Minister for Immigration & Ethnic Affairs v Polat, S. [1995] FCA 268

C A T C H W O R D S

IMMIGRATION - application for reg 142 confirmatory entry permit - whether officer unlawfully rejected the lodgment of an application - whether the Minister was estopped from denying that the application was lodged in time - whether reg 35AA(1) allowed the grant of a permanent entry permit notwithstanding non-compliance with s.47(1) of the Migration Act 1958 (Cth).

ADMINISTRATIVE LAW - whether a decision-maker may vacate a decision - whether an applicant may withdraw an application - whether the application to the Court was lodged within a reasonable time.

ESTOPPEL - whether estoppel may operate so as to excuse performance of a statutory obligation or permit an ultra vires act - whether misleading advice given by an official can give rise to estoppel - whether applicant was under an erroneous assumption that an application had been lodged.

STATUTES - contradiction of express statutory provision by subordinate legislation - whether conduct amounted to substantial compliance with the procedural requirements of the regulations

- 2 -

Administrative Decisions (Judicial Review) Act 1977 (Cth) - s.11(4)

Migration Act 1958 (Cth) - s.47(1).

Migration Regulations - regs.22, 35AA(1), 142

Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54

Beaudesert Shire Council v Smith (1966) 120 CLR 145

Brewer v Minister for Immigration, Local Government & Affairs (1993) 46 FCR 84

Brooks and Burton Ltd v Secretary of State for the Environment [1978] 1 All ER 733

Cambridgeshire and Isle of Ely County Council v Rust (1972) 2 QB 426

Chand v Minister for Immigration, Local Government & Ethnic Affairs (1993) 30 ALD 777

Commissioners of Customs and Excise v Hebson Ltd (1953) 2 Ll Rep 382

Formosa v Secretary, Department of Social Security (1988) 81 ALR 687

Glass v Defence Force Retirement & Death Benefits Authority (1992) 38 FCR 534

Hamilton v Minister for Immigration & Ethnic Affairs (Davies, Sheppard & Burchett JJ, 26 October 1994)

Howell v Falmouth Boat Construction Co Ltd [1951] AC 837

Hunter Resources Ltd v Melville (1988) 164 CLR 234

Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222

Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 92 ALR 93

Minister for Immigration, Local Government & Ethnic Affairs v Buksh (1992) 26 ALD 399

Maritime Electric Co Ltd v General Dairies Ltd (1937) AC 610

Minister of Agriculture and Fisheries v Matthews (1950) 1 KB 148

New South Wales Trotting Club Ltd v The Council of the Municipal Council of Glebe (1937) 37 SR (NSW) 288

Office of Personnel Management v Richmond 496 US 414 (1990)

Re Queensland Nickel Management Pty Ltd v Great Barrier Reef Marine Park Authority (1992) 28 ALD 368

Roberts v Repatriation Commission (1992) 39 FCR 420

Southend-on-Sea Corporation v Hodgson (Wickford) Ltd (1962) 1 QB 416

The Commonwealth v Verwayen (1990) 170 CLR 394

Wells v Minister of Housing & Local Government [1967] 1 WLR 1000

Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v SABRI POLAT

No G 695 of 1994

Davies, Whitlam & Branson JJ

13 April 1995

Sydney

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No G 695 of 1994

)

GENERAL DIVISION )

On appeal from a single judge of the

Federal Court of Australia

BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Appellant/Cross-Respondent

AND: SABRI POLAT

Respondent/Cross-Appellant

Coram: Davies, Whitlam & Branson JJ.

Date: 13 April 1995

Place: Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the trial Judge be set aside and, in lieu thereof it be ordered that the application to the Court be dismissed with costs.

3. The cross-appeal be dismissed.

4. The respondent pay the costs of the appeal and of the cross-appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No G 695 of 1994

)

GENERAL DIVISION )

On appeal from a single judge of the

Federal Court of Australia

BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Appellant/Cross-Respondent

AND: SABRI POLAT

Respondent/Cross-Appellant

Coram: Davies, Whitlam & Branson JJ.

Date: 13 April 1995

Place: Sydney

REASONS FOR JUDGMENT

Davies & Branson JJ: A judge of the Court, Beazley J, has ordered that a decision of a delegate of the Minister for Immigration, Local Government & Ethnic Affairs be set aside and that the matter be remitted for reconsideration according to law. From that order, the Minister has appealed on the ground that there was no error of law in the decision of 8 July 1991 and on the ground that the application to the Court was not lodged within a reasonable time and ought not to have been entertained. Mr Sabri Polat, the applicant below, has cross-appealed, claiming that the decision of 8 July 1991 was invalid for reasons which were rejected by the learned trial Judge.

Late in 1990, Mr Polat, a Turkish citizen resident, became engaged to be married to an Australian citizen, Ms Ayse Kiratli. He applied for, and was granted, on 25 October 1990, a prospective marriage visa under Regulation 72 of the Migration Regulations. This visa, which was valid until 25 February 1991, was expressed to operate and operated as a temporary entry permit for a stay in Australia of 3 months from the date of entry. Mr Polat entered Australia on 15 November 1990. He intended to marry Ms Kiratli and then to apply for a confirmatory entry permit under Regulation 142 of the Migration Regulations.

Section 47(1) of the Migration Act 1958 (Cth) ("the Act") provided, relevantly to Mr Polat's circumstances:-

"47 (1) A permanent entry permit shall not be granted to a non-citizen after entry into Australia unless at least one of the following paragraphs applies to the non-citizen:

...

(b) he or she:

(i) is the holder of a valid temporary entry permit; and

(ii) is the spouse or child of an Australian citizen or of the holder of a valid permanent entry permit."

Regulation 142 provided, inter alia:

"142. The additional criteria in relation to a confirmatory entry permit are the following criteria:

(a) the applicant meets the requirements of at least one of the paragraphs of subsection 47(1) of the Act;

(b) the applicant:

(i) is the holder of an Australian requirement entry visa or entry permit and has satisfied any prescribed criteria he or she was not able to satisfy except after entry to Australia; ..."

It was anticipated that Mr Polat would meet the criteria for a confirmatory permit. The learned trial Judge made the following finding of fact:-

"From the time of the grant of the visa and temporary entry permit, the applicant knew of the time conditions to which the visa and temporary entry permit were subject. He also knew from that time, to be eligible for a reg142 CPEPAE, he was required to arrive in Australia on or before 25 February 1991; that he should marry his prospective spouse within 3 months of his arrival in Australia; and that he should apply for a reg142 CPEPAE after his marriage but within 3 months from the date of his arrival in Australia." (emphasis added)

Unfortunately, matters did not turn out as planned. Mr Polat arrived in Australia on 15 November 1990 with permission to remain for 3 months. On 13 December 1990, he married Ms Kiratli. The marriage ran into difficulties almost immediately. Approximately a week after the marriage, Mr Polat's father-in-law purchased for Mr Polat a one way ticket to Turkey, drove him to Sydney International Airport and gave him his passport. Mr Polat fled the airport and sought refuge with members of the Turkish community. There was a temporary reconciliation but, again, Mr Polat's father-in-law ordered him to leave the home and, on this occasion, refused to return either the passport or the marriage certificate. Mr Polat went to the Police seeking assistance to regain possession of his passport and of the marriage certificate. On 11 January 1991, in the company of Constable A.S. Agas and another police officer, he went to the Kiratli home. He recovered his passport but could not obtain the marriage certificate.

On the same day, 11 January 1991, Mr Polat attended with Constable Agas at the Wollongong office of the Department of Immigration, Local Government & Ethnic Affairs. According to an affidavit sworn by Mr Polat in these proceedings, he
was informed by an officer of the Department that, "You need to have a Marriage Certificate to prove that you have been married." Constable Agas deposed that the following conversation occurred:

"The Counter Clerk said words to the following effect:-

`We can't start processing Mr. Polat's application without the Marriage Certificate. You must come back when you have the Marriage Certificate.'

I said to the Clerk words to the following effect:-

`Mr. Polat can't get a Certificate right away. Why don't you consider the Application in the meantime and we will get a Certificate.'

The Clerk replied with the words to the following effect:-

`We cannot do that.'"

Thereafter, Mr Polat again sought to obtain his marriage certificate from his parents-in-law but was unable to do so.

According to Mr Polat's affidavit, he and Constable Agas returned the next day and explained the difficulties in obtaining the Marriage Certificate. The officer said words to the following effect: "You could apply for a certified copy." Thereafter, Mr Polat applied for a certified copy of the marriage certificate from the Office of Births, Deaths & Marriages at Wollongong. According to Mr Polat's affidavit, there was no response to this request and he had to apply a second time. He eventually received a certificate on Friday, 15 February 1991. The certified copy is dated 11 February 1991. The evidence does not disclose at what time on 15 February, Mr Polat received the certificate.

According to Mr Polat's affidavit:-

"32. I contacted Constable Agas that same day (15 February 1991) to accompany me to the Department for he had my passport for safe keeping and I needed his help as an interpreter.

33. He was not able to do so for it was now too late in the day and in any case Constable Agas said words to the effect: `Don't worry you have until 25 February to make the Application.'

34. 15 February, 1991 was a Friday.

35. I attended the offices of the Department on the following Monday, 18 February, 1991 and lodged an application. ..."

It appears from the application itself, which is dated 18 February 1991, that it was filled out and signed on 18 February 1991 at the Wollongong office.

Neither Mr Polat nor Constable Agas was cross-examined. Affidavits given by members of the staff of the Wollongong office show that no member of that office has any recollection of an incident on or about 11 January 1991 as deposed to by Mr Polat and Constable Agas. The trial judge accepted the version as set out in the affidavits of Mr Polat and Constable Agas. It was not improbable. Indeed, the hearing before the trial Judge proceeded on the footing that the substance thereof, if not the precise words thereof, was accurate.

As Mr Polat had had a permit to remain in Australia for the period of 3 months from the date of entry which was 15 November 1990, his permit expired on 15 February 1991. When he lodged his application for a confirmatory entry permit on 18 February 1991, Mr Polat was an illegal entrant. He therefore did not meet the requirements of a paragraph of s.47(1) of the Migration Act. Moreover, he did not meet the requirements of reg. 142(a) or (b)(i). His entry visa had expired three days earlier.

On 8 July 1991, a decision was made to refuse his application for the confirmatory entry permit. The letter of rejection, dated 8 July 1991, read, inter alia:-

"I refer to your application for a confirmatory permanent entry permit, lodged 18 February 1991.

I must inform you that, after giving your case careful consideration, a delegate of the Minister for Immigration, Local Government and Ethnic Affairs, has considered your application and decided to refuse it. This decision was made with reference to the Migration Act, 1958, the Migration Regulations and the merits of your application. Enclosed is a copy of our assessment report.

Therefore you do not meet the requirements of Section 47(1) of the Act as you were not the holder of a valid entry permit at the time you lodged your application."

Thereafter, there was long history of confused applications for review and of reconsiderations of Mr Polat's situation, including a letter of 11 November 1992 from an officer of the Department which advised that, "The Department ... is now vacating the refusal decision." That letter went on to advise that, notwithstanding the vacation of the refusal decision, Mr Polat would be better served if he were to lodge a fresh application under Regulation 127. That was responded to by the solicitors for Mr Polat who, on 26 November 1992, advised that, "We accordingly do not wish to pursue any further review under Regulation 35AA or Regulation 142." They enclosed an application for a permit under Regulation 127. The problem with that approach was that, although Mr Polat qualified for a temporary entry permit under Regulation 127, he was not qualified for any permanent entry permit to which the temporary entry permit might lead. On 6 April 1993, Mr Polat was finally advised that he was not eligible to apply for any further review. On 28 April 1993, he initiated proceedings in this Court.

In the hearing of this appeal, counsel for both parties have accepted the position that the refusal decision of 8 July 1991 was not in fact vacated and that Mr Polat's solicitors did not withdraw Mr Polat's application for a confirmatory entry permit. Having regard to the confusion which the Department's letter of 11 November 1992 engendered, we consider that concession to be proper. We would merely observe that we would not agree with the view taken by the trial Judge that an applicant may not withdraw an application. It is not necessary to discuss the issue but we would refer to the examination undertaken by the Administrative Appeals Tribunal constituted by Justice Gray, Deputy President Breen and Member E.K. Christie in Re Queensland Nickel Management Pty Ltd v Great Barrier Reef Marine Park Authority (1992) 28 ALD 368. We also have reservations about her Honour's observation that there was no power to vacate the decision of 8 July 1991, notwithstanding that all persons affected thereby were agreed that it was void. However, we need not consider that point.

Section 34 of the Migration Act and Regulation 22 of the Migration Regulations require that an application for an entry permit be in writing in the form approved by the Minister. In Formosa v Secretary, Department of Social Security (1988) 81 ALR 687, it was held by Davies & Gummow JJ, Burchett J dissenting, that under an analogous provision, s.159(1) of the Social Security Act 1947 (Cth), a claim for pension was not sufficiently made if made orally at an office of the Department of Social Security. More recently, in Hamilton v Minister for Immigration & Ethnic Affairs (Davies, Sheppard & Burchett JJ, 26 October 1994), it was held that, when the issue is whether there has been compliance with the Migration Regulations, the issue
should be determined having regard to the intent of the regulatory provisions, the words used and the significance of non-compliance. Reference was made to Hunter Resources Ltd v Melville (1988) 164 CLR 234, where Mason CJ and Gaudron J referred, at 241, to "construing the relevant provisions of the Act in their context which of course includes the scope and purpose of the statute" and, at 244, to the practical difficulties involved in complying with the statute and the consequences of non-compliance. It was held in Hamilton that substantial compliance with the procedural requirements there in issue was sufficient.

In the present case, when Mr Polat lodged his application for the confirmatory entry permit on 18 February 1991, he was an illegal entrant. He therefore did not satisfy the criteria specified in s.47(1) of the Act and in reg. 142. He failed to meet the substantive requirements of the Act and the Regulations.

Counsel for Mr Polat, Mr C.R. de Robillard, submitted that, in January 1991, an officer of the Wollongong office of the Department wrongfully, indeed unlawfully to use counsel's expression, refused to accept the lodgment of Mr Polat's application for a confirmatory entry permit, and took the attitude that the application could not be lodged without the marriage certificate. Mr de Robillard submitted that the Court should review the action taken at the counter in the Wollongong office and should make an order that put Mr Polat into the position he would have been in but for the unlawful conduct of the officer of the Department. Mr de Robillard submitted, alternatively, that the Minister was estopped by reason of what had occurred from
denying that Mr Polat had lodged his application for the confirmatory entry permit during the three months period whilst he was the holder of a temporary entry permit.

These submissions fail both on the facts and the law. In the first instance, Mr Polat did not attend the Wollongong office in January 1991 with a written application which he wished to lodge, nor did he request a form which he could then fill out. The officer in the Wollongong office asked that the marriage certificate or a certified copy thereof be obtained before any further step was taken.

That was not an unreasonable approach for an administrator to take in the middle of January 1991, when Mr Polat had still more than a month in which to lodge his application. Although it may not be mandatory to lodge the marriage certificate with the application for a confirmatory entry permit - and the trial Judge held that it was not mandatory - nevertheless, the application form for the confirmatory entry permit itself contains no paragraph dealing with the name of the spouse or of the date and place of marriage but requests "please provide the original marriage certificate." The marriage certificate was necessary to complete the information which would have to be considered before the application could be determined.

We find nothing in what occurred on or about 11 January 1991 constituted wrongful or unlawful action on behalf of an officer of the Department or founded an estoppel. What the officer said was not incorrect and his course of requesting that the marriage certificate be obtained before Mr Polat was assisted to fill out a form of application was a reasonable and efficient administrative act.

The principle of estoppel relied upon by counsel may be taken to be that stated by Mason CJ in The Commonwealth v Verwayen (1990) 170 CLR 394 at 413, where his Honour said:-

"The result is that it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid."

However, in the present case, Mr Polat is not seeking to give effect to an assumption on which he acted. He did not assume that he had lodged an application on or before 15 February 1991. There is no foundation for an estoppel.

An even more important point is that a court may not relieve against non-compliance with a requirement which the statute intends shall be satisfied. In Formosa, Davies & Gummow JJ said at 694:-

"In our view, the requirement in s159(1) of the Social Security Act that a claim shall be made in writing is of central importance to the administration of the legislation and the sub-section cannot, consistently with the scope and object of the statute, be read as if a claim for a pension is sufficiently made if made orally at an office of the Department to an officer of the Department. The requirement that claims shall be made in writing is not to be characterised as a `mere matter of machinery for carrying out the undoubted purposes of the Act': cf Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655 at 690."

At 695, their Honours said:-

"The effect of the estoppel sought to be established in the present case would be, as we have said, to lift the prohibition imposed by s158(1) and extend the authority of the decision-maker beyond that given by the statute. This cannot be achieved by an estoppel: Sutherland Shire Council v James (1962) 63 SR (NSW) 273 at 278-9, per Sugerman, Manning JJ; Re Callaghan (1978) 1 ALD 227 at 230-1."

This principle was further considered and elaborated on in Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 92 ALR 93 in the judgments of Neaves, Ryan & Gummow JJ, particularly that of Gummow J at 108-118. Other decisions to the same effect are Glass v Defence Force Retirement & Death Benefits Authority (1992) 38 FCR 534; Roberts v Repatriation Commission (1992) 39 FCR 420; Chand v Minister for Immigration, Local Government & Ethnic Affairs (1993) 30 ALD 777 and Brewer v Minister for Immigration, Local Government & Ethnic Affairs (1993) 46 FCR 84.

In the United Kingdom, the general principle is that there can be no acquisition of power through estoppel and that no estoppel will prevent the exercise of a statutory duty. This has been well established in cases such as Maritime Electric Co Ltd v General Dairies Ltd (1937) AC 610; Minister of Agriculture and Fisheries v Matthews (1950) 1 KB 148; Howell v Falmouth Boat Construction Co Ltd [1951] AC 837; Commissioners of Customs and Excise v Hebson Ltd (1953) 2 Ll Rep 382; Southend-on-Sea Corporation v Hodgson (Wickford) Ltd (1962) 1 QB 416; Cambridgeshire and Isle of Ely County Council v Rust (1972) 2 QB 426. It is because the general principles of estoppel are limited, in public law, by the ultra vires doctrine. No principle of estoppel can excuse an administrator from performing his or her statutory obligations or permit the administrator to act ulta vires.

There are few cases in which courts have relaxed this approach. The exceptions appear to be cases, such as Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222, where decisions have been taken by
officers having ostensible, though perhaps not lawful, authority to make the decision, and cases, such as Wells v Minister of Housing & Local Government [1967] 1 WLR 1000, where technical procedural requirements have been waived or overlooked. Many of these latter cases can be explained by the distinction between mandatory and directory requirements or by the doctrine of substantial compliance. In Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 at 221 and in Brooks and Burton Ltd v Secretary of State for the Environment [1978] 1 All ER 733, the Court of Appeal deprecated attempts to expand the exceptions beyond these two categories. Of course, there will always be occasional cases where the hardship of the case persuades the court to make an order in reliance upon the principle of estoppel. Wade on Administrative Law, 6th Ed. at 381-5 mentions some such cases and, at 382, states, "In endeavouring to protect the citizen against such hardships the courts have strained the law and given doubtful decisions." At 385-6, Wade suggests that the remedy for misleading advice should be compensation, not estoppel.

The view taken in Australia and in the United Kingdom also prevails in the United States of America. In that country, although there have been cases in the lower courts where estoppel has been applied in favour of a citizen, the ground of estoppel in the administrative law context has not found favour in the higher courts.

The authorities were reviewed at length in Office of Personnel Management v Richmond 496 US 414 (1990). In delivering the opinion of the Court, Justice Kennedy said at 419-23:-

"From our earliest cases, we have recognized that equitable estoppel will not lie against the Government as it lies against private litigants. In Lee v. Munroe & Thornton, 7 Cranch 366 (1813), we held that the Government could not be bound by the mistaken representations of an agent unless it were clear that the representations were within the scope of the agent's authority. In The Floyd Acceptances, 7 Wall. 666 (1869), we held that the Government could not be compelled to honor bills of exchange issued by the Secretary of War where there was no statutory authority for the issuance of the bills. In Utah Power & Light Co. v. United States, 243 U.S. 389, 408-409 (1917), we dismissed the argument that unauthorized representations by agents of the Government estopped the United States to prevent erection of power houses and transmission lines across a public forest in violation of a statute: `Of this it is enough to say that the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit.'

... Despite the clarity of these earlier decisions, dicta in our more recent cases have suggested the possibility that there might be some situation in which estoppel against the Government could be appropriate.

...

The Solicitor General proposes to remedy the present confusion in this area of the law with a sweeping rule. As it has in the past, the Government asks us to adopt `a flat rule that estoppel may not in any circumstances run against the Government.' Community Health Services, supra [467 U.S.], at 60. The Government bases its broad rule first upon the doctrine of sovereign immunity. Noting that the `United States, as sovereign, is immune from suit save as it consents to be sued,' United States v. Mitchell, 445 U.S. 535, 538 (1980), petitioner asserts that the courts are without jurisdiction to entertain a suit to compel the Government to act contrary to a statute, no matter what the context or circumstances. See Brief for Petitioner 12-13. Petitioner advances as a second basis for this rule the doctrine of separation of powers. Petitioner contends that to recognize estoppel based on the misrepresentations of Executive Branch officials would give those misrepresentations the force of law, and thereby invade the legislative province reserved to Congress. This rationale, too, supports the petitioner's contention that estoppel may never justify an order requiring executive action contrary to a relevant statute, no matter what statute or what facts are involved.

We have recognized before that the `arguments the Government advances for the rule are substantial.' Community Health Services, supra, at 60. And we agree that this case should be decided under a clearer form of analysis than `we will know an estoppel when we see one.' Hansen, supra, at 792 (Marshall, J., dissenting). But it remains true that we need not embrace a rule that no estoppel will lie against the Government in any case in order to decide this case. We leave for another day whether an estoppel claim could ever succeed against the Government. A narrower ground of decision is sufficient to address the type of suit presented here, a claim for payment of money from the Public Treasury contrary to a statutory appropriation."

The view taken in Richmond is similar to that expressed in this country in the cases to which reference has been made. Estoppel will not operate so as to
contradict a statute or to extend the authority of a decision-maker beyond that given by the statute. Nor may a court make an order for payment of money from the public treasury contrary to a statutory appropriation. Even when the power to act is a discretionary one, it has been said that, when there is a duty under statute to exercise a free and unhindered discretion, no estoppel can be raised to prevent or hinder the proper exercise of the discretion. See Kurtovic at 100,111; New South Wales Trotting Club Ltd v The Council of the Municipal Council of Glebe (1937) 37 SR (NSW) 288 at 307, 313; Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 at 73-7.

It necessarily follows that the several arguments put by Mr de Robillard must fail. Mr de Robillard submitted that, because of what occurred on or about 11 January 1991, Mr Polat should be deemed to have been a person holding a temporary entry permit when he made application for his confirmatory entry permit or, alternatively, to have lodged his application whilst he was the holder of a temporary entry permit. But the facts were otherwise. The Court cannot make an order so as to contradict the provisions of a statute.

Mr de Robillard also relied upon the principle enunciated in Beaudesert Shire Council v Smith (1966) 120 CLR 145, where damages were awarded in respect of what was held to be "the deliberate, unlawful and positive acts" of the Shire Council. However, in these present proceedings, damages are not sought.

The next issue arises with respect to reg.35AA(1). It is sufficient to set out the terms of reg.35AA(1)(a) & (c) which read:-

"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 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; ..

...

(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, or 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; and

(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 a condition of which the person was in breach solely because of the expiry of any entry visa or entry permit); and

(D) that the person would have been entitled to be granted an entry permit of the class applied for if he or she had applied for such an entry permit immediately before becoming an illegal entrant; and

(E) that the person intends to comply with any condition subject to which the entry permit is granted ..."

It is not in dispute that Mr Polat was a person to whom para 42(1C)(ba) applied. Mr de Robillard submitted that reg.35AA was intended to overcome the limitation provided by s.47(1) of the Act and that it enabled a permanent entry permit to be granted, notwithstanding that the applicant was not the holder of a valid temporary entry permit. The trial judge appears to have accepted this submission. The trial Judge said, inter alia:-

"Relevantly, subregs 35AA(1)(a) and (c) gave the Minister a discretion to grant a permanent entry permit to an illegal entrant where the person had become an illegal entrant because of factors beyond that person's control and there were compelling reasons for granting the entry permit."

The trial Judge set aside the decision of 8 July 1991 on the ground that reg.35AA was not taken into consideration and she remitted the matter to the Minister to be dealt with again.

However, counsel for the Minister, Miss R. Henderson, has submitted that reg.35AA permits only the grant of a temporary entry permit and says nothing as to permanent entry permits. She said that the decision of 8 July 1991 dealt with an application for a permanent entry permit. She submitted that no application had been lodged for a temporary entry permit and that there were no entry permits which suited the circumstances in which Mr Polat found himself.

On a straightforward reading of reg.35AA(1), it authorises the Minister to "grant a temporary entry permit" and does not empower the Minister to deem a person who does not hold a temporary entry permit to be the holder of a permit. The power is to grant a temporary entry permit and, it would appear, the entry permits which may be granted are the entry permits prescribed by the Regulations. These are the entry permits of the classes for which s.33 of the Act and reg.21 make provision. The prescribed criteria of which reg. 35AA speaks would seem to be the prescribed criteria in relation to such an entry permit.

The regulation was so understood in Minister for Immigration, Local Government & Ethnic Affairs v Buksh (1992) 26 ALD 399. In that case, Mr Buksh had sought, in reliance upon reg. 35AA, an Extended Eligibility (Other) Temporary Entry Permit. He had been refused that entry permit and also another temporary entry permit, a processing entry permit. At 404, Neaves, Beaumont & O'Loughlin JJ said:-

"Turning to the second of those grounds, it is to be noted that the purpose of reg 35AA was to confer a discretionary power on the minister to grant a temporary entry permit to an illegal entrant. The power was, however, limited to the granting of an entry permit falling within one of the classes of entry permits specified in Sch 3 to the regulations other than an entry permit of a class that might be granted only as a permanent entry permit. In other words, reg 35AA did not enlarge the classes of entry permit that the minister might grant. This had the consequence that it remained a prerequisite to the obtaining of an entry permit pursuant to the power so granted that the applicant satisfy the prescribed criteria in respect of the class of entry permit applied for except in so far as reg 35AA provided to the contrary."

Brewer v Minister for Immigration, Local Government & Affairs (1993) 46 FCR 84 was also a case in which the terms of reg 35AA were considered in relation to the refusal of an application for a temporary entry permit, an Extended Eligibility
(Economic) Entry Permit. The Court has not been referred to any authority in which the application of reg 35AA to the grant of a permanent entry permit has been propounded.

Regulation 35AA, however, is a difficult regulation to interpret. The expression "the entry permit" in parts of reg 35AA may perhaps, in some circumstances, refer to a permanent entry permit. That construction finds support in para 35AA(3)(b) which, after the regulation had been amended as from 21 January 1989, referred to the circumstance where "the entry permit is a December 1989 (temporary) entry permit or a December 1989 (permanent) entry permit ..."

Nevertheless, in our opinion, reg. 35AA cannot be read so as to overcome the specific provision of s.47 of the Act that a permanent entry permit shall not be granted to a non-citizen after entry into Australia unless the applicant satisfies one of the paragraphs which are set out in the sub-section. The regulations cannot contradict the statute, and indeed, reg. 35AA does not purport to do so. Mr Polat's circumstances did not satisfy any of the paragraphs of s.47(1). Whatever Regulation 35AA may authorise the Minister to do in an appropriate case, and we do not wish to rule upon that, it had no application to Mr Polat's circumstances.

On 18 February 1991, Mr Polat did not satisfy the criteria of the permanent entry permit which he sought, a confirmatory entry permit, or the requirements of any other permanent entry permit. Thus, Mr Polat did not satisfy the requirements of a Spouse (After Entry) Permanent Entry Permit. Regulation 135 provided that it was a
condition of such a permit that the spouse "has a genuine and continuing marital relationship with the applicant". Not having applied until 18 January 1991, at a time when he was an illegal entrant and his marriage had broken up, Mr Polat was not entitled to the permanent entry permit for which he had applied and there was no other permanent entry permit the criteria of which he met.

Had Mr Polat's marriage been on foot on 18 February 1991, that is to say, had his marital relationship been genuine and continuing, he would have been entitled to an Extended Eligibility (Spouse) Temporary Entry Permit under reg 126 and the grant of this would have led to a Spouse (After Entry) Permanent Entry Permit under reg 135. But the relationship was not continuing and it was the clear intent of the regulatory provisions that a person in Mr Polat's position should not obtain a permanent entry permit.

Mr Polat was entitled to apply for a temporary entry permit, an Extended Eligibility (Family) Temporary Entry Permit, under reg 127. But he did not apply for this permit and the permanent entry permit which would have flowed from this, a Compassionate Grounds Entry Permit under reg. 140, did not apply to Mr Polat's circumstances.

We are of the opinion that the trial Judge was incorrect in remitting the matter for reconsideration of the operation of reg.35AA. In our opinion, that regulation could not have been applied favourably to Mr Polat's case, for to do so would have been to contradict s.47(1) of the Act and the intent of regs 126 and 135.

The last matter to be considered is the ruling of the trial Judge that the application should not be dismissed on the ground that it had not been brought within a reasonable time. The trial Judge extended the time for the lodgment of the application to review decisions of 8 July 1991 and 2 February 1993, the extension of time with respect to those decisions being not opposed by the Minister. However, it was submitted by Miss Henderson to the trial Judge, and again to this appeal court, that the conduct and alleged decision of the officer of the Wollongong branch of the Department on or about 11 January 1991 ought not to have been considered as the application was not brought within a reasonable time. Section 11(4) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) authorises the Court to refuse to entertain an application if it is of the opinion that the application was not made within a reasonable time.

Miss Henderson submitted that the Minister was prejudiced by the lapse of time because, as no officer in the office of the Department in the Wollongong office could recall the events as deposed to by Mr Polat and Constable Agas, the Minister was precluded from being able to deny their evidence. This is not, however, a strong argument as there is nothing improbable in the substance of the events sworn to. Indeed, Miss Henderson did not seek to cross-examine either Mr Polat or Constable Agas in the proceedings below.

In deciding not to dismiss the application by reason of the delay, the trial Judge took into account the fact that Mr Polat had applied to the Court with expedition after seeking relief through the administrative processes and that the
events of January 1991 were an integral part of the case which Mr Polat wished to put with respect to the decision of 8 July 1991. The issue was one for the discretion of the trial Judge. It does not appear to us that her Honour's discretion miscarried.

For these reasons, we would allow the appeal and would set aside the orders made by the trial Judge. We would substitute therefor an order that the application to the Court be dismissed with costs. We would dismiss the cross-appeal. We would order that the respondent pay the costs of the appeal and of the cross-appeal.

I certify that this and the 20 preceding pages

are a true copy of the reasons for judgment herein

of the Honourable Justices Davies & Branson.

Associate:

Date: 13 April 1995

Counsel for the appellant/cross-respondent: Ms R.M. Henderson

Solicitor for the appellant/cross-respondent: Australian Government Solicitor

Counsel for the respondent/cross-appellant: Mr C.R. de Robillard

Solicitors for the respondent/cross-appellant: KPMG Legal Services

Date of hearing: 2 March 1995

Date of judgment: 13 April 1995

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NG 695 of 1994

)

GENERAL DIVISION )

On appeal from a single judge of the Federal Court of Australia

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Appellant/Cross-Respondent

SABRI POLAT

Respondent/Cross-Appellant

Coram: Davies, Whitlam and Branson JJ

Place: Sydney

Date: 13 April 1995

REASONS FOR JUDGMENT

WHITLAM J.

I have had the advantage of reading in draft the judgment of Davies and Branson JJ. I agree with their Honours' reasons for allowing the appeal and dismissing the cross-appeal and with the orders they propose. However, whilst I agree too that the Court cannot make an order so as to contradict the provisions of a statute, I should prefer to reserve my consideration of the scope for any application of the principle of estoppel to a case where the facts as found require it and the Court has had the benefit of more elaborate submissions than in the present appeal.

I certify that this page is a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam

Associate:

Date: 13 April 1995

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