FEDERAL COURT OF AUSTRALIA

Jayaweera v Minister for Immigration & Multicultural Affairs [2000] FCA 955

MIGRATION – non citizens – failure to grant Resolution of Status visa – applicants on entry to Australia producing passport of country other than that of specified country – applicants also holders of passport of such country – one applicant filing application for review outside 28 days from deemed receipt of Departmental letter advising applicant invalid – whether “decision”

WORDS AND PHRASES – “decision” “entered Australia as the holder of” “passport”

Acts Interpretation Act 1901 (Cth) s 15AA, 15AB

Migration Act 1958 (Cth) ss 477, 478(2)

Migration Regulations 1994 (Cth) reg 1216A(3)(i)(A)

Hocine v Minister for Immigration and Multicultural Affairs [2000] FCA 778 followed

R v Brailsford [1905] 2 KB 730 at 745 followed

Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 followed

Joyce v Director of Public Prosecutions [1946] AC 347 at 371 mentioned

ROHAN MARK JAYAWEERA and LALITH MICHAEL JAYAWEERA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO V 146 of 1996

HEEREY J

17 JULY 2000

MELBOURNE

THE COURT ORDERS THAT:

1.         The application of the first applicant is dismissed.

2.         The application of the second applicant is allowed.

3.         The decision of 3 December 1999 of the respondent relating to the second applicant is set aside and remitted to the respondent for consideration according to law.

4.         The respondent pay the second applicant’s costs. 

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

REASONS FOR JUDGMENT

1                     The applicants Rohan Mark Jayaweera and Lalith Michael Jayaweera are brothers.  They were born in the United Kingdom on 2 December 1973 and 28 April 1975 respectively. They are non-citizens of Australia and nationals of both the United Kingdom and Sri Lanka.  On 12 July 1990 both applicants arrived in Australia.  They produced their United Kingdom passports on entry.

2                     The present application for review under Pt 8 of the Migration Act 1958 (Cth) (the Act) is concerned with the failure or refusal of the Minister to grant to each applicant a Resolution of Status (Temporary) visa sub-class 850 (ROS visa).

3                     At the time of entry to Australia the applicants were named as persons  accompanying their father on his valid Sri Lankan passport (although he did not in fact accompany them) and also held Sri Lankan passports in their own right.  The question which arises is whether in those circumstances each applicant “entered Australia as the holder of ” a valid Sri Lankan passport within the meaning of reg 1216A(3)(c)(i)(A).  Does this mean, as the Departmental officer held, that the applicants had to physically hold and present a Sri Lankan passport at the time of entry?  Also in the case of Rohan there is a question whether his application is out of time.

Factual background

4                     According to an affidavit of the applicants’ step-mother Sriyanganie Mangalika Jayaweera, the applicants’ father Lakshman Jayaweera was formerly married to Patricia Rounds, the applicants’ mother.  They had a sister Nelun Michelle Jayaweera who was born on 16 June 1976.  All three children were born in the United Kingdom. 

5                     Patricia Rounds left her husband and children in 1978.  She has not been heard of since.  Lakshman Jayaweera returned to Sri Lanka with his three children.  He and Sriyanganie were married on 23 July 1984.  There are two children of that marriage.  Because Sriyanganie could no longer look after her own two children and the three children from the former marriage a family decision was made that the applicants would go to live with Lakshman’s sister in Australia and another sister living in the United States would look after Nelun.

6                     In 1994 Lakshman suffered a heart attack followed by several strokes.  He is permanently incapacitated and his mental facilities have deteriorated.  He is in a wheelchair and Sriyanganie is responsible for his care.  He was unable to help her find the documents required by the applicants’ solicitors for the purpose of the migration applications.  He did not understand what was required.  Sriyanganie deposed:

“I am aware that Sri Lankan passports were obtained from [sic] the children ROHAN, LALITH and NELUN for purposes of travel.  My recollection is that this was done by my husband’s family.  However I believe that the children travelled on their British Passports.  I emphazise [sic] that this is my recollection but I have not been able to find the passports.

…

I am aware that the children were holders of Sri Lankan passports at the time they left Sri Lanka in 1990.  I am unable to be anymore specific as I have not been able to find the documents.

…

The recognisation [sic] that took place in our household and our lives since my husband’s illness were such that I do not know where these documents are.  Any one of the family members could have taken the documents or they could have been lost or misplaced or even inadvertently thrown away.  During that time I disposed of boxes of my husband’s papers, magazines etc, which I thought would not be of any use.

…

The children have gone through considerable trauma in their short lives and I am very upset that I may have lost the documents that they required.  If there is any other way in which I can help I should be most willing to do so.  I re-iterate that I have searched everywhere and cannot find the passports or copies thereof or any other documents.”

7                     On 30 March 1998 each applicant applied for the grant of an ROS visa.  The application form required details of “travel document used to enter Australia”.  In each case the applicant indicated that a passport was used.  The number was given and the date of issue, 30 May 1988.  In each case the passport was issued at Colombo on 30 May 1988 and was a United Kingdom passport.  On 3 December 1999 the Department replied to Rohan care of his Migration agent as follows:

“Dear Mr Jayaweera

RE:  INVALID APPLICATION FOR RESOLUTION OF STATUS

I refer to your application for Resolution of Status lodged on 30/03/99 [sic – in fact 1998].

The requirements for a valid application for ROS are specified in the item 1216A, Schedule 1 of the Migration Regulations.  In order to make a valid application the applicant (or at least one person who has made a combined application with the applicant) is required to provide, as part of the application, satisfactory evidence that he/she has entered Australia as the holder of a valid passport of one of the countries listed in para (3)(d) of the item 1216A.   I have attached a full text of item 1216A of the Migration Regulations for your information.

After careful examination of the documents provided by you it has been determined that your application for ROS is invalid due to the following reason:

·          In accordance with para 3(c) You [sic] have failed to submit satisfactory evidence of entry to Australia on a valid passport of country prescribed in para 3(d).  The interpretation of holder of a passport means that one has to physically hold that passport at the time of entry.  Therefore, your application does not satisfy para 1216A(3)c(1) [sic] of Schedule 1 of the Migration Regulations.

We have retained the application form to comply with a requirement of Archives Act 1983 and you will receive a refund of your application fee in due course.

Section 47(4) of the Migration Act states that a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.  Therefore, please note that this decision is not subject to merits review.

Finally, please contact the Compliance section of the closest DIMA Regional Office in relation to your immigration status.

If you have any concerns regarding the content of this letter please ring me on (02) 0893 4818.

Yours sincerely

  (sgd)

Manjula Gunaratne

Residence Section

Parramatta

03/12/99”

8                     On 14 February 2000 a letter in substantially the same terms was sent by the Department to Lalith. 

9                     The Department had been provided with a copy of a certified copy of Lakshman’s Sri Lankan passport.  Under the heading “Accompanied by children under 16 years of age” there appear the names and dates of birth of Rohan and Lalith. 

10                  The application of both applicants was filed in this Court on 15 March 2000. 

The legislation

11                  The object of the Act as set out in s 4(1) is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.  To advance this object the Act provides for visas permitting non-citizens to enter or remain in Australia (s 4(2)) and the Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering (s 4(3)). 

12                  The Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia or remain in Australia:  s 29(1).  The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances:  s 41(1). 

13                  A non-citizen who wants a visa must apply for a visa of a particular class and the regulations may prescribe the way of making such applications:  s 45.  Section 46(1) provides that an application for a visa is valid if, and only if, it is made in the way required by s 45(2).  Section 47 provides:

“47.  (1)   The Minister is to consider a valid application for a visa.

(2)   The requirement to consider an application for a visa continues until:

              (a)   the application is withdrawn; or

       (b)   the Minister grants or refuses to grant the visa; or

(c)   the further consideration is prevented by section 39 (limiting

        number of visas) or 84 (suspension of consideration).

         (3)   To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4)   To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.”

14                  The requirements for a valid application for a ROS visa are set out in Schedule 1 item 1216A of the regulations, introduced by SR 279 of 1997, effective 1 October 1997.  The note at the commencement of Schedule 1 provides that the Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class.  An application that is not made as set out in the Schedule is not valid and will not be considered.  Relevantly, item 1216A provides that application is to be made, in the case where the applicant is in Australia, in the period 1 October 1997 to 31 March 1998 (inclusive).  By par (3)(c) such an application

“… must be accompanied by satisfactory evidence that:

(i)        the applicant, or at least 1 person who makes a combined application with the applicant, entered Australia, as the holder of;

            (A)       a valid passport of a country specified in paragraph (d); and

(B)       an entry permit or an entry visa that had effect as an entry permit; and

(ii)       the applicant or the person, as the case requires, so entered Australia on or before the date specified in paragraph (d) in relation to that country.”

15                  Paragraph (d) specifies 11 countries, including Iraq, Kuwait and countries of the former Yugoslavia, with respective dates.  Among them is:

“(v)     Sri Lanka – 1 November 1993.”

Jurisdiction of this Court

16                  Counsel for the Minister submitted that the decisions were not failures to make decisions in relation to visas nor refusals to grant visas.  The decisions were decisions by the Minister that the applications were not valid and could not be considered:  s 47(4).  Counsel accepted however that there was a “judicially-reviewable decision” within the meaning of s 475(1)(c), being a decision “relating to visas” other than a decision of the Immigration Review Tribunal or the Refugee Review Tribunal.  Thus it was not in dispute that judicial review was available under s 476(1).  Reference should also be made to s 477 which provides as follows:

“477 (1)  If:

         (a)   a person, other than a tribunal, has a duty to make a judicially-reviewable decision; and

         (b)   there is no provision that specifies a period within which the person is required to make the decision; and

         (c)   the person has failed to make the decision;

application may be made to the Federal Court for an order of review in respect of the failure to make the decision on the ground that there has been an unreasonable delay in making the decision.

         (2)   If:

         (a)   a person, other than a tribunal, has a duty to make a judicially-reviewable decision; and

         (b)   there is a provision that specifies a period within which the person is required to make the decision; and

         (c)   the person has failed to make the decision before the expiration of that period;

application may be made to the Federal Court for an order of review in respect of the failure to make the decision within that period on the ground that the person has a duty to make the decision in spite of the expiration of that period.”

Is Rohan’s application out of time?

17                  Section 478(1)(b) provides that an application under ss 476 or 477 must be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.  Section 478(2) provides:

“The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph 1(b).”

18                  The letter of 3 December 1999 must be taken to have been received seven days after its date:  reg 5.03(1)(a).  On 19 January 2000 Rohan’s Migration Agent wrote on his behalf to the Department protesting at the letter of 3 December 1999.  As noted, the application for review was not filed in this Court until 15 March 2000.

19                  It has been held by decisions of this Court too numerous to mention that s 478(2) means what it says and no extensions of time can be granted. The most recent is Hocine v Minister for Immigration and Multicultural Affairs [2000] FCA 778.  Counsel for the applicants sought to rely on s 477(1).  He said there had been no “decision”, or at any rate no decision to refuse or grant a visa, thus s 478(1)(b) did not apply.  Rather, he said, there had been a failure to make a decision to refuse or grant.  That failure was continuing and review was available under s 477(1).  If in truth no “decision” had been reached, this argument would hold good.  Indeed if there had truly been a failure to make a decision at all, it is difficult to see how the limitation period in s 478(1)(b) could operate, since there would be no temporal starting point. 

20                  As already mentioned, a decision “relating to visas” is reviewable as a “judicially-reviewable decision” under s 476(1) and thus subject to the unextendable 28 day time limit fixed by s 478.  What was done by the Department on 3 December 1999 obviously related to visas.  Was it a “decision”?  The term is not defined in the Act.  The Macquarie Dictionary defines it as including “the act of deciding; determination of a question of doubt” or “that which is decided, a resolution”.  The Latin root, “decisio” – a cutting down, confirms this sense.  The essence of a decision is a conclusion, something which bring to a resolution an uncertain state of affairs.  In this sense the letter of 3 December 1999 was a decision.  The Department said it was not going to proceed further with the application and that the fee would be returned.  To construe the Act in this way is to apply a beneficial meaning.  Leaving aside for the moment the particular problems caused by the late filing of the application in the present case, it would be regrettable if an intimation (to use a neutral term) of the kind conveyed by the letter of 3 December 1999 was not a “decision” and thus not subject to judicial review. 

21                  I accordingly hold that Rohan’s application for review is invalid.  This is a matter of considerable regret, since the letter of 19 January 2000 was written by a barrister (not counsel who appeared on the present application) who was also a registered Migration Agent.  If the Agent received the Department’s letter on or before 7 January 2000 there would have been time to file an application for review. 

Lalith’s application

22                  There are two possible constructions of reg 1216A(3)(c)(i)(A).  Either the applicant must have been, at the time of entry to Australia, the holder of a valid passport of one of the specified countries and must have physically produced that passport and used it to obtain entry.  Or it is sufficient that at the time of entry the applicant was a person to whom there had been issued a valid passport of one of those countries. 

23                  The readings are finely balanced.  On a strictly literal approach, the first construction might have slightly more appeal than the second.  However, as in the construction of any legislation, the text has to be construed in a way which will promote the purpose of the Act:  Acts Interpretation Act 1901 (Cth) s 15AA, made applicable to delegated legislation by s 46(a).

24                  Section 15AB of the Acts Interpretation Act permits the use of extrinsic material as an aid in ascertaining the meaning of legislation.  One example of such material is the explanatory statement:  s 15AB(2)(e).  There was an explanatory statement in the present case but, as often happens, it is not particularly illuminating, being little more than a paraphrase of the terms of the regulation itself.  More help is to be found in a media release which was issued by the Minister, Hon Phillip Ruddock MP, on 13 June 1997.  It was as follows:

“Decisions on Certain Long Term Temporary Residents

The Minister for Immigration and Multicultural Affairs, Phillip Ruddock, announced today the Australian Government’s decision to resolve the status of certain groups of people who, for humanitarian reasons, have been allowed to remain in Australia as long-term temporary residents.

‘The Government has decided to create new visa classes to cover specified citizens from Sri Lanka, countries in the former Yugoslavia region, Iran, Kuwait, Lebanon and China,’ Mr Ruddock said.

‘Under arrangements implemented by the former Labor Government, some thousands of people have been allowed to remain in Australia for many years because of internal conflict or uncertainty in their home country.’

‘Their status has been unresolved for some time.  The Coalition has now moved to rectify this situation.’

‘These people have been in Australia for many years.  All entered Australia legally and have remained in Australia on humanitarian grounds, approved by the former Government,’ Mr Ruddock said.

‘The decision will allow about 8,000 people to apply.’

‘It offers further temporary stay to these people with the availability of permanent residence after they have been in Australia for a total of 10 years.’

The two stage process – under which people are initially granted further temporary residence followed by permanent residence after a qualifying period – affects people not covered by concessions introduced by the previous Government.

The arrangement includes people who are citizens of the following countries and who arrived lawfully in Australia from:

·          Kuwait                           -             on or before 31 October 1991

·          Iraq                                -             on or before 31 October 1991

·          Lebanon                         -             on or before 30 November 1991

·          China                             -             on or before 1 November 1993

·          Sri Lanka                       -             on or before 1 November 1993

·          former Yugoslavia         -             on or before 1 November 1993

These are the dates on which previous concessions for people from some of these countries were terminated.

The new visa will attract a charge of $2,000 to cover application processing costs.”

25                  The media release then proceeds to discuss details such as health and character checks, procedures for permanent residence, access to Medicare and Social Security benefits, and family reunion. 

26                  This document has particular significance because it comes personally from the Minister, the person to whom Parliament has entrusted the subordinate law making power in question.  Moreover, unlike the explanatory memorandum, it is not merely descriptive but explicitly states the purpose of the regulation and what the government was trying to achieve. 

27                  It is notable that the media release makes no reference to passports, still less to any requirement that the new visa is only to be issued to persons who happen to have entered Australia on a passport issued by one of the specified countries.

28                  What function does a non-citizen’s passport serve in Australian immigration law?  Subject to some exceptions not presently relevant, a non-citizen must not travel to Australia without a valid visa:  s 42(1).  A visa to travel to and enter Australia constitutes permission for the holder to enter Australia:  s 43(1).  On arrival a non-citizen must show a clearance officer “evidence of the person’s identity and of a visa that is in effect and is held by the person”:  s 166(1)(a)(ii).  Of course the most frequently used evidence of identity is the passport of another country.  But for a non-citizen, production of a valid visa is mandatory while production of a passport as such is merely one way in which identity may be proved.

29                  The classic exposition of the nature of a passport is contained in the judgment of Lord Alverstone CJ in R v Brailsford [1905] 2 KB 730 at 745.  His Lordship said:

            “It will be well to consider what a passport really is.  It is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual’s protection as a British subject in foreign countries, and it depends for its validity upon the fact that the Foreign Office in an official document vouches the respectability of the person named.

            Passports have been known and recognised as official documents for more than three centuries, and in the event of war breaking out become documents which may be necessary for the protection of the bearer, if the subject of a neutral State, as against the officials of the belligerents, and in time of peace in some countries, as in Russia, they are required to be carried by all travellers.

            It is not necessary to do more than to remember certain incidents in the nineteenth century to see what grave international questions might arise in the event of a person holding a passport receiving ill-treatment in a foreign country.”

30                  The holding of a passport had fatal consequences for William Joyce who under the sobriquet Lord Haw Haw made propaganda broadcasts on behalf of Nazi Germany in World War II.  Although a United States citizen, he had obtained before the war a British passport.  It had not expired when he made the broadcasts.  In Joyce v Director of Public Prosecutions [1946] AC 347 the House of Lords held that this was a sufficient basis to found a duty of allegiance supporting a conviction for treason.  Lord Jowitt LC said (at 371):

“A well known writer on international law has said (see Oppenheim, International Law, 5th ed., vol. I., p 546) that by a universally recognized customary rule of the law of nations every state holds the right of protection over its citizens abroad.  This rule thus recognized may be asserted by the holder of a passport which is for him the outward title of his rights.  It is true that the measure in which the state will exercise its right lies in its discretion.  But with the issue of the passport the first step is taken.”

31                  In the context of an ROS visa, the holding of a passport of one of the specified countries serves the purpose of identifying the applicant as a citizen of one of those countries.  It is citizenship of one of those troubled countries which warrants the humanitarian approach of which the Minister spoke.  That citizenship is established by the holding of a passport of one of those countries, whether or not the applicant happened to produce the passport at the time of entry to Australia.

32                  This is confirmed by the application form which asks:

“Travel document used to enter Australia

 Type of travel document – eg passport, certificate of identity.”

33                  The form does not suggest that it is essential that a passport, as distinct from some other form of identification, has been used.  Still less is there any requirement to identify as a document used to enter Australia a passport of one of the specified countries. 

34                  It is a notorious fact that many people hold valid passports from two or more countries.  If the Minister had intended the holding of a passport from a country other than one of the  specified countries to be a disqualifying condition, that could have been so provided .

35                  Doubtless the reason this was not done is that the applicant is not only required to be a citizen of one of the specified countries but also to have been, immediately before entering Australia, “usually resident” in that country:  Regulations, Schedule 2, reg 850.213.  If a person was a citizen of one of those countries (as proved by the holding of a passport), and was usually resident there, it would hardly be a humanitarian approach to refuse a visa because the applicant might have a passport of some third country with which he or she had no practical connection and might not have even visited.  Neither the regulations, nor the Minister’s media release, suggest that the holding of a passport from a third country should result in the refusal of an ROS visa and the applicant being told, as counsel for the Minister put it, “You have somewhere else to go”. 

36                  Another consideration weighing against the adoption of the Department’s construction is that it would lead to absurd, capricious and unjust results:  Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.  Assume that on a day prior to 1 November 1993 two Sri Lankans are in a queue at immigration control at an Australian airport.  Each has a United Kingdom passport and a Sri Lankan passport and had been usually resident in Sri Lanka.  They are not to know that four years in the future the use of a particular passport will become a matter of any significance.  One produces his United Kingdom passport and the other her Sri Lankan passport.  It would be passing strange if that pure happenstance, of not the slightest significance at the time, had the result that the one is now entitled to an ROS visa but the other is not.

Orders

37                  In Rohan’s case, the application will be dismissed.  In Lalith’s case I hold that the decision of 14 February 2000 involved an error of law, being an error involving an incorrect interpretation of the applicable law:  s 476(1)(e).  There will be an order that the decision be set aside and the matter remitted to the Minister for reconsideration according to law. 

38                  There will be an order that the Minister pay Lalith’s costs.  As to Rohan’s application, his counsel pointed out that an objection to competency was not filed within time although he did not suggest that this fact prevented the application being dismissed.  Counsel for the Minister produced subsequent correspondence which put the applicants’ solicitor on notice as to the time issue.  However it seems to me that, the two brothers having been joined in the one application, the Minister would have incurred virtually the same costs in unsuccessfully resisting Lalith’s application.  In the circumstances, I will make no order as to costs in relation to Rohan.

Associate:

Dated:              17 July 2000