CATCHWORDS
ADMINISTRATIVE LAW - IMMIGRATION - whether decision maker erred in refusing to grant Class 816 (Special) Permanent Entry Permit - whether applicant met criteria specified by subreg 816.721(4) and (5) of Migration (1993) Regulations - whether applicant had applied "for a determination that the applicant was a refugee" within the meaning of subreg 816.721(4) - whether a previous application lodged by the applicant for an Extended Eligibility Temporary Entry Permit (EETEP) Class 824 was an application "for a determination that the applicant was a refugee" within the meaning of subreg 816.721(4) - whether subreg 816.721(4) requires that the application on its face be an application for a determination that the applicant was a refugee - whether subreg 816.721(4) requires that the application in substance be an application for a determination that the applicant was a refugee.
Immigration Act 1958 (Cth)
Migration Regulations
Migration (1993) Regulations
Migration Reform (Transitional Provisions) 1994 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Hamilton v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 349
Ali v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 178
SHAHID UL-ISLAM v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG74 of 1995
Beazley J
11 April 1996
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
) No. NG74 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: SHAHID UL-ISLAM
Applicant
AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: BEAZLEY J
PLACE: SYDNEY
DATE: 11 April 1996
MINUTES OF ORDERS
The Court orders that:
1. The time within which the application for review may be brought be extended to 14 February 1995.
2. The application be dismissed.
3. The applicant pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
) No. NG74 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: SHAHID UL-ISLAM
Applicant
AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: BEAZLEY J
PLACE: SYDNEY
DATE: 11 April 1996
REASONS FOR JUDGMENT
BEAZLEY J: This is an application for an order under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for review of the decision of the respondent, made 3 November 1994, that the applicant did not satisfy the criteria prescribed by subregs 816.721(4)(a) and (5) of the Migration (1993) Regulations for the grant of a Class 816 (Special) Permanent Entry Permit (Class 816 Permit).
The application was filed outside the time prescribed by s 11 of the ADJR Act. The respondent consented to an extension of time for the filing of the application. I have considered the reasons for the delay in bringing the application. They warrant the exercise of discretion to extend the time in which the application may be brought.
Background facts
The applicant, a resident of Pakistan, arrived in Australia on 25 October 1989. At that time, he was the holder of a transit YB2 visa. Upon his arrival, he was granted a temporary entry permit valid for 2 days. On 5 February 1990, the applicant made an application for an entry permit on departmental form 853 (the 5 February 1990 application). That form related to an application for an extended eligibility temporary entry permit (EETEP), the prescribed criteria for which were specified by reg 129 of the Migration Regulations 1989 (Cth) (the 1989 Regulations). Regulation 129 provided:
"The following criteria are prescribed in relation to an extended eligibility (other) entry permit:
(a) after the arrival of the applicant in Australia
(i) a substantial political upheaval involving individual danger to the applicant:
(A) has taken place in the applicant's usual country of residence; and
(B) has been specified by the Minister by notice published in the Gazette as such an upheaval; or
(ii)a major natural disaster, involving the destruction of the applicant's home and livelihood:
(A) has taken place in his or her usual country of residence; and
(B) has been specified by the Minister by notice published in the Gazette as such a disaster; or
(iii) significant changes, involving
significant repression of a political, social, religious or ethnic group or
body of which the applicant is a member:
(A) have taken place in the applicant's usual country of residence; and
(B) have been specified by the Minister, by notice published in the Gazette, as such significant changes:
with the result that there is a substantial probability that the applicant personally will suffer serious and lasting consequences;
(b) permanent settlement in Australia is the most appropriate course for the applicant;
(c) there is not a country (other than the country in which the applicant is resident) and in which the applicant is entitled to reside;
(d) the applicant satisfies public interest criteria, as applicable, and the prescribed health criteria..."
At the same time the applicant completed and lodged departmental form 853C, which bore the heading.
"For applicants applying for an extended eligibility temporary entry permit on the basis of other prescribed circumstances"
The form further stated:
"This is an attachment to the application for an Extended Eligibility Temporary Entry Permit (Form 853)".
Both forms were lodged with the department under cover of a letter dated 5 February 1990 from Transpacific Marketing & Migration Services. That letter stated:
"We refer to the above-mentioned client who came to Australia and submits the application for change of status.
Mr. Islam, a resident of Pakistan, became the victim of Pakistani People's Party when his business was confiscated and he was left homeless and penniless.
We hope that you would consider his application sympathetically."
Form 853C contained the details of the circumstances upon which the applicant relied in support of his application. That information is central to the issue in the case. The relevant portions were as follows.
Section C1 stated:
"I wish to apply for the following class of Extended Eligibility Temporary Entry Permit After Entry under the provisions of the Migration Act 1958 (as amended)...
1.1 I am applying for an OTHER PRESCRIBED CIRCUMSTANCES Extended Eligibility Temporary Entry Permit on one of the following grounds:
...
. Since my arrival in Australia, a political, social, religious or ethnic group to which I belong to in my usual country of residence has become subject to significant policy changes involving repression or significant restrictions."
The applicant ticked the "yes" box beside this entry.
The document continued:
"Please ensure that you have indentified (sic) all grounds on which you think you are eligible to receive an Extended Eligibility Temporary Entry Permit because:
- you can't be approved for a particular class of entry permit if you do not apply for it"
Question 2.3 asked:
"Have you applied for Refugee Status in Australia?"
The applicant ticked the "no" box beside this entry.
There followed a series of pro forma questions for an applicant to answer. The questions and the applicant's answers were as follows:
(Q) "2.5What is the major event or policy change on which you base your claim for an Extended Eligibility Temporary Entry Permit?"
(A) "I am basing my claim upon the constant encounter and violent activities staged by People's Party of Pakistan."
(Q) "2.6When did this event or policy change occur?"
(A) "1/3/1989"
(Q) "2.7Has this event or policy change affected you directly?"
(A) "Yes"
(Q) "If yes, how has this event or policy change affected you?"
(A) "Due to the political crisis and violent acts of the current Pakistani People's Party, my business and the life of my family has been affected so profoundly that the premises of my business operation had to be seized because my whole business operation had been captured by above party."
(Q) "2.8How will this event or policy change affect you in the future?"
(A) "Now that I am totally out of business because of the confiscation of my business operations by the People's Party of Pakistan, I am totally left homeless, countryless and penniless."
(Q) "2.9For how long do you expect these circumstances to continue?"
(A) "Indefinite"
(Q) "2.10 What do you think will happen to you if you have to go back to your home country?"
(A) "If I am asked to depart to my country I believe that my life would be in continuous danger."
...
(Q) "2.12 Why do you want to settle in Australia rather than in any other country?"
(A) "Now that I have travelled to Australia and feel that I am very much settled in this country, I wish to seek the grant of Permanent Residence of Australia."
...
(Q) "2.14 What significant disadvantage would result to you, or others included in your application, if this application was refused and you were required to leave Australia?"
(A) "If I am required to leave Australia, I do not have any other country of residence and it is quite obvious that I will have to return to Pakistan where I will definitely be encountering the similar problems which may affect the security of my life."
On 4 December 1990, the applicant was informed that his application had been refused as the relevant events upon which he relied occurred after he arrived in Australia whereas the only prescribed circumstances for the purposes of reg 129 were events which occurred before an applicant for an EETEP arrived in Australia. Further, there had been no gazettal notice of any relevant events as required by reg 129.
The applicant remained in Australia notwithstanding the rejection of the application.
On 26 July 1994 the applicant applied for a Class 816 Special (Permanent) Entry Permit (Class 816 Permit) under Part 816 of the Migration (1993) Regulations (the 1993 Regulations). At the same time, the applicant applied for a Class 818 (Highly Qualified On-Shore) (Permanent) Entry Permit. Attached to his Class 816 application was a copy of a letter, which, presumably, was the letter dated 5 February 1990 from Transpacific Marketing & Migration Services under cover of which the 5 February 1990 application was lodged, together with a departmental receipt acknowledging lodgement of that application. Counsel for the respondent advised the court that the department had not retained a copy of the 5 February 1990 application, so that the material it had before it for purposes of determining the Class 816 application was the receipt and the letter dated 5 February 1990. Counsel for the applicant accepted that this was the case.
In so far as is relevant to this matter, the purpose of Class 816 Permits was to provide permanent residence in Australia for certain persons who had applied for determinations that they were refugees: reg 816.12 of the 1993 Regulations. Pursuant to reg 23 of the Migration Reform (Transitional Provisions) 1994 (Cth) (the 1994 Transitional Regulations), applications for Class 816 Permits which had not been finally determined before 1 September 1994 became applications for a Transitional (Permanent) Visa. However, these applications were still to be determined according to the criteria that applied to a Class 816 Permit: reg 23(3) of the 1994 Transitional Regulations.
On 4 November 1994, the applicant was advised that his application for a Class 816 permit had been refused. In her Decision Record, the delegate stated:
"The applicant stated he had lodged an application for refugee/humanitarian grounds on 5 February 1990. The applicant supplied the Department with documentary evidence of this application. He supplied a Departmental receipt and a letter for an application for Extended Eligibility Temporary Entry Permit (EETEP) Class 824.
As Mr Shahid Ul-Islam does not meet the criteria indicated above, the other criteria required in this class has not been tested."
The delegate also found that the applicant did not satisfy the criteria for a Class 818 (Highly Qualified On-Shore) (Permanent) Entry Permit. The applicant has not sought review of the refusal of that application.
Issue in the case
The issue in this case is whether the respondent erred in determining that the applicant had not satisfied the criteria for a Class 816 Permit as he had not lodged an "application for a determination that the applicant is a refugee" within the meaning of subregs 812.721(4) and (5).
The applicant did not dispute that his 5 February 1990 application did not state that it was an application for refugee status. However, the applicant gave evidence that at all times he had understood that his application was an application for refugee status. He said that since his arrival in Australia in October 1989 he had considered himself to be a refugee from his country. He said that he had been directed to Mr Maharag, the migration agent, as a person who could help him obtain recognition as a refugee from the Australian Government. He said it was his intention in causing Mr Maharag to lodge forms 853 and 853C to apply for refugee status. This evidence was not challenged, although counsel for the respondent objected to it as irrelevant. The evidence was admitted subject to relevance.
Relevant Statutory Schemes
There were different regulatory schemes in force at the time that the applicant lodged his 5 February 1990 application and Class 816 application.
Scheme when 5 February application lodged and determined
The Act: Section 33 of the Migration Act provided for the making of regulations in relation to the grant and refusal of entry permits. Regulations made under the section could provide for different classes of entry permits: s 33(2)(a). A person was entitled to the grant of an entry permit of a particular class if that person satisfied all the prescribed criteria in relation to that class, subject only to the provisions of ss 40 and 45. Those sections are not relevant here.
Regulations were made from time to time, specifying the criteria which applicants for entry permits must satisfy to be entitled to the grant of a permit. Regulation 129 was one such regulation.
The grant or refusal of entry permits was governed by s 34. It provided:
"(1)This section applies where, and only where:
(a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and
(b) any fee payable in respect of the application is paid.
(2) Unless this section applies, the Minister:
(a) is not required to consider an application at all; and
(b) shall not in any circumstances grant an entry permit.
(3) Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall, subject to this Division, grant the applicant such an entry permit.
(4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit."
Section 47 governed the grant of permanent entry permits. It provided, relevantly:
"(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:
...
(d) he or she is the holder of a valid temporary entry permit and the Minister has determined, in writing, that the non-citizen has the status of refugee within the meaning of:
(i) the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951; or
(ii)the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;"
Part 3 of
the Act provided for a system of internal review of decisions. Section 121 provided that if upon review, it
appeared to the review authority, (where the review authority had power to
exercise all the powers and discretions conferred by the Act on the person who
made the initial decision), that
the applicant might have grounds for making another application for an entry
permit of the same class or an application for an entry permit of a different
class, the review authority:
"(2)...shall:
(a) notify the applicant accordingly; and
(b) adjourn the review
(3) If the applicant does not make any other application for an entry permit within 10 working days after being notified under subsection (2):
(a) the review authority shall resume the review of the original decision;
...
(4)If the applicant makes any application or applications for an entry permit within 10 working days after being notified under subsection (2):
(a) the review authority shall not resume the review of the original decision until decisions have been made by the Minister on the other application or all the other applications;
(b) the review authority shall then, subject to the wishes of the applicant, review the original decision and such of the other decisions (if any) as are reviewable decisions; ..."
Section 175 provided for the Minister to approve forms as follows:
"The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression "approved form" is used.
The regulations: The relevant regulations in force at the times when the 5 February 1990 application was made and determined were the 1989 Regulations. Regulation 22 provided:
"(1)Subject to this regulation and regulation 34, an application for an entry permit is in accordance with these Regulations:
(a) where the applicant applies after entering Australia:
(i) if the application is in the form approved by the Minister for the purposes of this provision; and...
There was no evidence as to whether there was an approved form for the making of an EETEP.
Regulation 34A provided:
"Unless these Regulations otherwise provide, an applicant for a visa or an entry permit must satisfy the prescribed criteria in relation to the relevant class of visas or entry permits (other than public interest criteria or prescribed health criteria) at the time of application and as applicable at that time."
Regulation 42(1) provided:
"(1)Subject to sections 40 and 45 of the Act, a person is entitled to be granted an entry permit referred to in these Regulations if the person satisfies the prescribed criteria in relation to that class of entry permit."
I have already referred to the provisions of reg 129 which prescribed the criteria for an EETEP.
Scheme as at 1994
As at the date of the Class 816 application, the Migration Act had been substantially amended. It is not necessary, however, to refer to the Act as at 1994 for the purposes of this matter.
As I have already stated, the application for the Class 816 permit was made under the 1993 Regulations. Part 816 provided, relevantly:
"Clause 816.12
Purpose of Grant:
To provide for permanent residence in Australia by:
(a) certain persons who have applied for determination that they are refugees;
...
Clause 816.511
A Class 816 entry permit may be applied for and granted only after entry.
Clause 816.512
An application for a Class 816 entry permit must be made on or before 1 August 1994.
Clause 816.521
The entry permit has effect without limitation as to time.
Clause 816.72
Criteria to be satisfied at time of application (entry permit-after entry)
Clause 816.721
(1) The applicant is:
(a) a person who:
...
(iii) meets the requirements of sub-clause (4)...;
...
(4) An applicant meets the requirements of this subclause if:
(a) the applicant applied in accordance with subclause 5 for a determination that the applicant was a refugee (whether or not the application has been withdrawn, and whether or not the application, if not withdrawn, has been decided, and whether or not the decision, if made, was adverse to the applicant).
...
(5) For the purposes of paragraph 4 (a), an application for a determination that the applicant is a refugee:
(a) must have been recorded by Immigration as having been received by Immigration on or before 1 November 1993;
..."
Applicant's case
It was common ground between the parties that, prior to February 1993, there was no prescribed form for an application for a determination for refugee status. The only application which the applicant had made prior to his application for a Class 816 permit was the 5 February 1990 application. On its face, that was an application for an EETEP, not an application for refugee status. Save that the information within it may have been relevant to an application for refugee status, there was nothing stated in the application to indicate that it was such an application. Counsel for the applicant submitted however, that the 5 February 1990 application could not have been, and should not have been, treated as an application under reg 129 for an EETEP, as the facts upon which the applicant relied clearly fell outside the terms of the regulation. She submitted, therefore, that the 5 February 1990 application should be treated on its own terms, which, in substance, was an application for refugee status. In particular, she relied upon the applicant's answers to questions 2.7 and 2.10 in form 853C which are set out above.
Counsel relied upon Ali v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 178 in support of this submission. That case related to the migration legislation as it stood as at 18 December 1989. (The legislation which governed the making of the 5 February 1990 application commenced on 19 February 1989). On 18 December 1989, Mr Ali made application for refugee status. However, he had not made a request in writing for the grant of an entry permit as required by the provisions of s 6(1) of the Migration Act. The Full Court of the Federal Court held that it was clear from the solicitor's covering letter that Mr Ali was seeking such a permit. The Full Court of the Federal Court further held that under the legislation in existence as at 18 December 1989, a mere application for recognition of refugee status, without application for the grant of an entry permit, would not have been of any use to the applicant. It should have been obvious to the Department, therefore, that at the time that he made the application for recognition of refugee status, the applicant was in fact concerned to seek to obtain the grant of an entry permit. In coming to this conclusion the Full Court held that s 6(1) of the Migration Act, requiring that a request for a permit be in writing on a form approved by the Minister, was facultative as there was no form approved by the Minister for the purposes of the section. The section was intended to provide for the better administration of the Act, rather than an expression of legislative intent that the terms of the Act would not apply to an application for the grant of a permit made informally. However, I do not consider that Ali's case is of assistance in determining the proper construction of subregs 816.721(4) and (5).
Counsel also relied upon the decision of the Full Court of the Federal Court in Hamilton & Anor v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349. In that case, the question arose as to whether there was sufficient compliance with a mandatory provision of the regulations relating to nomination of an applicant for an entry permit. The Court held there had been sufficient compliance. Central to the Court's determination was the fact that there was no prescribed form for nomination. In such a case, it was held that the question to be answered was whether, in substance, a nomination had been made. It was held that there had, in substance, been a nomination. As Davies J pointed out (at 358), although the nominator had not used the expression "nominate" or "nominator" "that [was] the substance of what occurred".
Respondent's case
Counsel for the respondent submitted that subregs 816.721(4) and (5) were technical regulations which applied according to their terms. She submitted that under the regulations, the delegate had to be satisfied that there was a record of an application for refugee status having been received. There was no obligation to go behind the record to ascertain whether an application which had been lodged with the department, was in substance, an application for refugee status. It followed, on this submission, that the applicant's evidence that he intended the 5 February 1990 application to be an application for refugee status, was irrelevant.
Proper construction of subregs 891.721(4) and (5)
It is useful, in determining the proper construction of subreg (4) and (5), to return to the statutory scheme as at 5 February 1990 and in particular, to ss 34 and 122. Under that scheme the Minister could only grant an entry permit where a person, who had made an application for an entry permit of a particular class, satisfied the prescribed criteria for that class. In the present case, the applicant made an application for an EETEP. He did not satisfy the criteria specified in reg 129 for that entry permit. The Minister (or the Minister's delegate) had no discretion. The application had to be refused under s 34.
The Act provided a review procedure (s 122) whereby the substance of an application could be considered, but only so as to provide an opportunity to an applicant to make an application for some entry permit other than, or in addition to, that for which application was initially was made, or to put forward some further basis for the existing application. If some additional application made, or some further basis for the existing application was put forward, the application as then made had to be determined by the Minister under s 34. The review process was suspended until the determination had been made. The applicant did not take advantage of the internal review procedure. The applicant's 5 February 1990 application was treated according to its terms, that is, as an application for an EETEP, as the scheme of the Act required.
Subregulation 816.721(4) refers to an applicant who had "applied...for a determination that the applicant was a refugee...whether or not the application...has been decided" where the department has a record of having received the application prior to the specified date: subreg (5). In my opinion, subregs (4) and (5) refer to an application which, in form, was an application for refugee status. The applicant did not make an application for a determination that he was a refugee, whatever his intention was in that regard. Unless a person made an application for refugee status, there was nothing upon which, or in respect of which, the Minister (or delegate) could make such a determination, although the precise form of the application was not governed by the Act or Regulations. Having regard to the scheme of the Act, and s 34 in particular, it was not open to the Minister to treat an application for a particular class of permit as an application for refugee status. Any application for refugee status had to be made as such. It is such an application to which subreg (4) is directed.
It follows from what I have said that it is not sufficient for the purposes of subreg (4) that there was material in the 5 February 1990 application which may have been relevant to an application for refugee status. This case is not like Hamilton's case where the Full Court of the Federal Court held that the statements by the applicant's mother could only have amounted to a nomination of the application for an entry permit. The material in form 853C could have been relevant to applications other than an application for refugee status, such as an application on humanitarian or compassionate grounds. And, as I have already stated, the Minister was not entitled under the Act to treat an application made by a person as if it was an application of another type.
Accordingly, I dismiss the application with costs.
I certify that this and the preceding 19 pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Beazley.
Associate:
Dated: 11 April 1996
APPEARANCES
Counsel for the Applicant: Ms L. McCallum
Solicitors for the Applicant: Messrs Parish Patience
Counsel for the Respondent: Ms E. Wilkins
Solicitors for the Respondent: Australian Government
Solicitor
Dates of hearing: 8 November 1995
