Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958

Migration Legislation Amendment Act 1989

Solicitors for the Respondent: Australian Government

1. The appeal be allowed.

2. The order made on 4 February 1994 in the proceeding numbered

NG29 of 1993 be set aside.

3. The application by the appellant contained in the document

entitled "Application for Refugee Status in Australia" dated 17

December 1989 and in attachments thereto be determined by the

respondent or his delegate according to law.

4. The appellant's costs of the said proceeding numbered NG29 of

1993 and of the appeal be paid by the respondent.

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

JENKINSON, LEE AND BEAZLEY JJ This is an appeal from an order of a Judge of this Court (Whitlam J) that an application by the appellant ("Ali") for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") be dismissed.

2. Ali, a citizen of Bangladesh, entered Australia on 5 July 1988 pursuant to an entry permit which permitted him to remain in Australia for a period of six months. Upon expiration of the permit Ali did not leave Australia and thereupon became a prohibited non-citizen pursuant to sub-s.7(3) of the Migration Act 1958 ("the Act") as it then stood.

3. Significant amendments were made to the Act by the Migration Legislation Amendment Act 1989 ("the amending Act") which received Royal Assent on 19 June 1989. The relevant amendments, however, commenced on 19 December 1989.

4. Sub-section 6(2) of the amending Act provided as follows:

"6(2) A person who, immediately before the

commencement of this section, was a prohibited non-citizen:

(a) becomes an illegal entrant at

that commencement;

(b) shall, after that

commencement, be taken for all

purposes to have become an

illegal entrant because of the

provision of section 6 of the

Migration Act 1958 that most

closely corresponds with the

provision of the Principal Act

as in force before that

commencement because of which

the person became a prohibited

non-citizen; and

(c) remains an illegal entrant

until he or she stops being an

illegal entrant under the

Migration Act 1958."

5. Before the introduction of the amending Act deportation of a prohibited non-citizen was by discretionary order of the Minister under s.18 of the Act. By s.8 of the amending Act s.18 of the Act was repealed and the following substituted:

"'17A. (1) An illegal entrant is liable to

deportation if the period of grace for the illegal

entrant has ended.

'(2) Where the Minister is satisfied that a person

is, under subsection (1), liable to deportation,

the Minister shall, in writing, order the

deportation of the person.

'(3) A deportation order made under this section

may not be revoked.

'(4) A deportation order made under this section

in relation to a person shall be taken to revoke

any deportation order made under section 18 in

relation to the person."

6. The effect of the amendment was to make persons who were prohibited non-citizens before 19 December 1989 liable to mandatory deportation after expiration of the "period of grace". The method of calculation of the period of grace, set out in s.5 of the amending Act, stated that the period started when a person became an illegal entrant and ended when the total number of days that passed after the period started equalled twenty-eight, not counting excluded days. "Excluded days" meant, inter alia, each day of a period that started when an illegal entrant applied for an entry permit and ended when that person was notified of the decision on the application.

7. Important transitional provisions were contained in sub-s.6(4) of the amending Act which provided as follows:

"6(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."

8. Pursuant to sub-s.6(1) of the amending Act the provisions of the Act relating to the grant of entry permits and visas (ss.6-11C) were repealed.

9. The relevant provisions of the Act before repeal were said to be ss.6 and 6A; the relevant parts of which read as follows:

"6.(1) A non-citizen who, not being the holder of an

entry permit that is in force, enters Australia

thereupon becomes a prohibited non-citizen.

(2) An authorized officer may, in accordance

with this section and at the request or with the

consent of a non-citizen, grant to the non-citizen

an entry permit.

'(2A) A request under subsection (2) shall be

taken not to have been made unless:

(a) the request is in writing in

accordance with the relevant

form approved by the Minister;

and

(b) any fee payable in respect of

the request has been paid.'.

...

(5) An entry permit may be granted to a

non-citizen either upon his arrival in Australia or,

subject to section 6A, after he has entered

Australia (whether or not that entry took place

before, or takes place after, the commencement of

this Part.) (6) An entry permit that is

intended to operate as a temporary

entry permit shall be expressed to

authorize the person to whom it relates

to remain in Australia for a specified

period only, and such a permit may be

granted subject to conditions.

...

6A.(1) An entry permit shall not be granted to a

non-citizen after his entry into Australia unless

one or more of the following conditions is

fulfilled in respect of him, that is to say -

(a) he has been granted, by

instrument under the hand of a

Minister, territorial asylum

in Australia;

(b) he is the spouse, child or

aged parent of an Australian

citizen or of the holder of an

entry permit;

(c) he is the holder of a

temporary entry permit which

is in force and the Minister

has determined, by instrument

in writing, that he has the

status of refugee within the

meaning of the Convention

relating to the Status of

Refugees that was done at

Geneva on 28 July 1951 or of

the Protocol relating to the

Status of Refugees that was

done at New York on 31 January

1967;

(d) he is the holder of a

temporary entry permit which

is in force, is authorized to

work in Australia and is not a

prescribed non-citizen; or

(e) he is the holder of a

temporary entry permit which

is in force and there are

strong compassionate or

humanitarian grounds for the

grant of an entry permit to

him. (2) An entry permit shall not be granted to

non-citizen in respect of whom the condition

specified in paragraph (1)(a) is fulfilled (whether

or not any other condition specified in sub-section

(1) is also fulfilled in respect of him) otherwise

than by the Minister.

(3) Subject to sub-section (2), an entry

permit shall not be granted to a non-citizen after

his entry into Australia otherwise than by -

(a) the Minister; or

(b) an officer authorized by the

Minister, by instrument in

writing, to be an authorized

officer for the purposes of

this section.

...

(8) In this section, a reference to an entry

permit shall be read as a reference to an entry

permit other than a temporary entry permit."

10. Perhaps on the facts of this case s.7, rather than s.6, of the Act may have been the source of the relevant power to grant an entry permit. Section 7 read as follows:

"7.(1) The Minister may, in his absolute discretion,

cancel a temporary entry permit at any time by

writing under his hand.

(2) At any time while a temporary entry permit

is in force or after the expiration or cancellation

of a temporary entry permit, a further entry permit

may, at the request of the holder, be granted to

the holder and, where such a further entry permit

is granted while a temporary entry permit is in

force, the further entry permit shall come into

force only upon the expiration or cancellation of

the existing entry permit.

'(2A) A request under subsection (2) shall be

taken not to have been made unless:

(a) the request is in writing in

accordance with the relevant

form approved by the Minister;

and(b)any fee payable in respect of

the request has been paid.'

(3) Upon the expiration or cancellation of a

temporary entry permit, the person who was the

holder of the permit becomes a prohibited non-

citizen unless a further entry permit applicable to

him comes into force upon that expiration or

cancellation."

11. It was common cause that no relevant form had been approved by the Minister for the purpose of para.6(2A)(a), nor, presumably, for the purpose of para.7(2A)(a). Having regard to the provisions of sub-s.6(2) which permit an entry permit to be granted to a non-citizen with the consent of that person, and, alternatively, at the request of that person, failure to make a request in writing pursuant to sub-s.6(2A), or sub-s.7(2A), could not be taken to be intended to be of great moment for the purpose of the Act, particularly if no "relevant form" had been approved by the Minister. It would be appropriate to regard those provisions as facultative, intending to provide for the better administration of the Act, rather than as an expression of legislative intent that the terms of the Act would not apply to an application for the grant of a permit made informally.

12. Before 19 December 1989 Ali had instructed solicitors to advise him and act for him in respect of his position under the Act.On 16 and 17 December 1989 Ali completed a form published by the Minister's Department ("the Department") entitled "Application for Refugee Status in Australia". That form was lodged with the Department by Ali's solicitor on 18 December 1989. His solicitor lodged more than one application on that day. With Ali's application the solicitor provided a memorandum and note which read as follows:

"...

Dear Sir,

RE: LODGEMENT OF THIS APPLICATION

----------------------------------

Please note, that as a result of the publicity

surrounding the introduction of the amendments to

the Migration Act, many people have approached my

office in the last hours prior to the

implementation of the previously mentioned

amendments.

Obviously, my office is not in a position to

provide an appropriate presentation of the

instructions presented. For this reason, the

application form has been completed in its basic

structure only. Please understand this is entirely

because of the approach at the time of the client

leaving only a number of hours in some cases.

It is to be emphasised that every client has

clearly been instructed to return to the office

within four weeks to provide additional relevant

instructions to supplement this application. It is

to be noted that the D.O.R.S. Secretariat has been

contacted, and I have informed your office of the

circumstances surrounding the necessity to lodge

prior to any instructions being taken.

Procedure For Lodgement

Please note that this application was personally

lodged by a member of my office on 18th December.

It is respectfully submitted that lodgement with

the Immigration Department on 18th December

obviously can be interpreted as facilitating entry

to the Immigration Department prior to the

implementation of the Migration Legislation

Amendment Act. Hence reliance is obviously made

upon Section 6A(1).

To emphasise, I will note again that lodgement of

this application was effected prior to the 19th

December. These papers were personally lodged with

the Immigration Department.

Please understand the circumstances surrounding

lodgement considering the extreme confusion and

indeed desperation which apparently has surrounded

the public with respect to ensuring lodgement prior

to the unknown nature of the application of the new

laws.

Should your office have any queries with respect to

this matter, please do not hesitate to contact my

office.

...

Explanation with Respect to Attachments - Refugee

Application

Please note, your attention is addressed to the

fact that a covering letter is included to indicate

that the applicant approached my office, within

hours of the 19th December. Clearly, the applicant

was not in the position to be able to provide

definitive reasons properly presented for a

complete presentation to the D.O.R.S. Secretariat.

I wish to emphasise, that this is the sole reason

why there is not any attachment of a definitive

nature. Rather, the applicant has been informed of

the character of the new laws whereby Section 17A

as it existed on the 18th of December indicated

automatic deportation regardless of any

circumstances. It is to be noted, that my office

has contacted the Immigration Department on a

number of occasions to try to obtain clarification

regarding the reconciliation of the application of

Section 17A with the right to lodge refugee papers

from a person who is illegal, who has been in

Australia beyond the period of grace, but again it

can only be emphasised, that there has not been any

definitive policy statement as at the evening of

the 18th of December to clarify the position of

such applicants as is attached. Upon this basis,

therefore, the primary priority of course has been

to effect lodgement to enable at least

consideration of the refugee application to be

supplemented, to enable it to take place.

Again, apologies must be provided for any

inconvenience caused to or by the Immigration

Department of (sic) D.O.R.S. Secretariat. However,

please understand the nature of the circumstances

and the confusion that surrounds the practical

application of the amendment to the Migration Act.

I can only emphasise again that at this stage,

there has not been any policy directive to ensure

refugees have the right to lodge after the 19th of

December. I emphasise in conclusion that further

additional information will be forwarded to

supplement this application. The applicant clearly

has been informed of the urgent necessity to

re-approach my office to provide substantive details."

13. On 3 February 1990 Ali's solicitor delivered a further statement supplied to him by Ali in support of the "refugee application". In April 1990 Ali applied for a "Class 827 Refugee D Temporary Entry Permit" on a form entitled "Supplementary Application for Refugee Temporary Entry Permit". That was an application for a permit provided by the Act as amended on 19 December 1989.

14. The issue before his Honour was whether Ali, on 18 December 1989, made application for the grant of an entry permit under sub-s.6(2) of the Act as it then stood. The Minister did not concede that if such an application had been made it had not been determined but argued that Ali had done no more than ask the Minister to determine his status as a refugee and had made no application for the grant of an entry permit on 18 December 1989. Alternatively, it was submitted that Ali had "abandoned" that application by making an application for a temporary entry permit under the Act as amended by the amending Act.

15. The first point to note is that sub-s.6(4) of the amending Act preserved the provisions of the Act relating to the grant of an entry permit. It did not preserve any provision in para.6A(1)(c) relating to application for, and determination of, refugee status.

16. Furthermore, as can be seen from the confused account provided to the Department by Ali's solicitor in the memorandum and note attached to the application lodged with the Department on 18 December 1989, Ali's concern was the imminent introduction of s.17A to the Act to provide for mandatory deportation of illegal entrants. Pursuant to sub-s.6(1) of the amending Act a person who had become an illegal entrant under sub-s.6(2) of the amending Act continued to be an illegal entrant until there had been granted to that person a properly endorsed valid entry permit.

17. It was obvious, therefore, on 18 December 1989 that Ali was concerned to seek to obtain the grant of an entry permit. Mere application for recognition of refugee status without application for the grant of an entry permit would be of no use to him and he would be liable to mandatory deportation upon the expiration of the period of grace after 19 December 1989 if no application for the grant of an entry permit had been made within that period.

18. Although Ali's solicitor referred to sub-s.6A(1) as the section of the Act relied upon, it should have been clear to officers of the Department, having regard to the fact that ss.6, 6A and 7 were repealed from 19 December 1989 and, thereafter, continued in operation only in respect of the function of granting an entry permit, that "reliance" upon sub-s.6A(1), which set out the qualifications for the grant of an entry permit, was reliance upon sub-s.6(2), or sub-s.7(2), of the Act for the exercise of the power to grant an entry permit according to the qualifications set out in sub-s.6A(1).

19. The application lodged with the Department was not restricted to the printed form prepared by the Department entitled "Application for Refugee Status". The full terms of the application were to be found in the form and in the two memoranda prepared by Ali's solicitor.

20. Once an application was on foot under sub-s.6(2), or sub-s.7(2), of the Act the whole of the criteria set out in paras.6A(1)(a)-(e) (e) had to be considered. Failure to be accorded the status of refugee did not preclude consideration of whether material presented in support of the application raised the possibility that other paragraphs of sub-s.6A(1) applied to Ali's circumstances, for example whether there were strong compassionate or humanitarian grounds for the grant of an entry permit under para.6A(1)(e).His Honour found that the documents lodged on behalf of Ali had effect as applications for a temporary entry permit and a permanent entry permit under the Act. We agree that the documents at least had the character of an application for an entry permit unrestricted as to time.

21. However, his Honour went on to find that the application by Ali sought permission to remain in Australia on the ground that para.6A(1)(c) of the Act alone applied to his circumstances and, therefore, the Minister was under no obligation to enquire whether "any other condition was relied upon by the applicant". With respect to his Honour we are unable to agree with that conclusion.

22. Instructions issued to delegates of the Minister before 19 December 1989, in respect of the determination of applications for the grant of entry permits, recognized quite properly that such applications had to be dealt with according to the material supplied in support of them and that although it may be determined that an application did not meet one of the qualifications set out in sub-s.6A(1), the material may require other qualifying provisions in that sub-section to be considered before the application for a permit was rejected. Not only was that an instruction calculated to achieve fairness in administration, it was an instruction which met the requirements of the Act. It follows from the foregoing that the application for the grant of an entry permit lodged by Ali was not considered and determined in the manner required by the Act.

23. It is necessary now to consider whether the application was "abandoned" by Ali. His Honour found that it should have been apparent to Ali's solicitor on and after 4 April 1990 that the Department was not treating the documents lodged on 18 December 1989 as an application for the grant of an entry permit under the Act. His Honour then concluded that the application for the grant of a temporary entry permit under new provisions introduced by the amending Act on 19 December 1989 was an action "inconsistent with asserting an interest in maintaining a pending application" for the grant of an entry permit under the Act.

24. With respect to his Honour, we do not agree. Ali was invited by the Department in April 1990 to apply for a temporary entry permit. Compliance with that request did not signify abandonment of the application for the grant of a "permanent" entry permit under sub-s.6(2), or sub-s.7(2), of the Act and nor was it inconsistent with maintaining the right to have the earlier application decided. The material before his Honour relating to the progress of the application between April 1990 and September 1992 consisted of a confusing exchange of correspondence where the minds of the respective parties were rarely ad idem. Importantly, there was nothing in the material to suggest that Ali had been apprised of a choice to be made between alternative courses of action, and nothing to suggest that Ali, with the benefit of that knowledge, had chosen to abandon the application lodged on 18 December 1989.

25. His Honour stated that had he reached a different conclusion about the application lodged on 18 December 1989 and found that it remained undetermined, he would, in the exercise of his discretion, have declined to grant the relief sought under the ADJR Act.

26. Having concluded that the application for the grant of an entry permit has not been considered, or determined, in the manner required by the Act, we consider that an order that the matter be returned to the Minister for determination according to law should be made unless it is clearly shown that such an order would be futile. Although counsel for the Minister submitted that consideration had been given to "humanitarian grounds" as an "adjunct" to an application for refugee status under the Act as amended, we are not persuaded that such consideration was equivalent to the determination of an application for the grant of an entry permit under sub-ss.6(2), or sub-s.7(2), of the Act and accordingly the orders will be made in the terms sought.