Case: Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194
Outcome: referred to
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 a Full Court was called on to construe various provisions of the Migration Act 1958 (Cth) and the Migration Regulations 1989 (Cth). It said (at 206): " The construction of the regulations is to be approached by looking first to the statutory power in exercise of which they were made . As we have indicated, that is found in s 33 of the Act. This provides that the regulations may make provision that a person is entitled to be granted an entry permit of a particular class if the person satisfies all the prescribed criteria in relation to that class (s 33 (2)(b)). The power is expressed as being "subject to sections 40 and 45". Section 40 empowers the Minister to determine that the processing of entry permit applications of a specified class which have been made by persons who have entered and remained in Australia is to stop until a day specified in the notice given by him. Section 45 provides that an entry permit shall not be granted to certain deportees where an amount is still payable by them to the Commonwealth under s 65 or s 66. Section 65 deals with the costs of deportation, and s 66 with the costs of keeping deportees in custody. Further, s 34 imposes upon the Minister an obligation, where the relevant jurisdictional pre-condition is established, either to grant or refuse an entry permit. Judicial review of decisions of the Tribunal is confined by s 138 to an "appeal" which is "on a question of law". The result, if the statute and the regulations are taken as a whole, is to disclose a compromise which represents a balance between various competing interests which are involved. The particular pattern which is set in this way is not to be distorted by treating one element in it other than in accordance with the fair meaning allowed by the language which has been used. There is no reason to give a "broad and generous construction" to reg 131A. To do so may detract from the force given in the balance of the legislative scheme to the other interests which are involved. These include the view taken by other branches of government and reflected in the legislative text, being the statute and the regulations, of the social and material interests of the country as a whole in relation to the entry and settlement of aliens, and of the conditions which should be attached to permission to enter and stay in Australia: Robtelmes v Brenan [1906] HCA 58 ; (1906) 4 CLR 395 at 400; Pochi v MacPhee [1982] HCA 60 ; (1982) 151 CLR 101 at 106" (emphasis added). It may be accepted that a purpose of s 27 is to ameliorate the effect of serious misfortune on past catch and activity rates. Section 26 allows an eligible person to rely on his or her best 2 years' catches between 1997 and 2001 (inclusive). Section 27 must, therefore, seek to compensate for more than the vicissitudes of commercial fishing which are acknowledged by this part of the formula. The purpose of s 27 is not to maximise the possible benefit for an individual operator. Nor is it to put the operator in the position he or she would have been in but for the serious misfortune. That is simply not possible. The objects of ss 26 and 27 are advanced on the construction contended for by AFMA, notwithstanding that it is not the construction most advantageous to Mr Kennedy's financial interests. In my view, there is nothing in s 27 that supports Mr Kennedy's submission that the phrase "all sequences" in ss 27(1)(c) and (d) should be read as excluding inactive permits. It is true that s 27(1)(c) refers to "all sequences of that kind (old longline or old minor line, as the case may be)" which requires the person performing the calculation to limit the sequences to either old longline sequences or old minor line sequences. There is, however, nothing in s 27 which justifies further limiting "all sequences of that kind" to old longline sequences that were active during the period of serious misfortune. Sections 26 and 27, prescribe, with a high degree of specificity, how the grants of quota SFRs are to be calculated when a person has suffered serious misfortune. Section 27 could expressly have limited the permits that were to be included in the "average catch" and the "average number of times a longline was set" to those permits that had been used during the applicant's period of serious misfortune. It did not do so.