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MIGRATION - Inadmissible entry permit application - second on-shore application by illegal entrant - whether applicant for class 816 permit had "a prescribed change in circumstances" - Russian seaman deserted ship - whether illegal entrant - whether Minister had duty to consider application.

Dronov v Minister for Immigration [2004] FMCA 627 (15 September 2004)

Dronov v Minister for Immigration [2004] FMCA 627 (15 September 2004)
Last Updated: 7 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRONOV v MINISTER FOR IMMIGRATION
[2004] FMCA 627



MIGRATION - Inadmissible entry permit application - second on-shore application by illegal entrant - whether applicant for class 816 permit had "a prescribed change in circumstances" - Russian seaman deserted ship - whether illegal entrant - whether Minister had duty to consider application.



Migration Act 1958 (Cth), ss. Part 8, 4(1)(d), 9, 14(4), 36, 37, 37(1), 37(1)(a), 37(1)(b), 37(1)(c), 37(2), 37(2)(a), 121, 474, 474(3)(j), 477, 483A

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth), s.39B

Federal Magistrates Court Rules 2001, P 21 r 21.02(2)(a)

Migration (1993) Regulations, r. 2.10

The Migration (1993) Regulations (Amendment) in Statutory Rules 1994 No.11, r. 2.10(d), 2.10(da), 2.10(ha) 2.10(hb)

Australian Postal Corporation v Forgie (2003) 130 FCR 279

Buck v Comcare (1996) 66 FCR 359

Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673

Enfield City Corporation v Development Assessment Commission (1999) 199CLR 135

Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Qui v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439

Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82

Applicant:
VALERIY DRONOV



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ2119/2004



Delivered on:


15 September 2004



Delivered at:


Sydney



Hearing date:


15 September 2004



Judgment of:


Smith FM


REPRESENTATION

Counsel for the Applicant:


Applicant in person



Counsel for the Respondent:


Mr A Markus



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed

(2) Applicant to pay the respondent's costs in the amount of $4500

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ2119 of 2004

VALERIY DRONOV


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application lodged in the Federal Court of Australia on

2 June 2004 and transferred to this Court by order of Conti J on 29 June 2004. It is an application under the Federal Court's jurisdiction, which is also given to this Court pursuant to section 483A of the Migration Act 1958 (Cth), to provide judicial review remedies under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s.39B of the Judiciary Act 1903 (Cth).

2. The remedies are subject to limitations under Part 8 of the Migration Act, in particular where the decision challenged is a "privative clause decision" as defined in s 474. In Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 and subsequent cases the High Court has held that relief may be given in a challenge to a decision which would otherwise fall within the definition if the decision was vitiated by jurisdictional error. In such a case, the 28 day limit provided by section 477 would also not apply.

3. In his present application the applicant seeks to challenge an administrative action taken by Mr Michael McElroy and notified to the applicant by letter dated 25 July 1994. The letter stated:

Dear Mr Dronov

I refer to you application for a Class 816 (permanent) entry permit reference N90/529553, which was submitted to this office on 14 July 1994.

Whilst a person is entitled to the grant of a visa or entry permit if application is made in accordance with the regulations and the person meets all the criteria prescribed for the visa or entry permit, the Migration Act 1958, in particular Sections 36(1)(a) and 37(2)(a), places a limitation on further applications by persons who are illegally in Australia and who have been refused the grant of an entry permit unless there has been a prescribed change in circumstances, or an application has been invited by a review authority under Section 121.

As your previous application for an entry permit was refused on 15 May 1992 and you do not hold a current entry permit you are not allowed to make another application for an entry permit while you are in circumstances since you lodged you last application.

As the grounds for your current application to remain permanently in Australia do not constitute a prescribed change in circumstances you application is an inadmissible application and cannot be accepted.

You do not have a right of review of this decision under the Migration Act 1958.

Yours Sincerely,

Michael McElroy

Case Officer, 1 November Task Force Sydney

25 July 1994

Attached to that letter were the decision-maker's findings and his explanation as to why he considered that s.37(2) prevented the applicant's application for a class 816 entry permit being processed.

4. While the applicant in his application for judicial review clearly identified the above letter as containing the action which he wanted reviewed, he did not analyse its nature nor specify the relief sought. However, it is reasonable to infer that he seeks orders to compel a decision on his class 816 entry permit application and, if necessary, setting aside the decision that it was "inadmissible".

5. There may be room for debate as to the issue for the court when reviewing an administrator's decision to give effect to s.37 by refusing to process an entry permit application. On one view of the provision, the court itself must address the evidence before it and decide whether the statutory conditions which would render the application "inadmissible" in fact exist. This interpretation would find support in the framing of the provision as a direct exclusion of an illegal entrant's right to make a second on-shore entry permit application, rather than as a direction to the Minister to be satisfied as to pre-conditions for receiving the application. The "admissibility" of the application would be a matter which the court itself could resolve in a matter properly brought before it (Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 at 601, Buck v Comcare (1996) 66 FCR 359 at 362, and c.f. Australian Postal Corporation v Forgie (2003) 130 FCR 279 at [57]). Putting this analysis another way, it might be said that the existence of a statutory entitlement to make the entry permit application is a matter of jurisdictional fact governing the Minister's duty to receive and decide the application substantively. On both approaches it would be the duty of the court to determine the questions of fact and law arising under s 37 for itself. On both approaches, Part 8 of the Migration Act would present no difficulty to the application, either because the challenged action did not involve a "decision" within s 474, or (on the second approach) because an erroneous "failure or refusal to make a decision&q;
uot; within s 474(3)(j) would necessarily be vitiated by "jurisdictional error".

6. The alternative view of the issue to be addressed by the Court is that s.37, though framed as a prohibition on the making of an application, both confers on the Minister an implied power to determine whether the conditions under which s 37(2) takes effect and also intends that the Court should be confined to reviewing the administrative decision-maker's satisfaction as to the s 37 conditions (c.f. Enfield City Corporation v Development Assessment Commission (1999) 199 CLR 135 at [34] and [59] and cases there cited). On this interpretation, the court's opinion on whether the conditions exist would be irrelevant, and it could not give relief if the decision-maker made only errors of fact. Moreover, an error of law identified in the decision would need to be categorised as "jurisdictional" before the restrictions of Part 8 could be avoided.

7. I have not found it necessary to explore these points further in the present case. In the absence of legal representation for the applicant and in view of the limited discussion of these issues with the respondent's counsel in argument before me, I have addressed the evidence before me on the basis of both interpretations. That is, by asking whether I am satisfied on the evidence that the applicant's entry permit application was rendered inadmissible by s 37(2), and also by asking whether the decision-maker's opinion on this has been shown to have been flawed by error amounting to jurisdictional error. Since I have answered "yes" to the first question and "no" to the second question, the applicant must be refused any relief by way of mandatory order to compel the making of a substantive decision on his entry permit application.

8. Section 37 at the relevant time provided:

Restriction of applications for entry permits - illegal entrants

37. (1) This section applies to an illegal entrant who:

(a) has entered, and remains in, Australia;

(b) while in Australia, has been refused an entry permit; and

(c) is not a person to whom section 36 applies because of section 121.

(2) Where this section applies to a person, the person is not entitled to make any further application for an entry permit while he or she remains in Australia unless:

(a) there has been a prescribed change in the person's circumstances since he or she last applied for an entry permit; and

(b) no deportation order has been made in respect of that person under section 59.

(3) Nothing in this section prevents a person making a further application for an entry permit while he or she remains in Australia if:

(a) he or she has been notified under subsection 121(2); and

(b) the further application is made, because of that notification, within 10 working days after he or she is so notified.

9. In relation to the conditions set out in section 37(1) the evidence before the decision-maker and before me showed the following in relation to whether the applicant was an "illegal entrant" when he made his class 816 application in 1994.

10. The applicant entered Australia as a seaman on the vessel Maxim Mikaelov, which according to the applicant's application entered Australia on 27 August 1990. There is a seaman identification card in evidence bearing that date and bearing the photograph of the applicant. It is clear that the applicant at the time of his entry had status as an "exempt non-citizen" under paragraph (d) of the definition of this term in s.4(1) of the Migration Act.

11. Section 9 of the Act provided at the relevant time that a person "stops being an exempt non-citizen if ...

(c) where the person is described in paragraph (c) or (d) of that definition:

(i) the person remains in Australia after the vessel has left the port at which he or she entered, or last entered Australia; or

(ii) before the vessel has so left, the person becomes absent without leave;

12. In the present case, the file before the decision-maker included a statement by the applicant and other statements indicating that he deserted from his ship on Saturday, 6 October 1990, and that the vessel shortly thereafter left Sydney. In particular in a record of interview, the applicant is recorded as having said that he: "Arrived as trainee seaman aboard vessel. Granted shore leave 6.10.90 at 12.00 to 8.00 pm. On day did not return to vessel." The applicant thereupon became an illegal entrant pursuant to section 14(4) because "while he or she is in Australia, he or she stops being an exempt non-citizen".

13. There was no evidence before the decision-maker in 1994 or before me suggesting that the applicant had subsequently been issued with an entry permit which rendered lawful his illegal non-citizen status. Moreover, the applicant did not contend that this had happened. At all times, the evidence therefore has been that in 1994 the applicant was "an illegal entrant who... has entered, and remains in, Australia" within s.37(1)(a).

14. Turning to s.37(1)(b), it was also uncontested that in 1994 the situation was that "while in Australia (the applicant) has been refused an entry permit". The evidence of this is the record of a decision made and notified to the applicant by letter dated 15 May 1992, which informed the applicant that an application he had made "for refugee status" was deemed to be an application for a Domestic protection (temporary) entry permit and had been refused, and that therefore the grant of this permit had been refused.

15. The condition in s.37(1)(c) requires a consideration of whether in 1994 the applicant was not a person to whom section 36 applied because of section 121. In short terms, s.121 allowed a review Tribunal to give an applicant for review a notification that he might have grounds for making another application for an entry permit of the same or a different class, and then provided an opportunity for the permit to be applied for. In such a case, section 36 would arise and section 37 would not apply. There was no evidence that this occurred in the applicant's case, and before me he conceded that he had not received a s.121 notification in the course of an application for review of the refusal of refugee status.

16. The evidence before the decision-maker and before me therefore shows that in 1994 the applicant was a person to whom section 37 applied. The only way that a duty to process his application would therefore arise, would be if within section 37(2)(a) there had been a "prescribed change in the person's circumstances since he or she last applied for an entry permit".

17. The events which could amount to a "prescribed change" were prescribed in the Migration (1993) Regulations, regulation 2.10. This listed a whole series of classes of visas and circumstances, which were prescribed for the purposes of section 37 so as to allow a second on-shore application for an entry permit by an illegal entrant. I need not set out the whole of the regulation, since it is clear that none of them applied to the applicant.

18. In the reasons attached to the letter which is set out above, Mr McElroy refers to two "prescribed changes in circumstances" that had been included within regulation 2.10 at the time that the Migration (1993) Regulations were amended to introduce the class 816 entry permit, for which the present applicant applied. The Migration (1993) Regulations (Amendment) in Statutory Rules 1994 No 11 commenced on 1 March 1994, and introduced a class of concessionary entry permits directed at a large group of persons, particularly including nationals of the Peoples Republic of China following the Tiananmen Square massacres, who were claiming refugee protection at that time. The nature of the entry permit is more fully described by Lockhart J in Qui v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 and Wilcox J in Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673.

19. The amending Regulation added paragraphs (d), (da), (ha) and (hb) to regulation 2.10, so as to allow an on-shore grant of the class 816 permit on a second application by some people, but in more confining circumstances than the criteria for the 816 entry permit itself. In particular, as the present decision-maker recognised, the exemption from the effect of section 37 under paragraphs (ha) and (hb) both required the applicant to have been: "...granted a visa (of any class) overseas on or before 12 March 1992 and used that visa to travel to and enter Australia on or before 1 November 1993." In the present case, in my view plainly, the applicant could not satisfy that regulation since he had never been "granted a visa" but had entered Australia as an exempt non-citizen seaman. The applicant suggested to me that this was not a relevant distinction, and that the regulation should be read as encompassing anyone who had lawfully entered Australia before November 1993. However, unfortunately I think the language is clear and I decline to read it in the way that the applicant would like me to.

20. For the above reasons, I consider on the evidence before me and which was before the decision-maker, that the respondent had no duty to process the applicant's 1994 class 816 entry permit application further. In my opinion, the present decision-maker made the correct decision that the application in front of him was not one which the applicant was entitled to make.

21. I therefore am not satisfied that the decision conveyed by the letter to the applicant of 25 July 1994 reflected any jurisdictional error, nor that there is any other circumstance which would allow a court to direct the further processing of the applicant's application for an 816 class entry permit. I consider that the applicant's application to this Court fails on its basic merits and that it should be dismissed on that ground.

22. I should note, however, that even had I found a duty to address the applicant's 1994 visa which had not been performed, the length of time which it has taken the applicant to make his application to the Court is such that the Court in its discretion should refuse relief (c.f. Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [51-3], [148-9]).

23. The applicant's only explanation for his ten year delay in seeking relief was that he had been misled by the last sentence in the letter of decision of July 1994 which said "you do not have a right to seek a review of this decision under the Migration Act 1958". The applicant did not give evidence on oath as to his state of belief as to that paragraph, nor as to his relevant circumstances since 1994. In my opinion, a reasonable reading of the letter would understand that it was referring to the absence of merits review, and I have difficulty in believing that the applicant was actually misled as to this for ten years. Even if the letter contained a misleading statement as to the availability of judicial review, I do not consider that this alone would provide justification sufficient to cause this Court to overlook such a lengthy delay.

24. I therefore dismiss the application.

25. RECORDED : NOT TRANSCRIBED

26. I consider that the normal costs rule should apply, and the applicant should pay the respondent's costs which I assess at $4,500.


I certify that the preceding Twenty six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 23 September 2004
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