Zoeller, G v Minister for Immigration, Local Government & Ethnic Affairs

[1990] FCA 748

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

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NEW SOUTH WALES DISTRICT REGISTRY

)	G 608 of 1990
)	G 693 of 1990

GENERAL DIVISION

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BETWEEN:  GUNTER ZOELLER

Applicant

AND	MINISTER FOR IMMIGRATION. LOCAL
GOVERNMENT AND ETHNIC AFFAIRS I

Respondent

m:  Dav~cs J. H RECEIVED m

&:  Sydney

Date : 18 December

Davies J : Thls appllcation seeks review of a decision rejecting an appllcation by Mr Gunter

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Zoellcr for the grant of a permanent entry permit to confer upon him resident status in

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Australia.	The application for the permanent entry permit was made in November 1987 but	: .
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despite requests that it be dealt w ~ t h	i t was not thereafter dealt with until 30 November 1990
considered.

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when it was refused on the technical ground that I wlll shortly mention.	i '
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Slnce that refusal, an application for migrant entry visa has been made and	F.
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consideration of that application is in train in Germany and the merits of Mr Zoeller's	I
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circumstances in accordance .with that application a m therefore in the' conrsc* o r beiing	-.	i - .
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Mr Zoeller's earher application was not dealt w ~ t h for several years as Mr Zoeller was

the subject of extradition proceedings, whlch were considered on several occasions in this Court, but finally Mr Zocller was extradited to Germany and he was there dealt with and has

now been released and wishes to return to Australia and to his wife who is an Australian

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The application was ultimately dealt with on 30 Novembcr 1990 on the simple basis that an entry permit could not be granted to Mr Zoeller as he had not arrlved in Australia and	[
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was not in Australia. The merits of hls application were not considered.	!
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Mr T. A Alexis, counsel for Mr Zoellcr, has put forward a number of grounds of	I
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challenge. He submitted first that a matter of relevant consideration which was not taken	i :	I'
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into account. However, this is of no significance as the merits of Mr Zoeller's casc were not	r
considered.
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Secondly, Mr Alexls submitted that M r Zoeller should have been considered as if he 1;

were in Austral~a as his removal to Germany under the extradition order was involuntary and '1 1 .

at all times he intended to return to Australia and this was known to the Department of

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Immigration, Local Government and Ethnic Affairs.	!
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It seems to me that that argument must be rejected. I agree with the submission put by Mr Knox, counsel for the Minister, that both the Act before amendment by Act No. 59 of	I
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I989'and the present Act require that a person:be physicalIy prPsent in -Australia-for-amentry -.-	!6-'	.	,(	k
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permit to be granted. The Act before amendment in 1989 provided in section 6(5) that an

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entry permit may be granted either upon arrival in Australia or after entry into Australia.	In	W
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my view~thu;suhsection meansexactly arhak,~Lsays and limits. the'grant-to? tha~:si tuation.~~~

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there was any doubt it would be dispelled by the provisions of section 9(1) of the Act which prov~ded that where a non citizen who is the holder of an entry permit lcaves Australia the

entry permit has no force or effect in relation to him upon or aftcr his re-entry into

Australia.

The intent of these provis~ons 1s that pcrmlt entry permits may be granted to someone

who has arrived in Australia or to someone who is present in Australia but their effect ceases after leaving Australia and they have no effect on re-entry into Australia. At present, the Act in its present form by section 46 makes it specifically clear that an entry permlt shall not

be granted to a person unless the person is phys~cally prescnt in Australia

The argument proceeded upon the footing that because of the provisions of section

G(4) of Act No. 59 of 1989, the amending Act, that the act in its previous form applied to this application. I assume that to be so but in any event I see no material difference between the

prov~sions for present purposes.

For these reasons, it seems to me that the basis upon which the application is based

must fa11

Having said that I should say that it seemed to me in the course of argument that

there was one argument which a t least was open for consideration and that was the argument

that the application for a permanent entry permit lodged in November 1987 was w ~ d c enough

to encompass, i n the circumsta.nces which', havei* happenecf;, anc-application *for %iie grant'of <a ;.

permanent entry permit and for a mlgrant entry visa w h ~ c h would enable the travel from

Germany back to Australia. 1 would add to the fact that the application was lodged in

Novemher 1987,.. the I fact. also ,that thcre.:has'-been,. correspondence -between.!Mn Zoella:s!

solicitors and the Department of Immigration, Local Government and Ethnlc Affairs so that both parties were fully aware of what was sought. It has been clear for some time that Mr

Zoeller has wishcd to return to Austral~a and have the benefit of permanent residence should

he be expedited to Germany as occurred.

If that argument were sound, then the consideration which has taken place with Mr

Zoeller's circumstances would not have been an adequate consideration for it would not have

been sufficient to reject the application on the mere ground that Mr Zoeller was not present in Australia. The application would, in the circumstances which have occurred, have

impliedly sought the grant of all necessary pre-conditions, such as the grant of a migrant

entry visa so as to enable Mr ZoelIer to travel to Australia, where he could be then granted a

permanent entry permit on his arrival.

But I slmply ralse the point, as I did in argument. I do not declde it and i t is not a

matter that has been put to me by either counsel. It is simply a matter that seems to me that would have been open for argument and I mention i t in case any other persons come to consider this matter at some later time.

At any rate, for the reasons I have given it seems to me that the application must be

dism~ssed.

There should be no order as to costs. The earlier matter dissipated when the parties

were agreed to.aacourse o f action and, aIthough.E~may have heen,inclined. to grant costs inA
relation to i t if it had been the only matter in issue, we have had another application today
and the applicant has been unsuccessful. I think the proper order is to make no order as to

costs ixxeithcr matter;:. ' I'

I certify that this and the preceding
4 pagcs are a true copy of the reasons
for judgment of the Honourable

Mr. Justice Davies.

Associate: h	hcfyJJ-
Date:	18 December 1990
Counsel for the applicant:	Mr. T. A. Alexis
Solicitors for the applicant	Dammholz & CO
Counsel for the respondent:	Mr. B. Knox
Solicitor for the respondent:	Australian Government Solicito~
Date of hearing.	18 December  1990
Date of judgment :	18 December 1990