Teresa Pasini Cabal v Minister for Immigration & Multicultural Affairs & Ors [1999] FCA 13 (5 January 1999)

Last Updated: 15 January 1999

FEDERAL COURT OF AUSTRALIA

Cabal v Minister for Immigration and Multicultural Affairs

[1999] FCA 13

MIGRATION - bridging visa - alleged failure of Minister to make decision within two "working days"- one day of the period (29 December 1998) a public holiday under the Australian Public Service Award but not a public holiday in Victoria under the Public Holidays Act 1993 (Vic) - trial of separate question

WORDS AND PHRASES - "place" - "public holiday" - "working day"

Migration Act 1958 (Cth) ss 5, 75(1)(a)

Migration Regulations 1994 (Cth) reg 2.24(2)(a)

Australian Public Service General Employment Conditions Award 1995 (Cth) cl 29

Public Holidays Act 1993 (Vic) ss 1, 8

The Great Fingall Consolidated Ltd v Sheehan [1905] HCA 43; (1905) 3 CLR 176 at 184 applied

TERESA PASINI CABAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOR

NO. V 3 of 1999

MONSERRAT GONZALES KARRAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOR

NO. V 4 of 1999

HEEREY J

5 JANUARY 1999

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 3 of 1999

BETWEEN:	TERESA PASINI CABAL Applicant
AND: AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent MR ROSS FURLONG (in his capacity as an officer under the Migration Act 1958 (Cth)) Second Respondent
	V 4 of 1999

BETWEEN:	MONSERRAT GONZALES KARRAS Applicant
AND: AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent MR ROSS FURLONG (in his capacity as an officer under the Migration Act 1958 (Cth)) Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	5 JANUARY 1999
PLACE:	MELBOURNE

THE COURT ORDERS THAT:

1. The question:

"Whether Tuesday 29 December 1998 was a `working day' within the meaning of reg 2.24(2)(a) of the Migration Regulations for the purposes of s 75(1)(b) of the Migration Act 1958 (Cth)"

be answered:

Yes.

2. Any further affidavits by the applicants to be filed and served by 5 pm today.

3. The respondents' affidavits (other than that of Ms Trucco) be filed and served by 10 am Thursday 7 January 1999.

4. Any affidavit by Ms Trucco be filed and served by 4 pm Thursday 7 January 1999.

5. Fix the applications for trial on Friday 8 January 1999.

6. Today's costs be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 3 of 1999

BETWEEN:	TERESA PASINI CABAL Applicant
AND: AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent MR ROSS FURLONG (in his capacity as an officer under the Migration Act 1958 (Cth)) Second Respondent
	V 4 of 1999

BETWEEN:	MONSERRAT GONZALES KARRAS Applicant
AND: AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent MR ROSS FURLONG (in his capacity as an officer under the Migration Act 1958 (Cth)) Second Respondent

JUDGE:	HEEREY J
DATE:	5 JANUARY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 Under O 29 r 2(a) of the Federal Court Rules, I have ordered that the following question be tried as a separate question, namely:

"Whether Tuesday 29 December 1998 was a `working day' within the meaning of reg 2.24(2)(a) of the Migration Regulations for the purposes of s 75(1)(b) of the Migration Act 1958 (Cth)."

2 I need to say a little of the background against which this question arises. There are two proceedings which for present purposes raise identical issues of fact and law. I shall deal only with V 3 of 1999 in which the applicant is Teresa Pasini Cabal. The other matter is V 4 of 1999 in which the applicant is Monserrat Gonzales Karras.

3 The applicant has brought this application seeking interlocutory and permanent relief on the basis that she applied for a bridging visa under Pt 2 Div 3 Subdiv AF of the Migration Act 1995 , and because the Minister did not make a decision within the prescribed period she is entitled as of right to a visa. Section 75(1) provides:

"If:
(a) an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and
(b) the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;
the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period."

4 The interlocutory application was short-served. Counsel for the Minister, Mr Gunst QC, indicated that there would be a number of factual issues raised and he was obviously not in a position to proceed with those today. However, he identified one point said to be fatal to the applicant's case, namely that Tuesday, 29 December 1998 was not a "working day". If that contention is correct then it would indeed follow that the substantive application must fail. Accordingly, I directed that the above question be tried as a separate question.

5 The "prescribed period" mentioned in s 75(1)(b) is to be found in reg 2.24(2) of the Migration Regulations (Cth) which provides:

"For the purposes of paragraph 75(1)(b) of the Act (which deals with the time in which the Minister must make a decision on a bridging visa application), the prescribed period is:

(a) in the case of an application by:

(i) a non-citizen who has been immigration cleared; or
(ii) a non-citizen who is an eligible non-citizen referred to in subregulation 2.20(6);
two working days; or

(b) in any other case - 28 days."

6 It is common ground that the applicant comes within sub-par (a)(i).

7 The expression "working day" is not defined in the Regulations. However, s 5 of the Migration Act 1993 defines it as follows:

"`Working day', in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place."

8 Public holidays in Victoria are governed by the Public Holidays Act (Vic). The purpose of that Act, as stated in s 1, is:

"to make new provision with respect to public holidays in Victoria."

9 Section 6 specifies that certain nominated days are public holidays, for example, New Year's Day, 26 January (Australia Day), etc. Section 7 provides for the Minister to gazette certain additional days as public holidays. Section 8 provides for the gazetting of substituted public holidays. Under s 8 the Victorian Minister for Small Business, the Honourable Louise Asher MP, on 9 April 1998 appointed Monday, 28 December 1998 as a "public holiday to apply throughout the whole of the State and to all persons to whom and bodies to which the Act applies." However, neither in the Public Holidays Act 1995 itself nor in any declaration made by the Minister was Tuesday, 29 December 1998 designated as a public holiday.

10 Reference should also be made to s 4 of the Public Holidays Act which states:

"This Act applies to -

(a) all persons in Victoria not covered by a federal award who are employed under an Act or a contract of employment or other agreement or arrangement relating to employment or who are bound by an employment agreement within the meaning of the Employee Relations Act 1992; and

(b) every person or body employing a person referred to in paragraph (a)."

11 The Australian Public Service General Employment Conditions Award (Cth) ("the Award") governs the conditions of Commonwealth Public Service employees including officers of the Department of Immigration. Clause 29 of the Award is headed "Public Holidays". Clause 29.1 states:

"Designated holidays: An employee will observe the following 11 holidays each year and will be paid salary as if that day were not a public holiday."

12 Then appear a number of stated holidays - New Year's Day, Australia Day, etc, and (cl 29.1.8), "26 December (Boxing Day) or, if that day falls on a Saturday or Sunday, 28 December". Clause 29.1.9 provides for:

"an additional day within the Christmas/New Year period according to the following table".

There follows a table which fixes an additional day depending on which day of the week Christmas Day falls. When, as in 1998, Christmas Day falls on a Friday, the additional day is Tuesday, 29 December.

13 Thus the applicant argues that 29 December 1998 was not a public holiday in Victoria. The Minister argues that for the purposes of the Commonwealth Public Service, and thus for the administration of the Migration Act 1901 , 29 December was a public holiday.

14 The legal issues which arise are, first, what is the proper construction of the expression "public holiday" in the definition of "working day" in s 5 of the Migration Act and, secondly, if that expression means a public holiday under the Victorian Act, whether there is a contrary intention evinced by reg 2.24(2)(a) - see Acts Interpretation Act (Cth) s 46(a).

15 Traditionally in Australia the designation of public holidays has been a matter for the legislatures of the States and Territories. It is not necessary to consider whether, in any event, the Commonwealth Parliament would have power to declare a day a public holiday. For all practical purposes the declaration of public holidays is left to the States and Territories.

16 The expression "place" is used in the definition of "working day" because public holidays are not all uniformly observed throughout Australia. Some are, such as Christmas Day and Anzac Day. Others, such as Melbourne Cup Day and Hobart Regatta Day, are not. Therefore whether a day is or is not a public holiday depends on the law of the State or Territory in which the question arises. So the word "place" in the definition must mean State or Territory. It cannot mean, as I think the Minister's argument necessarily requires, some particular office of the Immigration Department.

17 In the present case the question arises in the State of Victoria. The applicant is detained in this State and all administrative decisions affecting her have been made here in Melbourne.

18 The Award does not purport to proclaim what are to be public holidays. It assumes the existence of State and Territory legislation which fulfils this purpose. The terms of the Award itself recognise this. For example, cl 29.1.5 which designates:

"in each State and Territory, the day observed to celebrate the anniversary of the birthday of the Sovereign."

Also cl 29.3 makes reference to the day the Victorian Government gazettes as the Melbourne Cup holiday.

19 The very term "public" suggests something that is known generally and applies to all persons in the place; in this case in the State of Victoria. The contention of counsel for the Minister is that "working day" means the day on which work is done by the person who is in fact "there to make the decision". This seems to me to introduce a quite impracticable investigation of the internal working arrangements of the Department or one of its particular offices or sections. In a context where the question will usually be determinative of the liberty of the subject, Parliament must be taken to have intended that what was or was not a public holiday, and thus a "working day", would be readily ascertainable. On the Minister's construction what was or was not a working day might turn on idiosyncratic circumstances, such as whether the particular officer was away from work or whether there was a strike or some other interruption of work. I might add also that it is a matter of notoriety that aircraft and ships arrive in this country seven days a week and there have to be officers of the Department available to carry out necessary tasks even though the general offices may be closed.

20 As a matter of ordinary language the expression "public holiday" would be understood as a public holiday fixed by law in the particular State or Territory in which the question arose. The Minister's argument involves a departure from that plain meaning by reliance on delegated legislation (the Award) made subsequently to the Migration Act and under a different statute. By usual canons of statutory construction this is an impermissible technique: The Great Fingall Consolidated Limited v Sheehan [1905] HCA 43; (1905) 3 CLR 176 at 184 per Griffith CJ with whom Barton and O'Connor JJ agreed; Pearce and Geddes, Statutory Interpretation in Australia (4th ed) at 76-77.

21 Reliance was placed by counsel for the Minister on s 4 of the Public Holidays Act to which I have already referred. However, I think that provision has to be seen as an understandable withdrawal of the Victorian legislature from matters concerning the industrial relationships of the Commonwealth and its employees. Public holidays are of course important for industrial purposes but their significance extends beyond that. What is or is not a public holiday is important for private law matters; for example time periods fixed in contracts and other instruments (cf s 9 of the Victorian Act dealing with bills of exchange), for education in schools and universities and a whole host of private and public arrangements.

22 I conclude therefore that within the meaning of the definition in s 5, 29 December 1998 was for the purposes of the present case a "working day" because it was not a Saturday, a Sunday, or a public holiday in the State of Victoria.

23 The question then arises whether a contrary intention has been disclosed for the purposes of s 46(a) of the Acts Interpretation Act which provides:

"Where an Act confers upon any authority power to make, grant or issue any instrument including rules, regulations or by-laws, then

(a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act."

24 It may be that it would be more convenient for the administration of the Department if "working day" meant a day on which the offices of the Department are generally open. There would have been no difficulty in drafting the regulation so that the term "working day" bore that meaning. But this was not done.

25 The expression "working day" is used in a number of places in the Act. Counsel for the applicant directed me to ss 48B(1), 91F(1)(a), 195(1)(a) and (b), 223(9), 352(2) and (3) and 418(2). There may be others. Thus it is a criterion used frequently in the Migration Act and defined in the definition section. The meaning for which the Minister contends is not an enlargement or narrowing of the s 5 definition or a nuanced shading of meaning. It is something fundamentally different. If there was an intention to use the term "working day" in this particular regulation in that different sense one would expect to find that done expressly.

26 I therefore answer the question: Yes. I will make directions as to the further progress of these matters.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey J.

Associate:

Dated: 5 January 1999

Counsel for the Applicant:	Mr K Bell QC and Ms D Mortimer
Solicitors for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	Mr C Gunst QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 January 1999
Date of Judgment:	5 January 1999