Federal Court of Australia|1993-12-03|Before: Burchett J

Samuel Claro v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 581; (1993) 119 ALR 342 (1993) 46 FCR 494 (3 December 1993)

SAMUEL CLARO v. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Immigration Law - Extended Eligibility (Spouse) Entry Permit and Spouse (After Entry) Entry Permit - condition of no material change - whether a breakdown of the marriage involved that the holder of the permit "fails to comply with a condition" of the permit - Minister's powers - provision in regulations for cases of violence exercised by Australian spouse against migrant spouse - requirements of natural justice - whether very abrupt limitation of time for submissions denied natural justice - whether regs. 126 and 135 of Migration Regulations contemplated a two years delay before any decision of an application grounded on marriage.

Interpretation - provision affecting liberties - noscitur a sociis rule.

Words and Phrases - "comply" - "refuses or fails to comply with a condition" - "order", whether includes ex parte interim order.

Migration Regulations, regs. 27, 28, 29, 126 and 135

Ingram v. Ingram (1938) 38 SR(NSW) 497

Minister for Immigration and Ethnic Affairs v. Sciascia (1991) 31 FCR 364

Solicitors for the Applicant: Messrs Parish Patience

Solicitor for the Respondent: Australian Government

1. The decision of the delegate to cancel the applicant's Extended

Eligibility (Spouse) Temporary Entry Permit and Visa made on 10

February 1992 be set aside.

2. The decision of the delegate to refuse the applicant a Spouse

(After Entry) Entry Permit made on 19 May 1992 be set aside.

3. The matter be remitted to the Minister for decision by him or by

a different delegate according to law.

4. The respondent pay the applicant's costs.

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

BURCHETT J This is an application for judicial review of each of two decisions taken by a delegate of the Minister. The decisions were to cancel an Extended Eligibility (Spouse) Temporary Entry Permit, and to refuse the grant of a Spouse (After Entry) Entry Permit. It is plain that the latter decision was grounded, at least in substantial measure, upon the former, which had converted the applicant into an illegal entrant. Accordingly it will be convenient to concentrate, in the first instance, upon the question whether the cancellation was valid. If it was not, both decisions must be set aside.

2. The circumstances relating to the two decisions may be briefly stated. The applicant, who was born in the Philippines on 27 November 1964, arrived in Australia on 10 February 1991, to be granted a temporary entry permit expiring on 10 August 1991. On 22 February 1991, he met one Noeleen Jones, who was born on 25 December 1946 and was divorced, at a party. They decided, after a short time, to live together, and were married on 20 May 1991. Then, on 19 June 1991, the applicant sought a grant of permanent resident status on the ground of his marriage to an Australian citizen. He was granted, on 24 October 1991, an Extended Eligibility (Spouse) Temporary Entry Permit valid until 19 August 1993. This issued upon the footing that he met the criteria of reg. 126 of the Migration Regulations. Mr Claro was advised that on 15 April 1991 substantial changes had been made to the Migration Regulations, including the introduction of a two years period of temporary entry in respect of an application of the kind he had lodged. Accordingly, he had been issued the extended eligibility temporary entry permit to allow him to remain in Australia as a temporary entrant until 19 August 1993, with permission to work. He was requested to contact the Department "no later than three months prior to the expiry of (his) EETEP", to enable consideration to be given to the grant of a Permanent Entry Permit After Entry.

3. A matter of significance in the case is that endorsed on Mr Claro's Extended Eligibility Entry Permit, under the word "CONDITIONS", was the following: "No material change (Reg 28.1.M)".

4. In the form that the Migration Regulations took at that time, there was a number of regulations which, it is common ground, were relevant to the present matter. Regulation 28(1) set out a substantial list of conditions "subject to which a temporary entry permit may be granted". One of those was reg. 28(1)(m): "the condition that during the period of validity of the entry permit, there is no material change in the circumstances on the basis of which the entry permit is granted". Sub-regulation (2) then provided:

"Where the holder of an entry permit refuses or fails to

comply with a condition subject to which the entry permit

was granted, the breach of the condition is a ground for

the cancellation of the entry permit."

It seems clear, despite the incorrect capital "M", that the condition set out in reg. 28(1)(m) was the condition to which reference was made by the endorsement on the Temporary Entry Permit granted to the applicant. It was a condition of the kind described as a "mandatory condition" because reg. 29(1) and Schedule 5 of the Migration Regulations specify that it is mandatory to include this condition in an Extended Eligibility (Spouse) Temporary Entry Permit; the entry permit "must not be granted unless granted subject to" this condition.

5. By s. 33 of the Migration Act 1958, regulations were authorized dealing with various aspects of entry permits. Subsections 1, 2 and 3 provided:

"(1) Without limiting the generality of section 181, the

regulations may make provision:

(a) in relation to the granting and refusal of entry

permits, including the granting of entry permits:

(i) subject to conditions; or

(ii) subject to a limitation as to the time the

holder is authorised to remain in Australia;

(b) for the recording and evidencing of entry permits;

(c) in relation to the effect and operation of entry

permits; and

(d) in relation to the cancellation of entry permits that

are granted subject to a limitation as to the time

the holder is authorised to remain in Australia.

(2) Regulations made under subsection (1) may provide:

(a) for different classes of entry permits; and

(b) that, subject to sections 40 and 45, a person is

entitled to be granted an entry permit of a

particular class if that person satisfies all the

prescribed criteria in relation to that class.

(3) The criteria that may be prescribed include, but are

not limited to, the criterion that the applicant receives

the necessary score when assessed as provided by section 41."

6. Section 34 then gave to the Regulations a determinative effect, requiring an application to be granted or not granted on the basis of entitlement or absence of entitlement under the Regulations. But s. 35(1) nevertheless provided: "The Minister may at any time, in his or her absolute discretion, cancel a valid temporary entry permit."

7. Regulation 126 deals with Extended Eligibility (Spouse) Entry Permits. Relevantly, it provides:

"(1) The prescribed criteria in relation to an extended

eligibility (spouse) entry permit are that, at the time

when the application for the permit is decided:

(a) the applicant:

(i) is the spouse of:

(A) an Australian citizen; or

(B) an Australian permanent resident;

who:

(C) was the spouse of the applicant when the

application was made; and

(D) nominated the applicant for grant of the

entry permit; and

(E) has a marital relationship with the

applicant that is genuine and continuing;

and

(ii) is not an illegal entrant ...

(iii)... ; or

...

(ba) the applicant is both:

(i) a person who would satisfy the criteria

specified in paragraph (a), except that

the marital relationship mentioned in

that paragraph is no longer continuing;

and

(ii) a person to whom paragraph (1A) applies;

or

...

(1A) Subject to subregulation (1B), an applicant is a

person to whom this subregulation applies if;

(a) a court has made a restraining order or granted an

injunction against the applicant's spouse in respect

of violence by the spouse against the applicant; or

(b) a court has convicted the spouse of, or has recorded

a finding of guilt against that spouse in respect of,

assault or some other offence of violence committed

against the applicant; or

...

(1B) For the purposes of subregulation (1A):

...

(b) "court" means a court in Australia or an external

Territory; and

(c) "spouse", in relation to the applicant, means the

person who was the applicant's spouse when the

application for the entry permit was made.

...

(3) An extended eligibility (spouse) entry permit must

not have a period of validity greater than 2 years."

8. Regulation 135 provides additional criteria in relation to a Spouse (After Entry) Entry Permit. Regulation 135(1)(a) relevantly specifies the criteria that

"at the time when the application for the entry permit is

decided ... the applicant is the spouse of ... an

Australian citizen ... who ... nominated the applicant for

the grant of the entry permit and ... has a genuine and

continuing marital relationship with the applicant; and ...

the applicant is the holder of a valid extended eligibility

(spouse) entry permit, a criterion for the grant of which

was that the applicant was the spouse of that Australian

citizen ... and ... the decision is not made earlier than 2

years after the day on which the application is made".

By the combined operation of reg. 135(1)(c) and 135(3), provision is made establishing criteria corresponding to those contained in reg. 126 for a case where a court has made a restraining order or granted an injunction in respect of violence, or made the finding of guilt referred to in reg. 126.

9. It is apparent that these regulations were intended to establish an appropriate path to be followed by an applicant such as Mr Claro. His application for permanent entry, on the ground of his marriage to an Australian citizen, was not to be granted until after the expiration of a two years period during which the marriage could be tested. In the meantime, reg. 126 made provision for the grant of a temporary entry permit. This was in fact granted to Mr Claro, as I have said, on 24 October 1991. There was also special provision to cover a case where, during the two years period, the marriage might break down by reason of violence on the part of the Australian spouse leading to a court order; and there was a further provision, which I have not set out, to deal with a case where the applicant might be granted custody or joint custody of a child in respect of whom the applicant spouse might have rights of joint custody or access, or a formal maintenance obligation.

10. In the present case, a rift appeared in the marriage within a very short time. It is that circumstance which led to the decisions the subject of the proceeding.

11. On 7 November 1991, Mrs Claro wrote to the Department of Immigration and Ethnic Affairs, providing the information that she and Mr Claro had separated on 29 October 1991. She asserted that there was "no chance of reconciliation", and that she wished "to withdraw support of his application to remain in Australia". According to her letter, Mr Claro was now living with his brother at an address at Meadowbank which she supplied. The file shows she also attended at the office on 7 November (not 12 November as is mistakenly stated in the delegate's reasons for each of the decisions now in question), when she may have hand delivered the letter. On 13 November, the Department wrote to Mr Claro requiring him, "to enable further consideration of (his) application", to "provide a written statement commenting on your wife's written statement that you are separated and that she has withdrawn her support of your application". But his wife's written statement was not forwarded to him. Mr Claro responded to this letter by seeing a solicitor, who made on his behalf by telephone a request for access to the documents in the file, in order to enable him to comply with the Department's requirement. That request was made on 21 November 1991. The Department, after a substantial delay, answered by a letter bearing the date 9 January 1992, enclosing a copy of Mrs Claro's original letter and a brief note of the interview with her, apparently at the time of its delivery, together with a large number of uncontroversial documents.

12. The letters disclosed to Mr Claro did not include a letter bearing the date "31st Nov. 1991" received from Mrs Claro by the Department. It is not entirely clear whether that letter was really written on 31 October, 30 November, or some other date. It suggested that Mr Claro was "using me to get papers to be an Australian citizen", and that the writer wished "to get a divorce, my marriage is falling apart, as we do not get on". A further document which was not disclosed to the applicant was a statutory declaration made by his wife on 27 November 1991, repeating her previous assertion that there was no chance of reconciliation and her withdrawal of support of his application to remain in Australia. The statutory declaration made a fresh complaint to the effect that the applicant had been pestering her to renew their relationship; that she had twice called the police; and that she did not want to "have him around my place". On 18 November 1991 Mrs Claro had written again to the Department, this letter being received on 21 November 1991, stating that her husband had called round

"to see if we could get back together, he has been a pest to

me, saying things 'I need you now' etc, I did not let him

inside my flat. I closed the door, he would not go away.

So I called the police at Paddington I told them what is

happening. We are still not living together."

Yet a further statutory declaration was received by the Department from Mrs Claro on 19 December 1991, its date, in which she stated she had seen the applicant

"go into McDonalds with a school girl hand in hand, then he

ring up my friend on the 17th December wanting to know

where I am, what is wrong with her, that he would like to

get back together, allso (sic) would like to take me away

on a trip to Queensland. I do not wish to see him, nor do

I want him back in my life. But I wish he would stop

getting into my place - using my bed the stove and then a

mess in the bathroom."

Neither the letter of 18 November 1991 nor the statutory declaration of 19 December 1991 was communicated to Mr Claro. No explanation has been offered in evidence for this failure which, whatever the reason for it, might have had a deceptive effect, in so far as Mr Claro's solicitor would have been entitled to assume the disclosure made to him was a full and fair disclosure.

13. In the meantime, Mr Claro's solicitors had written to his wife on 22 November 1991, expressing his anxiety to attempt a reconciliation and asking her to take the letter to a marriage guidance counselling service. It appears there was no reply to this letter. The solicitors had also written to the Department on 22 November 1991, confirming they had instructions to act on behalf of Mr Claro and seeking "access to the Department's file pursuant to the Freedom of Information Act". Counsel for the Minister, at the hearing, argued that such a request was not notice to the Department of Mr Claro's intention to make any submission on the facts. I should think so prompt a response, through a solicitor, was a very plain indication, but in any event, the letter concluded:

"We trust that no further action will be taken in respect of

the matter until such time as the file has been produced

and we have been able to make the further submission

requested in your letter of 13 November 1991. If you will

not agree to this request please also advise."

No such advice as the letter suggested was ever received by the solicitors. In my opinion, their letter was a clear intimation that "the further submission" referred to would in due course be forwarded, when the solicitors had received the relevant documents and had had time to consider them. In the context of the correspondence, the Department's silence amounted to assent.

14. As I have said, the Department did not in fact give Mr Claro's solicitors access to the bulk of Mrs Claro's complaints, although it did supply, some time in January (it is not clear when the letter of 9 January was received), a large number of uncontroversial documents together with what may have been Mrs Claro's first letter and some notes of her first personal advice to the Department that there had been a separation. And on 17 January 1992 a letter was forwarded addressed

(the name of the firm of solicitors). The applicant's solicitor was then overseas, as would not of course be remarkable in the month of January. He did not in fact return until 10 February 1992, and the Department's letter does not appear to have had any attention before then. The letter was not addressed to the solicitors, but, curiously, to Mr Claro care of the solicitors, and it commences:

"Dear Mr Claro,

To enable further consideration of your application

(emphasis added) you are required to complete the following

action ... .

If you do not complete the request/s within the time frames

specified you should be aware that a decision will be made

based on the material to hand."

There was a suggestion that an application could be made for further time. The action required was expressed in the following terms:

"Further to my letter of 13 November 1991, as your Freedom of

Information request has now been processed, please provide

a written response to your wife's statements that you are

separated, that she has withdrawn support for your

application and that there is no chance of reconciliation

(within 10 days of the date of this letter)."

The letter is date stamped as received on 22 January 1992, when five of the ten days would have already elapsed. On 28 January 1992, a further letter, date stamped as received in the solicitor's office on 30 January 1992, was written addressed to Mr Claro in the same way. It is not suggested that it was in fact received by Mr Claro at any time before the return of his solicitor. This letter referred to the two earlier letters, and continued:

"In both these letters I requested your response to your

wife's allegations that your relationship has broken down.

Although you were given the opportunity to make such a

response in the interest of natural justice, you have not

made any response to these allegations.

Your Extended Eligibility Entry Permit was issued to you

subject to the Mandatory Condition of 'No Material Change'.

The material change referred to is the breakdown of your

relationship."

"You should therefore take note that if no further

information is received within 10 days of the date of this

letter a decision will be made under Migration Regulation

28(2) based on the information held."

15. It should be noted that this letter was the first intimation to Mr Claro that his temporary entry permit, valid until August 1993, was in any jeopardy. The references in the previous letters to "your application" could only have been understood as references to the one application which he still had on foot, namely, the application for a permanent entry permit after entry, which, in any case, could not be granted until the lapse of the two years referred to in reg. 135. The applicant complains that, in the circumstances, the allowance of a bare eight days from the receipt of the letter, not by the applicant but within the solicitor's office, at the end of the holiday season, the solicitor being absent for the whole of those eight days, was quite unreasonable. Bearing in mind that the solicitor had made plain his intention of putting in a submission after compliance with his request under the Freedom of Information Act, which had actually not been fully complied with, it is argued that there was a denial of natural justice in the precipitate requirement imposed by the Department when it, for the first time and at that season, suggested it was considering cancelling the temporary entry permit.

16. Another aspect of the letter of 28 January 1992 should be noted. The cancellation which was threatened was quite specific; a cancellation under reg. 28(2). It will be necessary to consider whether, upon its true construction, this regulation had any application in the circumstances.

17. In the event, the eight days allowed from the receipt of the letter of 28 January 1992 was barely exceeded before the Department took action. On 10 February 1992, a letter was written addressed to Mr Claro in the same way as the two previous letters. It referred, somewhat inappropriately, to "your application to remain in Australia", but continued:

"Your Extended Eligibility Entry Permit and Visa were issued

to you subject to the Mandatory Condition of 'No Material

Change'. The material change referred to is the breakdown

of your relationship. Despite my letters of 13/11/91 and

17/1/92 requesting your response to your wife's statements,

you have provided no evidence contradicting your wife's

statements that your relationship has broken down.

Consequently a decision has been made under Sections 26 and

35(1) of the Migration Act and Migration Regulations 28(2)

and 17(1)(o). Section 35(1) of the Migration Act states '

.. The Minister may at any time, in his or her absolute

discretion, cancel a valid temporary entry permit.'

Migration Regulation 28(2) states: 'Where the holder of an

entry permit refuses or fails to comply with a condition

subject to which the entry permit was granted, the breach

of the condition is a ground for the cancellation of the

entry permit.'

Your Extended Eligibility Entry Permit and Visa have now

been cancelled. Your migration status in Australia is now

that of an illegal entrant. ...

You became an illegal entrant on 10/2/92.

. . .

Please note that this decision is not reviewable."

18. Nine days after his return to Australia, the applicant's solicitor wrote, on 19 February 1992, requesting reasons for this decision under s. 13 of the Administrative Decisions (Judicial Review) Act 1977. The Department initially claimed that it had already provided reasons in the letter of 10 February 1992, but ultimately did supply reasons by a document dated 25 August 1992. In the meantime, by letter dated 19 May 1992 and an enclosed statement of reasons, the Department advised that the application for a permanent entry permit after entry had been considered and refused.

19. The reasons furnished on 25 August 1992, for cancellation of the temporary entry permit, commenced (after a recital of facts):

"THE REASONS FOR MY DECISION

I considered the allegations concerning Mr Claro's marriage

and whether he was in breach of a mandatory condition of

his entry permit."

Reference was then made to reg. 126 and reg. 28(1)(m). Regulation 28(2) was also set out, together with reg. 17(1)(o) and 17(2) which refer to visas. The document continued:

"Mr Claro's entry permit and visa were granted to him on the

basis of his marriage to Noeleen Claro, an Australian

citizen, remaining genuine and continuing. It was a

mandatory condition of both his entry permit and visa that

there be no material change in the circumstances."

A finding was made that "it was reasonable to conclude from the information before me that Mr Claro's marriage was no longer genuine and continuing", and

"On 10/2/92 I found that the breakdown of Mr Claro's marriage

was a material change in the circumstances on the basis of

which his entry permit and visa had been granted. I thus

found Mr Claro to be in breach of the mandatory condition

of his entry permit and visa, ie 'No Material Change.'

On 10/2/92 there was no evidence before me that Mr Claro

had suffered domestic violence.

I therefore found it reasonable in the circumstances to

cancel his Extended Eligibility Entry Permit and Visa, and

did so."

20. At the time the decision of 10 February 1992 was made, there were two avenues which might possibly have been open to the delegate of the Minister, being desirous of considering the cancellation of the applicant's temporary entry permit (assuming, of course, that his delegation extended to both avenues); he could have considered whether reg. 28(2) applied, and he could have considered whether there were grounds sufficient to justify an exercise of the absolute discretion conferred upon the Minister by s. 35 of the Migration Act, under which a valid temporary entry permit is always exposed to the possibility of cancellation. The reasons, from which I have quoted, make it plain that the actual decision arrived at in relation to Mr Claro was grounded upon reg. 28(2). If this regulation was not applicable, the decision cannot stand because, in that case, it was based, either wholly or at least in part, on an error of law.

21. Regulation 28(2) applies where the holder of an entry permit "refuses or fails to comply with a condition subject to which the entry permit was granted". Conditions which may be imposed are set out in s. 33(4) of the Migration Act and in reg. 28(1). The most cursory reading of these conditions will make it plain that some of them refer to matters entirely within the control of the holder of the permit, such as a condition that he shall not do any work of a specified kind while in Australia without the permission in writing of the Secretary (s. 33(4)(c)), while others are indubitably completely outside his control, such as the condition referred to in s. 33(4)(b) that he will not, after entering Australia, be entitled to be granted another entry permit while remaining in Australia. Most of the conditions set out in reg. 28(1) are within the control of the holder of the entry permit, but some clearly are not. For example, reg. 28(1)(i) authorizes the imposition of a condition "that the holder is not to be granted an entry permit other than a refugee (after entry) entry permit that has effect as a permanent entry permit". This plainly is directed to what the Minister or Department shall do, and if the holder of a temporary entry permit were granted an entry permit that had effect as a permanent entry permit, contrary to this condition, it certainly could not be said that the holder had refused or failed to comply with the condition. The Minister or the Department would have done so. Presumably action of that kind would amount, if valid, to a waiver of the condition, or a withdrawal of it. Likewise, the condition which may be imposed under reg. 28(1)(l), that "the holder is to be assessed, after entry to Australia, within a period specified by the Minister when granting the entry permit, in respect of public interest criteria and prescribed health criteria", relates to a matter which may be quite outside the control of the holder of the permit. This, however, is an interesting example, because a failure of compliance may be brought about, in a particular case, by a refusal by the holder of the permit to submit to the necessary assessment. In other words, this particular condition has an ancipital character, so that a breach may be due to a refusal or failure on the part of the Minister, or to a refusal or failure on the part of the holder of the permit.

22. It is in the context of conditions of these various sorts, that the question in the present case must be considered. Can it be said, when a material change occurs in the relevant circumstances referred to in para. (m), that the holder of the entry permit has refused or failed to comply with a condition imposed in the terms of that paragraph? Certainly he has not refused. Has he failed to comply with the condition?

23. The second revised edition of the Macquarie Dictionary relevantly defines the word "comply" as "to act in accordance with wishes, requests, commands, requirements, conditions, etc.". Similarly, the Webster Universal Dictionary, international edition (1975), relevantly defines "comply" as "(a) To adopt a course of action at the wish, or command, of another: to comply with one's request; (b) to act in conformity with; to comply with the rules." These definitions emphasize that to comply with a requirement is to do something. It is not sensible to talk about a person complying with a condition that someone else not do something, as in the case of reg. 28(1)(i). Nor is it sensible to talk about a person complying or not complying with a condition that there is no material change in certain circumstances. Such a condition may fail, but it would be a misuse of language to describe the holder of the permit as having failed to comply with it.

24. A good example of the use of the expression "fails to comply", in a legal context, is to be found in Ingram v. Ingram [1938] NSWStRp 25; (1938) 38 SR(NSW) 407, which was concerned with s. 11 of the Matrimonial Causes Act 1899 (NSW), by which it was provided that if a party to a marriage, when ordered to render conjugal rights to the other party, "fails to comply with (the) decree of the Court", he shall be deemed to have been guilty of desertion without reasonable cause. Jordan CJ said (at 410):

"(W)here it is provided by statute that certain consequences

shall follow if a person fails to do something which is

directed to be done, the meaning of the word 'fail' depends

upon the context in which it is found. In some contexts it

may mean simply the omission to do the thing in question,

irrespectively of any reason which may have existed for his

not doing it ... . In other cases it may mean an omission

to do the thing by reason of some carelessness or

delinquency on his part, but not omission caused by

impossibility for which the person in question is not

responsible ... . In other cases, it may mean omission to

do the thing, but so that omission caused by impossibility

arising from some causes is included and from others is

excluded ... ."

These propositions were elaborately discussed by Kirby P. in his dissenting judgment in CBS Productions Pty Ltd v. O'Neill (1985) 1 NSWLR 601 at 608 et seq., where, however, what was in question was not the expression "fails to comply", but rather the effect of the word "fails" in a context quite different from the present.

25. Counsel for the Minister contended that reg. 28(2) requires to be construed in a broad and loose sense, as otherwise some of the conditions referred to in subreg. (1) would lack appropriate enforceability. I do not think this argument is valid. On the one hand, subreg. (2) is not tied merely to subreg. (1); it applies, according to its true construction, wherever there is a refusal or failure by the holder of an entry permit to comply with any condition subject to which an entry permit was granted. That is made clear by the indefinite article "a", in the phrase "with a condition". There is no limitation of subreg. (2) to the particular conditions referred to in subreg. (1). On the other hand, if the argument were correct, upon the passing of the Migration Act, and before the promulgation of the Regulations which the Act authorized but did not require to be made - at any rate, it did not require reg. 28(2) to be made - the argument would involve that s. 33(4) would have been ineffective. The answer, in my opinion, is that s. 33(4) was effective from the time it was enacted, and conditions imposed under it were not ineffective without reg. 28(2). At least, they were clearly capable of being given an operation by the exercise of the Minister's discretion under s. 35(1). It is unnecessary to consider whether s. 33(4), even without resort to s. 35, gives the Minister an implied power to withdraw an entry permit upon the failure of a condition. What is important for present purposes is that the Court is not required to strain the language of reg. 28(2) in order to make s. 33(4) effective, and Parliament obviously had no such intention when it enacted this section. If that is so, it must equally be true that there is no need to give reg. 28(2) a strained meaning in order to make reg. 28(1) effective.

26. A consideration which emphasizes that the ordinary meaning of the expression "fails to comply" must be the meaning intended here is the conjunction of the word "fails" with the word "refuses". What Parliament wrote was "where the holder of an entry permit refuses or fails to comply". The association of the word "fails" with the word "refuses" in that context suggests that the verb of action, "to comply", is used in its normal meaning, as defined in the dictionary. The whole expression is a textbook example of the maxim noscitur a sociis.

27. In Minister for Immigration and Ethnic Affairs v. Sciascia (1991) 31 FCR 364 at 372-373, the majority of the Court applied to the construction of a provision, under which a migrant's right of residence in Australia could be terminated, the principle that a statute curtailing liberty should be strictly construed. Reliance was placed on Khera v. Secretary of State for the Home Department; R v. Secretary of State for the Home Department; Ex parte Khawaja (1984) AC 74 at 97, 113 and Potter v. Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304, per O'Connor J. In my opinion, it would be a reversal of an established principle of construction to construe reg. 28(2) in a loose sense, so as to enable that provision to be used to cancel an entry permit by virtue of which a person is living in Australia and under the protection of Australia's laws. In any case, the normal meaning of the words, particularly following a list of conditions to some of which they are plainly applicable, and to others plainly not applicable, as a matter of ordinary English usage, forbids the construction for which the Minister contends.

28. As I have already made clear, that does not mean that the Minister and his delegate were without power to cancel an entry permit for failure of the condition specified in reg. 28(1)(m), simply because reg. 28(2) was inapplicable. But whether a power to cancel the temporary entry permit should have been exercised or not was to be decided upon considerations other than those raised by a provision concerned with a person's refusal or failure to do something. In weighing up the question, it would have been relevant to bear in mind that the Regulations do expressly provide for "terminating conditions" (see reg. 27(3)), and this is not one of them. That, of course, shows that the Regulations discriminate between conditions in respect of the consequences of their failure of fulfilment. In selecting certain conditions to be classed as terminating conditions, the draftsman concentrated on those that related to actions to be performed by the holder of the permit, or from which he was required to refrain. None of the terminating conditions in the Regulations is framed in the manner of reg. 28(1)(m). In so far as the delegate thought reg. 28(2) applied, he exercised his discretion on the basis of a breach the nature of which, as Jordan CJ showed, is at least susceptible of the view that a personal default is involved, and the breach he identified was not available to him. Had the delegate appreciated that the discretion to be exercised was of a less specific character, he might, of course, have considered the reasons suggesting cancellation of the temporary entry permit less insistent. It was a matter for him. At any rate, the decision actually reached was fatally flawed by his reliance upon an inapplicable provision, and it must be set aside.

29. I turn to the issue of natural justice. The matters not disclosed to Mr Claro, which had been alleged against him by his wife, were relevant to the question whether there had been a complete and permanent end to the marital relationship. In so far as there were allegations of "pestering", unwanted entry into Mrs Claro's home and bed, and the leaving of a mess in her bathroom, the allegations were also plainly harmful to the applicant on the issue of discretion. It is conceded by counsel for the Minister that the exercise of a discretion was involved in the decision to cancel the temporary entry permit, quite apart from the question of the establishment of a ground upon which to do so.

30. But the argument for the Minister was that none of the matters not disclosed to Mr Claro played any part in the reasons that grounded the decision. This is always a difficult argument. Particularly where a discretion is involved, if a harmful allegation is concealed from a party, how can there be confidence that it in no way influenced an adverse decision? In a recent matter, Pattanasri v. Minister for Immigration, Local Government and Ethnic Affairs (unreported, 25 November 1993), I quoted the remarks of Brennan J in Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at 629, where he said:

"Nevertheless in the ordinary case where no problem of

confidentiality arises an opportunity should be given to

deal with adverse information that is credible, relevant

and significant to the decision to be made. It is not

sufficient for the repository of the power to endeavour to

shut information of that kind out of his mind and to reach

a decision without reference to it. Information of that

kind creates a real risk of prejudice, albeit subconscious,

and it is unfair to deny a person whose interests are

likely to be affected by the decision an opportunity to

deal with the information. He will be neither consoled nor

assured to be told that the prejudicial information was

left out of account. The allegation (that Mr Kioa had an

active involvement with other persons who were seeking to

circumvent Australia's immigration laws) was apparently

credible, relevant and damaging. The failure to give Mr.

Kioa an opportunity to deal with it before making an order

that Mr. and Mrs. Kioa be deported left a risk of prejudice

which ought to have been removed."

31. In the present case, not only was knowledge of serious allegations made against him withheld from the applicant, but also an unreasonable time limit was imposed upon him when, for the first time, it was suggested the temporary entry permit might be cancelled. Before his solicitor left for overseas, there had been no such suggestion, and the solicitor, though perhaps he would have been wiser to have informed the Department that the submission which he did intend to make would be delayed during his absence, was not upon notice that the question of cancellation of the temporary entry permit was about to be raised. The consequence was that the Department, which had delayed its response to the applicant's ultimately conceded request for documents from November till January, by imposing on the applicant a time limit of eight days, effectively denied him any real opportunity to make his case. It should be pointed out that the evidence showed the Department itself considered a period of 30 days was the notice required for such a case, according to guidelines it had laid down. Here, the applicant had eight days, if he received the notice at all. The previous communications, in relation to which only the solicitor had at that stage been retained, referred to his outstanding application, not to any question of cancellation of the temporary entry permit.

32. In my opinion, in both aspects, the applicant was denied natural justice. For this reason also, the decision to cancel his temporary entry permit must be set aside.

33. It has already been pointed out that, as a consequence of the setting aside of the cancellation of the temporary entry permit, the decision in respect of the spouse (after entry) entry permit must also be set aside. The matter should be remitted to the Minister to be decided by him, or by another delegate, according to law.

34. There were some further questions raised at the hearing. For the applicant, it was contended that para. (ba) of reg. 126(1), and the corresponding provision in reg. 135 (reg. 135(1)(d)) each applied to him by virtue of the making of a restraining order or injunction against his spouse in respect of violence by the spouse against the applicant. The possibility of this issue arising, the departmental file suggests, should have been checked before the decision to cancel the temporary entry permit was made. It seems to have been overlooked.

35. In reality, two matters, not apparently known to the delegate, posed specific questions as to whether reg. 135(1)(d) applied, as at the time of the second decision. They were the existence of an "INTERIM ORDER PROHIBITING OR RESTRICTING BEHAVIOUR", made at Balmain Court on 17 February 1992, and the existence of a document dated 5 March 1992 concerned with the termination of proceedings between the applicant and his wife at the Local Court at Waverley. The interim order was made under Part 15A of the Crimes Act 1900 upon a complaint "that it was feared a domestic violence offence or conduct amounting to harassment or molestation would be committed" on the applicant by his wife. It recited that the Local Court at Balmain, having heard evidence of that complaint, made temporary orders until the further listing of the complaint for hearing:

"1. Defendant not to assault, attempt to assault,

intimidate, harrass (sic), threaten, molest or

otherwise interfere with (the applicant).

. . . "

It was noted on the document that failure to comply would render the defendant liable to immediate arrest and, upon conviction, to a maximum penalty of $2,000 and/or six months imprisonment.

36. Apparently, in some manner the matter was transferred from Balmain Court to Waverley Court, and the second document is headed "In the Local Court at Waverley in the State of New South Wales". It was originally drafted to record consent orders, but the heading has been altered so that it reads "CONSENT AGREEMENT". The document continues:

"The Parties mutually agree: for a period of one year

1. Not to harass annoy molest assault or otherwise

interfere with each other.

2. Not to attempt to contact each other in any way

whatsoever."

37. Each of these documents involves problems. As regards the interim order, there is the question whether an order of that kind falls within the meaning of the relevant paragraphs in regs. 126 and 135. On the one hand, it seems odd that the conclusive effect given to an order in those provisions should attach to something so ephemeral, and possibly erroneous, as an ex parte interim order. On the other hand, the provisions are remedial provisions containing, by their terms, no limit upon the type of order to which they refer; the test is what the order is directed to. As regards the second document, there is a difficulty of a different kind. It is simply not clear on the evidence whether orders were actually made in terms of paras. 1 and 2 of the document, or whether the Local Court and the parties were prepared to rely on the mutual agreement, and to have the summons dismissed. As the precise facts have been left in this uncertain state, and as the decisions must in any case be reconsidered, when presumably fuller information will be made available to the decision maker, it would be an unnecessary and probably not a very useful exercise to examine the application of reg. 135(1)(d) any further, on the basis of the present evidence.

38. The final matter which was debated was whether the scheme comprising regs. 126 and 135 evinces an intention that a decision to cancel a temporary entry permit granted under reg. 126 should not be made on the basis that the relevant marriage has failed until after the expiry of two years. This is not a matter which can be affected by any amplification of the evidentiary material; it is simply a question of the construction of the Regulations. In my opinion, that construction should take account of the fact that the Regulations also provide for the mandatory imposition, upon the grant of a temporary entry permit under reg. 126, of a condition that there is no material change in the circumstances on the basis of which the entry permit was granted. At the same time, the scheme of regs. 126 and 135 plainly contemplates a deferral of the decision under reg. 135 during a trial period of two years. It is to be expected that in some of the marriages involved, as in some of the ordinary marriages in the community, there will be temporary ruptures followed by reconciliations, and sometimes by very successful reconciliations. The Regulations should not be interpreted as instituting a procrustean scheme that ignores the realities of individual marriages, fitting them all to a kind of legislative rack. Accordingly, I think the Regulations do contemplate that a decision of the kind that was considered here may be made in an appropriate case, but only where it is clear that the change in the circumstances is material, that is, sufficient to convert, on a permanent basis, the relationship of marriage into something else.

39. The orders of the Court will be as I have already indicated. The respondent must pay the costs of the applicant.

Decisions (Judicial Review) Act 1977

Samuel Claro v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 581;

At a glance

Court

Decision date

Before

Source

Judgment (86 paragraphs)

Samuel Claro v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 581; (1993) 119 ALR 342 (1993) 46 FCR 494 (3 December 1993)

Parties

Legislation Cited (2)

Cases Cited (6)