Salemi v MacKellar

It is well-established that a statement of claim will not be struck out on such a ground unless the ground is clearly made out.

The cause of action which the plaintiff asserts in the statement of claim rests on two distinct bases. The statement of claim reveals that the plaintiff is a citizen of Italy, that the defendant is the Minister for Immigration and Ethnic Affairs of the Commonwealth and that the defendant contends that the plaintiff entered Australia as a temporary resident and is a person subject to the provisions of Div. 1 of Pt II of the Act relating to entry permits and that the defendant threatens and intends to treat the plaintiff as a prohibited immigrant and to issue a deportation order against him.

The first basis on which the relief which the plaintiff claims is sought is as follows. It is alleged that on 10th February 1975, the plaintiff was granted, by an officer of the Department of Immigration, a permit to remain in Australia which was expressed as a permit to remain in Australia until 30th July 1975. It is further alleged that that permit was not a temporary entry permit within the meaning of the Migration Act 1958-1973 Cth and that in the circumstances the permit operated as a permit to remain in Australia indefinitely and that the plaintiff was then and has since been entitled to remain in Australia indefinitely.

Mr. McHugh, who appeared for the plaintiff, did not very strongly press the argument that this part of the statement of claim disclosed a reasonable and probable cause of action and this question may be dealt with quite shortly.

The passport of the plaintiff, which the parties agreed might be treated as being incorporated in the pleading, reveals that on 30th October 1974 the plaintiff was granted a permit to enter Australia and to remain for three months. On 10th February 1975, there was indorsed on his passport a document which is in the following terms: "Temporary resident. Department of Immigration. Permitted to remain in Australia until 30th July 1975. Issued 10 February 1975, Melbourne, 22."

The question is whether that document was a temporary entry permit within the meaning of the Migration Act. Section 5 of that Act defines an entry permit as a permit issued under s. 6 of the Act and defines a temporary entry permit to mean an entry permit referred to in s. 6 (6) of the Act.

The material sub-sections of s. 6 of the Act are the following: (1) "An immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant"; (3) "An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both"; (5) "An entry permit may be granted to an immigrant before he enters Australia or after he has entered Australia (whether before or after the commencement of this Part)"; and (6) "An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorise 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".

It is clear, in my opinion, that a permit may properly be described as an entry permit notwithstanding that it is granted after the immigrant has entered Australia and notwithstanding that it permits him not to enter Australia but to remain in Australia. There is, in my opinion, no doubt at all that the indorsement on the passport which I have read constituted a temporary entry permit within the meaning of the Act.

The consequence is that since that temporary entry permit has expired the plaintiff, who was the holder of it, became a prohibited immigrant unless a further entry permit applicable to him came into force upon its expiration (s. 7 (3)). An authorized officer may require a person who is a prohibited immigrant by virtue of s. 7 (3) to leave Australia within the time specified by the authorized officer, and that person shall comply with the requirement, (s. 7 (5)). By s. 18 of the Act the Minister is empowered to order the deportation of a person who is a prohibited immigrant under any provision of the Act. It is not suggested that any further entry permit was applicable to the plaintiff and the first basis on which the plaintiff's claims rest cannot be made out.

The second basis upon which the statement of claim is put is that the Minister exempted a class of persons including the plaintiff from the requirements of Div. 1 of Pt II relating to entry permits under the power given by s. 8 (1) (e) of the Act. The allegation in the statement of claim is that this exemption was effected by instruments under the hand of the Minister made on 25th January 1976, 27th January 1976, 5th February 1976 and 9th April 1976.

Those documents have been tendered and are by consent treated as forming part of the statement of claim and I am prepared to accept Mr. McHugh's description of them, namely, that they indicated that persons who met certain criteria would be granted the status of permanent residents, provided that they made application before a given date. It would, of course, be a question of fact whether the plaintiff met the criteria and whether he made application before the specified date.

The question, however, is whether documents which upon their proper construction had that effect could be regarded as instruments which fell within the description contained in s. 8 (1) (e).

Nothing in this Division applies in relation to the entry into Australia of an immigrant being -

(i) is for the time being exempted, by instrument under the hand of the Minister, from the requirements of this Division relating to entry permits; or

(ii) is included in a class of persons who are for the time being so exempted,

not being a person in respect of whom a declaration is in force under the next succeeding sub-section.

It is not suggested that any such declaration is in force.

In his argument on behalf of the defendant the Solicitor-General for the Commonwealth took three points in relation to the instruments in question. Firstly he submitted that on their proper construction they did not exempt any class of persons from the requirements of the division relating to entry permits. Alternatively, he submitted that under s. 8 (1) (e) there can only be an exemption which is in force at the time of entry, and thirdly, that on any view the instruments could not be said to be under the hand of the Minister. The instruments were not in fact signed by the Minister but it is perhaps an arguable question whether in the circumstances of the case it should be held that they were issued under his hand. They were, it is said, issued under his oral authority, his name appeared on them, and he made certain written additions or alterations to the drafts of some of them. But that is a question on which I need express no opinion.

A difficulty arises in the construction of s. 8 (1) (e) in that Div. 1 of Pt II does not in terms express any requirements relating to entry permits except as to their form, and that cannot have been the sort of requirement which was intended to be referred to in the sub-section.

However, it must, I think, be obvious that the requirements from which the persons or class were intended to be exempted were those which were implied by the provisions of s. 6. Section 6 (1), as I have said, provides that "A person who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant". The requirement in relation to the entry of an immigrant that is implicit in this provision is that he should be the holder of an entry permit.

It seems to me that when s. 8 (1) (e) speaks of exempting persons from the requirements of the division it means that when exempted they will be free from the obligation to comply with those requirements. It does not mean that if they have already failed to comply with those requirements they will be absolved from the consequences of their failure. In other words, the exemption is from the initial obligation which is, as I have said, implicit in s. 6.

Taking that view, I find it impossible to say that the documents in question can possibly be construed as granting an exemption from the requirements of the division relating to entry permits. What the documents say is, in effect, that persons who have failed to comply with requirements from which they were not exempt will, if they make application before a certain date, be placed in a position which is as good as that of those who did comply with the requirements of the division. They contain a promise to exempt certain persons from the consequences of a failure to comply with the requirements rather than an exemption from the obligation to comply with those requirements.

I think that it follows from the scheme of s. 8 (1) (e) that the exemption that is mentioned must be an exemption that is in force at or before the time of entry. An examination of the other classes of persons to whom the provisions of s. 8 apply reinforces the view that that section is speaking about persons who may enter Australia without being the holder of entry permits and without thereby becoming prohibited immigrants.

I am not concerned, and it was not suggested that I should be concerned, with the question whether the plaintiff came within the description of the persons to whom the ministerial promise was given. If he did, it might no doubt be suggested that it would be a grave breach of faith to fail to grant him the amnesty, provided, of course, that he had made his application within the specified time. But that is entirely a question of fact and there are no facts whatever before me upon which it would be possible for me to express a view one way or the other. I am limited to a consideration of the strictly legal question whether it would be possible for an informed court to hold that the documents which were issued came within the description contained within s. 8 (1) (e). It is no disrespect to the very helpful argument of Mr. McHugh to say that a court could not so hold. It follows, I think, that the defendant has shown that the statement of claim discloses no reasonable or probable cause of action and therefore that there should be an order striking it out.

The Court delivered the following written judgment: -

This is an appeal from an order made by Gibbs J. upon a summons under O. 26, r. 18 and O. 63, rr. 1 and 2. The order made was that the plaintiff's statement of claim be struck out as disclosing no reasonable or probable cause of action.

The plaintiff sought a declaration that he is included in a class of persons who are exempted by an instrument under the hand of the defendant Minister from the requirements of Div. 1 of Pt II of the Migration Act 1958-1973, and other relief.

Fundamental to his entitlement to the relief claimed is the proposition that s. 8 (1) (e) of that Act can apply, not only to persons who enter Australia after the promulgation of an exemption, but also to persons who had previously entered Australia but had no permit, or no longer had a current permit, entitling them to remain. His Honour took the view that the section did not bear that construction, and accordingly refrained from expressing any view on other matters raised in the statement of claim. Because of his view as to the construction of the section he decided that no reasonable or probable cause of action was alleged in the statement of claim and therefore struck it out.

When the matter came before us, the plaintiff's counsel opened the appeal but also indicated that he wished to amend his statement of claim in order to allege an additional cause of action independent of s. 8 of the Migration Act, namely, one based on the contention that there was in all the circumstances including the issue, with the authority of the defendant, of the documents, referred to in the statement of claim, a duty on the defendant to observe the requirements of natural justice or to act fairly in dealing with the plaintiff in respect of his position under the Migration Act. This point raises important questions of law which have not previously been considered by this Court, although there is some recent English authority in related matters.

We heard argument on the proper construction of s. 8 of the Migration Act and its relation to s. 10. These sections present some difficulties of construction and we think a substantial argument is available on either side. We also heard argument on the question whether the documents relied on by the plaintiff were capable of being regarded as an exemption under s. 8 (1) (e). We do not think that this argument can be disposed of on an application to strike out the statement of claim and Gibbs J. did not base his decision on that ground. We are of opinion therefore that the question which was the basis of the order appealed against is one which ought not to be determined in summary proceedings under O. 26 or O. 63, but is one appropriate for determination by a Full Court on demurrer. We propose therefore to allow the appeal.

We also propose to grant the plaintiff leave to amend the statement of claim in order to raise the additional question referred to in argument. We think it preferable to grant general leave and not to confine such leave to the terms of the draft produced to the Court, in the hope that this may facilitate the determination of all the questions raised by the statement of claim and the proposed amendments by a Full Court on demurrer.