JUDGMENT NO. soon 82/2 CATCHWORDS IMMIGRATION - entry permit - appeal from decision refusing review of administrative decision rejecting application for permit by an illegal entrant - whether applicant nominated by a relative (mother) under the family and other close ties (after entry) entry permit regulations - applicant and mother given misleading and inadequate information - meaning of nomination - whether substantial compliance with procedural requirements - distinction between mandatory and directory provisions - consideration of issues of practical fairness in the administration of the Migration Act - need for an overriding discretion - law reform STATUTES - interpretation - distinction between mandatory and directory provisions Migration Act, s.34 Migration Regulations (1993), reg 1.11, Sch 2, cl 806, Sch 6 Acts Interpretation Act, s.25C Hakim v. Minister for Immigration and Ethnic Affairs (Wilcox J, 2 May 1994, unreported) [asker v. Fullwood [1978] 1 NSWLR 20 Hunter Resources Limited v. Melville & (1588) 62 ALJR 88 Mohammed' Motabit Ali v inist ti cal Govern t and Ethnic Affairs (unreported, Federal Court, jenkineae Lee & Beazley JJ, 2 September 1994). J IN ON and OLIVE MARY McMURRAY v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS NG84 of 1994 Davies, Sheppard & Burchett JJ. 26 October 1994 Sydney RECEIVED 2 6 OCT 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY IN THE FEDERAL COURT OF AUSTRALIA ) ) W. W, STRICT REGISTRY ) NG84 of 1994 ) GENERAL DIVISION ) On appeal from a judgment of a single judge of the Federal Court of Australia BETWEEN: JACQUELINE ILTON First Appellant OLIVE MARY McMURRAY Second Appellant AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent Coram: Davies, Sheppard & Burchett JJ Place: Sydney ate: 26 October 1994 MINUTES OF ORDER THE COU. S THAT: 1. The appeal be allowed. 2. The orders below be set aside and there be substituted therefor the following declarations and orders: NOTE: (i) The Court declares that: (a) (b) Mrs O.M. McMurray had nominated Ms J Hamilton for the grant of the entry permit at the time of lodgment of the application. Ms Hamilton's application for an entry permit substantially complied with the procedural requirements relating thereto (u) The Court orders that: (¢) (d) (e) The decisions of Mr Glen Bush of 25 February and 2 March 1993 be set aside. The matter be remitted to the respondent for the consideration of Ms Hamilton's application according to law. The respondent pay the costs of the proceedings. The respondent pay the appella s costs of the appeal. Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. INTHE FEDERAL COURT OF AUSTRALIA ) ) W. W, Ss REGISTRY ) NG84 of 1994 ) GENERAL DIVISION ) On appeal from a yudgment of a single judge of the Federal Court of Australia TWEEN: JACQUELINE T First Appellant OLIVE MARY McMURRAY Second Appellant AND: MINISTER FOR IMMI TION & ETHNIC AFFAIRS Respondent Coram: Davies, Sheppard & Burchett JJ. Place: Sydney Date: 26 October 1994 REASONS FOR JUDGMENT Davies J.: This is an appeal from a judgment of the Court in which the learned tnal Judge dismissed proceedings which sought orders of review with respect to decisions of an officer of the Department of Immigration & Ethnic Affairs. -2- On Monday, 22 February 1993, the first appellant, Ms Jacqueline Hamilton, lodged an application for a class 806 entry permit. The decision-maker rejected two grounds to which Ms Hamilton had drawn attention in her application. The first was that Ms Hamilton was a "former resident". Ms Hamilton did not in fact meet the criteria of "former resident" as she had not spent the greater part of her life before the age of 18 in Australia as an Australian permanent resident: reg. 151.321. No challenge is made to the dismissal of the application in this respect. The other ground was that Ms Hamulton was a "remaining relative", as defined in reg. 1.11 of the Migration (1993) Regulations. The application for an entry permit on this ground was reyected on the basis that, at the time of the application, Ms Hamilton had not been nominated by any person for the grant of the entry permit. On 2 March 1993, the decision-maker reviewed Ms Hamilton's application but refused to reopen the matter. In the appeal, Mr C J Stevens QC, with whom Mr C R de Robillard appeared for the appellants, placed considerable emphasis upon what he described as a lack of procedural fairness provided to Ms Hamilton and to her mother, Mrs Olive Mary McMurray, in the period leading up to the lodgment of the application for the entry permit. However, if Ms Hamilton's application did not satisfy the statutory and regulatory requirements, it is difficult to see how the pmnciples of procedural fairness could apply so as to fulfil criteria that were not satisfied at the time. The principal issue in the appeal is whether Ms Hamulton's circumstances and her application complied, or sutficiently complied, with the regulatory framework. Issues of waiver or of impossibility of performance due to action or lack of action on -3- the part of officers of the Department of Immigration were not relied upon. Regulation 1.11 read:- "(1) An applicant for a visa or entry permit is a remaining relative if the applicant has a relative who: (a) 1s: (1) a brother, sister or parent; or (ul) a step-brother, step-sister or step-parent; of the applicant; and (b) 1s: (1) an Australian citizen; or (u) an Australian permanent resident, and (c) 1s usually resident in Australia; unless the applicant 1s disqualified under subregulation (2) (2) An applicant 1s disqualified if (~) the applicant or the spouse (if any) of the applicant: {i) usually resides in the same country, not being Australia, as an Overseas near relative; ... (ii) has had contact with an overseas near relative during a reasonable period preceding the application, or (3) In this regulation, 'overseas near relative' means a person who Is: (a) a parent, brother, sister or non-dependent child, or (b) a step-parent, step-brother, step-sister or non-dependent step-chuld; of the applicant or of the spouse (if any) of the applicant but 1s not a relative of a kind referred to in subregulation (1) " Ms Hamilton has a brother, a sister and a son who are citizens of Australia and reside in this country. The whereabouts of her father 1s unknown, but in her application she stated that she presumed he was living in England. Ms Hamilton -4- contended in her application that her usual place of residence was in Australia. On this basis it was not challenged, at least tor the purposes of the present application, that she met the criteria prescribed by reg.1.11. Relevant provisions of clause 806 in Schedule 2 of the Regulations provided:- "CLASS 806 (FAMILY AND OTHER CLOSE TIES (AFTER ENTRY)) ENTRY PERMIT 806 11 Group' 1.2 (permanent restdent (after entry)) 80612 Purpose of grant to primary persons: To provide for the grant of permanent residence in Australia to certain persons temporarily in Australia who seek permanent residence on the basis of family in, or other close tres with, Australia. 8067 FAMILY AND OTHER CLOSE TIES (AFTER ENTRY) ENTRY PERMIT (AFTER ENTRY) 806.71 Application (entry permit - after entry) 806711 The application must be made in accordance with approved form 887 806.72 Criteria to be satisfied at time of application (entry permit - after entry) 806.721 (1) Subyect to subciause (2), the applicant is not (a) an illegal entrant; or (b) the holder of a Class 771 (transit) entry permit. (2) If the applicant ts an illegal entrant, the applicant 1s e:ther. (a) , or (b) a person who satisfies (a) the requirements set out in clause 806 722, and (11) illegal entrant criteria 6001, 6002 and 6004." 806722 The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of a person who' -5- (a) is a settled Australian citizen or a settled Australian permanent resident; and (b) 18 usually resident in Australia; and (c) has nominated the applicant for the grant of the entry permit. 806.73 Criteria to be satisfied at tume of decision (entry permit - after entry) 806.731 (1) The applicant: (a) is the holder of a section 47 temporary entry permit; and (b) satisfies the requirements of subclause (2), ((3), (4) or (5). (5) An applicant meets the requirements of this subclause 1f: (a) the applicant is an applicant referred to m clause 806 722, and (b) satisfies public interest criteria 4001 to 4006, 4009 and 4010; and (c) an assurance of support in relation to the applicant has been given, and has been accepted by the Minister." The Illegal Entrant Critena 6002 as set out in Schedule 6 of the Regulations provided:- "6002. If the applicant has been detained in custody under section 92 or 93 of the Act and 1s not an applicant to whom clause 6001 a' lies. (a) the application was made not later than 2 days after the applicant was so detained, or (b) the applicant. a) not later than 2 days after being so detamed, asked the Minister, in writing, to be allowed to make the application within 7 working days of being so detained; and (u) made the application before the expiry of those 7 working days." Regulations to which reference should also be made read as follows:- "2.27 (1) Subject to Division 3 of Part 2 of the Act and to this Division, an applicant Is entitled to be granted an entry permut of a particular class if the person satisfies the prescribed criteria in retation to that entry permit -6- 2.28 (1) Subject to this regulation and regulation 27 and to specific provisions in the relevant Part of Schedule 2 or 3, an application for an entry permit 1s in accordance with these Regulations: (a) in the case of an applicant who applies after entering Australia: @ if the application 1s in the form specified in the relevant provision of Schedule 2 or 3; and (il) if the relevant fee (1f any) has been paid; and Section 34 of the Migration Act 1958 (Cth) should be noted. This section 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 1s paid (2) Unless this sectuon applies, the Minister' (a) Is not required to consider an application at all; and (4) shall not in any circumstances grant an entry permit. (3) Where it appears to the Minister that the applicant ts, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister must: (b) subject to this Division, grant the applicant such an entry permit. (4) Where it appears to the Minister that the applicant 1s not, under the regulations, enttled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit." It follows from these provisions that an illegal entrant who had been detained in custody and who satisfies the critena of "remaining relative" may, by requesting the Minister in wniting to be allowed to make the application within 7 working days, make the application for an entry permit before the expiry of those 7 working days. If the application is lodged in accordance with the regulations and the fee paid thereon and -7- if the applicant satisfies the cnteria relating to the class of permit sought, the applicant is entitled to the grant of a permit. There were two particularly relevant critera im Ms Hamilton's case. A criterion laid down in cl 806.722 was that, at the time of the application, the applicant be a remaining relative of a person who "has nominated the applicant for the grant of the entry permit". Such a nomination does not imply financial responsibilty by the nominator for the applicant. A second criterion, specified m cl 806.731, which was required to be satisfied at the time of the decision, was that "an assurance of support in relation to the applicant has been given and has been accepted by the Minister." Such an assurance is an undertaking of financial support. It need not be given by the nominator but may be forthcoming from some other person. Ms Hamilton, who had been born in England but had spent some years mn Australia, returned to Australia on 29 February 1992 under a wvisitor's visa having one month's duration. That visa was extended to 25 April 1992. Ms Hamilton remained in Australia after that time as an illegal entrant. On 11 February 1993, she was arrested under s 92 of the Migration Act and was detained in the Villawood Detention Centre. Presumably Ms Hamilton asked the Minister in wnting to be allowed to make an application within 7 working days. She lodged her application for a permit shortly before 5 pm on Monday, 22 February 1993, the last day of the period. -8- Certain events which occurred at the time of the arrest and during the prescribed period affected the manner in which the form of application, as lodged, was expressed. In the first place, Ms Hamilton and Mrs McMurray were not informed as to the distinction between a nomunation and an assurance of support. A nomination was required of a prescribed relative, of whom Mrs McMurray was one, and was required as at the date on which the application was made. The assurance of financial support, which was not required until the decision was made, could be given by any appropriate person. At the time of the arrest, Mrs McMurray informed the arresting officer, Mr Peter Suart, who was an officer of the Rockdale office of the Department of Immigration & Ethnic Affairs, that she did not want her daughter to be deported but that she could not afford to keep her. Mrs McMurray was aged 75 years. Mr Suart merely responded that someone had to agree to support Ms Hamilton otherwise she would be deported. On Tuesday, 16 February, Mrs McMurray rang Mr Suart and this conversation, inter alia, occurred:- "He [Mr Suart] responded to the following effect: 'She will be deported, unless you want to sign for her.' I [Mrs McMurray] asked: 'Does this mean that I would have to agree to support her?'. He answered 'Yes'. I said words to the effect of 'Well you know I can't do that' " -9- In these conversations, Mrs McMurray was given the impression, indeed told, that the document she had to sign was an assurance of support. She expressed her willingness to do what she could to assist her daughter, but said that she could not support her. Mrs McMurray expressed the same point to Ms Hamilton. Mrs McMurray deposed in her affidavit:- "I went to see Jacqueline at Villawood on the 14th and then the following Sunday, the 2ist February . On the second occasion, Jacqueline said words to me to the following effect 'There may be some forms for you to sign I may need a signature.' I said words to her to the following effect: 'Jacqueline, you know I can't keep you. I was extremely upset and crying and it was raining. I gave her $20 [ was not shown any forms and because I was upset I left" Ms Hamilton was given no advice which would have clarified the situation. Mr L. Basile was employed as a welfare officer at the Villawood Detention Centre. He said in his evidence that, in the course of his duties, he did not give advice. Nevertheless, he was employed to inform detainees about the options open to them, that is as to the types of applications they may wish to lodge. His work involved him in giving, if not advice, at least relevant information. Ms Hamilton first saw Mr Basile late in the afternoon of 12 February 1993. He provided her with a form 903 together with the explanatory notes to that form. Ms Hamilton studied the form over the weekend of the 13th and 14th February and came to realise that she had been supplied with the wrong form. - 10- On Monday, 15 February, when Mr Basile was again at work, she informed Mr Basile that he had given her the incorrect form. He said that he would make an enquiry as to which form Ms Hamilton needed. Subsequently, he informed her that a form 887 was the form she required. That form was not made available to Ms Hamilton until late on Tuesday, 16 February. At 4:45 pm on that day, Mr Basile handed Ms Hamilton a form 887, but he did not supply to her any explanatory notes. It should be noted that the form carried the following intormation under the heading "IMPORTANT™:- "Before completing this application, carefully read the leaflet "Applying to remain permanently in Australia" and the "Explanatory Notes" (Form 887N) which accompany this form They will assist you to determine whether you are able to remain permanently in Australia, and if so, under which categories you should apply." However, no explanatory notes were made available to Ms Hamilton. The form 887 indicated that, if an apphcant was applying as a remaining relative, the applicant should complete section E and the nominator should complete section I. However, the form did not make clear what was the distinction between a nomination and an assurance of support. Question 60 in section E read:- "Enclose a completed 'Assurance of Support' Form' (Form 28B) (See Section E in the Explanatory Notes)" This point was misleading as an assurance of financial support was not required at the tame of the application. Section [ was headed "Nommmation"" and commenced with these words:- "To be completed by the nominator -1ll- Complete this section if: e you support the nominee's application to live permanently in Australia, and e you are an Australian citizen or permanent resident (This requirement ts in line with Departmental policy on nominators ) You may also have to complete a separate form, 'Assurance of Support', Form 28. (see Explanatory Notes)" Again, this was misleading. A nomunator, being one of the prescribed relatives, could not be required to give an assurance of support. The term "support", used in relation to a nomunation, was itself confusing as it appeared in the expression "Assurance of Support", a document which involved an undertaking of financial support. During the 7 working days, Ms Hamilton saw Mr Basile very often, as Mr Basile conceded in his evidence, but nothing he said enlightened Ms Hamilton as to what was required. On Wednesday, 17 February, Ms Hamilton requested the Legal Aid Commission to send a solicitor to speak with her. On the following day, 18 February, Ms F milton s.as informed by a solicitor of the Legal Aid Commussion that legal aid would not be available. On Friday, 19 February, Ms Hamulton rang Mr Suart and informed him that, despite the difficulty she was having, she would lodge the application before close of business on Monday, 22 February. Mr Suart advised her of the fee which was payable. Over the weekend, Ms Hamilton saw her mother and the events which I have mentioned above ensued. Ms Hamilton then completed the form by ticking the box which covered "Brother, sister or non dependent child who has no remaining relatives outside Australia" and also the box covering a tormer resident who has maintained close ties with Australia. Ms Hamilton completed relevant details with respect to the -12- latter category and also her personal details. She wrote "N/A" against irrelevant questions and she left section E and section I blank. Ms Hamilton also swore a statutory declaration which included the following:- "{ consider my country of residence to be Australia and have maintained close tes here, the most important of all, my family, and I would prefer to apply under these grounds, however, should 1t become necessary, then the grounds of remaining relative would also apply." At about midday on Monday, 22 February, Ms Hamilton saw a solicitor, Mr Howard, who said to her that it would be necessary for her to have a nominator but that it was "okay" for her to lodge the apphcation in its present form. Ms Hamulton's conversation with Mr Howard was brief as Ms Hamilton was not then in funds. Mr Howard did not accept istructions as her solicitor. Ms Hamulton then took the form 887 to Mr Basile and requested him to witness her signature. She informed Mr Basile that the form was not fully completed. Mr Eusile said to her:- "Well, yes you must get the form in today and you must pay the filing fee. Your main concern must be to lodge the form by 5 p.m Anything else needed can be added later." After the form had been signed and witnessed, Ms Hamilton again saw Mr Howard briefly. Ms Hamilton then had difficulty in lodging the form as the nearest office of the Department of Immigration and Ethnic Affairs was at Rockdale. However, she eventually located an officer of the Department and persuaded him to accept the form and her cheque for the lodgment fee, which was done late 1n the afternoon. It is not contended on behalf of the respondent that that action did not constitute a lodgment on 22 February. -13- On Wednesday, 24 February, Ms Hamilton rang Mr Suart and asked if her mother could go in and sign the form if the Department needed a nominator. At that stage, Mr Suart had not seen the application form. Late m the day, Mr Suart left a message that the form had been located. On Thursday, 25 February, a Mr Glenn Bush, an officer of the Department of Immigration and Ethnic Affairs, reyected Mr Hamulton's application on the ground that she did not satisfy the criteria required of a former resident and on the ground that Ms Hamilton did not satisfy the critena for those seeking entry as a remaining relative as, at the time of the application, she had not been nominated by any person for the grant of an entry permit. During the course of the day, Ms Hamilton received by facsimile notice of refusal of her application. During Thursday, 25 February, Ms Hamilton was informed that her mother could come in and sign the nomination. Mrs McMurray attended at the Rockdale office and said:- "I was asked by my daughter Jacqueline Hamilton to come in to sign a form. I want ta see Mr Suart. I would like to see the form and read it before I sign it." The form was not then available for Mrs McMurray to sign. On 26 February 1993, Mr Suart went to Mrs McMurray's home and asked if Mrs McMurray was going to sign the nomination. Mrs McMurray replied:- "You know the position. You know why I haven't signed I can't afford to keep her." -14- Mr Suart then left with her a form of Assurance of Support and a booklet. From this additional information, Mrs McMurray became aware of the difference between a nomination and an assurance of support. On 1 March, Mrs McMurray and her grandson Jason, Ms Hamulton's son, went to the Rockdale office and spoke to Mr Suart who had made an appointment to see them. Mr Suart had the application form before him. He said that the nomination form had to be signed. Mr Suart then left to take a telephone call. Another officer came in to the office and spoke to Mrs McMurray and Jason. Mrs McMurray completed and signed section I of the form and made the statutory declaration required of a nominator. On 2 March 1993, without having seen the completed form, Mr Bush refused to reopen the application as Mrs McMurray had not signed section | at the tme the application was lodged. The only other fact that should be mentioned is that the Court was informed by Mr Stevens during the hearing of the appeal that an assurance of support from a person who was not a relative had been obtained, though :t had not actually been forwarded to the Department of Immigration and Ethnic Affairs. The distinction between directory requirements and mandatory requirements has been discussed in numerous cases. It 1s sufficient to refer to The State of Victona -15- v The Commonwealth of Australia (1975) 134 CLR 81 at 180, Hunter Resources Limited v Melville (1988) 164 CLR 254, Broadbridge v Stammers (1987) 76 ALR 339 at 343, Formosa v Secreta' epartment of Social Security (1988) 81 ALR 687 and Tasker v Fullwood [1978] 1 NSWLR 20 at 23-4. The issue in a case such as the present is whether what was done satisfies the intent of the regulatory provisions, taking into account the object of those provisions, the words used and the sigmficance of non-comphance. Bennion on Statutory Interpretation, at 24, states:- "In deciding whether the step 1s mandatory or directory, the court considers the broad policy of the Act and the principle of fairness to the subject The policy 1s not to be frustrated by a mere technicality " This approach was adopted by Stephen J. in Victoria v The Commonwealth and Connor at 179-180. Likewise, in Tasker v Fullwood, Hope, Glass and Samuels JJA said at 24:- "The only true guide to the statutory intention 1s to be found in the language of the relevant provision and the scope and object of the whole statute' Hatton v Beaumont (1977) 2 NSWLR 211 at p 220" In Hunter Resources Ltd v Melville, Mason CJ and Gaudron J referred at 241 to "construing the relevant provisions of the Act in their context which of course includes the scope and purpose of the statute" and, at 244, to the practical difficulties involved in complying and the consequences of non-compliance. The requirement in cl. 806.722 that the remaining relative be a relative of a person who "has nominated the applicant tor the grant of an entry permit" Is a substantive requirement, not a procedural requirement, although other provisions, such as cl. 806.711, which provides that the apphcation must be made im accordance -16- with approved form 887, furnish procedural requirements. However cl. 806.722 itself says nothing as to the manner or form of the nomination. In the context of cl.806.722, an applicant 1s nominated if the applicant is, to use interchangeable terms, proposed, sponsored or supported by a prescribed relative. I use the term "supported" as the mtroduction to section I of form 887 directs the nominator to complete the section if, being an Australian citizen or permanent resident, "you support the nominee's application to live permanently in Australia". This is remforced by the words in brackets "This requirement is in line with Departmental polcy on nominators". An expression of the sponsorship or support would seem to be essential. A nomination, in this context 1s a positive act proposing, sponsoring Or supporting an applicant for the entry permit sought. See Hakim v Minister for Imnugration and Ethnic Affairs (Wilcox J, 2 May 1994, unreported). Mrs McMurray communicated on the 12th and 16th February to Mr Suart, the officer in the Rockdale office of the Department of Immigration and Ethnic Affairs who had particular contact with Ms Hamulton's affairs, and communicated to her daughter dumng the period, her desire to help her daughter to remain m Australia. What Mrs McMurray was not prepared to do, however, was to sign an assurance of support. When the difference between a nomination and an assurance of support was explained to Mrs McMurray, she signed the nomination form. In my opinion, Mrs McMurray did all that, in the circumstances, she could reasonably have been expected to do, namely to communicate to her daughter and to Mr Suart her wish that Ms Hamilton remain in Australia and her desire to assist Ms Hamilton to do so. In the -17- circumstances which prevailed, her actions amounted to a nomination. Mrs McMurray did not use that precise word but that 1s the substance of what occurred. In my opinion, the substantive requirement stipulated in cl. 806.722(c) was satisfied. The next issue is whether the procedural requirements were satisfied. Substantial compliance with the procedural requirements was all that was necessary for the validity of the application. There are two reasons for this. The first 1s that the application had to be lodged within 7 working days by a person who was in detention. There was an element of urgency about the matter. Ms Hamilton was reliant to a considerable extent upon the information and forms supplied to her while she was held in Villawood. Ms Hamilton was not free to seek advice from whomsoever she wished and was not able to ensure that she had the correct advice before submitting an application. Her understanding of the matter was constricted by the forms and the material supplied to her by Mr Basile and by the information which he gave to her. The regulations should not be interpreted as intending that the difficulties confronting a person in detention should be entirely overlooked. Fairness to applicants, which for the reasons I have given is a relevant factor, demands that compliance be assessed in the hght of the written material and other information which was available. The second reason 1s that s.25C of the Acts Interpretation Act 1901 (Cth) provides that, where an Act prescnbes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance 1s sufficient. No contrary intention appears in the Migration Act or Migration Regulations. Regulation 2.28 merely provides that an application for an entry permit - 18 - is in accordance with the Regulations "if the application 1s in the form specified in the relevant provision of Schedule 2 or 3". Cf. Mohammed Motahir Ali v Minister for ve, t ic_ Affairs (unreported, Federal Court, Jenkinson, Lee & Beazley JJ, 2 September 1994). Thus, Ms Hamilton's compliance with the prescribed criteria must be judged on the footing of substantial compliance taking into account, as relevant background material, the information which had been given to her and to Mrs McMurray by Mr Suart, by Mr Basile and by the form 887 with which she had been supplied. It is relevant that Mrs McMurray was misled by Mr Suart's failure to distmguish between a nomination and an assurance of support, that Ms Hamilton was similarly misled by the absence of appropriate explanatory notes and by the musleading information contained in form 887, which in section E purported to require an assurance of support to he provided with the application and which, in secuon I, stated that a nominator may have to provide an assurance of support. These matters were wrong and were inconsistent with the regulations. And finally, amongst relevant factors, was the faslure of Mr Basile, who was employed to inform persons in detention as to the options open to them, to inform Ms Hamilton of the steps which she should take. Indeed, Mr Basile, being the officer before whom Ms Hamilton signed the application form and who was advised that the nomination had not been completed, nevertheless informed Ms Hamilton that the nomination could be completed at a later date. It 1s perhaps worth noting that, in his evidence, Mr Basile agreed that he had so informed Ms Hamilton. -19- Ms Hamilton made it clear in writing that she was applying for a permit on the ground that she was a remaining relative. Sections E and I were left blank. They were not noted "N/A". The box appropriate to a remaining relative was ticked and the accompanying statutory declaration advised that Ms Hamilton relied upon the ground of her being a remaining relative if 1t were necessary for her to do so. Neither section E nor section I was completed, but that was because of the misunderstanding, which the form itself and the remarks of Mr Suart had engendered, that a written nomination in some way involved an assurance of support. There can be no doubt that, but for the misapprehension, Mrs McMurray would have signed the form of nomination on Sunday, 21 February. Mrs McMurray left her discussion with Ms Hamilton on that day in tears because, although she supported Ms Hamulton's application, she could not sign an assurance of financial support. As soon as Mrs McMurray was given the appropriate information, she completed the form of nomination. The delay was a brief one. In these circumstances, there was substantial complance with the procedural requirements. It follows that Ms Hamilton's application for a permit under reg. 806.722 was valid and that the Court should so declare. It also follows that the decision-maker proceeded on a misapprehension and failed to take into account material considerations. The decision must therefore be set aside and the matter remitted for the consideration of Ms Hamuilton's application according to law. -20- The trial Judge formed fhe view that there had not been substantial compliance with the requirements of the Act and the regulations. I respectfully disagree with that view. In the course of the reasons for judgment, the trial Judge said that, "At no time did Ms Hamilton say (in evidence) she was not aware of the distinction between nomination and an assurance of support" and "Other evidence of Ms Hamilton 1s also confusing." However, it seems to me to be clear from the evidence that Ms Hamilton was, during the period of 7 working days, unaware of the distinction between a nomination and an assurance of support and uncertain as to what was required to be included in her application for a cl.806 entry permit. In my opinion, no inference 1s reasonably open on the evidence other than that, had Ms Hamilton understood the distinction between a nommation and an assurance of support, her application form would have been completed appropriately within the 7 working days. I would allow the appeal. I would set aside the orders below and would substitute therefor the following:- 1. Declare that, at the time of the lodgment of the application for an entry permit, Mrs O M McMurray had nominated Ms J Hamilton for the grant of the entry permit. 2. Declare that the application for an entry permit substantially complied with the procedural requirements relating thereto. 3. Order that the decisions of Mr Glen Bush of 25 February and 2 March 1993 be set aside. 4. Order that the matter of Ms Hamilton's application be remitted for reconsideration according to law. -21- The respondent should pay the appellants' costs of the appeal and of the proceedings below. I certify that this and the 20 preceding pages are a true copy of the yeasons for yudgment herein of the Honourable Mr Jfistice Davies. Associate: Date: 26 October 1994 NG 84 of 1994 ee ee ee ee ee ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JACQUELINE HAMILTON First Appellant OLIVE MARY McMURRAY Second Appellant AND: MINISTER FOR IMMIGRATION AND ETHNIC AEFAIRS Respondent CORAM: Davies, Sheppard and Burchett JJ. PLACE: Sydney DATE : 26 October 1994 RE. NS _F DGMENT BURCHETT J. I agree with the orders proposed by the presiding Judge, and generally with his reasons. It would not be right for the Court simply to give judgment in this matter, without commenting upon the serious deficiencies in the Department's administration, as regards the application of ordinary fairness, which the evidence discloses. Historically, one of the great reasons for the development of an independent judiciary was the necessity to subject the conduct of administration to genuinely independent scrutiny. Unfortunately, experience has shown all too often that statutory tasks may be carried out in a manner that fulfils only the forms 2. of fairness while denying its reality. The Court must be the guardian of the substance. In the present matter, not even the letter was observed. Parliament could, of course, have denied all rights to would-be migrants who were in breach of entry requirements. However, that has never been the course taken. Nor would it be in keeping with the acknowledged norms of civilized behaviour and the human rights obligations to which Australia has proclaimed its attachment. In fact, the legislation has always recognized that in some cases of breaches of entry requirements the principles of justice, or at any rate those of compassion, demand that the circumstances be taken into account. It was for this reason that the grounds upon which the present appellants rely came to be framed. In the current form of the law established by the Migration Act and the Regulations, however, an extremely brief time is permitted for the making of an application upon these grounds. The application had to be made "not later than two days after the applicant was ... detained", or the applicant had to ask in writing for an extension, making that request within the same two days, and then make application "before the expiry of ... 7 working days" of being detained. There was no provision for any further extension of time in any circumstances. It is obvious that the consequences could be very harsh in the case of a person who might have a valid ground to put 3. forward, but be unable to do so within the time allowed by reason of ignorance, language problems, or for some other reason. In the present case, language was no problem, but Mrs Hamilton was handicapped by difficulty in obtaining legal advice while in custody, and in so short a period. At least, she was entitled to have the appropriate forms made available to her, and to be told her rights. Mrs Hamilton was detained on 11 February 1993. She sought an application form on the following day, which was a Friday. However, the document she was given turned out, on her studying it over the weekend, to be the wrong form. When she saw the Department's officer about that on the Monday, he promised to make enquiries to remedy the situation. The correct form was nevertheless not made available to Mrs Hamilton until after 4.00 o'clock in the afternoon of Tuesday 16 February. That was three of the seven working days from Mrs Hamilton's detention. Even then, she received only half of the document; for it referred to explanatory notes, and none was supplied. There was no copy of the Migration Act or of the Regulations at the Detention Centre. Mrs Hamilton was required to complete a form the effect of which under the legislation and regulations she could not check, a form designed to be completed only in accordance with explanatory notes with which she was never supplied. Without those notes, it was impossible for Mrs Hamilton to understand the form in a manner adequate for its proper completion. In these circumstances, it is plain that Parliament's promise of an opportunity, restricted though it was, to put forward grounds for a further entry permit had been virtually 4. withdrawn from Mrs Hamilton, not by the legislative will, but by bureaucratic inertia. It is almost a matter of chance that Mrs Hamilton was able to fulfil, by the barest margin, the substance of the requirements. As has been pointed out by Davies J., the form emphasizes, on its face, that it should not be completed until after the missing explanatory notes have been carefully read. But Mrs Hamilton's dilemma was that unless she did so she would be irrevocably out of time. The part of the form particularly relevant to Mrs Hamilton made additional mention of the explanatory notes and of a further form referred to in them. It did so in language calculated to reinforce the misinformation an officer of the Department, as Davies J. has indicated, had already given in this particular case. On top of all the difficulties to which Davies J. has referred, it should be pointed out that the note about "a separate form, 'Assurance of Support'. Form 28. (see Explanatory Notes)", in the portion of the form headed "Section I Nomination", which Davies J. has set out, gave still more cause for confusion, in the absence of the Explanatory Notes. The only document which the reader of the form would be likely to think might be the "separate form" referred to must have been the "Statutory Declaration by Nominator" which was attached. That document repeated the reference to "my support for the nominee", thus reinforcing the idea that the nominator would provide support. It also threatened "up to 4 years imprisonment" if the information given in the declaration should be "misleading information", thereby 5. presenting a strong deterrent to an intending nominator already confused about the effect of signing the nomination. A further statutory declaration was required to be completed by the applicant, the form of which included a special statement that she had "read and understood the information supplied to me and in particular the information contained in the Explanatory Notes to this application." It is hardly surprising that Mrs Hamilton thought it necessary to supplement the application with a hand written declaration of her own. The lesson these circumstances teach is that there is a great need for flexibility, and for the provision of an overriding discretion, to enable the Regulations to work fairly. If people are to be offered a second chance, and experience has shown that some have been able to demonstrate good reason why they should not be deported, the chance ought to be a real one. In this case, had the appellants been only a little less persistent, their position might have been hopeless. Peoples' fundamental liberties should not depend on such hazards, or be obliterated by the lack of an appropriate form, or by inability to obtain advice within a bare few days, especially while in custody. And to the extent that strict rules are applied, there should be equal strictness to ensure that the Department provides the necessary information and the means of immediate compliance by those affected. If Parliament says that something is to be done within seven working days, the person concerned should not be deprived of almost half of them by the action or inaction of those responsible for enforcing the law. 6. Since experience shows that defective compliance with procedures will always be found to occur from time to time, the preferable solution is the provision of an overriding discretion; but failing that, those who are required to comply with rigid rules should be able to expect also equally strict official observance of every prerequisite. In my opinion, the papers in this case ought to be referred to the Administrative Review Council, so that consideration can be given to the question of recasting the rules, or at the least ensuring fairer and more reasonable procedures, particularly in those cases where administrative lapses do occur. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett. Associate: Prilgppoe O 0A Date: 26 October 1994 Counsel for the Appellants: Mr C. Stevens Q.C. with Mr C.R. de Robillard Solicitors for the Appellants: Colin, Daley, Quin Counsel for the Respondent: Ms R. Henderson Solicitor for the Respondent: Australian Government Solicitor Date of hearing: 12 September 1994 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No NG84 of 1994 ed GENERAL DIVISION On appeal from a judgment of a single judge of the Federal Court of Australia BETWEEN: JACQUELINE HAMILTON First Appellant OLIVE MARY MCMURRAY Second Appellant AND : MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent Coram: Davies, Sheppard & Burchett JJ Place: Sydney Date: 26 October 1994 REASONS FOR JUDGMENT Sheppard J: in this matter, I have had the advantage of reading the judgment to be delivered by Davies J. I agree with the conclusion which his Honour has reached, with the orders which he has proposed and with his reasons. I have also had the advantage of reading what Burchett J has written. I am in full agreement with the remarks he has made. The relevant legislative provisions are set out in the reasons for judgment of Davies J. As I understand the requirements, a person in the position of Ms Hamilton must satisfy the criteria referred to in clauses 806.72, 806.721, 806.722 and 6002 of Schedule 2 to the Regulations. In particular Ms Hamilton's mother, Mrs McMurray, was required by clause 806.722 (c) to have nominated Ms Hamilton for the grant of the relevant entry permit. The time limit of seven working days was imposed by criterion 6002 (b). It is common ground that the nomination section of the application was not completed by Mrs McMurray at the time when the application was lodged on the last day provided for in criterion 6002(b). But it was clear, well before that time, that Mrs McMurray supported the application which her daughter wished to make. She did not sign the nomination form because she thought that this would involve her in assuring the Department that she would support Ms Hamilton financially. This was something she could not do. It was the confusion about this matter which led her not to sign the nomination section of the application form until well after the prescribed period had expired. The fact that she did not do this was due entirely to misleading statements made to her by officers of the Department of Immigration and in the forms themselves. Those being the circumstances, the question is whether the provisions of the relevant legislation, upon their proper construction, operated to invalidate Ms Hamilton's application ab initio. As Davies J has pointed out, para. 806.722 of Schedule 2 to the Regulations does not prescribe any particular form of nomination. What it requires is that the applicant be in fact nominated. A consideration of the whole of the facts and circumstances disclosed by the evidence led in the case satisfies me that, effectively, such a nomination had been made with the consequence that Ms Hamilton's application was in order at the time it was lodged. It was thus required to be dealt with. I should add that, although the Regulations elsewhere provide (para 806.711 of Schedule 2) that the application must be made in accordance with approved form 877, there is nothing in the Regulations, notwithstanding the use of the word "must" in para 806.711, which makes it any more than a procedural requirement which is satisfied if substantially complied with. For the reasons given by Davies J, there was substantial compliance in the present case. The form of application, but for the nomination section of it, was lodged within time. That section was not completed for the reasons earlier given. The fact that it was not was due -ntirely to the misleading statements made to Mrs McMurray. As I have said, I am in agreement with what Burchett J has written. I would add that it seems to me that the fact that responsible officers of the Department should make the misleading statements which the evidence establishes they did make, is not unlikely to have been due to their difficulty in understanding comprehensively what these very complex regulations provide. Even when the relevant provisions of the regulations are culled out, as they have been by Davies J in his reasons for judgment, their meaning and purport is not immediately clear to experienced lawyers. Just how unqualified people, be they officers of the Department or persons who need to understand the provisions of the Regulations in order to make an appropriate application, can cope with the problem which confronts them, especially when they see the regulations and the provisions of the schedules thereto as part of a set of regulations which occupies some hundreds of pages, I do not begin to comprehend. I realise that the administration of the Migration Act 1958 is a difficult matter. But the fact that it is, requires that officers of the Department concerned with its administration themselves understand what its provisions and those of the Regulations made pursuant to it involve. Of course, they are not obliged to give advice. But it is critically important that statements that they make not be misleading or erroneous. This problem would not have arisen if Mr Suart, in answer to Mrs McMurrav's questions, had not given her incorrect information. No doubt he said what he did in good faith, but his misunderstanding of the requirements of the legislation is substantially the cause of the problems which are revealed by this case. In the result the appeal should be allowed and orders made in terms of those proposed by Davies J. I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of his Honour Justice Sheppard. As sociate : Aga om 26 Octfoer 1994