. In reaching his findings of fact his Honour referred to the uncontested evidence of Hamsher and Hempel but no part of his Honour's findings depended upon any impression formed by his Honour in respect of Hempel, the only person to give oral testimony, and nothing turns upon the undoubted advantage his Honour held in that regard. (See Jones v. Hyde (1989) 63 ALJR 349 at p 351; Abalos v. Australian Postal Commission (1990) 171 CLR 167 at p 179; Dawson v. Westpac (1991) 104 ALR 295.)

6. The material upon which his Honour made his findings consisted of documents, affidavits and uncontested oral testimony. This Court is as well placed as his Honour to draw inferences from that material. (See Warren v. Coombes (1979) 142 CLR 531.)

7. Section 27 of the Federal Court of Australia Act 1976 provides as follows:
   

"In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken on affidavit, by oral examination before the Court or a Judge or otherwise in accordance with section 46."

1. However, the hearing of an appeal in this Court is neither a trial de novo nor a trial of the case afresh on the record (Duralla Pty. Ltd. v. Plant (1984) 2 FCR 342) and the Court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The Court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The Court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the Court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v. Coombes at pp 552-553 states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v. Noble (1971) 125 CLR 296, p 304 (Barwick C.J.), pp 308-309 (Menzies J.), pp 318-319 (Walsh J.).

2. We are not satisfied that his Honour was in error in reaching the conclusion he did from the inferences he drew from the material before him. Perhaps other inferences leading to a contrary conclusion were available but we are unable to say that his Honour made an error in drawing or relying upon the inferences he did. If the Minister's letter to the State Director of 1 September 1989 had stood alone, perhaps it would have led his Honour to a different conclusion but his Honour was required to look at the totality of the material to ascertain as best he could the true nature and substance of the Minister's decision. There was no formally recorded decision and its content had to be gathered, as his Honour stated, from statements explaining the decision made by parties acting with the apparent authority of the Minister and statements recorded in correspondence at about the time the decision was made. The letter under the hand of the Minister was only part of that material. The letter itself was not the decision and it was necessary for his Honour to consider the contents of that letter in conjunction with all other material to ascertain what course the Minister had decided to follow. It is possible in such circumstances for the whole of the evidence to supply added meaning to words used to describe the nature or effect of a decision and an accurate account of the decision and its consequences will depend upon those matters.

3. The relevant facts in this case were that the applications for permanent residence had been on foot and undetermined for more than three years. The offer to grant to the respondents, if they were prepared to accept, temporary entry permits for a period of two years did not resolve the question to be determined on the applications for permanent residence. The step of offering temporary entry permits was not in itself a mark of finality. It provided a further period within which the Minister could obtain the additional information he required before he determined finally the applications for permanent residence, it being the Minister's opinion apparently that he did not know enough about the respondents to be able to say yes or no to their applications at that time.

4. If the Minister had intended to make a final determination on those applications he would have required no further information. The matter would have been at an end. There was neither apparent need nor purpose for the Minister to finally decide the applications and at the same time grant temporary entry permits. As his Honour saw it there was no reason to understand that the Minister had made a conscious decision to terminate the applications for permanent residence.

5. Counsel for the Minister presented his case on the basis that his Honour made a clear and unequivocal finding earlier in his reasons that the Minister had made a decision to refuse to grant entry permits to the respondents and that his Honour's subsequent conclusion that the refusal was in substance a qualified refusal was contrary to an express finding of fact already made by his Honour and, therefore, unsupported by any finding of fact.

6. Reading his Honour's reasons as a whole in the manner we have described shows that his Honour's findings of fact clearly supported his conclusion.

7. It was not submitted by counsel that his Honour erred in having regard to any of the material considered by him in reaching his findings of fact.

8. It is unnecessary to deal with the respondents' cross contention that his Honour should have found that the Minister was estopped from declining to further consider the respondents' original applications for unconditional entry permits. Counsel for the respondents had difficulty in explaining the nature of the estoppel relied upon and it is unnecessary to add anything to his Honour's comments in that regard.

9. The respondents' cross appeal was that his Honour erred in failing to find the Migration Regulations invalid. It is enough to say that the grounds advanced for the cross appeal were without substance and the reasons provided by his Honour properly disposed of the argument.

10. The appeal and cross appeal should be dismissed.