Immigration - refusal to grant an extended eligibility (economic) entry permit - whether applicant was an illegal entrant at the time when the application was lodged - consideration of reg.35AA of the Migration Regulations - whether Minister estopped from relying upon strict compliance with the regulations.

Migration Act 1958 (Cth)

Roberts v. Repatriation Commission [1992] FCA 642; (1992) 39 FCR 420

Solicitor for the respondent: Australian Government Solicitor

2. The applicant pay the respondents' costs.

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

DAVIES J This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for orders of review with respect to a decision that an application for an Extended Eligibility (Economic) Entry Permit, which had been lodged on 12 September 1990, be refused. The application was refused on the ground that Mr Brewer was an illegal entrant at the time when the application was lodged and therefore did not satisfy the provisions of reg. 128, which specifies the criteria for the entry permit applied for.

2. However, reg. 35AA contains remedial provisions and the issue is whether Mr Brewer satisfied the provisions of that regulation, which read at the time:-

"(1) The Minister may, in spite of any provision of these

Regulations except subregulation (2) and subregulations

42(1A), (1B) and (1C), grant a temporary entry permit to a

person who is an illegal entrant if:

(a) in the case of a person to whom paragraph

42(1C)(a), (b), (ba), (c) or (ca) applies:

(i) the person satisfies the prescribed

criteria in relation to the entry permit

(other than, if applicable, the prescribed

criteria that the person is the holder of

a valid temporary entry permit and that

the person is not an illegal entrant) and

(ii) the Minister is satisfied that the person:

(A) has not departed from

Australia since that entry;

and

(B) has developed close personal

ties with Australia; or

(b) in the case of a person who entered Australia

before 19 December 1989, not being a person

referred to in paragraph (a):

(i) the person applies for the entry permit

not later than 31 October 1990; and

(ii) the person satisfies the prescribed

criteria in relation to the entry permit

(other than, if applicable, the prescribed

criteria that the person is the holder of

a valid temporary entry permit and that

the person is not an illegal entrant); and

(iii) the Minister is satisfied that there are

compelling reasons for granting the entry

permit; or

(c) in the case of a person who entered Australia on

or after 19 December 1989:

(i) the person applies for the entry permit:

(A) where the person became an illegal

entrant before 20 January 1990 - not

later than 16 February 1990; or

(B) where the person became an illegal

entrant on or after 20 January 1990

- not later than 28 days after

becoming an illegal entrant; and

(ii) any entry visa or entry permit that

expired was not granted subject to the

condition that the holder would not be

entitled to be granted an entry permit,

a further entry permit, as the case

requires, while the holder remained in

Australia; and

(iii) the person satisfies the

prescribed criteria in

relation to the entry permit

(other than, if applicable,

the prescribed criteria that

the person is the holder of a

valid temporary entry permit

and that the person is not an

illegal entrant); and

(iv) the Minister is satisfied:

(A) that the person became an illegal

entrant because of factors beyond

his or her control; ...

(B) that there are compelling reasons

for granting the entry permit; and

(C) that the person complied

substantially with any conditions

subject to which any such entry

visa or entry permit was granted

(other than the condition of which

the person was in breach solely

because of the expiry of any entry

visa or entry permit); ..."

"(1C) For the purposes of subregulation (1A), an applicant

is a prescribed applicant:

(a) if the applicant entered Australia before 1

January 1975; or

(b) if the applicant entered Australia before 19

December 1989 when he or she was engaged to be

married to an Australian citizen or an

Australian permanent resident and subsequently

married that citizen or resident; or

(ba) if the applicant:

(i) entered Australia on or after 19 December

1989 as the holder of a prospective

marriage entry visa operating as an entry

permit or of a prospective marriage entry

permit; and

(ii) married the person stated by the applicant in

the application for that visa or the visa on

the basis of which the prospective marriage

entry permit was granted to be the person whom

he or she proposed to marry; and

(iii) becomes an illegal entrant; or

(c) if the applicant:

(i) entered Australia when he or she was:

(A) the holder of a conditional

resident return visa granted before

19 December 1989; or

(B) the holder of a return visa, Class

A, B, C, D or E, granted before 10

December 1990 in circumstances

declared by subregulation (1E) to

be special circumstances; or

(C) the holder of a return visa, Class

F; and

(ii) was an Australian permanent resident at

any time within 5 years before being

granted that visa; and

(iii) has not departed from Australia since that

entry; and

(iv) has developed close personal ties with

Australia; or

(ca) if the applicant:

(i) is a New Zealand citizen; and

(ii) either:

(A) was a New Zealand citizen at the

time of last entering Australia;

or

(B) became a New Zealand citizen

after last entering Australia but

before 19 December 1989; and

(iii) last entered Australia before 19 December

1989, using a passport other than a New

Zealand passport; and

(iv) becomes an illegal entrant ..."

4. Mr Brewer came to Australia on 14 February 1989. He was granted a temporary entry permit having a duration of 9 months. Subsequently, he applied for and obtained a temporary entry permit which expired on 13 August 1990. Mr Brewer left Australia on 22 June 1990 for a short visit overseas and reentered Australia on 23 July 1990. He was then granted a permit valid until 13 August 1990.

5. Mr Brewer seems to have had a penchant for attending to affairs at the last possible moment. On the afternoon of 13 August 1990, he went to an office of the Department of Immigration, Local Government and Ethnic Affairs and sought to lodge an application for a permanent entry permit. Apparently, the form which he had completed was the wrong form and the officer whom he saw at 4 p.m. on 13 August declined to accept it. Mr Brewer was informed that he would have to leave the country. On seeking further advice from the officer, Mr Brewer was advised that under certain circumstances a late application could be accepted if lodged within 30 days. Acting on that information, Mr Brewer lodged an application in the proper form on the thirtieth day, 12 September 1990.

6. Mr Brewer's evidence, which is not challenged, was as follows:-

"2. On 13 August 1990 I went to the office of the second

respondent at 2.30 p.m. to lodge an application for an

entry permit.

3. I was served at the counter at approximately 4.00 p.m.

by a male person who said to me words to the effect of

'you have used the wrong forms' and 'you have to leave

the country.'

4. I then said words to the effect of 'there must be some

provision under which I can apply.'

5. The person then went away for approximately 5 minutes.

6. On his return he said words to the effect of 'under

certain circumstances a late application can be

accepted if lodged within 30 days.'

7. I lodged the application on the 30th day."

7. The advice given to Mr Brewer on 13 August 1990 was incorrect. If the officer had in mind reg. 35AA(1)(c), then the applicable period there specified was "not later than 28 days after becoming an illegal entrant". Mr Brewer became an illegal entrant on 14 August 1990. Twenty eight days thereafter expired on 11 September 1990. When Mr Brewer lodged his application for permanent residence on the thirtieth day, 12 September 1990, he did so just outside but nevertheless outside the period allowed by s.35AA(1)(c).

8. Mr Stephen Gageler of counsel, who appeared for Mr Brewer, has formally submitted that the respondents are estopped from applying the 28 day provision by reason of the incorrect advice given by the officer of the Department on 13 August 1990. Mr Gageler did not, however, seek to argue the point for he recognised that it has been clearly held in this Court that wrong advice given by an officer of a Commonwealth department will not raise an estoppel which affects the application of a mandatory provision of an enactment. It is sufficient for me to refer to Formosa v. Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687; Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22; (1989) 92 ALR 93; Glass v Defence Force Retirement and Death Benefits Authority [1992] FCA 558; (1992) 38 FCR 534; Roberts v Repatriation Commission [1992] FCA 642; (1992) 39 FCR 420; Chand v. Minister for Immigration, Local Government and Ethnic Affairs (unreported, Keely, Davies and O'Connor JJ, 26 March 1993). Accordingly, although the issue of estoppel was formally raised, I need not discuss it further.

9. Mr Gageler alternatively submitted that, as Mr Brewer first entered Australia on 14 February 1989 and as s.4 defines "entry" to include "reentry", Mr Brewer fell within the terms of both paras. 35AA(1)(b) and (c). He entered Australia before 19 December 1989 and also reentered after 19 December 1989. Mr Gageler submitted that Mr Brewer was entitled to the operation of the provision which was most beneficial to him, that is to say, para.35AA(1)(b), which permitted an application for the entry permit to be made not later than 31 October 1990.

10. However, as Mr Paul Roberts, counsel for the respondents, submitted, the natural way of reading paras. 35A(1)(b) and (c) is to read them as alternatives, para.(b) expressing a time limit in respect of a person who entered Australia before 19 December 1989 and para.(c) applying to a person who entered Australia on or after 19 December 1989. That is the ordinary meaning conveyed by the words used. This meaning is supported by the fact that paras.(b) and (c) specify different criteria, particularly the different time limits which are stated therein. It would not be a natural reading of the two paragraphs to treat the one person as being subject to both.

11. For example, although Mr Brewer entered Australia before 19 December 1989, he also entered Australia after 19 December 1989 and the time there specified is "not later than 28 days after becoming an illegal entrant". Mr Brewer did not satisfy that criterion. Accordingly, Parliament has expressed its intention that the remedial provisions of reg.35AA should not apply in his case.

12. Moreover, s.49 of the Migration Act specifies that an entry permit granted to a non-citizen ceases to be in force when the non-citizen leaves Australia, and has no further force. Accordingly, it is a fundamental principle of the Act that a new entry permit must be obtained whenever a non-citizen who has left Australia returns to this country. In this light and as the ordinary process by which a non-citizen becomes an illegal entrant is by the expiration or cancellation of an entry permit, as s.14(1) of the Act provides, the context in which paras.35AA(1)(b) and (c) ordinarily operate is that of the expiry or cancellation of an entry permit on the non-citizen's last entry to Australia.

13. That this is indeed what para.(c) has in mind is clear from subparas.35AA(1)(c)(ii) and (iv)(C). The reference in (c)(iv)(C) to "any such entry visa or entry permit" must refer back to the reference in (c)(ii) to "any entry visa or entry permit that expired". It would not be natural to read those provisions as referring to other than the entry visa or entry permit that was last granted and to substantial compliance with the conditions of that entry visa or permit. It would be straining the words to read these provisions as referring to compliance with entry visas or permits which had ceased to have any ongoing relevance because of the operation of s.49 of the Act.

14. This reading of paras.(b) and (c) is not inconsistent with the operation of the criteria of reg. 35AA(1)(a) which incorporates the provisions of paras. 42(1C)(a)(b)(ba)(c) and (ca). Although in those latter provisions the words "entered Australia" do not necessarily relate to the last entry, and in reg. 42(1C)(ca) the words "last entered Australia" are specifically used, nevertheless, it is clear that reg.35AA(1)(a) is concerned with the last entry to Australia. A criterion is that the Minister is satisfied that the person "has not departed from Australia since that entry". Although that criterion is not expressed in paras.(b) and (c), it seems to me that those paragraphs also speak with respect to the last entry. Similarly, paragraph (d) would appear to speak of a person who has remained in Australia as an illegal entrant after having been advised that he or she was entitled under the earlier provisions to make a second application for an entry permit.

15. In the light of all these considerations, it seems to me that paras.35AA(1)(b)and (c) both speak in relation to the last entry to Australia, which to my mind is the natural and ordinary meaning of the words used in the context of the Act.

16. It follows that para.35AA(1)(b) did not apply to Mr Brewer's case and para.35AA(1)(c) did apply. As Mr Brewer did not satisfy the criteria therein specified, for he did not lodge his application within the 28 day period, his application was properly dismissed.

17. Of course, even if Mr Brewer had satisfied that criterion, he may have had difficulty in satisfying the criterion specified in reg.35AA(1)(c)(iv)(A) that he became an illegal entrant because of factors beyond his control. That matter was not raised in the proceedings and no evidence went to it.

18. For the reasons I have given, the application for orders of review must fail. The application will be dismissed with costs.