Re Sigrid Theresa Elbourne v Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 47 (25 February 1991)

FEDERAL COURT OF AUSTRALIA

Re: SIGRID THERESA ELBOURNE
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G462 of 1990
FED No. 36
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - Immigration - Judicial Review - application for temporary entry permit refused - application bound to fail - whether applicant should have been told to make a different application - whether a lack of procedural fairness.

Migration Act 1958 (Cth) - s.47

Migration Regulations - regs. 24, 79, 129

HEARING

SYDNEY
25:2:1991

Counsel for the applicant: Mr D.M. Yates

Solicitors for the applicant: Elsworthy Jones

Counsel for the respondent: Mr P. Roberts

Solicitor for the respondent: Australian Government Solicitor

ORDER

The application be dismissed with costs.

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

DECISION

This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking orders of review with respect to a decision to reject the applicant's application for an entry permit. For the purpose of these proceedings, I refer to the Migration Act 1958 (Cth)("the Act") as it appeared in Reprint No. 3 as at 31 December 1989. I refer to the Migration Regulations as reprinted as at 3 April 1990. There have since been important amendments to the Act and to the Regulations but counsel are agreed that, because of reg.34A(1), they do not affect the issues which arise for consideration in Mrs Elbourne's case.

2. The crux of the application was set out in the following grounds:-

"1. That a breach of the rules of natural justice occurred in
connection with the making of the decision in that:-
...
(ii) the decision maker accepted an application under Reg. 129
when the decision maker knew, or should have known, that
such an application had no chance of success.
(iii) the decision maker did not direct or advise the Applicant
to make an application under Reg. 79 for which the
Applicant was `prima facie' eligible.
(iv) the decision maker did not consider the Applicant against
the criteria for the grant of a temporary entry permit
under Reg. 79.
2. The making of the decision was an improper exercise of the
power conferred by the enactment in pursuance of which it was
purported to be made in that:-
...
(d) The decision involved an error of law in that the power
was construed so as to require the application to be
considered under Reg. 129 and not Reg. 79 of the
Migration Regulations."

Regulation 129 specified criteria for an extended eligibility (other) entry permit, a temporary entry permit. Regulation 79 does not refer to an entry permit but to a "supported dependant visa". The reference in the grounds of application to reg. 79 was intended to be a reference to a temporary entry permit granted to a supported dependant.

3. On 15 February 1990, Mrs Elbourne, an illegal entrant, lodged an application for an extended eligibility (other) permit. This application was refused on 16 July 1990. It was bound to fail for a criterion specified in reg. 129, namely that notification in the Gazette by the Minister of an upheaval, a disaster or of significant changes in Mrs Elbourne's usual country of residence, Fiji, had not been given. Fiji had not been specified in a notice published in the Gazette. It has been alleged on Mrs Elbourne's behalf that she should have been advised by an officer or officers of the Department of Immigration, Local Government and Ethnic Affairs that her application for an extended eligibility (other) permit was bound to fail but that she could and should have applied for a temporary entry permit as a supported dependant.

4. The Act does not define the term "supported dependant", though reg. 2(1) provided that the term "dependent" in relation to a person means "wholly or substantially dependent on another person for financial, psychological or physical support". Mrs Elbourne has given evidence to the Court that she came to Australia from Fiji with her husband and one child on 3 October 1987. Subsequently, another child was born in Australia. Her husband left her and she has since been emotionally and financially dependent upon her parents, who are Australian permanent residents and with whom she is living and upon her sister, who is an Australian citizen and with whom she lived for some time. As there is no submission to the contrary, I accept for present purposes that Mrs Elbourne was a supported dependant for the purposes of the grant of an entry permit.

5. In an affidavit filed in the Court, Mrs Elbourne deposed:-

"2. When I became aware, in January 1990, that I was required to
apply to remain in Australia by the end of February 1990, I
contacted the Department of Immigration Local Government and
Ethnic Affairs by telephone. The person to whom I spoke
refused to give me his name.
3. I was very upset and frightened. I explained my whole
situation to him. He told me that I had no chance to stay in
Australia.
4. I was told by the officer that I could apply for an Extended
Eligibility Temporary Entry Permit but I had no chance of
success.
5. When I went to the Department at Rockdale to collect the forms
I was given only an Application for an Extended Eligibility
Temporary Entry Permit."

In oral evidence given to the Court, Mrs Elbourne said that in February 1990 she rang the Department of Immigration Local Government and Ethnic Affairs at its Rockdale office and spoke to a man. Mrs Elbourne gave this evidence:-

"What did you say to him and what did he say to you.
Now, could I ask you just to keep your voice up and go
slow?---I said that I had a friend who was living here
illegally and she had two children. She was living
with her parents, and she wanted to apply to remain in
Australia. She said all of - relatives were overseas
and the guy said - I did not say that first -I mean, I
did not say that there was no one overseas, I said, I
wanted to apply - not I, but the person wanted to
apply to stay in Australia.
You were making this telephone call anonymously?---
Right. I was trying to be, I mean, keep my emotions
in. I am not very good at that. And he said, `Well,
the best advice I can tell you to give your friend is
for her to return to her country and then re-apply
from there'. And that is when I broke down.
You cried, did you? Okay, now just take it easy. Now
did he then say something to you or did you say
something to him?---I said that I had no one to return to.
Now, Mrs Elbourne?---I had no one to return to. Who
could look after my children and I at the time and I
said that I did not want to talk anymore and he said,
`Well, you may, you may be eligible for TEEP or
something like that'. He said, `You can get it over
the counter', so he said, `Why don't you come in and
see me'. And that is when I asked him who I was
speaking to.
Well, what did you say?---`Man, who I am speaking to'
and he said, `Just come up to the counter and someone
will help you.'"

Subsequently, Mrs Elbourne went to the Rockdale office. She gave this evidence as to what then occurred:-

"Tell his Honour, if you can, to the best of your
recollection, what words you used. As if this were a
play, and you were playing all the characters?---I
said, `Can I have a TEEP form, please'. And she
looked up at me and then she said, `How do you know
about the form?' I said `Someone told me to come and
pick it up'. She looked at me and then she went - I
think she hesitated a bit but then she went to the
back of her - there were some shelves or something,
she went and picked the form and handed it to me.
Then I took it home.
...
Did you go home?---Yes.
When you went home did your father help you complete
the forms?---I told him to help me fill it in, because
the expiry date of the submission was coming up and
I - it was - I was damned if I did and damned if I did
not, sort of.
So the forms were filled in, is that correct?---Yes.
And then I think your father went and lodged the forms
at the Rockdale office, is that correct?---Yes."

6. On this evidence, it was said by counsel for Mrs Elbourne that there had been a failure to accord natural justice to Mrs Elbourne, in that she was not advised as to the correct form to fill in, and that the decision refusing her application had been made on a wrong basis for no consideration had been given to her true circumstances, namely that she was in need of emotional and financial support from her parents and her sister and, as she and her children were dependent upon them for support, she had a good case for the grant of a temporary entry permit as a supported dependant.

7. In considering this submission, it must be kept in mind that good administration does not preclude the giving of help and assistance when it appears to be needed. But the principles of procedural fairness do not require that, in the generality of cases, the circumstances of a person seeking to make an application for a permit should be considered in detail and advice given as to the application that can best be made. Indeed, s.34 of the Act provides that a person making an application for an entry permit shall make application for an entry permit of a particular class in accordance with the Regulations and, until that has been done, the Minister "is not required to consider an application at all". The officer to whom Mrs Elbourne spoke on the phone was faced with a person who was an illegal entrant, who with her two children was living with her parents and who wished to apply to remain in Australia. If Mrs Elbourne's affidavit is correct, the officer told her that she had no chance of obtaining a permit but that, if she wished, she could go to the Rockdale office and collect an application form for an extended eligibility (other) permit and fill that in. Obviously, the officer understood that Mrs Elbourne wished to remain permanently in Australia with her parents who were residents.

8. An extended entry eligibility permit was the only temporary permit which could have been granted to a person in Mrs Elbourne's circumstances as a stepping stone to the grant of a permanent entry permit. Section 47(1) of the Act, which limited the circumstances in which a permanent entry permit could be granted to a person physically present in Australia, made it a condition of the grant of a permanent entry permit under paras. (b) to (g) that the applicant for a permanent entry permit be the holder of a valid temporary entry permit. Section 47(7) limited the definition of "valid temporary entry permit" for the purposes of s.47 to an entry permit that was not subject to a condition referred to in, inter alia, s.33(4)(a). Item 1 of Schedule 5 to the Regulations imposed this condition as a mandatory condition on most classes of visas and entry permits, including a supported dependant entry permit. The effect of those provisions was that, for a person in Mrs Elbourne's circumstances, the valid entry permits for the purposes of s.47 of the Act were the extended eligibility permits for which regs. 126 to 130 provided, but not other temporary entry permits such as a supported dependant entry permit. The extended eligibility permit provisions specify preconditions which must be satisfied by a person such as Mrs Elbourne as a step to obtain a permanent entry permit. Thus, reg. 129(b) specified as a condition of eligibility that "permanent settlement in Australia is the most appropriate course for the applicant".

9. That was the case put by Mrs Elbourne in her application for the permit. In her application, Mrs Elbourne said:-

"Since our temporary stay in Australia my husband deserted both me
and my children. We are currently living with my parents and have
no one in Fiji to return to. My parents are willing to sponsor us
in any way.
Before my husband deserted me I was prepared and urged him
continuously to return to Fiji. Now that he has deserted me and my
children we have no one to return to in Fiji to assist us both
morally and financially. My parents can give me and my children
this if we remain in Australia. My sister who is now an Australian
citizen will assist in any way.
If we are unable to remain legally in Australia our future lives in
Fiji will be desolate as we will have no family members to turn to.
At a time like this I need my family members around to assist me and
these members are here in Australia."

In answer to the question how long the circumstances were expected to continue, Mrs Elbourne replied "Permanently". Her application was supported by a statutory declaration by a person who stated inter alia: "I am happy to support her application for citizenship in Australia".

10. However, the criteria for an extended eligibility (other) permit under reg. 129 were extremely limited, as were those for the other extended eligibility permits under regs. 126, 127, 128 and 130. Mrs Elbourne did not meet the criteria for any such permit.

11. An entry permit for a "supported dependant", which was item 36 as specified in the Schedules to the Regulations, was not appropriate to the circumstances which Mrs Elbourne outlined to the officer in her telephone conversation or as described in her application for an extended eligibility (other) permit. Regulation 24(2) specified that an entry permit specified in any of items 13 to 50 inclusive in Part 1 of Schedule 3 and certain other items would not be granted as a permanent entry permit. And Schedules 1 and 2 of the Regulations specified in relation to a supported dependant visa that "the applicant seeks the visa in order to obtain temporary entry and does not intend to become an permanent resident of Australia". Schedule 5 imposed on a supported dependant entry permit the mandatory condition set out in s.33(4)(a) that the entry permit will not be taken to be a valid entry permit for the purposes of s.47. Mrs Elbourne was not seeking an entry permit on such a basis.

12. The Regulations have since been amended so that a supported dependant entry permit has become item 55 and not subject to that mandatory condition. But the amendment did not apply to Mrs Elbourne's application.

13. Accordingly, the present application seems to rely on the proposition that an officer or officers of the Department of Immigration, Local Government and Ethnic Affairs failed to explain to Mrs Elbourne that, if she made application for a temporary entry permit on the footing that she did not wish to remain in Australia, Mrs Elbourne could have been granted a temporary entry permit on the basis that she was a supported dependant. I reject the contention that the officer of the Department should have advised Mrs Elbourne to put forward such a case which was contrary to the true facts.

14. The officer who spoke with Mrs Elbourne was correct when he advised Mrs Elbourne that she could not obtain a permit. The Act so limited the power to grant permits that there was no power or discretion to grant a permit to a person in Mrs Elbourne's circumstances. The officer properly advised Mrs Elbourne to apply for an extended eligibility permit, an appropriate temporary entry permit the holding of which permitted a person in Australia to apply for residency. The making of the application facilitated a consideration of her case. But the circumstances in which those permits could be granted were strictly limited and Mrs Elbourne did not qualify.

15. Counsel for Mrs Elbourne relied upon reg.35AA which authorised the Minister to grant a temporary entry permit to an illegal entrant in certain circumstances, one of those being that the applicant satisfied the prescribed criteria for the relevant class of entry permits, other than, if applicable, the holding of a valid temporary entry permit and not being an illegal entrant. Counsel submitted that, accordingly, a temporary entry permit could have been granted to Mrs Elbourne as a supported dependant. But counsel's submission did not overcome the point that Mrs Elbourne did not qualify for such a temporary entry permit for she sought to remain in Australia permanently.

16. For these reasons, the application must be dismissed with costs.