Jayaweera v Minister for Immigration & Multicultural Affairs

The legislation 11 The object of the Act as set out in s 4(1) is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. To advance this object the Act provides for visas permitting non-citizens to enter or remain in Australia (s 4(2)) and the Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering (s 4(3)). 12 The Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia or remain in Australia: s 29(1). The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances: s 41(1). 13 A non-citizen who wants a visa must apply for a visa of a particular class and the regulations may prescribe the way of making such applications: s 45. Section 46(1) provides that an application for a visa is valid if, and only if, it is made in the way required by s 45(2). Section 47 provides: "47. (1) The Minister is to consider a valid application for a visa. (2) The requirement to consider an application for a visa continues until: (a) the application is withdrawn; or (b) the Minister grants or refuses to grant the visa; or (c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration). (3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa." 14 The requirements for a valid application for a ROS visa are set out in Schedule 1 item 1216A of the regulations, introduced by SR 279 of 1997, effective 1 October 1997. The note at the commencement of Schedule 1 provides that the Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in the Schedule is not valid and will not be considered. Relevantly, item 1216A provides that application is to be made, in the case where the applicant is in Australia, in the period 1 October 1997 to 31 March 1998 (inclusive). By par (3)(c) such an application "… must be accompanied by satisfactory evidence that: (i) the applicant, or at least 1 person who makes a combined application with the applicant, entered Australia, as the holder of; (A) a valid passport of a country specified in paragraph (d); and (B) an entry permit or an entry visa that had effect as an entry permit; and (ii) the applicant or the person, as the case requires, so entered Australia on or before the date specified in paragraph (d) in relation to that country." 15 Paragraph (d) specifies 11 countries, including Iraq, Kuwait and countries of the former Yugoslavia, with respective dates. Among them is: "(v) Sri Lanka - 1 November 1993."

Jurisdiction of this Court 16 Counsel for the Minister submitted that the decisions were not failures to make decisions in relation to visas nor refusals to grant visas. The decisions were decisions by the Minister that the applications were not valid and could not be considered: s 47(4). Counsel accepted however that there was a "judicially-reviewable decision" within the meaning of s 475(1)(c), being a decision "relating to visas" other than a decision of the Immigration Review Tribunal or the Refugee Review Tribunal. Thus it was not in dispute that judicial review was available under s 476(1). Reference should also be made to s 477 which provides as follows: "477 (1) If: (a) a person, other than a tribunal, has a duty to make a judicially-reviewable decision; and (b) there is no provision that specifies a period within which the person is required to make the decision; and (c) the person has failed to make the decision; application may be made to the Federal Court for an order of review in respect of the failure to make the decision on the ground that there has been an unreasonable delay in making the decision. (2) If: (a) a person, other than a tribunal, has a duty to make a judicially-reviewable decision; and (b) there is a provision that specifies a period within which the person is required to make the decision; and (c) the person has failed to make the decision before the expiration of that period; application may be made to the Federal Court for an order of review in respect of the failure to make the decision within that period on the ground that the person has a duty to make the decision in spite of the expiration of that period."

Is Rohan's application out of time? 17 Section 478(1)(b) provides that an application under ss 476 or 477 must be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. Section 478(2) provides: "The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph 1(b)." 18 The letter of 3 December 1999 must be taken to have been received seven days after its date: reg 5.03(1)(a). On 19 January 2000 Rohan's Migration Agent wrote on his behalf to the Department protesting at the letter of 3 December 1999. As noted, the application for review was not filed in this Court until 15 March 2000. 19 It has been held by decisions of this Court too numerous to mention that s 478(2) means what it says and no extensions of time can be granted. The most recent is Hocine v Minister for Immigration and Multicultural Affairs [2000] FCA 778. Counsel for the applicants sought to rely on s 477(1). He said there had been no "decision", or at any rate no decision to refuse or grant a visa, thus s 478(1)(b) did not apply. Rather, he said, there had been a failure to make a decision to refuse or grant. That failure was continuing and review was available under s 477(1). If in truth no "decision" had been reached, this argument would hold good. Indeed if there had truly been a failure to make a decision at all, it is difficult to see how the limitation period in s 478(1)(b) could operate, since there would be no temporal starting point. 20 As already mentioned, a decision "relating to visas" is reviewable as a "judicially-reviewable decision" under s 476(1) and thus subject to the unextendable 28 day time limit fixed by s 478. What was done by the Department on 3 December 1999 obviously related to visas. Was it a "decision"? The term is not defined in the Act. The Macquarie Dictionary defines it as including "the act of deciding; determination of a question of doubt" or "that which is decided, a resolution". The Latin root, "decisio" - a cutting down, confirms this sense. The essence of a decision is a conclusion, something which bring to a resolution an uncertain state of affairs. In this sense the letter of 3 December 1999 was a decision. The Department said it was not going to proceed further with the application and that the fee would be returned. To construe the Act in this way is to apply a beneficial meaning. Leaving aside for the moment the particular problems caused by the late filing of the application in the present case, it would be regrettable if an intimation (to use a neutral term) of the kind conveyed by the letter of 3 December 1999 was not a "decision" and thus not subject to judicial review. 21 I accordingly hold that Rohan's application for review is invalid. This is a matter of considerable regret, since the letter of 19 January 2000 was written by a barrister (not counsel who appeared on the present application) who was also a registered Migration Agent. If the Agent received the Department's letter on or before 7 January 2000 there would have been time to file an application for review.

Lalith's application 22 There are two possible constructions of reg 1216A(3)(c)(i)(A). Either the applicant must have been, at the time of entry to Australia, the holder of a valid passport of one of the specified countries and must have physically produced that passport and used it to obtain entry. Or it is sufficient that at the time of entry the applicant was a person to whom there had been issued a valid passport of one of those countries. 23 The readings are finely balanced. On a strictly literal approach, the first construction might have slightly more appeal than the second. However, as in the construction of any legislation, the text has to be construed in a way which will promote the purpose of the Act: Acts Interpretation Act 1901 (Cth) s 15AA, made applicable to delegated legislation by s 46(a). 24 Section 15AB of the Acts Interpretation Act permits the use of extrinsic material as an aid in ascertaining the meaning of legislation. One example of such material is the explanatory statement: s 15AB(2)(e). There was an explanatory statement in the present case but, as often happens, it is not particularly illuminating, being little more than a paraphrase of the terms of the regulation itself. More help is to be found in a media release which was issued by the Minister, Hon Phillip Ruddock MP, on 13 June 1997. It was as follows: "Decisions on Certain Long Term Temporary Residents The Minister for Immigration and Multicultural Affairs, Phillip Ruddock, announced today the Australian Government's decision to resolve the status of certain groups of people who, for humanitarian reasons, have been allowed to remain in Australia as long-term temporary residents. 'The Government has decided to create new visa classes to cover specified citizens from Sri Lanka, countries in the former Yugoslavia region, Iran, Kuwait, Lebanon and China,' Mr Ruddock said. 'Under arrangements implemented by the former Labor Government, some thousands of people have been allowed to remain in Australia for many years because of internal conflict or uncertainty in their home country.' 'Their status has been unresolved for some time. The Coalition has now moved to rectify this situation.' 'These people have been in Australia for many years. All entered Australia legally and have remained in Australia on humanitarian grounds, approved by the former Government,' Mr Ruddock said. 'The decision will allow about 8,000 people to apply.' 'It offers further temporary stay to these people with the availability of permanent residence after they have been in Australia for a total of 10 years.' The two stage process - under which people are initially granted further temporary residence followed by permanent residence after a qualifying period - affects people not covered by concessions introduced by the previous Government. The arrangement includes people who are citizens of the following countries and who arrived lawfully in Australia from: · Kuwait - on or before 31 October 1991 · Iraq - on or before 31 October 1991 · Lebanon - on or before 30 November 1991 · China - on or before 1 November 1993 · Sri Lanka - on or before 1 November 1993 · former Yugoslavia - on or before 1 November 1993 These are the dates on which previous concessions for people from some of these countries were terminated. The new visa will attract a charge of $2,000 to cover application processing costs." 25 The media release then proceeds to discuss details such as health and character checks, procedures for permanent residence, access to Medicare and Social Security benefits, and family reunion. 26 This document has particular significance because it comes personally from the Minister, the person to whom Parliament has entrusted the subordinate law making power in question. Moreover, unlike the explanatory memorandum, it is not merely descriptive but explicitly states the purpose of the regulation and what the government was trying to achieve. 27 It is notable that the media release makes no reference to passports, still less to any requirement that the new visa is only to be issued to persons who happen to have entered Australia on a passport issued by one of the specified countries. 28 What function does a non-citizen's passport serve in Australian immigration law? Subject to some exceptions not presently relevant, a non-citizen must not travel to Australia without a valid visa: s 42(1). A visa to travel to and enter Australia constitutes permission for the holder to enter Australia: s 43(1). On arrival a non-citizen must show a clearance officer "evidence of the person's identity and of a visa that is in effect and is held by the person": s 166(1)(a)(ii). Of course the most frequently used evidence of identity is the passport of another country. But for a non-citizen, production of a valid visa is mandatory while production of a passport as such is merely one way in which identity may be proved. 29 The classic exposition of the nature of a passport is contained in the judgment of Lord Alverstone CJ in R v Brailsford [1905] 2 KB 730 at 745. His Lordship said: "It will be well to consider what a passport really is. It is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries, and it depends for its validity upon the fact that the Foreign Office in an official document vouches the respectability of the person named. Passports have been known and recognised as official documents for more than three centuries, and in the event of war breaking out become documents which may be necessary for the protection of the bearer, if the subject of a neutral State, as against the officials of the belligerents, and in time of peace in some countries, as in Russia, they are required to be carried by all travellers. It is not necessary to do more than to remember certain incidents in the nineteenth century to see what grave international questions might arise in the event of a person holding a passport receiving ill-treatment in a foreign country." 30 The holding of a passport had fatal consequences for William Joyce who under the sobriquet Lord Haw Haw made propaganda broadcasts on behalf of Nazi Germany in World War II. Although a United States citizen, he had obtained before the war a British passport. It had not expired when he made the broadcasts. In Joyce v Director of Public Prosecutions [1946] AC 347 the House of Lords held that this was a sufficient basis to found a duty of allegiance supporting a conviction for treason. Lord Jowitt LC said (at 371): "A well known writer on international law has said (see Oppenheim, International Law, 5th ed., vol. I., p 546) that by a universally recognized customary rule of the law of nations every state holds the right of protection over its citizens abroad. This rule thus recognized may be asserted by the holder of a passport which is for him the outward title of his rights. It is true that the measure in which the state will exercise its right lies in its discretion. But with the issue of the passport the first step is taken." 31 In the context of an ROS visa, the holding of a passport of one of the specified countries serves the purpose of identifying the applicant as a citizen of one of those countries. It is citizenship of one of those troubled countries which warrants the humanitarian approach of which the Minister spoke. That citizenship is established by the holding of a passport of one of those countries, whether or not the applicant happened to produce the passport at the time of entry to Australia. 32 This is confirmed by the application form which asks: "Travel document used to enter Australia Type of travel document - eg passport, certificate of identity." 33 The form does not suggest that it is essential that a passport, as distinct from some other form of identification, has been used. Still less is there any requirement to identify as a document used to enter Australia a passport of one of the specified countries. 34 It is a notorious fact that many people hold valid passports from two or more countries. If the Minister had intended the holding of a passport from a country other than one of the specified countries to be a disqualifying condition, that could have been so provided . 35 Doubtless the reason this was not done is that the applicant is not only required to be a citizen of one of the specified countries but also to have been, immediately before entering Australia, "usually resident" in that country: Regulations, Schedule 2, reg 850.213. If a person was a citizen of one of those countries (as proved by the holding of a passport), and was usually resident there, it would hardly be a humanitarian approach to refuse a visa because the applicant might have a passport of some third country with which he or she had no practical connection and might not have even visited. Neither the regulations, nor the Minister's media release, suggest that the holding of a passport from a third country should result in the refusal of an ROS visa and the applicant being told, as counsel for the Minister put it, "You have somewhere else to go". 36 Another consideration weighing against the adoption of the Department's construction is that it would lead to absurd, capricious and unjust results: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321. Assume that on a day prior to 1 November 1993 two Sri Lankans are in a queue at immigration control at an Australian airport. Each has a United Kingdom passport and a Sri Lankan passport and had been usually resident in Sri Lanka. They are not to know that four years in the future the use of a particular passport will become a matter of any significance. One produces his United Kingdom passport and the other her Sri Lankan passport. It would be passing strange if that pure happenstance, of not the slightest significance at the time, had the result that the one is now entitled to an ROS visa but the other is not.

Orders 37 In Rohan's case, the application will be dismissed. In Lalith's case I hold that the decision of 14 February 2000 involved an error of law, being an error involving an incorrect interpretation of the applicable law: s 476(1)(e). There will be an order that the decision be set aside and the matter remitted to the Minister for reconsideration according to law. 38 There will be an order that the Minister pay Lalith's costs. As to Rohan's application, his counsel pointed out that an objection to competency was not filed within time although he did not suggest that this fact prevented the application being dismissed. Counsel for the Minister produced subsequent correspondence which put the applicants' solicitor on notice as to the time issue. However it seems to me that, the two brothers having been joined in the one application, the Minister would have incurred virtually the same costs in unsuccessfully resisting Lalith's application. In the circumstances, I will make no order as to costs in relation to Rohan. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey .

Solicitor for the Applicant: Pushpa Hettiarachi & Associates

Solicitor for the Respondent: Australian Government Solicitor