Re Franklin Clarence Hamsher; Neiel John Drago; Beverly Katherine Elton; Laurence Etheredge; Arthur James Hempel; Lilian Page Krainock; Margaret Ann Libassi; Sarah Elizabeth Marshall; Allen Wesley Williams; Cheryl Elaine Williams; Marilyn Colene Williams [1992] FCA 13 (28 January 1992)

FEDERAL COURT OF AUSTRALIA

Re: FRANKLIN CLARENCE HAMSHER; NEIEL JOHN DRAGO; BEVERLY KATHERINE ELTON;
LAURENCE ETHEREDGE; ARTHUR JAMES HEMPEL; LILIAN PAGE KRAINOCK; MARGARET ANN
LIBASSI; SARAH ELIZABETH MARSHALL; ALLEN WESLEY WILLIAMS; CHERYL ELAINE
WILLIAMS; MARILYN COLENE WILLIAMS and LETITIA LIBASSI BY HER NEXT FRIEND
FRANKLIN CLARENCE HAMSHER
And: HARRIET SWIFT, ASTRID NORGARD AND MINISTER FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. WA G106 of 1991
FED No. 10
Immigration - Parliament
(1992) 33 FCR 545

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Immigration - entry permit - non-citizens - transitional provisions - application for permanent entry permit prior to amendments to law - application refused - two year temporary entry permit granted - offer to consider permanent entry thereafter - amendment to laws - no appropriate entry category pursuant to amendments - whether applicants covered by transitional provisions of amending legislation - ministerial statement in Parliament - parliamentary privilege - estoppel - validity of regulations.

Parliament - privilege - freedom of speech - ministerial statement - pleaded and tendered without objection - applicability of privilege notwithstanding lack of objection - - right of member to waive privilege - use of statement to evidence decision - to support estoppel - excluded from consideration - Parliamentary Privileges Act 1987 s.16(3).

Administrative Decisions (Judicial Review) Act 1977 Judiciary Act 1903 s.39B

Extradition (Foreign States) Act 1966 s.16(1)(b)

Migration Act 1958 s.34, s.6, s.6A, s.47

Migration Legislation Amendment Act 1989

Parliamentary Privileges Act 1987 s.16

Migration (Criteria and General) Regulations

Hempel v Moore (1986) 70 ALR 601

Hempel v Moore (1987) 70 ALR 714

Hempel v Attorney-General (1987) 77 ALR 641

R. v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157

Plunkett v Cobbett (1804) 5 Esp 136; 170 ER 763

Chubb v Salomons (1852) 3 Car and K 75; [1851] EngR 609; 175 ER 469

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1

Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223

Formosa v Secretary Department of Social Security [1988] FCA 291; (1988) 81 ALR 687

Roman Corporation Ltd v Hudson's Bay Oil and Gas Co. Ltd (1971) 23 DLR (3d) 292

Royal Commission into Certain Crown Leaseholds (1956) St R Qd 225

Attorney General (NSW) v Quinn (1990) 170 CLR 1

Cross on Evidence Australian Edition para 27095

Campbell - Parliamentary Privilege in Australia (1965) p 33

HEARING

PERTH
28:1:1992

Counsel for the Applicant: Mr I.S.Jones

Solicitors for the Applicant: Mossensons

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

It is hereby declared as against the third respondent that:

Each of the applicants is entitled by virtue of s.6(4) of the
Migration Legislation Amendment Act 1989 to have his or her
application for a permanent entry permit made on 17 April 1986
considered according to the provisions of the Migration Act
1958 relating to the granting of visas and entry permits as
they stood immediately before 20 December 1989.

The application is otherwise dismissed.

There be liberty to any party to apply within 7 days to seek a variation of

the form of relief proposed in paragraph 1 of this order.

The parties have leave to file and serve within 14 days varied forms of the amendments to the statement of claim and defence filed after the hearing excluding any reference to the statements allegedly made by the third respondent in the Senate on 6 October 1989.

Unless otherwise ordered upon the application of any party made within 7 days the parties to this application are to bear their own costs.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Just over six years ago, on 22 January 1986, 12 citizens of the United States of America arrived at Albany in Western Australia on board the sailing vessel Orionia. They held some religious beliefs in common and came to be known as the Orionia Community. Their entry to Australia was lawful as they held temporary entry permits issued at the Australian Territory of Christmas Island in December 1985. Following their arrival however, two of their number were arrested and proceedings begun for their extradition to Israel. Those proceedings were not finally resolved until 3 years later on 6 April 1989 in the District Court at Beersheeba in Israel.

2. The other members of the community had remained in Albany and after the proceedings in Israel were rejoined by the two who had been extradited. All had made applications in 1986 for the right to remain permanently in Australia. In September 1989 they were told that they would be given temporary entry permits for a period of two years at the end of which time they would be considered for permanent entry. In 1991 however, as the end of what they regarded as their period of probationary residence approached, they were told by officers of the Department of Immigration, Local Government and Ethnic Affairs (DILGEA) in effect that changes to Australia's migration laws had had the result that there was no longer any basis upon which they could apply for permanent residence with any real prospect of success. Application forms which they had completed and lodged with the Minister's office in August 1991 were no longer applicable because of those changes and could not be considered.

3. The members of the community have instituted these proceedings against the Minister for Immigration, Local Government and Ethnic Affairs and two of his officers under the Administrative Decisions (Judicial Review) Act 1977 and s.39B of the Judiciary Act 1903 with a view to having either their 1986 or 1991 applications for permanent residence considered. In doing so they have been hampered by difficulties in the proper formulation of their claim, changes of counsel and solicitors and the necessity for an expedited hearing and determination of the matter. They have been illegal entrants since the expiry of their temporary entry permits on 23 October 1991 although protected pending the determination of these proceedings by a statutory period of grace under s.13 of the Migration Act 1958. Despite imperfections in the pleadings and the presentation of argument not covered by the pleadings as they stood at the hearing, I am satisfied that all issues relevant to the dispute with the Minister and his officers are properly before me for determination.

4. One matter which was not addressed at all during the hearing, either by counsel for the applicants or counsel for the Minister and his officers, was the impact of parliamentary privilege upon the use in evidence of a statement made in the Senate on 6 October 1989 by the then Minister for Immigration and Ethnic Affairs. Despite the absence of any comment by the parties, that is a matter of which the Court must take cognisance and in preparing this judgment I have come to the conclusion, which is explained later on, that for most of the purposes for which it was invoked, the statement should not have been pleaded or received in evidence. I have not invited submissions from the parties on the question after the hearing because I am satisfied that despite its prominence in the pleadings, it does not affect the outcome of the application when regard is had to extra-parliamentary correspondence and statements made on behalf of the Minister. The history of relevant dealings and communications between the applicants and the immigration authorities follows.
Factual Background
The applicants are citizens of the United States who arrived at Albany on board the S.v Orionia on 22 January 1986. At the time they held temporary entry permits issued on 1 December 1985 at Christmas Island and valid for two months. On 23 January 1986, two of their number, Arthur Hempel and Laurence Etheredge, were arrested by Australian Federal Police on a warrant issued under s.16(1)(b) of the Extradition (Foreign States) Act 1966 following a request directed to the Australian Government by the Government of Israel. This request was founded upon the contention that the boat in which they sailed to Australia with the other applicants had been stolen by them and that they had thereby committed an offence against the Penal Code of Israel. On 1 August 1986 following an extradition hearing they were committed to prison by order of a stipendiary magistrate to await the warrant of the Attorney-General for their surrender to Israel. Some of the litigation that followed may be traced through the law reports in Hempel v Moore (1986) 70 ALR 601; Hempel v Moore (1987) 70 ALR 714; Hempel v Attorney-General (1987) 77 ALR 641.

5. Hempel and Etheredge remained in custody, unconvicted of any crime, from 1 August 1986 until April 1988 when they were surrendered to Israel. As the result of a plea bargaining process the District Court in Beersheeba, without proceeding to conviction, found on 6 April 1989 that they had committed an offence under the Israeli Penal Code of "frustration of a lien imposed by the Court" and imposed a penalty of 60 hours community work. Stealing charges which had founded the extradition process were withdrawn. On 17 April 1989, Hempel and Etheredge applied for visas to return to Australia. These applications were initially refused but in May 1989 temporary entry visas valid for three months issued. They returned to Australia on 12 June 1989.

6. In the meantime, all the applicants, of whom there are 12 including Hempel and Etheredge, had applied for extensions of their temporary entry permits on 31 January 1986 and on 24 February 1986 were granted permission to stay in Australia pending a final decision on those applications. On 14 March 1986 they were advised by letter that the applications for extensions had been refused. They applied for permanent resident status on 17 April 1986 and in September of that year were told that they were permitted to remain in this country pending a decision on those applications. The papers do not disclose any official communication relating to these applications until 27 August 1989. On that day, according to the affidavit of Franklin Clarence Hamsher, Senator Michael Beahan, a member of the Australian Senate, went to Albany and spoke to all the applicants on behalf of the Minister for Immigration, Senator Ray, and told them of an offer made by the Minister, the terms of which were:

1. that the applicants would be granted temporary entry
permits for a period of two years;
2. that the applicants would receive no benefits -
apparently a reference to Social Security benefits;
3. that at the end of the 2 year period they had a "virtual
guarantee" of permanent residency.

Oral evidence of this conversation was also given by Hempel. He recalled Senator Beahan presenting himself as a representative of Senator Ray. Beahan, he said, told them that the Minister was reluctant to give the applicants permanent residency, but that a future Minister would give it to them in 2 years time after an initial probationary period with the right to work. Hempel also referred in his evidence to a visit some time later in September from a Mr Richardson, an officer of DILGEA, who repeated what Senator Beahan had said. The substance of the evidence given by Hamsher and Hempel was not contradicted nor substantially challenged. I am inclined to doubt, having regard to later correspondence, that any promise was made that the applicants would be granted permanent residence. I am satisfied, however, in the light of what followed, that they were told at least that they would be considered for permanent residency upon the expiry of their two year temporary entry permit.

7. On 1 September 1989, the Minister wrote to the Western Australian State Director of DILGEA in the following terms:

"Notwithstanding that the requisite fees have not been
paid, I have decided to refuse the applications for
permanent resident status.
I have decided to offer the community permits to
remain temporarily in Australia for two years and to
give them permission to work during that time. This
offer is conditional on the community members making
formal applications and paying the requisite fees
within 21 days of being notified of my decisions.
Should the community members not take up my offer, it
remains open to the Department to pursue whatever
action is appropriate to prohibited non-citizens.
Would you please keep my office informed of developments."

On 4 September 1989, the solicitors then acting for the applicants wrote to the Minister thanking him for "the offer of residency and the right to work in Australia". The Orionia community, they said, objected to the proposal that it be denied access to benefits. The community, it was contended, had only sought benefits as needed and when needed. Further, the community wished to have "multiple re-entry" visas for Hempel and Etheredge to enable them to attend to civil action then in process in Israel. On 11 September, Mr Geoff Fary, Senior Private Secretary to the Minister replied to the solicitors' letter of 4 September in the following terms:

"I refer to your letter of 4 September 1989 (Ref:
KP:RS:13495) addressed to the Minister for
Immigration, Local Government and Ethnic Affairs
concerning the Orionia Community. Senator Ray has
asked me to respond.
In deciding to extend the offer of two year temporary
entry permits to the members of the community it was
intended that that period would be used to assess
their prospects for permanent settlement in Australia.
Should they demonstrate a satisfactory record of
residence in this country, this would be positively
taken into account in any future application for
permanent residency.
Concerning your comments regarding access to benefits,
we note that such access by non-residents is regulated
by law. The Minister has also noted the repeated
statements by the community that they would be self
sufficient and that they enjoy the enthusiastic
support of other groups and organisations in the
Albany area. Bearing this in mind, and considering
that temporary permits would include the right to
engage in employment, it is not considered that the
offer involves any undue hardship being imposed upon
the community. We are unable to vary that part of the offer.
There is no objection to your request that Dr Hempel
and Mr Etheredge be granted multiple re-entry visas,
on application.
It is now considered that the Orionia Community has
had ample time to consider the Minister's offer, which
in all the circumstances is a generous one. We must
therefore request a response within 14 days from the
date of this letter."

On 22 September 1989 the solicitors for the applicants wrote to the Minister advising that the offer of residency was accepted in principle. The letter raised a number of points and in particular queried the way in which the applicants were to be assessed for suitability for permanent resident status and what was meant by the expression "satisfactory record of residence in this country". A reply was sent on 19 October 1989 by Mr Fary expressing disappointment at the "otherwise than enthusiastic acceptance of the Minister's offer". On the matter of what would constitute a "satisfactory record of residence", Mr Fary said:

"A satisfactory record of residence relates to the
public interest requirement generally applying when
the matter of permanent residence is decided. For
example, consideration would be given to factors such
as the conduct of the individual in Australia, whether
she/he is of good character; has been able to settle
without undue personal difficulty and without imposing
undue difficulties or costs on the Australian
community and so on. This list is not exhaustive but
should serve to indicate the kind of matters that
could be taken into account by the Minister of the day
in assessing suitability for permanent residence status."

The letter concluded by saying:

"In conclusion I point out that there has to be a
reasonable limit to the amount of time and
consideration that the Minister can give to this case.
Unless an unqualified positive response is received
within 7 days we will have no option but to commence
deportation proceedings."

In the meantime a letter had been sent on behalf of the Acting State Director of the Department to each of the applicants on 29 September 1989 in the following terms:

"On 6 September 1989 the Minister for Immigration,
Local Government and Ethnic Affairs advised this
office that he had decided to refuse the grant of
resident status to you and other members of the
Orionia Community. However he had agreed to your
remaining temporarily in Australia for a period of two
years, with permission to work, providing a formal
application was lodged and the requisite fee paid.
We understand that Haynes Robinson Barristers and
Solicitors have advised the Minister that you accept
in principle his offer. If that is the case the
enclosed application for a further Temporary Entry
Permit should be completed and lodged with the
required fee of $50 by 4pm on 20 October 1989.
The alternative, should you decide not to take up the
Minister's offer of 2 years temporary residence, is
that you depart Australia on or before 31 October
1989. If so we request that evidence of travel
arrangements also be forwarded to this office by 4pm
on 20 October 1989."

8. I am satisfied on the whole of the correspondence and the advices given by Senator Beahan and Mr Richardson, that the Minister refused in September 1989 to grant permanent entry permits but agreed instead to grant temporary entry permits for a period of 2 years and undertook that at the expiry of that time, applications for permanent resident status would be considered having regard to the applicants demonstrating a "satisfactory record of residence" during the two year period. That undertaking, as elaborated in the correspondence, conveyed the implication that the applicants would be considered favourably and have a reasonable prospect of success if they could demonstrate good character and an ability to settle in Australia without experiencing undue difficulty or imposing costs on the Australian community. There was, however, in my opinion, never any undertaking that such permits would be granted nor that other factors might not be taken into account. Indeed the letter from Mr Fary of 19 October 1989 made it clear that the elements which he included under "satisfactory record of residence" were not exhaustive but merely indicative of the kinds of matters that could be taken into account by whoever was minister when the time came to assess the applicants' suitability for permanent resident status.

9. On 18 October 1989 the applicants through their solicitors lodged applications for temporary entry permits and paid the requisite fees. On 23 October 1989 they were granted temporary entry permits for a period of 2 years expiring on 23 October 1991.

10. According to Hempel's evidence, acting on the Minister's "offer" the applicants took the view that they could proceed to "normalise" their lives in Australia and order them in a more permanent fashion. Various of the applicants undertook paid employment. They incorporated an association called the Christ Circle Orionia Community Incorporated which entered into cleaning contracts in the Albany area in January and July 1990. In March 1990 the association purchased a Ford Spectron van and in April 1990 leased a Ford Falcon Sedan. It also purchased a Bedford 6 tonne truck on 21 December 1989. These acquisitions were said by Hempel to be for the general charitable work of the association and for the purpose of the cleaning contracts. The charitable work of the association included "the provision of meals and night time shelter to persons in need". The association entered into a third cleaning contract for a term of just under 3 years from February 1991. In early 1990 it also commenced construction of a boat for charter purposes. Had it not been for the indications given to them by Senator Beahan on 27 August 1989 then, according to Hempel, the applicants would not have entered into the commitments outlined. They would have begun to save money for ultimate relocation. The applicants believed it was not necessary for them to take any further steps with respect to their permanent resident status until the 2 year period of the temporary entry permits was nearly expired. I am satisfied that in a broad sense the applicants did the things individually and as a group to which DrHempel referred in his evidence and that they did so in the reasonable expectation that they had a good prospect of becoming permanent residents of Australia after October 1991.

11. On 9 August 1991 Hempel sent to the then Minister, Senator Hand, applications on behalf of all applicants for permanent entry permits. Each included an attachment which was a departmental form to be completed by applicants applying for permanent entry on the basis of "strong humanitarian or refugee grounds". The attachment excluded applications on "strong compassionate, occupational and family reunion grounds". The form of application in each case bore the number 690 and the attachments the number 690C. In a covering letter to the Minister which accompanied the completed forms, Hempel said that the applicants had been told by the Department that as a result of changes to the Migration Act in 1989 no-one apart from the Minister had the power to grant their applications. It was for this reason that they were taking the unusual step of approaching him directly. He pointed out that the previous Minister, Senator Ray, had granted them 2 year temporary entry permits and had given an undertaking that permanent residency would be reconsidered after two years. The application forms were delivered to the Minister's office by Mr Graeme Campbell MHR, the member for Kalgoorlie.

12. On 12 September 1991, Ms Harriet Swift, a Senior Adviser to the Minister wrote to Hempel on behalf of the Minister advising that:

"The class of entry permit which was nominated in each
form no longer exists, having been repealed last year,
and there was no fee accompanying any of the
application forMs For that reason there was no
option but to return the forms to Mr Campbell as they
could not be regarded as constituting applications
under migration legislation."

She also pointed out that the Minister was able to intervene to grant permanent resident status only where a formal application had been lodged and refused and the decision had been reviewed but not varied by a review authority. She advised that as a general rule decisions on applications lodged by people who had become illegal entrants were not reviewable. If the applicants wished to be considered for permanent residence they should lodge applications with the prescribed fees before their current entry permits expired.

13. On 16 September 1991, Hempel faxed a letter to Ms Norgard, the Manager, Migration Visitors and Citizenship in the Perth Office of DILGEA expressing puzzlement at Ms Swift's letter. He asked that she forward to the applicants whatever forms were appropriate to their case. Later that day he had a telephone conversation with Ms Norgard. She confirmed that the forms delivered by Mr Campbell to the Minister's office had not been in use since August 1990 and that "the humanitarian grounds were repealed in July 1990". She went on to say that it was very difficult to see what grounds currently available under the Migration Regulations were applicable to the applicants' situation. She suggested that they might need to find an Australian permanent resident to nominate them, otherwise they would not have a review right. The outcome of those applications would probably rest upon a Ministerial decision, but the Minister could only intervene on applications that had been refused at first instance and were the subject of an unsuccessful statutory review. She discussed various aspects of the Regulations with Hempel and the fees payable on applications and advised the applicants to get their applications and fees in before 23 October.

14. On 17 September, Ms Norgard wrote to Hempel enclosing two sets of application forMs In her covering letter she expressed the view that it was unlikely that the applicants would meet the criteria for grant of residence under any of the available classes. She suggested that they might wish to make a case under Reg.131A which applies to persons illegally in Australia on or before 18 December 1989. On the other hand, they might wish to consider whether the personal circumstances of the members better met other classes of permit. Fees of $360 would be payable on each application under Reg.131A. If an application were lodged under that Regulation and refused, an Australian permanent citizen or resident nominator would have a right of review before the Immigration Review Tribunal for a fee of $300 per application. Should the application be rejected at review, the Minister had a power under s.115 of the Migration Act 1958 to intervene and make a substitute decision.

15. Hempel wrote back on 20 September referring to difficulties with the making of an application under Reg.131A. It would not include all the applicants as he and Etheredge had left and returned to Australia since December 1989. They were unlikely to meet the condition that a refusal to grant the permit would cause extreme hardship or irreparable prejudice to an Australian citizen or permanent resident and it would cost them $7,000 in fees for applications and review just to get to the point at which the Minister could consider the matter. After examining the material sent by Ms Norgard concerning other classes of applications Hempel concluded that "it would seem that notwithstanding the previous Minister's comments when he granted us our current permits, that we have been effectively written out of the Act". He had a telephone conversation with Ms Norgard on 23 September. She saw as the only avenue open to the applicants that they be refused at two levels, the primary decision and the review level, and then put their case as strongly as they could to the Minister and hope that he might do something. She wrote a follow up letter on 25 September summarising her oral advice. A further telephone conversation took place with Ms Norgard on 27 September. In the end the applicants decided not to lodge fresh applications but to tender a cheque for the fees which they regarded as appropriate to the applications that had been taken to the Minister by Graeme Campbell. Their covering letter referred to statements made by the Minister in the Senate on 6 October 1989 and the applicants' belief that they had complied with the conditions under which they could expect to be granted permanent residence.

16. On 2 October 1991 solicitors then acting for the applicants wrote to Ms Norgard indicating that a Senior Adviser to the Minister had spoken to Hempel that morning and made it clear that the current Migration Act was the law applicable to the applicants. The solicitors contended that it was the old Act that was applicable and not the new. They asked for an immediate response by fax to their clients' letter of 27 September and indicated that the applicants would have to look to remedies under the Administrative Decisions (Judicial Review) Act 1977.

17. In the meantime the original applications left with the Minister's office by Mr Campbell had been returned to him. He handed them over to the applicants' solicitors who, on 3 October, forwarded them with a covering letter to Ms Norgard contending that the old Act was applicable:

"...because our clients contend that the decision to give them
resident status has already been made and that it is now only a
matter of implementing that decision."

Underlying this was the proposition that a decision to grant permanent resident status had been evidenced by the Minister's statement in the Senate on 6 October 1989. Ms Norgard responded on 4 October indicating that she was seeking advice from the Department's legal branch in Canberra and on 15 October 1991 she wrote to the applicants' solicitors in the following terms:

"I refer to your letter of 3 October and facsimile of 2 October
regarding the Orionia Community.
I have now received advice from the Department's legal branch that
the statement in 1989 by the former Minister for Immigration,
Senator Ray, announced the decision to refuse the grant of permanent
residence to members of the Orionia Community at that time and to
grant instead temporary entry permits for two years by consent.
The Minister's statement clearly referred to the fact that whilst a
decision in relation to permanent residence could be made at a later
date, no such decision was being made in 1989.
As previously advised, if your clients wish to be considered for the
grant of a further entry permit, either temporary or permanent, then
the appropriate applications must be made under the current Act and
fees lodged.
The application forms that your clients submitted to the Minister
through Graeme Campbell MHR were for a class of entry permit which
can no longer be granted and did not exist at the time of lodgement.
The relevant Migration Regulations were repealed in 1990. Section
34 of the Migration Act 1958 (as amended in December 1989) clearly
provides that applications must be made for an entry permit of a
particular class in accordance with the regulations. Please note
that under s34(2) the Minister only has the power to grant a class
of entry permit provided for in the Migration Regulations as they
currently exist.
If, in spite of the above, your clients still wish this Department
to consider formally the documents as submitted, would you please
notify me in writing that this is their wish."

18. On 17 October 1991 the solicitors for the applicants advised that they had been instructed to issue proceedings seeking a review of what they described as Ms Norgard's "decision". By a letter dated 21 October 1991 Ms Norgard reiterated that the forms which had originally been delivered to the Minister by Mr Campbell on 22 August 1991 were returned because they were for a class of entry permit that no longer existed and were not accompanied by a fee. She acknowledged the receipt of the forms at her office on 4 October and went on to say:

"It is unnecessary for me to decide whether the forms lodged with
this office are valid applications under the Migration Act 1958 (as
amended in December 1989) as there is no power to grant the entry
permits sought.
The forms lodged by your clients were for a class of entry permit
which no longer exists and did not exist even on 22 August 1991 (the
time of the first approach to the Minister). The Migration
Regulations setting out the criteria for the humanitarian grounds
permanent entry permit was Reg.141 and this was repealed effective
from 12 July 1990."

She then referred to s.34 of the Migration Act and concluded that it was clear from s.34(4) that there was no power to grant an entry permit not provided for in the Regulations at the time of application. In the meantime the applicants had filed an application in the Federal Court for an order of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 on 17 October 1991.
Statutory Framework

19. Under the Migration Act 1958 as it stood prior to December 1989, entry permits under which non-citizens could enter Australia were granted under s.6 of the Act subject to conditions prescribed by s.6A. Section 6 provided expressly for the grant of temporary entry permits and by necessary implication for the grant of permits to enter and remain in Australia permanently. The relevant provisions of the two sections were:

"6(1) A non-citizen who, not being the holder of an
entry permit that is in force, enters Australia
thereupon becomes a prohibited non-citizen.
(2) An officer may, in accordance with this section
and at the request or with the consent of a
non-citizen, grant to the non-citizen an entry permit.
(3) An entry permit shall be in a form approved by
the Minister and shall be expressed to permit the
person to whom it is granted to enter Australia or to
remain in Australia or both.
.
.
.
(5) An entry permit may be granted to a non-citizen
either upon his arrival in Australia or, subject to
section 6A, after he has entered Australia (whether or
not that entry took place before, or takes place
after, the commencement of this Part).
(6) An entry permit that is intended to operate as a
temporary entry permit shall be expressed to authorize
the person to whom it relates to remain in Australia
for a specified period only, and such a permit may be
granted subject to conditions."
"6A.(1) An entry permit shall not be granted to a
non-citizen after his entry into Australia unless one
or more of the following conditions is fulfilled in
respect of him, that is to say-
.
.
.
(d) he is the holder of a temporary entry
permit which is in force, is authorized to
work in Australia and is not a prescribed
non-citizen.
(e) he is the holder of a temporary entry
permit which is in force and there are
strong compassionate or humanitarian
grounds for the grant of an entry permit
to him.
.
.
.
(3) Subject to sub-section (2), an entry permit
shall not be granted to a non-citizen after his entry
into Australia otherwise than by -
(a) the Minister; or
(b) an officer authorized by the Minister, by
instrument in writing, to be an authorized
officer for the purposes of this section.
.
.
.
(8) In this section, a reference to an entry permit
shall be read as a reference to an entry permit other
than a temporary entry permit."

The term "prescribed non-citizen" is defined in s.6A(4)(c) but is not applicable to the applicants. Were the Migration Act as it stood prior to the 1989 amendments to apply to them, they would have satisfied the condition for the grant of an entry permit specified in s.6A(1)(d).

20. The Act was extensively amended and its provisions renumbered by the Migration Legislation Amendment Act 1989. New interpretation provisions were enacted which include:

""Entry permit" means permission to enter or remain in Australia.
"Temporary Entry Permit" means an entry permit that is subject to a
limitation as to the time the holder is authorised to remain in

Australia.

"Approved form" when used in a provision of this Act, means a form
approved by the Minister in writing for the purposes of that provision.
"Permanent entry permit" means an entry permit that is not subject
to any limitation as to the time the holder is authorised to remain
in Australia."

21. The concept of the "illegal entrant" was introduced in s.14 of the Act as amended. Relevant for present purposes is s.14(3):

"A non-citizen who is the holder of a valid entry permit becomes an
illegal entrant if he or she stops being the holder of a valid entry
permit while he or she is in Australia."

Entry permits are provided for in Div3 of the Act. The two principal sections of interest for present purposes are ss.33 and 34. Section 34 regulates the power to grant entry permits in the following terms:

"34(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 is paid.
(2) Unless this section applies, the Minister:
(a) is not required to consider an application at all; and
(b) shall not in any circumstances grant an entry permit.
(3) Where it appears to the Minister that the applicant is, under
the regulations, entitled to be granted an entry permit of the class
concerned, the Minister shall, subject to this Division, grant the
applicant such an entry permit.
(4) Where it appears to the Minister that the applicant is not,
under the regulations, entitled to be granted an entry permit of the
class concerned, the Minister shall refuse to grant such an entry

permit."
The general regulation making power conferred by the Act derives from s.181. The opening words of sub-s.181(1) are in the following terms:

"181(1) The Governor-General may make regulations, not inconsistent
with this Act, prescribing all matters which by this Act are
required or permitted to be prescribed or which are necessary or
convenient to be prescribed for carrying out or giving effect to
this Act and, without limiting the generality of the foregoing, may
make regulations:...."

The sub-section then goes on to set out various specific subjects on which regulations may be made. This power is supplemented by that contained in s.33 of the Act which deals specifically with the power to make regulations relating to the grant and refusal of entry permits. It provides, inter alia:

"33(1) Without limiting the generality of section 181, the
regulations may make provision:
(a) in relation to the granting and refusal of entry permits,
including the granting of entry permits:
(i) subject to conditions; or
(ii) subject to a limitation as to the time the holder is
authorised to remain in Australia;
.
.
.
(2) regulations made under sub-section (1) may provide:
(a) for different classes of entry permits;
and
(b) that, subject to sections 40 and 45, a person is entitled to
be granted an entry permit of a particular class if that
person satisfies all the prescribed criteria in relation to
that class.
.
.
.
(5) Except as otherwise provided in the regulation concerned, a
regulation providing as mentioned in paragraph (2)(b) shall, unless
it has been disallowed, be taken to be repealed 2 years after the
day on which the regulation takes effect."

22. Section 47 of the Act sets out circumstances in which permanent entry permits may be granted to non-citizens after entry into Australia. As enacted by the Migration Legislation Amendment Act 1989 and until its further amendment in 1991, s.47 of the Act provided, in the relevant parts, as follows:

"47(1) A permanent entry permit shall not be granted to a
non-citizen after entry into Australia unless at least one of
the following paragraphs applies to the non-citizen:
.
.
.
(e) he or she:
(i) is the holder of a valid temporary entry permit;
(ii) is authorised to work in Australia; and
(iii) is not a prescribed non-citizen;
(f) he or she is the holder of a valid temporary entry permit
and there are strong compassionate grounds for the grant
of a permanent entry permit to him or her;
(g) he or she is the holder of a valid temporary entry permit
and there are strong humanitarian grounds for the grant
of a permanent entry permit to him or her."

Sub-section 47(5) provides that a person holding a valid temporary entry permit granted after 28 October 1979 is taken to be authorized to work in Australia if, inter alia, the permit was not granted subject to any condition imposing restrictions with respect to the work that may be performed by the holder in Australia. Sub-section (7) defines "prescribed non-citizen" by reference to classes of person, none of which is applicable to the present case.

23. Section 115 authorises the making of regulations that provide for review of ministerial decisions and, inter alia, "the review officers who are to conduct such reviews". Sub-section 115(5) empowers the Minister, if he thinks it is in the public interest to do so, to set aside decisions which have been affirmed, varied or made by a review officer and substitute a decision more favourable to the applicant. A similar power is conferred by sub-section 115(6) where a decision reviewed by a review officer is one in relation to which the review officer had recommendatory powers. Sub-section (7) provides that where the Minister sets aside a decision under sub-ss.(5) or (6) he must lay a statement before both Houses of Parliament setting out, inter alia, the reasons for the decision.

24. The exercise of powers conferred by or under the Act is regulated by s.178:

"178(1) The powers conferred by or under this Act shall be exercised
in accordance with any applicable regulations under this Act.
(2) Where a power under this Act is to be exercised on
application by a person, the person exercising the power:
(a) is entitled to exercise that power on the basis of the
information contained in the application only; but
(b) may, at his or her own option, obtain other relevant
information and may have regard to that other information for
the purpose of exercising the power.
(3) For the purposes of sub-section (2), information shall be
taken to be contained in an application if, and only if:
(a) the application was made in the approved form and duly lodged
in accordance with the regulations; and
(b) the information was set out in that approved form or in a
document that was attached to the application when it was so

lodged."
Sub-section (4) is not material for present purposes.

25. An important transitional provision appears in sub-s.6(4) of the Migration Legislation Amendment Act 1989 in the following terms:

"6(4) In spite of the repeal effected by sub-section (1), the
provisions of the Principal Act relating to the granting of visas
and entry permits as in force immediately before the commencement of
this section continue to have effect after that commencement for the
purposes of applications for visas or entry permits made before that
commencement."

26. The Migration (Criteria and General) Regulations were notified in the Government Gazette of 18 December 1989 and have been amended on some 33 occasions since that time. Regulations 21 to 29 inclusive as they presently stand, relate to entry permits. Regulation 21 provides that for the purposes of para 33(2)(a) of the Act the classes of entry permit are specified in Schedule 3 to the Regulations. Schedule 3 as originally enacted comprised three parts. Part II included as classes 7 and 8 "compassionate grounds" and "humanitarian grounds" respectively. As it presently stands however the schedule is broken into 13 entry permit class headings. The first designated "Class 1 Entry Permit - Permanent Resident" includes references to In-country special humanitarian program and Global special humanitarian program permits which are items 20 and 21, neither of which are applicable in the present case, and to compassionate grounds (family and other close ties) which is item 30. There is now no general class of permanent entry permit otherwise related to humanitarian grounds. Class 9 entry permits are designated "Humanitarian" but cover temporary permits relating to persons affected by specific situations in Sri Lanka, Lebanon, the Gulf and Yugoslavia.

27. Regulation 22 defines conditions under which an application for an entry permit is "in accordance with these regulations". It requires, inter alia, that the application be in the form approved by the Minister and that the relevant fee has been paid. Regulation 24(2) provides that:

"R.24(2) An entry permit is not to be granted:
(a) as a permanent entry permit unless it is an entry permit
specified in schedule 3;
(i) as a class 1 or class 11 entry permit;
(ii) as a class 10 entry permit.
(b) except as a permanent entry permit, if it is an entry permit
of a kind referred to in sub-paragraph (a)(i)."

The grant of an entry permit is conditional on satisfaction of prescribed criteria, as provided for in Regulation 42:

"R.42(1) Subject to sections 40 and 45 of the Act, a person is
entitled to be granted an entry permit referred to in these
Regulations if the person satisfies the prescribed criteria in
relation to that entry permit."

28. Regulation 141, which was repealed on 12 July 1990 (S.R.237 of 1990 Regulation 27) set out "additional" criteria specific to the "humanitarian grounds entry permit" for which the regulation and schedule 3 then provided. Included in those criteria were the requirements that the Minister be satisfied that:

(i) There are strong humanitarian grounds for granting the entry
permit; and
(ii) Resettlement in Australia is the most appropriate durable
solution for the applicant; and
(iii) Such resettlement would not be contrary to the interests of
Australia; and
(iv) There is no country (other than the country in which the
applicant is resident) in which the applicant is entitled to

reside.
The definition of strong humanitarian grounds in sub-regulation 141(2) however, related to political upheavals, major natural disasters or significant changes involving repression of a political, social, religious or ethnic body of which the applicant was a member. Each of these was to have been gazetted as such by the Minister. There is nothing to suggest that any would have applied to the circumstances of the applicants in this case. In any event, reg.141 no longer exists.

29. Regulation 131A which was referred to by Ms Norgard in conversations with the applicants, deals with Item 59A of the class 2 entry permits - temporary resident - set out in Schedule 3. This type of entry permit is designated a "December 1989 (Temporary)". Regulation 131A prescribes as criteria, in relation to this class of permit, that the applicant for entry permit was a prohibited non-citizen on or before 18 December 1989, has not left Australia since that date and applies in accordance with these regulations before 19 December 1993 for the entry permit. It also requires that as at 15 October 1990 and continuously until the grant of the permit, the applicant satisfies one or other of a number of conditions which include the existence of "any other compassionate ground for the grant of an entry permit to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident". Once such an entry permit is granted, it paves the way for the grant of a permanent entry permit referred to as Item 34A. in class 1 of Schedule 3 and described as a "December 1989 (Permanent) Permit". Regulation 142C prescribes the additional criterion for such a permit in the following terms:

"142C. In relation to a December 1989 (Permanent) Entry Permit, the
additional criterion is that the applicant for the entry permit is
the holder of a December 1989 (Temporary) entry permit at the time
when the Minister decides to grant or not to grant the entry permit."

History of the Proceedings

30. These proceedings were instituted by an application for an order of review filed on 17 October 1991. The applicants named Ms Swift, Ms Norgard and the Minister as respondents and sought review of a decision, conduct and failure to make a decision which were identified as follows:

(a) The decision of the Respondents' that the Applicants be denied
permanent residence permits.
(b) Conduct or conduct in which the Respondents proposed to engage
whereby they will fail or refuse to completely implement a
decision made by the Third Respondent on 6 October 1989 to
grant the applicants permanent residence on or before 6
October 1991.
(c) The failure of the Respondents to decide that the Applicants
shall be granted permanent residence permits.

Grounds of ultra vires and error of law were set up without particularisation and the contention raised that the first and second respondents had a duty to make a decision to "completely implement the Third Respondent's decision made on 6 October 1989". The latter was a reference to a statement made in the Senate by the Minister on 6 October 1989. Orders were sought for the grant of permanent residence permits or declaratory relief.

31. The application came on for directions on 22 October 1991 at which time the applicants were represented by Mr Chantler of counsel instructed by Messrs. Claudio Shaw, their then solicitors of record. The respondents filed a motion in Court for the summary dismissal of the application. Directions were made requiring the delivery of particulars of the application and the filing and service of affidavits on each side. An order was made for an expedited hearing and the respondents' motion adjourned to the hearing. On 23 October 1991 the applicants brought on an urgent motion for an order that the Minister extend their temporary entry permits. That motion was dismissed.

32. The application came on for hearing on 6 December 1991 when the applicants were represented by Mr Courtis of Claudio Shaw. On the preceding day the applicants' solicitors had filed a motion to amend the application for review in various ways seeking, among other things, orders under s.39B of the Judiciary Act and a declaration that the Minister is estopped from denying the entitlement of the applicants to permanent residence in accordance with the statement made in the Senate on 6 October 1989. A number of the proposed amendments were refused and counsel sought an adjournment to make such amendments as were "necessary in order to put properly before the court the proper issues in the case". In the event counsel agreed that he was not then ready to proceed with the presentation of the case as he thought it ought to be put. The hearing of the application was adjourned to 13 January 1992 and directions given that the applicants were to file and serve by 11 December any motion to amend the application and any proposed statement of claim to support the wider range of relief now sought. That motion was to be returnable on 13 December. A motion and a minute of a proposed statement of claim were filed on 11 December. The motion did not, however, address necessary amendments to the application and was adjourned to 20 December. On 17 December a minute of an amended application and an amended minute of a proposed statement of claim were filed with a motion seeking leave to amend the application accordingly and to file the statement of claim in the terms of the amended minute.

33. On 20 December orders were made in accordance with the motion and directions given for the filing of further affidavits. An order was also made that the trial be on affidavit subject to the usual rights of cross-examination after notice. A defence was filed on 7 January 1992. When the application came on for hearing again on 13 January the applicants' solicitors moved for leave to withdraw. It appeared from affidavits then filed that there had been last minute difficulties with counsel which effectively left the applicants unrepresented. In the event the hearing was adjourned to 22 January at which time it proceeded. The applicants were then represented by Mr Jones instructed by their new solicitors of record, Messrs. Mossensons. In the course of argument, Mr Jones proposed certain further amendments to the pleadings. In the absence of any claimed prejudice to the respondents, I allowed argument to proceed subject to a minute of the proposed amendments being filed after the hearing with leave to the respondents to file any proposed amended defence and reserved my decision on the amendments and the case generally. A number of proposed amendments to the statement of claim and a minute of proposed consequential amendments to the defence were subsequently delivered.
The Pleadings

34. By their statement of claim, the applicants set out salient features of the factual history which have already been recounted and were not in dispute. They invoked the jurisdiction of this Court under the Administrative Decisions (Judicial Review) Act 1977 and s.39B of the Judiciary Act. It pleaded that on 6 October 1989 the Minister had announced in the Senate, when speaking of the applicants:

"They were given two years in which to prove their capabilities in
this country. Short of criminality - and I have no expectation of
that - I imagine there will be a grant of permanent residence in two
years time. That would be the only thing that would influence me or
a future minister to refuse permanent status in this country."

This statement was admitted, but it was contended that the Minister's words were to be read in the context of the whole of his statement made at the time. No issue of parliamentary privilege was raised by any of the respondents on the pleadings or in the course of the hearing. The letters of 12 September 1991 from Ms Swift and 17 September and 15 October from Ms Norgard were said to constitute decisions by Ms Swift or the Minister and Ms Norgard or the Minister, that the applications for permanent resident status made on 9 August 1991 were rejected. These letters were alternatively characterised as reflecting conduct amounting to a non-consideration of the applications and alternatively a failure to make decisions on them. These characterisations were denied in the defence.

35. The applicants also alleged that they had acted to their detriment in reliance upon the former minister's statement to the Senate in October 1989 combined with the grant of the two year entry permits, the grant of multiple re-entry visas to Messrs. Hempel and Etheredge and other matters related to dealings with the Department of Social Security and a hearing by the Administrative Appeals Tribunal, none of which seem to have any relevance to the relief sought nor to any other issue. The conduct of the applicants in reliance upon these matters is said to have included:

1. Delay in the making of further applications for permanent
resident status beyond 23 October 1989.
2. Remaining in Australia.
3. Obtaining work.
4. Entering into commercial and personal contracts.
5. Performing charitable works.
6. Forging social and personal ties within the Australian community.

36. The applicants contend in their statement of claim that the decisions, conduct and failure to make decisions which they have invoked should be reviewed on the ground that the applications for permanent resident status made in August 1991 were to be considered and decided under the terms of the Migration Act 1958 before it was amended. They claim to have had a reasonable expectation that they would be granted permanent resident status if not convicted of any criminal offences prior to 23 October 1991. They also alleged that the Minister is estopped from refusing to consider the grant of permanent resident status to them. Further, the Minister is said to have breached his duty in failing to advise the Governor-General to include in the Migration Regulations specific provision for applications for permanent resident status from the applicants or persons in their category. Reference was made also to the International Covenant on Civil and Political Rights and the Optional Protocol to it. The Regulations were said to be ultra vires generally or as against the applicants on various grounds, none of which is tenable.

37. The minute of amended statement of claim filed after the hearing alleges that by reason of the Minister's statement in October 1989 and the grant of the two year permit, he deferred consideration of the applicants' application for permanent resident status made in April 1986 until after a 2 year period of temporary residence. The applicants contend that they are entitled to have the applications for permanent resident status submitted in April 1986 finally determined upon the law as it stood in October 1989. Also pleaded in the amendment, is a further estoppel preventing the Minister from denying that the applications lodged in April 1986 are still on foot.

38. The statement said to have been made by the Minister in the Senate does not add anything of significance for the disposition of this case to the extra-parliamentary communications made on his behalf by Senator Beahan and Mr Richardson and in correspondence by his Senior Private Secretary, Mr Fary. The applicants' argument depended in substance upon those communications, although their pleadings centred upon the parliamentary statement which, as appears later in these reasons, is protected by parliamentary privilege. Subject to the excision of any reference to the parliamentary statement and reliance to the same ends being placed upon the extra-parliamentary communications, the amendment sought would not prejudice the respondents, the issues which it raises having been argued on the hearing of the application. I would be prepared to allow the amendment in a varied form not invoking the Ministerial statement in the Senate.

39. By their proposed amended defence, the respondents allege that the Minister made a decision on 1 September 1989 refusing the applications which had been made in April 1986. They deny that Ms Norgard ever refused to consider the applications lodged in April 1986 as neither she nor the Minister were asked to consider them. And at no time prior to their applications to the Federal Court, it is said, did the applicants ask the Minister to reconsider their April 1986 applications on the basis that they were still on foot. Those applications, it is said, were determined by the Minister's decision on 1 September 1989 to refuse them. The additional estoppel is also denied. Again, subject to their variation for the purposes of meeting the changes necessary to the applicants' amendment as a result of my conclusion on the issue of parliamentary privilege, I would have allowed these amendments. In the circumstances, I will give each of the parties leave to file further amendments to the pleadings within 14 days to give effect to these observations. That should only be necessary if the matter is to go further so that the issues are properly on the record.

40. There is no new claim for relief specifically tied to the proposed amendments to the statement of claim. There is in the application a general claim for such further or other relief as the court thinks fit and this would support the grant of at least some declaratory order under s.23 of the Federal Court of Australia Act if the issues raised on the amendments to the statement of claim are resolved in favour of the applicants.
Parliamentary Privilege

41. As the applicants sought to rely upon a statement made by the former Minister in answer to a question without notice in the Senate on 6 October 1989, an issue of parliamentary privilege arises. No objection was taken on behalf of the present Minister or the other respondents to the pleading of this statement, its reception in evidence, or submissions made upon it. But the lack of objection cannot determine the application of the privilege. In Australia, the privileges of the Houses of the Commonwealth Parliament derive from s.49 of the Constitution which provides:

"The powers, privileges and immunities of the Senate and of the House
of Representatives, and of the members and the committees of each
House, shall be such as are declared by the Parliament, and until
declared shall be those of the Commons House of Parliament of the
United Kingdom, and of its members and committees, at the
establishment of the Commonwealth."

The language of the section conferred upon the Senate and the House of Representatives the full powers, privileges and immunities of the House of Commons - R. v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157 at 164. One of the privileges enjoyed by the House of Commons was, and is, the privilege of freedom of speech given statutory recognition in the Ninth Article of the Bill of Rights of 1688 which provided that:

"The freedom of speech and debate or proceedings in
Parliament ought not to be impeached or questioned in
any Court or place out of Parliament. "

42. In Australia, the privilege has been declared for the Parliament of the Commonwealth by the Parliamentary Privileges Act 1987, which provides in s.16(1) that:

"16(1) For the avoidance of doubt, it is hereby declared and enacted
that the provisions of article 9 of the Bill of Rights, 1688 apply
in relation to the Parliament of the Commonwealth and, as so
applying, are to be taken to have, in addition to any other
operation, the effect of the subsequent provisions of this section."

Sub-section (2) defines the term "proceedings in Parliament " in article 9 of the Bill of Rights as meaning "all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee,...". It goes on to specifically include the giving of evidence before a House or Committee, the presentation or submission of documents to the House or a Committee, preparation of documents for purposes of or incidental to the transacting of any such business and the formulation, making or publication of a document pursuant to an order of a House or a Committee and the documents so formulated made or published. Sub-section 16(3) provides:

"16(3) In proceedings in any court or tribunal, it is not lawful for
evidence to be tendered or received, questions asked or statements,
submissions or comments made, concerning proceedings in Parliament,
by way of, or for the purpose of -
(a) questioning or relying on the truth, motive, intention or good
faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive,
intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions
wholly or partly from anything forming part of those
proceedings in Parliament."

It is debateable whether, prior to the enactment of the legislation, the privilege conferred by the Ninth Article of the Bill of Rights could have been waived by a member of the House whose statements in the House were called into question. There are authorities which state that no member of the House of Commons is bound to disclose in court what that member or another has said in the House - Plunkett v Cobbett (1804) 5 Esp 136; 170 ER 763; Chubb v Salomons (1852) 3 Car and K 75; [1851] EngR 609; 175 ER 469 and the ruling of Townley J. sitting as a Commissioner reported in Royal Commission into Certain Crown Leaseholds (1956) St R Qd 225. In Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 36-37, Gibbs ACJ accepted that the effect of the authorities was that a member of Parliament is not compellable to give evidence without the permission of the House rather than not competent to give it without that permission. He went on to say that:

"No doubt the privilege is that of the House, rather than that of the
individual member...".

His Honour did not find it necessary to consider what would happen if the House wished to insist upon the privilege but the member did not. Professor Campbell in Parliamentary Privilege in Australia (1965) at p 33, expressed the view that a member could not waive privilege and referred to a ruling by the Speaker of the House of Representatives in 1952 which included an observation that anything said by members in the House in effect became the collective property of the House. In any event, sub-s.16(3) is expressed in terms of an absolute prohibition. Whether that prohibition can be overcome by any permission of the House of Parliament concerned may be doubtful and need not be decided here. But it is apparent under the legislation as it now stands that the prohibition contained in sub-s.16(3) cannot be waived by an individual member or be taken to have been waived in the absence of objection.

43. The section does not affect the ability of courts to resort to such matters as a record of parliamentary proceedings in aid of the interpretation of an Act (s.16(5)). Evidence may also be given of facts that occurred in the course of a sitting of the Parliament such as that a particular member spoke or was present or acted in a particular capacity - Sankey v Whitlam (supra) at 35-37; Cross on Evidence - Australian Edition para 27095. As Beaumont J. pointed out in his judgment in Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 232, it is open to the Court consistently with s.16(3) to consider an extract from Hansard, receiving it, "provisionally for the purpose of a temporary and conditional examination in order to enable the Court to inquire whether the reception of the extract into the evidence is, or is not prohibited by s.16(3) as properly construed. That case appears to be the only reported judgment dealing with the Parliamentary Privileges Act 1987 to this time.

44. In this case the applicants seek to use the ministerial statement as evidence of a decision made on 6 October 1989. Alternatively, they contend that they have acted in reliance upon the statement and that the Minister is now estopped because of it from denying that their application for permanent resident status made on 17 April 1986 is still on foot. They also seek to use it to support a characterisation of the Minister's disposition of the application for permanent residence made in April 1986 as a deferral rather than a refusal of those applications. The latter proposition, reflected in para 12A(a) of the proposed amendment to the statement of claim would, in my opinion, involve the use of evidence of the Minister's statement to the House for the purpose of establishing his intention or otherwise inviting the drawing of inferences from the proceedings in the Parliament of which that statement formed a part. Such a use of the statement is prohibited by paras. 16(3)(b) and (c) of the Act.For similar reasons the statement cannot be taken as evidencing a decision made by the Minister on that date. Even were it capable of supporting such an inference, which I do not think it was, its use to establish the inference would appear to contravene para 16(3)(c).

45. The proposition that an estoppel might be raised against a Minister by virtue of a parliamentary statement may be debatable. However, it is not necessary to determine that question now for in any event no estoppel is available to the applicants based upon the ministerial statement or extra parliamentary statements to like effect. Assuming that the applications made in April 1986 had been finally refused in 1989 and that the transitional provisions of the Migration Legislation Amendment Act 1989 did not apply, the powers of the Minister, constrained as they are by the new legislation, could not be extended by any estoppel - Formosa v Secretary Department of Social Security [1988] FCA 291; (1988) 81 ALR 687 at 695.

46. Having given effect to my views of the operation of the Parliamentary Privileges Act in relation to submissions based upon the ministerial statement and evidence thereof, and in respect of the proposed amendments to the pleadings, I consider there is nothing to be gained at this stage by making orders striking out those elements of the statement of claim which rely upon the ministerial statement. The point should no doubt have been taken as a threshold issue and objection raised to the tender of evidence in relation to it. In the event, no account has been taken of that evidence or those elements of the pleadings. I should add, although it is hardly necessary to do so, that the extra-parliamentary communications on behalf of the Minister not being in any sense extensions of his Parliamentary statement but preceding it, are not caught by the term "proceedings in Parliament" as were the extra-parliamentary communications considered in Roman Corporation Ltd v Hudson's Bay Oil and Gas Co. Ltd (1971) 23 DLR (3d) 292.
The Applicants' Present Rights

47. In my opinion, the only substantial question in this case is whether by reason of their 1986 applications for permanent residence and the Minister's decisions in relation to them, the applicants come within the transitional provisions of s.6(4) of the Migration Legislation Amendment Act 1989 and are entitled to be considered for permanent residence under the law as it stood before the 1989 amendments. If that is not the case then, as I have already indicated, no estoppel can operate to effectively alter the constraints on the grant of permanent residence introduced by the amending Act and the Migration Regulations.

48. As is demonstrated by the review of the relevant legislative and regulatory provisions, the applications lodged with the Minister in August 1991 by Mr Graeme Campbell MHR, related to a category of entry permit that has not existed since 12 July 1990. There was no reviewable error on the part of Ms Norgard in declining to consider those applications when they were resubmitted to her in October 1991 beyond such consideration as was necessary to ascertain that they were not covered by the Act or Regulations. Contrary to the applicants' pleadings, her conduct could not be characterised as a rejection of those applications on their merit. To the extent that she refused to consider the applications, she acted consistently with the law. So far as the first respondent, Ms Swift, is concerned, there is no basis for the conclusion that she had any relevant powers under the Act or Regulations. She wrote a letter on behalf of the Minister in her capacity as a senior adviser. The application so far as it relates to her is misconceived.

49. The contentions raised in the pleadings as to the invalidity of the Regulations in whole or in part were not supported by any argument of substance and nothing has been demonstrated to indicate that any of them is invalid in any relevant respect. The claim that the Minister was in breach of his duty in failing to consider whether to advise the Governor-General to include in the Regulations one which would provide for applications for persons such as the applicants and in particular the applicants, again was not supported by any substantial argument and I am satisfied that there was no basis for it. As to the obstacles confronting any attempt to review Ministerial advice see Attorney General (NSW) v Quinn (1990) 170 CLR 1 at 26 (Brennan J.).

50. The questions whether the applicants are entitled to be considered for permanent residence under the Act as it stood before the 1989 amendments does not emerge with clarity from the pleadings even in light of the proposed amendments which rely to a significant extent upon the ministerial statement of 6 October 1989. It was nevertheless addressed in argument before the Court and should be determined. The need to resolve the case expeditiously and to avoid prolonged uncertainty outweighs the desirability of delaying to allow further alteration to the pleadings to take account, inter alia, of my conclusions on the question of parliamentary privilege and otherwise properly to raise the issue of the application of the transitional provisions of the Migration Legislation Amendment Act.

51. The transitional provision, s.6(4) continues the operation of the pre-amendment provisions of the Migration Act 1958 relating to the granting of entry permits for the purposes of applications for entry permits made before the commencement of s.6 of the amending legislation. That commencement occurred on 20 December 1989. The principal effect of the transitional provision is that an application for an entry permit before 20 December 1989 is to be considered in accordance with the law as it stood prior to the amendments. Unlike its successor legislation, the pre-amendment Migration Act made no explicit reference to applications for entry permits although s.6(2) made the "request" or "consent" of a non-citizen a condition of the power to grant a permit before entry into Australia. The power to grant an entry permit was limited in the case of non-citizens who had entered Australia to the extent that it could be exercised only by the Minister or an officer authorised by him in writing (s.6A(3)).

52. The Minister's refusal to grant permanent entry permits to the applicants in September 1989 constituted a refusal to exercise the power that he had under the Act to accede to their applications. Instead he offered them the option of temporary entry permits on the basis that they would be considered for permanent entry permits at the expiry of two years. While the letter of 11 September 1989 from the Minister's Senior Private Secretary contemplated that there would be a "future application for permanent residency", this was not written in the context of the regulatory framework which later came into effect requiring applications to be in approved form (Reg. 23). There was also no express provision then as there is now, for a ministerial refusal with dispositive effect (s.34(a)).

53. The Minister's decision taken in September 1989 while expressed as a refusal to grant permanent entry permits was in substance a refusal pro tem to exercise in favour of the applicants the powers conferred on him to grant a permanent entry permit. He foreshadowed that the exercise of this power could be reconsidered at the expiry of 2 years. In substance he offered the applicants a period of probation for 2 years with the prospect, although not the guarantee, of a favourable consideration of the grant of permanent residence at the end of that time. That offer and the undertaking it implied was an outcome of the applications made in April 1986. The applicants are entitled to rely upon those applications now. Although refused at the time they were, in the circumstances surrounding that refusal, not fully concluded. In my opinion the applicants are, by virtue of s.6(4) of the Migration Legislation Amendment Act 1989 entitled to have their applications for permanent entry permits considered under the law as it stood prior to the amendments. That does not mean, of course, that they are entitled to the grant of permanent entry permits. Nor can these reasons be taken as expressing a view one way or the other on whether such permits ought to be granted. That is a matter entirely for the Minister and his officers to consider. There may be factors which favour the grant of the permits to some but not all of the applicants. But they are all entitled to at least be considered on the merits and that is a consideration which has been denied them.

54. In my opinion, the most convenient course in light of the conclusion to which I have come is to formulate a declaration of the applicants' entitlement to give effect to that conclusion as against the Minister. The applications will be dismissed as against the other respondents. I have formed the provisional view that in light of the basis upon which the applicants have succeeded there should be no order as to costs but I will give the parties liberty to apply for a different order within 7 days. I will allow all parties liberty to apply within 7 days on the form of the relief as against the Minister.