2D GENERAL DISTRIBUTION NOT REQUIRED IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY No. VG 3 of 1987 GENERAL DIVISION BETWEEN: PHILIP ARTHUR _BOWRING Applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent 13 JULY, 1987 KEELY J. REASONS FOR JUDGMENT This is an application by Philip Arthur Bowring (the applicant) under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) for an order of review of a decision that he be refused the grant of a return endorsement under s. 11A(1)(b) of the Migration Act 1958 (the Act). The decision was made by Mr. Derrick Hammon, an authorised officer for the purposes of s. 11A of the Act, and was notified to the applicant's solicitor, Mr. J. Little, by letter dated 4 December 1986. Mr. Hammon supplied to the applicant, upon request under s. 13 of the Judicial Review Act, a statement of 14 SUL1987 -\ FEDERAL COURT OF = />/ \ AUSTRALIA y PRINCIPAL a REGISTRY a Xan reasons, dated 20 March 1987, which included the following passages:- "A Findings on material questions of fact 1. The applicant is a British subject and the holder of a British passport. 2. The applicant first entered Australia on or about 10 January 1972 as a migrant; on 20 January 1972 he was issued with a permanent entry permit. Within a few months of his arrival in Australia he purchased a house in Sydney, which he still owns. 3. He came to Australia initially to join the staff of "Finance Week", a magazine being newly launched in Australia. In June 1982 "Finance Week" was closed down and the applicant became a self-employed journalist writing for several publications in Australia and abroad. The applicant's maternal grandmother was born and lived in Australia. 4. On or about 15 April 1973, the applicant departed from Australia _ for Hong Kong, to take up a_= temporary appointment there. He has resided in Hong Kong ever since, but he has made a number of visits to Australia since then. 5. At the time the applicant left Australia in April 1973, he was not required to obtain a return endorsement to facilitate his re-entry into Australia, because as a British subject of European descent he was exempt from the requirement to obtain a_= return endorsement. 6. In 1974 a new immigration policy was announced by the then Minister. Its effect was that all Commonwealth citizens of European descent (except persons covered by special arrangement with New Zealand) entering or re-entering Australia on or after 1 January 1975 would require visas. Those UK citizens with an Australian born parent or grandparent were to retain special conditions of entry into Australia; those Australians who had a UK born parent had a reciprocal right of entry into the United Kingdom. (The Patriality Policy) 7. j%In 1977 Mr. Bowring travelled to Australia; on his arrival he was informed by the authorities that his "permitted to remain" stamp was no longer valid, however he was allowed to enter Australia on a temporary entry visa. 8. On 1 April 1982 the then Minister announced the abolitiion of the "Patrials" category. B The evidence or other material on which these findings are based 9. In making the above findings of fact, I had regard to Departmental file No. 82/38236 consisting of 119 folios." Mr. Little, who appeared for the applicant, took the court through much of the material contained in _ the departmental file referred to in paragraph B9. That file included various internal memoranda and minutes, in addition to correspondence between the applicant or Mr. Little on his behalf, and the Department of Immigration (the Department), commencing with a letter from the applicant dated 17 February 1983. Only grounds (a) (i) and (ii), (b) (ii) and (c) (iv) of the application were pursued. Ground (a) was that:- "(a) [the decision] involved errors of law, in that - (i) (ii) These Paragraphs 12, were as follow "12. asse requ [a] [b] [c] 13. para it proceeded on the basis that a return endorsement may only be_- granted to persons with permanent resident status, it confuses the concepts of domicile and residence". 13 and 14 of the statement of reasons which Applications for return endorsements are ssed against the following basic irements: The applicant must be a permanent resident of Australia of at least twelve months standing. The applicant's true country of residence must be Australia. Applicants overseas must have been absent from Australia for less than three years. [In these reasons for judgment' those paragraphs will be referred to as 12(a), 12(b) and 12(c) respectively] The Resident Re-Entry Handbook states at graph 7.4.2 {should read 7.4.3.2] that: 'Where the applicant's record of movements to and from Australia suggests that he or she has been taking advantage of the return endorsement system to maintain resident status in Australia while having true residence in another country, the following factors should be considered: + Immigration status over the whole period in Australia. . Whereabouts of the family, particularly the immediate family. - Disposition of assets including home ownership. grounds were supported by reference' to . Employment history/occupation. If the applicant has positive links with Australia, the fact that residence has been divided between Australia and elsewhere need not mean that he or she is not a genuine settler.' - 14. The Handbook states at paragraph 11.1.3 that when a replacement return endorsement is sought in a new passport, the application should be refused and the existing return endorsement cancelled if it is clear that the applicant's true place of residence is outside Australia." The submission in support of ground (a)({i) was that the statement of reasons placed an emphasis on a continuing residence requirement which is contrary to the wording and intention of s. 11A(1)(b) of the Act and is also contrary to the Department's policy (the policy), as set out in the Resident Re-Entry Handbook which was issued in June 1983 (the Handbook). Section 11A(1)(b) of the Act provides:- "11A(1) An authorized officer may, in accordance with this section - (b) upon request by a person who is residing in Australia, or has resided in Australia and wishes to return to Australia, grant to that person a return endorsement with respect to travel to Australia by that person and any other person whose name is included in the return endorsement on any number of occasions while it remains in force." It is noted that the section does not require current residence and provides that a return endorsement may be granted to a person who "has resided in Australia". Mr. Little referred to Potter v Minehan (1908) 7 CLR 277 and to R v Director-General of Social Welfare for victoria; ex parte Henry and another (1975) 133 CLR 369; he submitted that the policy in the Handbook "talks of settlement rather than residence". Mr. Little cited paragraphs 4 and 7 of the policy and in particular paragraphs 7(1)(i), 7(2)(i), 7(4)(2)(i) and 7.4.3 of the Handbook, the Material parts of which read as follows:- "4.1 A procedure existing for many years whereby permanent residents intending a temporary absence from Australia were granted re-entry visas valid until a specified date was, in the main, discontinued in March 1976. The re-entry visa was replaced by the Authority to Return (issued in Australia) and the Authority for Return (issued overseas) which permitted an number of journeys and absences of up to three years on each occasion. 4.2 Impressions of the return authority stamps are shown in Annex E. 4.3 There was no residential qualifying period under return authority policy and for administrative convenience return authorities were issued in conjunction with the grant of resident status in Australia and visa issue to unassisted migrants overseas. 4.4 This resulted in some people exploiting the return authority system by using it to maintain their resident status in Australia simply by making brief visits here to activate Or reactivate their return autorities while having their true residence overseas. This practice is contrary to the spirit of migrant entry policy; a requirement applying to all applicants for migration is that they must intend settlement in Australia. 4.5 The issue of return authorities ceased on 1 September 1979. However, once issued a return authority, like its successor. the return endorsement, continues in force until the expiry of the period specified in it unless it is cancelled. It is not affected by the expiry of the passport in which it is contained. 4.6 Policy provides that return authorities held by people who are not genuine settlers are to be allowed to run the course of the passports in which they were issued, but are to be cancelled as they come to notice when new passports are obtained. See paragraph 11.1.4. 4.7 References 1n this handbook to existing or lapsed return endorsements are to be taken as including existing or lapsed return authorities. 7.2 Residential requirement for grant of return endorsement 7.2.1 Section 11A(1)(b) of the Migration Act provides for the grant of a return endorsement to a person who is residing in Australia or has resided in Australia and wishes to return to Australia. 7.2.2 As a means of ensuring that return endorsements are issued only to people whose true country of residence is Australia, policy requires a qualifying period of 12 months with resident status in Australia before a resident becomes eligible to apply for a_ return endorsement. 7.2.3 If residence has been broken by an absence or absences overseas but the person's settlement intentions are not suspect, the aggregate period of actual residence may be taken into account. Where a resident who left Australia before becoming eligible to apply for a return endorsement was granted a temporary visa under' the_- provisions' of paragraph 13, the aggregate may include the period spent under temporary entry permit before resident status was acquired again. (But see paragraph 13.7 about issue of a return endorsement to the holder of a temporary entry permit.) 7.4.3 Person seeking replacement' return ~ endorsement 7.4.3.1 An assessment is to be made of whether the person has genuinely settled in Australia." Paragraph 7.4.3.2 appears in paragraph 13 of the statement of reasons which has been set out earlier. Mr. Tracey, of counsel, on behalf of the respondent, submitted that, even if paragraph 12(b) of the statement of reasons was not consistent with s. 11A(1)(b), paragraph 15 made it quite clear that the decision was not based upon paragraph 12(b); what was fatal to the applicant was the fact that he had "been absent from Australia" for more than three years (see paragraph 12(c)). I accept Mr. Tracey's submission as to paragraph 15 of the statement of reasons, which reads: "15. In the applicant's case, he is not resident in Australia and has no plans to become resident in the near future; he has not even divided his time between Australia and Hong Kong. He was resident from 10 January 1972 to 15 April 1973, he has not lived in Australia since and has not planned to return until about 1996." That paragraph states, correctly, that the applicant "1s not resident" but "has resided in Australia" (s. 11A(1)(b)). It then records the fact, again correctly, that the applicant "has not lived in Australia since [1973]". It followed that he fell outside the policy statement that he "must have been absent from Australia for less than three years" - see paragraph 12(c) of the statement of reasons, quoted earlier. Mr. Little submitted (under ground (a)(ii)) that the decision-maker had confused the concepts of domicile and residence but in my opinion the statement of reasons does not disclose any such confusion. I accept Mr. Tracey's submission that paragraph 15 only refers to "residence" (cf. s. 11A(1)(b)). The next ground relied on by the applicant was ground (b)(ii) which states:- "(b) {the decision] was an improper exercise of the power under which it purported to be made in that it took an irrelevant consideration into account, namely that - } the applicant's purpose in seeking the grant of a return endorsement was to secure a future unlimited right to residence in Australia." Hee (i This ground was directed to matters which included the letter, dated 4 December 1986, from Mr. Hammon who did not consider "a decision to allow Mr. Bowring an unlimited right of return to this country is justified by the circumstances of his case." I am unable to accept the submission that Mr. Hammon took into account an irrelevant consideration, namely, the applicant's "purpose in seeking the grant ... was to secure a future unlimited right to residence in Australia". The applicant himself in a letter had asked how his right of abode in Australia might be re-established. I also accept Mc. Tracey's submission that Mr. Hammon's consideration of this aspect was no more than a comment in response to a Matter raised by the applicant; it was not a matter raised positively against the applicant as a reason why his application should be _ refused. Ground (b)(ii) of the application has not been made out. The remaining ground was (c)(iv) which Mr. Little accepted had not been clearly expressed in the application. As set out in the application it stated:- "(c) [the decision] was an improper exercise of the power under which it purported to be made in that it failed to take into account relevant considerations, namely that - (iv) in being interpreted to apply to him the 1974 visa policy deprived the applicant without prior notice or compensation of the legitimate expectation that he could return to Australia." It was suggested that the words "in being interpreted to apply to him" should be ignored; the ground was directed to paragraphs 17(ii) and 18(ii) of the reasons which read as follows:- "17. I further considered whether there were grounds to grant the applicant a_ return endorsement outside the policy. The applicant's solicitor submitted two major grounds for a decision outside of policy, as follows: (ii) That the applicant was not informed of, and did not become aware of, the relevant policy changes which affected his right to return to Australia for permanent residence; and that as matter of natural justice he should, upon being informed of the effect of the policy change, have the same opportunity he would have had if he had known its implications when it was first published. 18. I rejected ... the above ... on the following grounds: (ii) I do not accept that there was any action open to the applicant at the time of the relevant policy changes which could have preserved a right of residence' in Australia. An unconditional right of return for residence in Australia is extended only to Australian citizens. Any previous grant of a return endorsement would not have been effective to preserve such a right to the applicant." My understanding of Mr. Little's submissions in support of this ground is that they follow three steps. The first step was a contention that the policy statement of 1 August 1974 (which came into effect on 1 January 1975) was misleading. It was submitted that, on its face, it appeared to relate only to people coming to settle or visit and did not apply to the applicant when re-entering the country, there being nothing in the policy statement about re-entry. The second step was that, at the time when the applicant left Australia, he could return without the need for a return endorsement (paragraph 5 of the statement of reasons). As he was misled into believing that this situation continued, he had a legitimate expectation that he could return at any time without hindrance from the Australian authorities. It was argued that he was therefore unable to avail himself of an opportunity to make effective representations - in relation to his "settlement intentions" - on the factual basis that had existed when the policy first came into effect in 1975. The opportunity to do so only arose after 1977, by which time it was too late as he had already been absent for more than three years (see paragraph 12(c) of the statement of reasons). The third step was the contention that Mr. Hammon should therefore (in 1986) have treated the application on the basis of notional facts i.e. as if the applicant had satisfied the policy referred to in paragraph 12(c) of the statement of reasons. Mr. Little contended that these submissions under ground (c)(iv) were within the spirit and intent of the authorities on natural justice; he referred to Kioa v Minister (1985) 62 ALR 321 at 371 where Brennan J. said "{t]here are interests beyond legal rights ... described as. legitimate expectations." In my opinion there was no breach of the principles of natural justice. Further, even if there were a natural justice requirement, its content would not have required the disclosure of a change of policy to the applicant as one of those potentially affected by it. It may be added that Mr. Hammon did consider the individual circumstances of the applicant in relation to the policy question (as submitted to him by Mr. Little and briefly summarized in paragraph 17(ii) of the statement of reasons). Although the conclusions of Mr. Hammon in paragraph 18(ii) of the statement of reasons have been criticised by the applicant, it is clear law that it is not for this court to make decisions on the merits of an applicant's case. I am also unable to accept Mr. Little's submission that paragraph 18(ii) showed a defective legal analysis of the applicant's position. For the same reason as that stated earlier, when dealing with ground (b)(ii), I accept Mr. Tracey's submission that those comments' in paragraph 18(ii) were merely a response by Mr. Hammon to a matter which had been raised by the applicant and was not a matter raised positively against the applicant why his application should be refused. Accordingly ground (c)(iv) also fails. that the application must be dismissed. I certify that this and the preceding thirteen pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely Associate: \h Verne day Dated: iS Ovby | 96 as a reason It follows