IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G46 of 1986 GENERAL DIVISTON ) AVS IN THE MATTER of the Administrative Nae SY, Decisions (Judicial Review) Act 1977 ' | BETWEEN: MUHAMMED ILYAS » "ANS ies "~ 708 5 Applicant FEDS 2 Fig fC oe ora wef AND: MINISTER FOR IMMIGRATION REUISIRY < y, AND ETHNIC AFFAIRS eres C94 JTST Respondent CORAM: Evatt J DATE 26 February 1987 PLACE: Sydney MINUTES OF ORDER THE COURT DECLARES THAT: 1) DHE The letter of 20 September 1985 from the applicant Muhammed Ilyas addressed to the Minister for Immigration and referred to therein as an application for permanent residence was an application for an entry permit other than a temporary entry permit pursuant to the Migration Act 1958. COURT ORDERS THAT: 1) The respondent, the Minister for Immigration and Ethnic Affairs, or his Delegate duly appointed under the Migration Act 1958, be directed to furnish to Muhammed Ilyas (the ta applicant) within one calendar month of the date of this order, a statement pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, a) to refuse the applicant's application dated 20 September 1985 for permanent residence; or b) not to consider the applicant's said application for permanent residence. 2) The respondent pay the applicant's costs of and incidental to the motion herein dated 11 April 1986. 3) The matter stand over for directions on Thursday, 2 April 1987. 4) The interim order made by the Court on 26 February 1986 in the matter be continued until 4.15pm Thursday, 2 April 1987. 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. G46 of 1986 GENERAL DIVISION ) IN THE MATTER of the Administrative Decisions (Judicial Review) Act 1977 BETWEEN: MUHAMMED ILYAS Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent Evatt J DATE : 26 February 1987 PLACE: Sydney REASONS FOR JUDGMENT Before the Court is a notice of motion dated 11 April 1986 wherein the abovenamed applicant, Muhammed Ilyas, seeks declarations and consequential orders and directions under the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act), in respect of an application made by him on 20 September 1985 for permanent residence under the Migration Act 19&2 (the Act). Omitting formal parts, the motion seeks the following declarations, orders and directions: ti 1. That the applicant's letter of 20 September 1985 to the respondent was an application for a permanent entry Permit pursuant to the Migration Act 1958 as amended and the Migration Regulations, as amended. ta That the respondent made a decision to refuse the applicant's 20 September 1985 application for a permanent entry permit and that decision is a reviewable @ecision under s.5 of The Administrative Decisions (Judicial Review) Act 1977 as amended; and iy That the respondent be required to supply to the applicant a statement of reasons pursuant to s.13 of the said Act concerning that decision within fourteen (14) days. Further or in the alternative to Orders 2 and 3 above: 4. That the respondent refused or failed to make a decision cn the applicant's 20 September, 1985 application for a permanent permit and that failure or refusal to make a decision is reviewable under s.5 of the said Act; and, 5. That the respondent be required to supply to the applicant a statement of reasons pursuant to s.13 of the gzaid Act concerning that failure or refusal to make a decision within fourteen (14) days. 6. That the respondent be directed to make a decision on the said application. 7. Such further or other orders as the Court thinks fit. Affidavits in support of the motion were affidavits of Paul Henry Wheeler sworn 11 April 1986 and 21 April 1986, the latter being an affidavit in reply to that of Gregory Mark Phillipson sworn 18 April 198 fan . Mr Phillipson was the Departmental officer who handled the purported application for an entry permit. Throughout the hearing of this motion and indeed in the motion itself and the affidavits filed and in certain correspondence annexed to those affidavits, witnesses when giving oral evidence, counsel, the Court and perhaps the Court in these reasons for ts . judgment have used terms such as entry permit, temporary entry permit, permanent entry permit, permanent residence, resident status, illegal immigrant and prohibited non-citizen loosely and not strictly in accordance with the provisions of the Act. At times during the hearing this led to some confusion. It is assumed that the term "permanent residence", which is not now used in the Act, has been used to mean "an entry permit not limited in time." (Cf. Tang v Minister for Immigration (1986) 67 ALR 177 at 181) or "an entry permit other than a temporary entry permit". It is noted that the term "permanent resident" is defined in s.14A(2) for the purposes of s.12 and s.14(1) which sections are not relevant to the present application. Further, it is assumed that the term "entry permit" other than a temporary entry permit issued pursuant to ss. 7(2) and 10 of the Act or "a permanent entry permit" has been used to mean "an entry permit other than a temporary entry permit". (Cf. s.6A(8) in respect to s.6A and s.5(1) in respect of a permit issued under s. 6 of the Act). Prior to the filing of the said motion, the respondent had, on 17 February 1986, ordered pursuant to s.18 of the Act that the applicant be deported from Australia. Thereafter the applicant had filed an application dated 24 February 1986 in the Court under s.5 of the AD(JR) Act for an order of review in respect of the decision to deport him and sought interim orders restraining the respondent from carrying into effect that order pending the hearing of his application. Such interim orders were granted on 26 February 1986 by the Court as presently constituted when the Matter was stood over to 25 March 1986 for further directions. The applicant had, on 25 February 1986, sought s.13 particulars in respect of the deportation order. Later on 4 March 1986, the applicant also sought s.13 particulars in respect of the refusal by the respondent to grant him permanent residence pursuant to his application therefor lodged by him on 20 September 1985. When the matter was called on on 25 March 1986, Mr Kimber of counsel, for the applicant, 1undicated that Mr Plebisek, Solicitor of the Australian Government Solicitor's Office, who appeared for the respondent, had informed him that he had available draft s.13 particulars in respect of the deportation order which, at that stage, were unsigned and as there were some seven days to run before the time within which the respondent had been asked to furnish s.13 particulars in respect of the refusal to grant permanent residence he requested that the matter be stood over for some period to await the outcome of that request. Accordingly the matter was stood over for further mention on 7 April 1986. On 25 March, the applicant also asked that leave be granted to the applicant to amend his application filed on 17 February so that the applicant might seek an order of review in respect of the respondent''s refusal to grant permanent residence pursuant to wn the application lodged by the applicant on 20 September 1985. Such amendment was granted by consent. When the matter was relisted on 7 April 1986, Mr Kimber informed the Court that s.13 particulars in respect of the deportation orders had been received by the applicant's solicitors but the respondent had informed the applicant's legal advisors that no particulars would be forthcoming in respect of the alleged refusal to grant permanent residence, it being claimed by the respondent that there was no application before the Minister for an entry permit, the departmental officer in Sydney, Mr Phillipson having treated the purported application of 20 September 1985 merely as representations to the Minister for Immigration in respect of the question whether the applicant should or should not be deported, which question was then before the Minister. Mr Kimber informed the Court that the applicant was then preparing a notice of motion wherein orders and directions would be sought relative to what the applicant claimed was an application for a permanent entry permit lodged on 20 September 1985 and asked that the matter be further adjourned. That motion was filed on 11 April 1986 and is as set out above. A brief history leading up to the deportation order is set out. In 1977 the applicant left Indonesia on a Qantas flight to Noumea via Sydney. On arriving in Sydney the applicant was granted a transit visa because the connecting flight was not due to leave Australia for one or two days. He did not catch that connecting flight, nor, as he swears in his affidavit, did he intend to. Mr Ilyas has remained in Australia since that time. The applicant is married with seven children - though two of those children have now been adopted by his sister-in-law. His wife and unmarried children still reside in Indonesia. His mother has been a permanent resident of Australia since July 1979, whilst a married daughter, the wife of an Australian resident is a permanent resident in Australia with an Australian born child. The applicant has been and still is employed full-time in his own mame at a city restaurant in Sydney. He has been there since soon after his arrival in Sydney, rising from an inexperienced kitchen-hand to the status of second chef. He remains at that employment and has submitted taxation returns 1n his own name since commencing work. In August 1980, in response to an offer of amnesty to prohibited immigrants by the Australian Government, an application was made to the Department of Immigration and Ethnic Affairs for resident status by Mr Ilyas. This application was refused by letter dated 7 June 1982. This letter reads: I refer to your application for resident status in the Regularisation of Status Program (ROSP). Your application has been given careful and lengthy consideration. Reports trom our offices in Sydney and Jakarta have been considered and the question of your child Rosdiana's medical condition was referred to the Department of Health in Canberra. I must advise that the Minister for Immigration and Ethnic Affairs has decided that the application is not one for approval, as your family have been unable to meet health requirements for migration to Australia. As your application for permanent residence has been unsuccessful, you are now required to leave Australia. You should purchase air or sea tickets for your early departure from Australia, and bring them to this office with your passport within 14 days of receipt of this letter. Please ask to see Miss Barton (2nd floor, room 14). Representations were then made to certain members of Federal Parliament seeking further reconsideration of this application. Further, the applicant submitted a request for review to the Department in November 1982 in relation to the refusal of resident status. By letter dated 4 January 1983, the Immigration Review Panel informed the applicant that he was not eligible for such review as his appeal related to a decision made by the Minister, such a decision not being eligible for review under the Review Panel guidelines. A week later the Department returned all documents relating to Mr Ilyas' application for resident status to his solicitor. It 18 apparent from a reading of those letters, dated 4 January and 11 January 1983 respectively, that no request was made by the Department that Mr Ilyas leave the country. Thereafter, the matter apparently lay in abeyance for some 2 years and 8 months until a telegram was sent to the applicant's daughter requesting Mr Ilyas to attend an interview at the Department in Sydney. This interview took place on 6 September 1985, the day after the telegram was received. It was attended by the applicant, his interpreter Mr Wheeler and Mr Phillipson. It is agreed that the discussion at that interview centred around whether the applicant should be deported. But some discussion, (at least hy the applicant's interpreter to Mr Phillipson) was made concerning a further application by Mr Ilyas to the Department for permanent residence. A dispute has been raised in respect of this interview. The applicant alleges that Mr Phillipson invited the applicant to make a further application, through him, for permanent residence. Mr Phillipson admitted that Mr Ilyas, through his interpreter, mentioned that he wished to stay in Australia and not be deported, but Mr Phillipson denies ever inviting such an application. Mr Wheeler alleges that Mr Phillipson said words to the effect: "You should put the changed circumstances in writing and make a further application for permanent residence and send it to the Minister direct through me". at 9. Mr Phillipson denies this and particularly the use of the word "application". He stated that the interview centred around the deportation of Mr Ilyas and whether this could then be averted by representations made to the Minister through his office. It is apparent from the evidence that both parties left the interview with a@ifferent impressions. It is clear from the evidence that when Mr Ilyas and Mr Wheeler handed the documents set out hereunder to Mr Phillipson on or about 20 September 1985, the applicant had the clear understanding that this was a further application for permanent residence whilst Mr Phillipson thought that it was only further representations to the Minister against the possibility of his ordering deportation. The documents then handed to Mr Phillipson were a letter to the Minister, a support letter to Mr Phillipson, a copy of Indonesian adoption papers relating to the applicant's youngest daughter, Rosdiana, and a further letter from the applicant's employer. The letter to the Minister reads: The Minister for Immigration Canberra ACT Dear Sir In support of my application for permanent residence on compassionate grounds I wish to advise that at the time of the Amnesty Act I did surrender myself to the immigration authorities in the genuine belief and understanding that by so surrending I would be granted amnesty under the provisions of that Act and subsequent Australian permanent residence, subject to certain conditions and here I refer specifically 10. to the Medical clauses of that Act. My application was refused on the grounds that my youngest child could not meet those criteria required under that abovementioned medical clause. This child in question, ROSDIANA, is admitedely (sic) retarded, ie Downes Syndrome, but is not in any way physically handicapped or suffering from any infectious or contagious disease, she is, like most downes syndrome children, of an extremely placid and happy disposition and in my opinion would not in any way ever become a danger or burden to other people or the Government of Australia. Since my original application under the Amnesty Act certain events have completely changed the circumstances, one of my children is deceased, my eldest daughter has married an Australian resident and now permanently resides in Sydney and they have a child born in Australia and my youngest child, ROSDIANA, is now legally adopted out and therefore the very circumstances which were the basis of the protection of the Amnesty Act being refused to me are now no longer existing and I respectfully request that you view this further application in your most compassionate manner. As another matter of compassion I would like to point out that my mother, who is very elderly andfrail, is also a permanent resident of Australia and due to this age and fragility is most unlikely to ever travel again and has no immediate relatives in Indonesia (sic) who are suitable or even in a position to maintain and look after her. It 15 my earnest wish that I may be close to her to give the required support and maintainence during the short balance of life that God may see fit to grant her. Since coming to Australia in 1977 I have always been in secure and permanent employment, managing to fully maintain my family in Indonesia and at the same time to accumulate considerable savings here in Australia. I have small amount of property in Indonesia and together with my assets here this would be sufficient to purchase a suitable home in Sydney for my family and therefore provide my children with a higher standard of life and education and the prospects of a better future and at the same time be closer to my Mother, my eldest daughter with our first and only grandchild and also my eldest brother and his large family. I therefore present for extra consideration that I now have a much smaller family to bring to Australia and many more of my family are already here as permanent residents living in Sydney. Thanking you in anticipation of your most lenient and compassionate consideration in this my application for permanent residence in Australia. (Emphasis added). ll. The support letter to Mr Phillipson reads: Dear Mr G Phillipson Please find enclosed, 1. A letter to the Minister for Immigration in support of my application for permanent residence on compassionate grounds together with changed circumstances. tl A letter of reference/explanation from my employers also in support of the above referred application. Ww Copy of legal adoption papers in respect of youngest child, ROSDIANA. It 1s my intention to request the support, advice and assistance of my local member of parliament Mr Lionel Bowen, however parliament is currently sitting in Canberra and Mr Bowen is not available for interview in Sydney for another couple of weeks. I will arrange to take my case to him as soon as possible. Thanking you for your tolerance in the meantime. (Emphasis added). Mr Phillipson says that he glanced at these documents when they were handed to him on 20 September 1985 and being then of the belief that they were merely representations directed to the Minister concerning the issue of deportation, forwarded them to Canberra for the attention of the Minister. His stated belief, as expressed in his evidence, was based on three reasons. First, there was no formal document among these letters setting out that it was an application for permanent residence; secondly, the prescribed fee of $200 pursuant to r.29A(1)(b) had not been paid and thirdly, such an application had not been mentioned at the interview on 6 September 1985 between Mr Ilyas and himself. 12. On the present motion the respondent has argued that he should not be reguired to supply a s.13 statement of reasons in respect of the application for an entry permit for the following reasons: bo The respondent had not made or failed to make a "decision" within the meaning of the AD(JR) Act in respect of an application for permanent residence because no application for an entry permit was in fact lodged, thus no decision was called for. That if the Court determines that the letters dated 20 September 1985 or any of them was an application for a permanent entry permit, then any processing of such letters by Mr Phillipson or other departmental officers in Sydney was not a "decision" within the meaning of the AD(JR) Act. By the combined operation of ss.7(2) and 6A of the Act an order of deportation effectively excluded an application for permanent residence. The form of the Act, particularly those two sections, so 1t was argued, would necessarily prohibit any such application as a matter of law in the circumstances of this case. If a "decision" under that Act had been made, then pursuant to sub-sections 13(5)(b) and (6) of the Act, a reasonable time having expired since the making of that decision, a refusal by the respondent to give reasons was proper and the Court should not, in its discretion, declare that the request for particulars had been made within a reasonable time after the decision was made. The Court rejects the respondent's first submission. It had been contented by Mr Phillipson in evidence, that the documents lodged By the applicant on 20 September did not constitute an application for permanent residence as: a) the documents were not in the "prescribed form"; b) no fee of $200 had been handed over on that day as required by Regulation 29A(1)(b) made under the Migration Act 1958; and c) At no stage did Mr Phillipson consider the letter of 20 September 1985 as an application for a permanent entry permit as he had not invited any such application. He says he merely processed them as representations to the Minister in respect of deportation and caused them to he and forwarded to Canberra as such. As to a), the regulations made under the Act do not prescribe any form for making an application for permanent residence. Mr Phillipson, in cross-examination, conceded that no such form was prescribed nor was there any departmental pro-forma. Perhaps when he first claimed that there was a prescribed form he was 14. confused with the requirement of r.29AA(8) which provides for a form approved by the Secretary of the Department in respect of an application for an unconditional temporary entry permit by the holder of a conditional temporary entry permit. Accordingly, it cannot be said that the documents that the applicant lodged with Mr Phillipson on 20 September 1985, were not in the prescribed form as was claimed by Mr Phillipson. As to b), ¥.29A(1)(b) did at that time provide that a fee of $200 be paid on lodging an application for a further entry permit other than a temporary entry permit. But that regulation is not mandatory. Nor does the regulation provide that the payment of the prescribed fee be a condition precedent to the processing of an application. In the present case, no request was made for such fees. Nor has there been a refusal by the applicant to pay this amount. In all the circumstances the Court rejects this argument, it being of the view that any failure to pay a prescribed lodgment fee should not prevent the Court from directing the respondent to furnish s.13 statement of reasons for failing to consider or refusing to grant an application such as this. As to c), a perusal of the documents of 20 September 1985 makes it clear, in the Court's view, that those documents constitute an application for an entry permit and should have been dealt with accordingly, even though the fee of §200 was not lodged. The words "my application for permanent residence" appear in both letters. The fact that Mr Phillipson, who obviously could not have read either letter in detail, did not then understand them to be such an application is not to the point. As to the respondent's second submission, Mr Plebisek has argued that assuming the documents were in fact an application for an entry permit, it cannot be said in this case that there had been a decision which amounted toa reviewable decision under the AD(JR) Act. In support, he relied on the decisions of Director General of Social Services v Chaney (1980) 3 ALD 161 per Deane J at 178; Rioardon v Parole Board (1980) 3 ALD 144 at 150; and Evans v Friemann (1980) 3 ALD 326 at 329. The Court understands Mr Plebisek's argument to run thus: Mr Phillipson did not make any decision within the meaning of the AD(JR) Act because he had merely passed the documents onto Canberra; the applicant alleges that the decision complained of was made by officials in Sydney; the only Sydney decision in this regard was to forward those documents to Canberra; accordingly there is no reviewable decision under the AD(JR) Act. I reject this submission. Accepting, for the purposes of the argument, that the action by Mr Phillipson was simply to rubber-stamp the documents as "representations" rather than as an application for an entry permit then that action effectively put 16. the ultimate determination, that of whether an entry permit may be granted in respect of the application, outside or beyond the power of any decision maker. The application, as an application under the Migration Act, from that point of time was effectively stopped by his action. In my view, in the circumstances of this case, it could be argued that Mr Phillipson's action in so stopping the application was tantamount to a failure to make a decision on the application. (See s.3(2) and s.7 of the AD(JR) Act). But no definitive decision by the Court in this regard is required at this stage of the proceedings. The Court is presently only determining whether an order should be made directing the respondent to furnish a statement of reasons under s.13 of the AD(JR) Act, the respondent having, in the Court's view, a duty so to do. Mr Plebisek's third submission deals with the combined effect of ss.7(2), 6(5) and 6A of the Act. Paraphrasing those sub-sections and section, an entry permit (defined by s.5(1) to mean a permit issued under s.6 of the Act) may be granted while a temporary entry permit is in force or after a temporary entry permit has expired or been cancelled. But s.6(5) of the Act provides that an entry permit may only be granted to a non-citizen after he has entered Australia subject to the provisions of s.6A of the Act. Section 6A(8) provides that a reference to an entry permit in s.6A shall be read as a reference to an entry permit other than a temporary entry permit. A "non-citizen" is defined in s.5 as "a person who is not an Australian citizen". 17. Section 6A of the Act provides that an entry permit shall not be granted to a non-citizen unless one or more of certain conditions are fulfilled. But the Court draws the attention of the parties to the observations of Davies J, with whom Evatt J agreed, in Tang's case (supra) at p 182 where His Honour said: It is not necessary for me inthis case to examine the circumstances in which it may be proper for the Minister to grant a temporary entry permit with a view to permitting consideration of compassionate or humanitarian grounds. That matter may be left for a case in which it is of importance. It is sufficient for me to emphasise that proof of those grounds does not bring para (e) (that is, of s.6A(1) of the Act) into operation or require the grant of a temporary entry permit so as to satisfy one of the criteria of para (e). Perhaps the present case 15 the case in which it is of importance and consideration should be given to seeking, pursuant to s. 7(2) of the Act, such a temporary entry permit by the applicant in order that the Minister might, if a temporary entry permit he granted, consider pursuant to s.6A(1)(e), the strong compassionate and humanitarian grounds prevailing in this matter. Mr Ilyas is and always has been, at relevant times, a non-citizen as defined. It may be that, as a matter of law, the respondent's arguments in this respect are correct. But whether or not this is so is not presently the issue. Here, the applicant seeks orders directing the respondent to furnish s.13 particulars of reasons in respect of his application of 20 September 1985 for permanent residence. In my view, he is entitled to such a statement even if those reasons are simply to the effect that an 18. entry permit is not granted because he is a non-citizen and that a deportation order has been granted under 3.18 of the Act. An argument that it is futile to process the application does not relieve the decision maker of his obligation to furnish s.13 statement of reasons if requested. There is nothing in the Act and in particular ss.7(2) or 6A giving either expressly or impliedly the Minister or his Delegate, the right to refuse the furnishing of such particulars. The final submission of the respondent is that the applicant has applied too late to seek reasons. This 1s based on s.13(5)(b) of the AD(JR) Act. Effectively, the only decision made by the respondent or any Delegate in respect of the application for permanent residence dated 20 September 1986 was the decision of Mr Phillipson made on or about that date to treat the application merely as a further representation to the Minister in respect of deportation. Such decision was not conveyed to the applicant, and then only by inference, until at the earliest, 17 February 1986 when he was served with a deportation notice under s.18 of the Act. What is a reasonable time within the meaning of the Act varies according to the circumstances. The applicant has not acted slowly in requesting s.13 reasons in respect of his application dated 20 September 1985 because he did not know of its apparent refusal, or more correctly, its non appraisal, until 17 February 19. 1986. The applicant, by letter of 25 February 1986 from his solicitors, inferentially requested such reasons. The Court, pursuant to s.13(6) of the AD(JR) Act, declares that the request was made within reasonable time. For these reasons and in all the circumstances of this particular case, the Court is of the view that the respondent should be directed to furnish a s.13 statement of reasons to the applicant for refusing or failing to consider his application for an entry permit dated 20 September 1985, the respondent or his Delegate having, in the Court's view, a duty so to do. (See Lloyd v Costigan (1985) 62 ALR 284 at 293). The respondent is to pay the applicant his costs of and incidental to the motion herein dated 11 April 1986. I certify that this and the eightecea preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Evatt bho: Associate Dated: Jé Febroetg 1987 Counsel for the Applicant : Mr M. Kimber Solicitors for the Applicant : Heaney Richardson & Heaney, Sydney Solicitors for the Respondent : Australian Government Solicitor, Sydney.