FEDERAL COURT OF AUSTRALIA

Plaintiff B9/2014 v Minister for Immigration and Border Protection [2014] FCAFC 178

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This appeal raises only one issue and it is best understood by reference to the circumstances in which it arises. We commence with those circumstances.

2    The appellant is an infant, now a little over a year old. He was born in November 2013, in Brisbane and, apart from a period of hospitalisation after his birth, he has remained with his parents in immigration detention in Australia.

3    On 3 December 2013, the appellant’s father signed an application for a Protection (Class XA) visa (protection visa) on the appellant’s behalf, which was lodged with the Department of Immigration and Border Protection. Some of the circumstances that gave rise to the application are set out in statutory declarations accompanying the application.

4    These statutory declarations indicated that the appellant’s parents were born in Myanmar and were Rohingya Muslims, who left Myanmar for fear of persecution because they were Rohingya Muslims. According to the statutory declarations, for a time, the appellant’s parents lived in Malaysia (where the appellant’s two older siblings were born); and the appellant’s parents were registered in Malaysia as refugees with the UNHCR and given UNHCR refugee cards. The family eventually left Malaysia for Indonesia; and later set off from Indonesia for Christmas Island (which is an Australian territory) by boat.

5    The appellant’s family arrived at Christmas Island on 15 September 2013, where they were detained under the Migration Act 1958 (Cth) (Migration Act) as “unlawful non-citizens” and “unauthorised maritime arrivals”. They were subsequently transferred to immigration detention facilities on Nauru.

6    The appellant’s mother was pregnant with the appellant when she arrived at Christmas Island and received medical attention whilst in immigration detention there and on Nauru. On medical advice, on 11 October 2013, she was flown to Brisbane for hospitalisation pending the appellant’s birth. The appellant’s father and two siblings were flown to Brisbane on 18 October 2013, in order to be with the appellant’s mother and the appellant at his birth the following month. Whilst in Australia, the appellant’s family members have had the status of “transitory persons” to whom s 198AH of the Migration Act applied. They have remained in immigration detention pursuant to s 189 of the Migration Act, and have not been granted any visas permitting them to enter Australia and remain in Australia lawfully.

7    The appellant’s December 2013 protection visa application was the subject of a decision by a delegate of the respondent Minister (the Minister) in January 2014. The delegate decided that this application was invalid by reason of s 46A of the Migration Act. We return to this provision below.

8    This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of that decision. The proceeding was originally commenced in the High Court of Australia in the appellant’s name (by his mother as his litigation guardian); and the matter was remitted from the High Court to the Federal Circuit Court.

9    Broadly stated, the issue on this appeal is whether the appellant is an “unauthorised maritime arrival” as defined in s 5AA of the Migration Act. If he is, then his December 2013 protection visa application is “not a valid application” and the Minister cannot consider it. This follows from ss 46A and 47 of the Migration Act.

10    Section 46A(1) provides that:

An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

(a)    is in Australia; and

(b)    is an unlawful non-citizen.

It is not disputed that, for the purposes of the Migration Act, the appellant is an unlawful non-citizen (within the meaning of s 14 of that Act) and in Australia. The only live question is whether he is an unauthorised maritime arrival for the purpose of s 46A. The Minister has not exercised the power conferred on him by s 46A(2) to determine that s 46A(1) does not apply to the appellant’s application for a protection visa.

11    If the appellant’s protection visa application is not a valid application, then s 47(3) of the Migration Act applies. This provision specifically states that “[t]o avoid doubt, the Minister is not to consider an application that is not a valid application”.

12    For the reasons stated hereafter, as properly construed and applied, the Migration Act requires us to conclude that the appellant is “an unauthorised maritime arrival” and that his December 2013 protection visa application is not valid. The learned Federal Circuit Court judge did not err in dismissing the appellant’s judicial review application.

decision of the federal circuit court

13    The Federal Circuit Court judge accepted that the “literal and ordinary meaning” of the phrase “entered Australia by sea” in s 5AA(1) of the Migration Act was “inapt to describe the circumstances in which the [appellant] came to be present in Australia”: see Plaintiff B9/2014 v Minister for Immigration [2014] FCCA 2348 (FCCJ) at [26]. His Honour considered, however, that that phrase “does not bear, or perhaps does not just bear, its ordinary meaning” because s 5AA(2) “works to define the meaning of that phrase, either exhaustively or by way of extension” in that it “specifies three separate circumstances in which a person will have entered Australia by sea”: FCCJ at [29] (emphasis original). His Honour reasoned that, if the appellant entered the migration zone by reason of his birth, then he fell within the circumstance set out in s 5AA(2)(a), namely that he “entered Australia by sea if [he] … entered the migration zone except on an aircraft”: FCCJ at [30].

14    The effect of s 10 was, so his Honour said, that “a child who was born in the migration zone and was a non-citizen when he or she was born, shall be deemed to have entered Australia when he or she was born”: FCCJ at [32], [49]. His Honour rejected the appellant’s submission that s 10 dealt only with the time at which entry into Australia occurred, holding that the provision “operates to supply two facts” – “ the fact of entry into Australia” and “the time at which that entry occurred”: FCCJ at [33]. His Honour concluded that, once it is determined the appellant “entered the migration zone except on an aircraft that landed in the migration zone, he must, by reason of s 5AA(2)(a), be said to have entered Australia by sea”: FCCJ at [51]. This interpretation was, his Honour considered, “consistent with the context, structure and policy of the Act as a whole”: FCCJ at [52]. He was not persuaded that the extrinsic materials relating to the legislative history of s 10 supported the appellant’s proposed construction, although he was persuaded that these materials showed that “it was clearly the intention of Parliament to establish a regime whereby the immigration status of a non-citizen child born in Australia followed or aligned with that of his or her parents”: FCCJ at [39]. Accordingly, his Honour concluded that the delegate’s decision did not disclose jurisdictional error and accordingly dismissed the appellant’s judicial review application.

15    This is an appeal from his Honour’s judgment, the sole ground of appeal being that his Honour “erred in finding that the Appellant was an ‘unauthorised maritime arrival’ within the meaning of that term in s 5AA of the Migration Act 1958 (Cth)”.

the parties’ submissions

16    It is unnecessary to set out the parties’ submissions in detail. The parties largely repeated the submissions that they had made before the Federal Circuit Court. The substance of the parties’ submissions in this Court sufficiently appears below, in our consideration of the case.

consideration

17    The Migration Act does not leave the meaning of the expression “an unauthorised maritime arrival” in s 46A to judicial conjecture. Rather, the text of s 5AA of the Migration Act, when read as part of that Act, gives the expression a clear meaning, which is supported by its statutory context and purpose and most of the relevant legislative history.

18    We commence with the text of s 5AA of the Migration Act, which defines what is meant by this expression, for the purposes of the Migration Act. In December 2013, when the appellant’s protection visa application was made, s 5AA provided:

Meaning of unauthorised maritime arrival

(1)    For the purposes of this Act, a person is an unauthorised maritime arrival if:

(a)    the person entered Australia by sea:

(i)    at an excised offshore place at any time after the excision time for that place; or

(ii)    at any other place at any time on or after the commencement of this section; and

(b)    the person became an unlawful non-citizen because of that entry; and

(c)    the person is not an excluded maritime arrival.

    Entered Australia by sea

(2)    A person entered Australia by sea if:

(a)    the person entered the migration zone except on an aircraft that landed in the migration zone; or

(b)    the person entered the migration zone as a result of being found on a ship detained under section 245F and being dealt with under paragraph 245F(9)(a); or

(c)    the person entered the migration zone after being rescued at sea.

Excluded maritime arrival

(3)    A person is an excluded maritime arrival if the person:

(a)    is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or

(b)    is a non-citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; or

(c)    is included in a prescribed class of persons.

Definitions

(4)    In this section:

aircraft has the same meaning as in section 245A.

ship has the meaning given by section 245A.

19    We observe that s 5AA is evidently intended to be read as a whole. Whilst s 5AA(1) makes it plain that only a person who “entered Australia by sea” can be an unauthorised maritime arrival, s 5AA(2) specifically defines the expression “entered Australia by sea”, with the effect that the expression has a meaning that encompasses but is also wider than its ordinary meaning. Thus, consistently with its ordinary meaning, a person who comes into the migration zone by boat will have “entered Australia by sea”, within the meaning of s 5AA(2)(a). Section 5AA(2) also makes it plain, however, that the expression “entered Australia by sea” is not limited to this ordinary meaning. For example, by virtue of s 5AA(2)(c), a person will have “entered Australia by sea” if that person was rescued at sea outside the migration zone and is thereafter transported by aircraft into the migration zone. Under s 5AA(2)(b), a person found on a ship detained (under s 245F) outside the migration zone and then carried by aircraft into the migration zone (under s 245F(9)(a)) will also have “entered Australia by sea”. That is, both paragraphs 5AA(2)(b) and (c) contemplate that a person will have “entered Australia by sea” within the meaning of s 5AA(2), notwithstanding that he or she actually arrived in Australia by air in an aircraft.

20    In the present case, by virtue of s 5AA(2)(a), the appellant will have “entered Australia by sea” within the meaning of s 5AA if it can be said that he has “entered the migration zone except on an aircraft that landed in the migration zone”. The term “migration zone” is defined in s 5 of the Migration Act to mean, relevantly, “the area consisting of the States”, which includes Brisbane where the appellant was born. If the appellant relevantly “entered” the migration zone at Brisbane, he did so either before or at his birth. There was no statutory warrant to suppose that he had entered the migration zone before he was born. Rather, s 10 of the Migration Act indicated that he would be deemed to do so when he was born.

21    At the relevant time, s 10 of the Migration Act was in the following terms:

Certain children taken to enter Australia at birth

A child who:

(a)    was born in the migration zone; and

(b)    was a non-citizen when he or she was born;

shall be taken to have entered Australia when he or she was born.

22    Section 5(23) provided:

To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.

23    In its terms, s 10 of the Migration Act (supported by s 5(23)) not only fixes the time that the non-citizen child enters Australia (namely, at birth) but also deems that child to have “entered” Australia upon birth. The text of s 10 does not readily admit of a different conclusion. As already noted, the expression “enter Australia” is defined in s 5 of the Migration Act to mean, in relation to a person, “enter the migration zone”. Having regard to this definition, if a person is deemed by s 10 to have entered Australia when born, then he or she will also have entered the migration zone. Providing the appellant, who is a child, meets the other criteria in paragraphs (a) and (b) of s 10, he will be deemed to have entered Australia when he was born in Brisbane in November 2013.

24    The appellant plainly satisfies the criteria in paragraphs (a) and (b) of s 10 in that he was born in the migration zone and was also a non-citizen when he was born. His status as a non-citizen flows not only from the Migration Act but also from the Australian Citizenship Act 2007 (Cth) (Citizenship Act).

25    For the purposes of the Migration Act, a “non-citizen” is a person who is not an Australian citizen: see the definition of non-citizen in s 5. Whether or not a person is an Australian citizen is determined by the Citizenship Act. Section 12(1) of the Citizenship Act, which concerns citizenship by birth, relevantly provides that:

A person born in Australia is an Australian citizen if and only if:

(a)    a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or

(b)    the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

Since neither of the appellant’s parents was an Australian citizen, the appellant did not become an Australian citizen at the time of his birth. He was therefore a non-citizen when he was born. In these circumstances, s 10 of the Migration Act in terms applies to the appellant, who, by virtue of that provision, is taken (or is deemed) to have entered Australia when he was born.

26    Since s 10 deems the appellant to have “entered Australia” when he was born, the appellant also “entered the migration zone” at the same time. Because the appellant’s entry into the migration zone was not on an aircraft that landed in the migration zone, he falls within the description in s 5AA(2)(a) of the Migration Act of “[a] person [who] entered the migration zone except on an aircraft that landed in the migration zone” and is therefore a person who has “entered Australia by sea” within the meaning of s 5AA(2) and, therefore, s 5AA(1). As to any grammatical disconformity, see Acts Interpretation Act 1901 (Acts Interpretation Act), s 18A.

27    The appellant will have the status of an “unauthorised maritime arrival” if he falls within the remainder of the definition in s 5AA(1). He has not entered Australia by sea at an excised offshore place, within s 5AA(1)(a)(i). Assuming that, as outlined above, he has, for the purposes of s 5AA, “entered Australia by sea”, then he has done so at Brisbane, being “any other place” within s 5AA(1)(a)(ii). For the reasons already stated, he “became an unlawful non-citizen because of that entry” within s 5AA(1)(b). He is not an “excluded maritime arrival” within the meaning of s 5AA(3), for the purpose of s 5AA(1)(c). It would therefore follow that the appellant is an “unauthorised maritime arrival” within the meaning of ss 5AA and 46A of the Migration Act, unless there exists some relevant countervailing consideration.

28    The principal argument for the appellant was that s 10 of the Migration Act was irrelevant to the construction and application of the expression “entered Australia by sea” in s 5AA(2)(a). The appellant sought to support this submission in a number of ways.

29    The appellant contended, s 10 created “a legal, but not an actual, fact” as to the time of entry, which “can then be engaged by other provisions of the Act for certain purposes”. In particular, so the appellant said, s 10 “makes consistent the date of the child’s ‘entry’ with the date of the provision of the relevant visa”. The appellant submitted that the temporal focus of s 10 was evident in its heading “Certain children taken to enter Australia at birth” and in the words “when he or she was born”.

30    In oral submissions, senior counsel for the appellant, Mr Sofronoff QC, relied on the fact that s 10 of the Migration Act was a deeming provision and, citing Ex parte Walton; Re Levy (1881) 17 Ch D 746 (Levy) at 756, Muller v Dalgety & Co Limited (1909) 9 CLR 693 (Muller v Dalgety) at 696 and Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 (Comber) at 96, he submitted that s 10 was to be construed as applicable only for its intended purpose. He emphasized that s 10 of the Migration Act was “inserted for a particular purpose provoked by changes to the Citizenship Act eliminating automatic citizenship for children born here” and that, when s 10 was enacted, “there was obviously no thought given to a definition as yet unthought-of concerning unauthorised maritime arrivals”.

31    The appellant endeavoured to support the propositions that s 10 had a specific purpose and that it was concerned solely with the time of entry of a non-citizen child born in Australia by reference to the legislative history of that provision. We discuss this history hereafter.

32    The appellant contrasted s 10 with s 5AA of the Migration Act upon the basis that, in defining “an unauthorised maritime arrival”, s 5AA operates by reference to actual facts. In written submissions, the appellant contended that s 5AA imposed the legal status of “an unauthorised maritime arrival” on a person “if certain facts are established”. Thus, so the appellant submitted:

Subsection (1)(a) requires the fact of actual entry by sea. Subsection (2) also refers to a category of actual entries, as matters of fact, and not by virtue of a legal fiction. This is evident from the text of subparagraphs (b) and (c), which refers to the fact of being found on a ship and actual entry after being rescued, respectively. Subparagraph (a) must, therefore, be read as referring to an actual entry by a person from outside the migration zone into the migration zone by a method of travel other than by aircraft.

(Footnote omitted)

33    The appellant drew on the legislative history of s 5AA to support the contention that s 5AA was intended to apply only to people who, “as a matter of fact, enter Australia by sea”. We refer to this legislative history below.

34    The appellant also submitted that the legislature did not intend that a non-citizen child born in Australia would “‘enter’ a place by being born”. In written submissions, the appellant advanced a number of considerations in support of this submission. First, so the appellant maintained, such a construction would “do[] violence to the English language”. Second, the appellant submitted that “the phrase ‘entered the migration zone except on an aircraft that landed in the migration zone’ in s 5AA(2)(a) of the Act was plainly referring to entry by some means of transport” since “[o]ne can only enter an island nation by sea or by air and from a place outside its territory”. Third, referring to Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 177-178 [52], the appellant submitted that ss 5AA, 46A and 198A “create an independent scheme within the Act for the treatment of persons described as ‘unauthorised maritime arrivals’”; [and that s 10] did “not naturally fall within that scheme, and should not be construed as adding to the already detailed provisions in section 5AA relating to when a person is held to be an unauthorised maritime arrival”. Fourth, the text of the Migration Act and the Revised Explanatory Memorandum for the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (Cth), did not support “the proposition that s 5AA(2)(a) was intended to refer to the case of children who are born in Australia”. Fifth, “such a construction would have surprising results” in that if “a tourist couple overstayed their visas and … the woman then gave birth to a baby in Australia”, then “such a baby would be an ‘unauthorised maritime arrival’”. The appellant submitted that:

That would have the consequence that the baby would be incapable of applying for a visa (s 46A), and the baby (but not its parents) would be subject to removal from Australia to a “regional processing country” (s 198AD).

Sixth, citing Bropho v Western Australia (1990) 171 CLR 1 (Bropho v Western Australia) at 18 and X7 v Australian Crime Commission (2013) 248 CLR 92 (X7 v Australian Crime Commission) at 132 [87] and 153 [158] , the appellant argued, in written submissions, that ss 5AA and 46A should be interpreted by reference to the principle that it was “in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”. In this context, the appellant emphasized the importance of the right to apply for a protection visa and submitted that ss 5AA, 46A and 198AD “operate so as to exclude a class of persons termed ‘unauthorised maritime arrivals’ from the general system for the control of non-citizens”. (In his written reply, the appellant referred to Chu Keng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, Al-Kateb v Godwin (2004) 219 CLR 562 and Plaintiff M150 of 2013 v Minister for Immigration and Border Protection (2014) 309 ALR 225, in support of the proposition that the ordinary principles of statutory interpretation, including in relation to the abrogation of fundamental rights, applied to issues of statutory construction touching non-citizens.)

35    We accept that s 10 operates to deem the time when the non-citizen child is born in Australia as the time of entry into Australia. As the legislative history of this provision shows, this was also the effect of the predecessor provisions to s 10. We do not, however, accept that this was the only effect of s 10. Section 10, like its predecessor provisions, also deems that child to have entered Australia at birth. As explained below, we reject the proposition that the legislative history of s 10 supports a different construction. We also accept that s 10 was introduced into the Migration Act when there was a legislative curtailment of the acquisition of Australian citizenship by birth. As set out below, we reject the submission that this means that s 10 has no application in the context of s 5AA.

36    The legislative history of s 10 of the Migration Act is not in dispute. Broadly speaking, prior to the Australian Citizenship Amendment Act 1986 (Cth) (Citizenship Amendment Act 1986), s 10 of the Citizenship Act provided that, subject to certain exceptions, people born in Australia became Australian citizens by birth. The 1986 Citizenship Amendment Act limited the acquisition of Australian citizenship by birth to a person who at the time of his or her birth had an Australian citizen or permanent resident parent. Others who were born in Australia and who did not automatically acquire citizenship in this way were able to acquire Australian citizenship if they were ordinarily resident in Australia for ten years from their birth.

37    As Mr Sofronoff QC for the appellant noted, the 1986 Amendment Act gave rise to a need to deal with the immigration status of children born in Australia who did not acquire citizenship by birth. The Migration Amendment Act 1986 (Cth) (Migration Amendment Act 1986) addressed this need, by introducing a new s 6AAA into the Migration Act. As the Explanatory Memorandum for the Migration Amendment Act 1986 stated, s 6AAA was to “provide for the status of children born in Australia who, once the Australian Citizenship Amendment Act 1986 commences, will not be Australian citizens because neither of their parents is an Australia citizen or permanent resident of Australia”.

38    When first enacted, s 6AAA(a) provided that:

Where a child who is born in Australia is a non-citizen at the time when the child is born (in this section referred to as the ‘relevant time’), then, for the purposes of this Act –

(a)    the child shall be deemed to enter Australia at the relevant time; …

The remainder of s 6AAA (in paragraphs (b), (c) and (d)) made provision for the non-citizen child born in Australia to be deemed to be included in the temporary entry permit of the child’s parents, or one of them.

39    We accept that s 6AAA was introduced to deal with the immigration status of children who, though born in Australia, did not acquire citizenship at birth, by deeming them to enter Australia at birth and linking their status to that of their parents, or one of them, at the time of their birth. It is important to note that the provision did so in two ways. First, pursuant to s 6AAA(a), a non-citizen child born in Australia was deemed to enter Australia and to do so at birth. Second, at birth, such a child was statutorily deemed to be included in the permission granted his or her parents, or one of them, to enter and remain in Australia.

40    As Mr Sofronoff QC noted, s 6AAA was transposed, renumbered and subject to amendments to take account of other changes in the provisions of the Migration Act relating to temporary entry permits (later visas). The details of most of these amendments are not material to this appeal.

41    It is, however, significant that s 6AAA(a), deeming entry to Australia at birth, became in substance a stand-alone provision when the Migration Legislation Amendment Act 1989 (Cth) (Migration Amendment Act 1989) untied s 6AAA(a) from s 6AAA(b)-(d) and introduced s 5D into the Migration Act. The terms of s 5D closely resembled s 6AAA(a). At the same time, the Migration Amendment Act 1989 introduced a new stand-alone s 11V, the terms of which resembled s 6AAA(b)-(d), in the sense that these provisions linked the non-citizen child with the temporary entry permit (later visa) held by his or her parents, or one of them.

42    Sections 5D and 11V of the Migration Act were later renumbered and subject to some presently immaterial amendments until they became ss 10 and 78. We set out s 10 at [21] above. At the time the appellant’s protection visa application was made, s 78 provided:

Children born in Australia

(1)    If:

(a)    a child born in Australia is a non-citizen when born; and

(b)    at the time of the birth:

(i)    one of the child’s parents holds a visa (other than a special purpose visa); and

(ii)    the other parent is, under section 83, included in that visa or does not hold a visa (other than a special purpose visa);

the child is taken to have been granted, at the time of the birth, a visa of the same kind and class and on the same terms and conditions (if any) as that visa.

(2)    If:

(a)    a child born in Australia is a non-citizen when born; and

(b)    at the time of the birth, each of the child’s parents holds a visa (other than a special purpose visa);

the child is taken to have been granted, at the time of the birth, visas of the same kind and class and on the same terms and conditions (if any) as each of those visas.

(3)    Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to visas granted under this section.

43    Section 78 of the Migration Act can be fairly viewed as, to adopt Mr Sofronoff QC’s words, “the modern manifestation of the position of a child born here whose parents have particular permissions to enter or to remain”. Broadly speaking (and subject to certain exceptions), a non-citizen child born in Australia is taken (or deemed) to have been granted a permission, at the time of birth, to enter and remain in Australia on the same terms as his or her parents, or one of them.

44    A comparison of the texts of the relevant provisions and their legislative history shows that the progenitors of ss 10 and 78 were, respectively, ss 6AAA(a) and 6AAA(b)-(d), as introduced by the Migration Amendment Act 1986. This legislative history also establishes, however, that s 6AAA(a) was, in substance, uncoupled from s 6AAA(b)-(d) when it became s 5D of the Migration Act (see [41] above) and that this has been the position ever since. The current s 10 continues to be a stand-alone provision that applies whenever the Migration Act makes the entry into Australia of a person who is a non-citizen child born in Australia relevant to his or her immigration status.

45    Broadly speaking, the relationship between s 10 and s 78 is much the same as that which existed between s 5D and s 11V when introduced by the Migration Amendment Act 1989. That is, each of s 10 and s 5D were deeming provisions in relation to entry into Australia and to the time of that entry. These two aspects were and remain significant for the earlier s 11V and s 78, as well as for other parts of the statutory regime. Within this statutory scheme, “entry” into Australia (and the migration zone) creates a statutory need for a non-citizen to have permission (by the grant of a visa) to enter and remain in Australia to avoid the status of an unlawful non-citizen: see ss 13 and 14; also s 29(1) of the Migration Act and, at the time of the Migration Amendment Act 1989, s 24 and the definition of ‘visa’ in s 4(1). Within the scheme of the Migration Act, such permission is generally referrable to a commencement date (and commonly a termination date). Under s 10 and its predecessor provisions, the deemed entry of a non-citizen child born in Australia occurred at birth, with the consequence that permission for the non-citizen child to enter and remain was required from that point, as s 78 and its predecessor provisions recognised.

46    There is nothing in the language of s 10, the legislative scheme (including s 78), or the legislative history to which we have referred that supports the proposition that the deeming effect of s 10 is confined to the time of entry of a non-citizen child born in Australia. Rather, these considerations highlight that the deeming in s 10 is concerned with “entry into Australia”, as well as the time of that entry. Further, this legislative history does not support the proposition that the operation of s 10 is intended to be confined to facilitating s 78, bearing in mind the place of s 10 in the broader statutory scheme and that, consistently with this, s 10’s predecessor provisions were uncoupled from s 78’s predecessor provisions by the Migration Amendment Act 1989. As noted already, s 10 is relevant to s 29, allowing permission to be granted to a non-citizen to enter and remain in Australia, and, more broadly, to the immigration status under the Migration Act of a non-citizen child born in Australia: see, for example, Migration Act, ss 13 and 14.

47    We do not consider that the principles of construction concerning deeming provisions referred to in Muller v Dalgety and Comber or the earlier decision in Levy support a contrary conclusion. Muller v Dalgety concerned s 9D of the Immigration Restriction Act 1901-1908 (Cth), which deemed persons belonging to a particular class to be stowaways on a ship. In discussing this provision, Griffith CJ (at 696) observed that the word “deemed” was commonly used in a statute “for the purpose of creating what James LJ and Lord Cairns LC called a “statutory fiction” (see Hill v East and West India Dock Co [(1884) 9 App Cas, 448, at 456]) that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate”. The Chief Justice added (also at 696):

When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced.

48    Levy and Comber are examples of the application of this principle. In Levy, the English Court of Appeal construed a deeming provision as subject to an implied qualification in order not to defeat the object of the provision: see Levy at 753 (Jessel MR), 756 (James LJ), 757 (Lush LJ). In Comber a Full Court of this Court applied a provision deeming the excess over a reasonable retirement payment to be a dividend, but rejected the Commissioner of Taxation’s further contention that the provision also deemed that excess to be paid out of profits or to a shareholder. In this connection, citing Levy, Fisher J observed (at 96) that “deeming provisions are required by their nature to be construed strictly and only for the purpose for which they are resorted to”, adding that:

It is improper in my view to extend by implication the express application of such a statutory fiction. It is even more improper to do so if such an extension is unnecessary, the express provision being capable by itself of sensible and rational application. This is precisely the position in the section in question. The private company, having been denied a deduction in respect of the amount of the excess distribution, should fairly be entitled to have that amount taken into account as an after tax distribution in determining whether it has made a sufficient distribution of its profit.

49    We accept that s 10 is a deeming provision in so far as it creates a statutory fiction extending the meaning of the expression “entered Australia” beyond its ordinary meaning to include the birth in Australia of a non-citizen child. For the reasons already stated, we do not consider that the legislative history should lead us to conclude that the legislature intended that s 10 should only operate in the context of s 78 of the Migration Act. Further, the text of s 10 itself provides no basis for this. We do not consider that the authorities to which the appellant referred (discussed above) are of much assistance to the appellant’s argument. The issue in this appeal is whether or not s 10 of the Migration Act applied in terms to deem a non-citizen child to have entered Australia ‘at birth’ (and, therefore, not “on an aircraft that landed in the migration zone”: see s 5AA(2((a)). This is not a case like Comber in which the deeming provision is said by one party to have an implied extended operation. Nor is it a case like Levy where the literal application of the deeming provision would defeat the statutory object.

50    The object of s 10, as indicated by its legislative history, was to enable the immigration status of a non-citizen child born in Australia to be regulated by the same statutory framework that applied to non-citizens who entered Australia in the ordinary way (i.e., arriving in Australia on a boat or plane). By deeming a non-citizen child to have entered Australia at birth, the non-citizen child became subject to the visa system (or other permission system) in place under the Migration Act at the time he or she was born. So understood, s 10 is seen to further the objects of the Migration Act, which in s 4 relevantly provide that:

(1)    The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2)    To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

    …

(4)    To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

51    We note too that s 4(5) further provides that:

To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.

52    As we are about to explain, we reject the appellant’s argument that ss 5AA and 10 of the Migration Act have essentially different concerns. First, we note that s 4(5), set out above, in substance, states that the legislature regards the provisions for unauthorised maritime arrivals as furthering the very same objects that we would attribute to s 10.

53    Second, we do not consider that s 5AA of the Migration Act operates only by reference to actual facts, with the consequence that the “statutory fictions” created by s 10 are irrelevant to the operation of s 5AA, as the appellant submitted. Whilst it is true, at one level, to say that s 5AA operates by reference to actual facts, it is also the case that s 5AA operates within and as part of the Migration Act and, in so doing, takes up concepts that are given content elsewhere in the Migration Act, including defined words and expressions, such as “unlawful non-citizen”, “excluded maritime arrival”, “an excised offshore place” and “the migration zone”. Moreover, the operation of ss 5AA(2)(b) and (c) cannot on their face be confined to actual facts but also expressly depend on the satisfaction of propositions of law referable to other provisions of the Migration Act. In addition, as noted earlier, both ss 5AA(2)(b) and (c) would apply to people who in actual fact enter the migration zone by aircraft, rather than by sea in a boat.

54    The operation of s 5AA is not, therefore, confined to actual facts, as the appellant would have it, but depends on the otherwise applicable provisions of the Act of which it forms part. There is nothing in the text of s 5AA that indicates that, when s 5AA(2)(a) refers to a person who “entered the migration zone except on an aircraft that landed in the migration zone”, it is excluding a non-citizen child who, by virtue of s 10, is taken to have entered Australia when born in Australia. This would require the insertion of words that are not there. Put another way, we are not persuaded that s 5AA(2)(a) only operates by reference to actual facts and we do not therefore accept that this supposed operation would render s 10 irrelevant to s 5AA(2(a). For the reasons already stated, we also reject the proposition that s 10 is significant only to the operation of s 78 of the Migration Act.

55    Furthermore, we do not consider that the legislative history of s 5AA assists the appellant’s case. The appellant sought to support his arguments with respect to s 5AA by reference to the Revised Explanatory Memorandum for the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (Cth) (EM 2012), which became the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) (Migration Amendment Act 2013). The Migration Amendment Act 2013 introduced s 5AA into the Migration Act.

56    Under the heading “Outline”, EM 2012 (at page 1) stated that, in substance, the Migration Amendment Act 2013 was intended:

to implement recommendation 14 from the report by the Expert Panel on Asylum Seekers (the Expert Panel) handed to the Prime Minister and the Minister for Immigration and Citizenship on 13 August 2012, and to implement other measures to strengthen the regional processing framework.

EM 2012 also stated that the earlier Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) (Regional Processing Act) had amended the Migration Act to give effect to recommendation 7 of the Expert Panel’s report to allow offshore entry persons to be taken to designated regional processing countries for the processing of any asylum claims. EM 2012 explained (at page 1) that:

Under the Regional Processing Act, regional processing arrangements only apply to offshore entry persons who enter Australia at excised offshore places. Regional processing arrangements do not currently apply to individuals who enter Australia at the Australian mainland because they are not classified as offshore entry persons. Consequently, under current arrangements, there is an inherent risk that individuals may seek to travel to the Australian mainland to avoid being sent to a designated regional processing country.

The Expert Panel stated that all possible measures should be implemented to avoid creating an incentive for people to take even greater risks with their lives by seeking to bypass excised offshore places to reach the Australian mainland. Further, the Expert Panel stated that such an amendment will be important to ensure that the introduction of processing outside Australia does not encourage asylum seekers to avoid these arrangements by attempting to enter at the Australian mainland. Such attempts would increase the existing dangers inherent in irregular maritime travel.

For this reason, the Expert Panel recommended (in recommendation 14) that the Act also be amended to ensure that arrival anywhere in Australia by irregular maritime means will not provide individuals with a different lawful status than those who arrive at an excised offshore place.

The Bill therefore provides that all arrivals in Australia by irregular maritime means will have the same legal status regardless of where they arrive, unless they are an excluded class or otherwise exempted. This means, all arrivals in Australia by irregular maritime means cannot make a valid application for a visa unless the Minister personally thinks it is in the public interest to do so. Those people are also subject to mandatory immigration detention, are to be taken to a designated regional processing country and cannot institute or continue certain legal proceedings.

EM 2012 noted (at page 10) that s 5AA(2)(a) was “intended to cover people who make their way to Australia by sea without being rescued or intercepted and who enter the migration zone”.

57    We accept that EM 2012 focussed on the status of people crossing the sea by boat to reach Australia and exposing themselves to the dangers involved in this passage by sea (even if Mr Johnson SC for the respondent were correct in his surmise that, in a note about s 5AA(2)(a), the authors of EM 2012 indicated that they “realised that there are other ways of entering Australia, other than by ship or vessel, when one’s talking about the Migration Act”). We also accept that EM 2012 did not refer to the position of a non-citizen child born in Australia to parents who were unauthorised maritime arrivals. We do not consider, however, that, in this way, EM 2012 provides a basis to infer that the legislature did not intend s 10 to apply in this context (noting in any event that “[l]egislative history and extrinsic materials cannot displace the meaning of the statutory text”: FCT v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]).

58    As already noted, it is no longer the case that, generally speaking, a child born in Australia acquires Australian citizenship. The Citizenship Amendment Act 1986 limited the acquisition of Australian citizenship by birth and contemporaneous amendments to the Migration Act ensured, that, as a general rule, a non-citizen child would have the same immigration status as his or her parents, in that the child was deemed to be included in the temporary entry permit granted his or her parents, or one of them, to enter and remain in Australia. Subject to a presently immaterial statutory exception, the same general position continues to prevail: with the exception of special purpose visas, a non-citizen child born in Australia is taken to have been granted at birth the same kind of visa as held by his or her parents, or one of them (s 78).

59    As already noted, s 10 plays an important part in enabling the immigration status of a non-citizen child born in Australia to be regulated within the same statutory framework that applies to other non-citizens who enter Australia. As already noted, s 10 does not place any qualification upon the purposes for which a non-citizen child born in Australia is taken to have entered Australia at the time of birth. Having regard to this and the important role that s 10 plays with respect to the immigration status of children to which it applies, we would infer that the provision has its deeming effect wherever the Migration Act makes the entry to Australia of such children or the time of such entry to Australia a relevant criterion for the operation of one of its provisions (unless there is some contrary indication).

60    In introducing s 5AA, the legislature can be taken to have intended that the new provision would be read in the context of the Migration Act as a whole, including s 10. This is expressed in the rule of statutory construction that when an Act is amended by a later Act (as occurred when the Migration Amendment Act 2013 introduced s 5AA), “the two are to be regarded as one connected and combined statement of the will of parliament” unless this is displaced by clear evidence to the contrary: see DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) at [7.23]. The rule is given a statutory form in the Acts Interpretation Act, s 11B(1); cf s 2(2). There is no contrary evidence here. On the contrary, in the present case, the application of this rule of construction yields an outcome that conforms to the general policy of the Act. If s 10 applies in the present case and the appellant is held, by reference to the “statutory fictions” in s 10, to fall within s 5AA(2)(a), then the appellant will, by operation of s 5AA(1), have the same immigration status as his parents. As we have seen, broadly speaking, this conforms to the general approach taken by the Migration Act to the immigration status of non-citizen children born in Australia.

61    The appellant noted two occasions when this interpretation might be thought to have “surprising results”. Discordant results would, however, be likely to arise if this interpretation were not adopted; and the difficulties arising in the appellant’s examples seem to us in some aspects to have an air of unreality.

62    We do not propose to address each of the various considerations to which the appellant referred in support of his general submission (outlined at [34] above) that the legislature did not intend that a non-citizen child born in Australia would enter a place by being born. In one way or another, we have addressed most, if not all of these considerations, in the foregoing discussion. We would observe, though, that, this is not a case of overthrowing fundamental rights or departing from the general law in the sense discussed in Bropho v Western Australia or X7 v Australian Crime Commission. As s 4 of the Migration Act makes clear, a non-citizen can only enter and remain in Australia if he or she has a visa granting permission to do so and only the Migration Act provides for the circumstances in which visas can be granted. This is not to diminish the importance of the issue that arises in this appeal, but it highlights that the outcome of this appeal depends on the text of the relevant provisions of the Migration Act.

63    For the reasons we have stated, we consider that s 10 of the Migration Act is relevant to the operation of s 5AA and the effect of the text of these two provisions is clear. The Federal Circuit Court did not err in dismissing the appellant’s judicial review application on the basis that the Minister’s delegate was correct in deciding that the appellant is an unauthorised maritime arrival within the meaning of s 5AA(1). In consequence, pursuant to s 46A of the Migration Act, the appellant’s application for a protection visa is not a valid application and the Minister cannot consider it.

64    Accordingly, we would dismiss the appeal, with costs.

65    It is convenient to note at this point that, on 16 December 2014, after the hearing of the appeal on 24 November 2014 and before judgment was delivered, the Minister’s solicitors informed the Court by email (copied to the appellant’s legal representatives) that the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) was “passed by both houses [of Parliament] on 5 December 2014 and received Royal Assent on 15 December 2014”. Leaving aside formal parts, the email from the Minister’s solicitors further stated that:

The attached Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No. 135 of 2014) was finally passed by both houses on 5 December 2014 and received Royal Assent on 15 December 2014. See in particular Schedule 6, Part 1, paragraphs paragraph 1 (e) (including note 2) and paragraph 2(1A) (including note 5) and Schedule 6, Part 2. See also section 2 of the amending Act, which indicates that Schedule 6 will commence the day after the Act received Royal Assent.

66    We note that, although the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) consists of only three substantive sections (one of which states how the Act may be cited), the effect of the amending legislation as a whole is far from straight-forward. The substantive sections of the new Act purport to give effect to the numerous items identified in some seven schedules. The schedules number 122 pages. Part 1 of Schedule 6 (itself headed “Unauthorised maritime arrivals and transitory persons: newborn children”) includes item 2 which apparently describes another category of unauthorised maritime arrival, to be inserted into s 5AA as a new provision (s 5AA(1A)). Item 11 of Part 2 indicates that the amendments detailed in Part 1 are intended to have retrospective effect, in relation to an applicable matter, as defined, including “the status of a person as an unauthorised maritime arrival” (paragraph (b) in item 11 of Part 2 of Schedule 6).

67    It may be that the legislature intended that the newly introduced s 5AA(1A) would make it clear that a person such as the appellant is to be characterised as an unauthorised maritime arrival: see Item 11 of Part 2 of Schedule 6 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. We do not decide the correctness or otherwise of this proposition on this appeal.

68    The effect of this amending legislation has not been the subject of any submission or argument before us. We would not express any concluded view about the operation and effect of the amending legislation, whether in its prospective or retrospective aspect.

Associate:

Dated:    18 December 2014