Tjandra, Hary aka Yek, Jimmy v Minister for Immigration & Ethnic Affairs [1996] FCA 610

CATCHWORDS

IMMIGRATION - "absorbed person visa" - meaning of "immigrant" in para 34 (2) (b) of Migration Act 1958 - whether applicant had "ceased to be an immigrant" before 2 April 1984 - whether applicant "ceased to be an immigrant" by reason of having become a "prohibited immigrant".

Migration Act 1958, s 34

The Queen v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168

Yong Khim Teoh v The Minister for Immigration and Ethnic Affairs, unreported, FCA/Northrop J, 12 July 1996 No VG 767 of 1995

Salemi v Mackellar (No 2) (1977) 137 CLR 396

HARY TJANDRA aka JIMMY YEK v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No NG 827 of 1995

Lindgren J

Sydney

23 July 1996

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No NG 827 of 1995

GENERAL DIVISION )

BETWEEN:

HARY TJANDRA aka JIMMY YEK

Applicant

AND:

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM: Lindgren J

PLACE: Sydney

DATE: 23 July 1996

MINUTE OF ORDERS

THE COURT ORDERS:

1. THAT the application be dismissed.

2. THAT the applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No NG 827 of 1995

GENERAL DIVISION )

BETWEEN:

HARY TJANDRA aka JIMMY YEK

Applicant

AND:

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM: Lindgren J

PLACE: Sydney

DATE: 23 July 1996

REASONS FOR JUDGMENT

INTRODUCTION

By his amended application filed on 14 December 1995, the applicant claims the following substantive relief:

"1. A Declaration that the Applicant was granted and is the holder of an Absorbed Person Visa pursuant to Section 34 of the Migration Act 1958.

2. An injunction restraining the respondent and all officers of the Department of Immigration and Ethnic Affairs from taking any steps to deport the Applicant from Australia, or otherwise treating the Applicant as a person who is not a permanent resident of Australia."

The applicant relies on s 39B of the Judiciary Act 1903 and s 21 of the Federal Court of Australia Act 1976 ("the FCA Act") as the sources of the Court's jurisdiction to grant this
relief.

JURISDICTION AND LEGISLATIVE AND FACTUAL BACKGROUND

In his application as originally filed, the applicant had sought "review" of "the decision of the respondent notified on or about 9 October 1995 by an undated letter, refusing to recognise that the applicant was, on 1 September 1994, granted an Absorbed Person Visa pursuant to Section 34 of the Migration Act 1958 ["the Act" - an expression which I will use to refer to the Migration Act 1958 as amended from time to time]". On the hearing the applicant accepted that the Court lacked jurisdiction to "review" any "decision to refuse to grant [the applicant] a visa" which may have been made. No doubt the concession was made because of the definition of "internally-reviewable decision" in sub-s 338 (1), para (a) of the definition of "Part 5 reviewable decision" in s 337, para 475 (2) (b), and the definition of "Part 5 reviewable decision" in s 474, of the Act.

The respondent filed a notice of objection to competency on 10 November 1995. Objection to the Court's jurisdiction to hear and determine the application pursuant to s 39B of the Judiciary Act was taken on the ground that that jurisdiction was denied to the Court by sub-s 485 (1) of the Act (see below).

Sub-sections 34 (1) and (2) of the Act provide as follows:

"(1)There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas.

(2)A non-citizen in the migration zone who:

(a) on 2 April 1984 was in Australia; and

(b) before that date, had ceased to be an immigrant; and

(c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and

(d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;

is taken to have been granted an absorbed person visa on 1 September 1994.

(3).............................................."

It is common ground that the applicant is a "non-citizen in the migration zone"; was in Australia on 2 April 1984; has not left Australia on or after that date; and was not, immediately before 1 September 1994, a person to whom s 20 of the Act as then in force applied. Therefore, the only issue between the parties is whether the applicant, before 2 April 1984, "had ceased to be an immigrant" within the meaning of para 34 (2) (b). The word "immigrant" and the notion of "ceasing to be an immigrant" is not defined in the Act and it will be necessary in due course to consider the legislative background to para 34 (2) (b).

Sub-section 39B (1) of the Judiciary Act provides that this Court's jurisdiction includes jurisdiction with respect to any
matter in which an injunction is sought against an officer of the Commonwealth. As noted earlier, by his amended application, the applicant seeks an injunction against the respondent and all officers of the Department of Immigration and Ethnic Affairs ("the Department" - the word "Multicultural" now replaces "Ethnic" in the title of the Department and of the respondent Minister). Sub-section 485 (1) of the Act provides as follows:

"485(1)In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by sub-section 475 (2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903."

Paragraph 475 (2) (b) refers to "an internally-reviewable decision" such as a decision to refuse to grant a visa.

The applicant submits that he is not seeking to invoke jurisdiction in respect of a decision of the respondent to refuse to grant a visa and that s 34 operates of its own force to deem that an absorbed person visa was granted to him on 1 September 1994. He submits that what he seeks to do is to prevent the respondent from deporting him from Australia on the basis that deportation would be inconsistent with his rights as the holder of an absorbed person visa. For his part, the respondent made it clear on the hearing that he would wish the Court to determine the issue of construction which divides the parties if the Court considers that it has jurisdiction to do so.

Clearly, sub-s 34 (2) provides for a deemed granting of an absorbed person visa on 1 September 1994 if the specified conditions of its operation are satisfied. No decision is contemplated or required.

Section 39B confers jurisdiction on the Court where a remedy of a kind referred to in that section is sought against an officer of the Commonwealth "not merely colourably, but in good faith": The Queen v Cook,; Ex parte Twigg (1980) 147 CLR at 26 (Gibbs J). In the present case, an injunction, being a remedy of a kind referred to in s 39B, is sought against officers of the Commonwealth. Is it sought merely colourably? A relevant matter to be taken into account is whether there is a real threat of deportation. The answer depends on the content of the undated letter from the Department to the applicant's solicitor received on or about 9 October 1995. As well as containing the evidence of the threat on which the applicant relies, the letter sets out the few facts involved in the case (these were not in issue) and part of the respondent's submission on the hearing. For these reasons I find it convenient to set out the body of the letter in full as follows:

"I refer to the application for a Resident Return Visa (RRV) lodged on behalf of your client which was receipted at this office on 5 June 1995. Mr Tjandra
has applied to be considered against the criteria for each of the subclasses of the Resident Return Visa (RRV) Class. he [sic] claims to be a permanent resident of Australia by virtue of being the holder of an Absorbed Person Visa (APV) from 1 September 1994.

Unfortunately for your client it is our assessment that it is not legally possible for Mr Tjandra to satisfy the criteria for any subclass of RRV. The reason for this is that Mr Tjandra is not, and has never been, a permanent resident of Australia, which is a prescribed requirement for all subclasses of the Resident Return Visa Class including subclass 155.

Contrary to the claims in your submission it is the finding of this office that Mr Tjandra did not become an absorbed person within the meaning of Section 34 of the Migration Act 1958 (The Act). Therefore Mr Tjandra did not become the holder of an APV on 1 September 1994 and hence cannot satisfy the prescribed criteria for the grant of a RRV. In making the decision on the RRV application due regard was had to the following:

. the prescribed criteria of Migration Regulations 155, 156 and 157, the interpretation of an Australian permanent resident at [sic] Migration Regulation 1.03;

. sub-section 34 (2) of the Act which requires, inter alia, that in order to have been taken to have been granted an absorbed person visa on 1 September 1994, a non-citizen must have been in Australia on 2 April 1984; and before that date must have ceased to be an immigrant;

According to departmental records Mr Tjandra arrived in Australia on 6 June 1981 and was granted a Temporary Entry Permit (TEP) valid for a stay of 10 days until 15 June 1981. Upon the expiration of the TEP he became a prohibited immigrant pursuant to sub section 7(3) of the Act as then in force. Pursuant to sub-section 7 (4) of the Act as then in force, he remained a prohibited immigrant until the commencement on 2 April 1984 of the Migration Amendment Act 1983.

Mr Tjandra was, from the time of his arrival until 2 April 1984, either the holder of a TEP or a prohibited immigrant. He had not ceased to be an immigrant before that date and could not therefore have become absorbed.

Mr Tjandra does not currently have, and has never held the status of, an Australian permanent resident. It is the DIEA view of sub-section 34(2)(b) of the current Migration Act that the common law doctrine on absorption, as in effect immediately prior to 2 April 1984, provides the legal basis for interpreting whether a person 'ceased to be an immigrant'. In particular the term 'immigrant' is taken to be a clear reference to a status only known to the Act at that time and hence used in sub-section 34(2)(b) in that context alone.

In summary it is a prescribed criterion for each of the subclasses of the Resident Return Visa class that Mr Tjandra has applied for, that the applicant be an Australian permanent resident. Mr Tjandra does not hold and has never held this status, therefore he cannot satisfy the criteria for any subclass of RRV and so his application must be refused in accordance with the provisions of subsection 65(1)(b) of the Migration act [sic] 1958.

There are three options now open to Mr Tjandra following the refusal of his application:-

1. To seek a review of this decision;

2. To lodge an application for another visa;

3. To depart Australia.

1. TO SEEK A REVIEW OF THE DECISION

He is entitled to seek a review of this decision. If, after considering the reasons for the refusal, he decides to lodge a review application, he must do so within 35 days of the date of this letter, that is, no later than 7 November 1995. Please note that this time period in which a review application can be lodged is prescribed in law, and a review application from him cannot be accepted after this date.

As explained above, if he lodges a valid application for review of the decision within the prescribed period, he may also apply for a bridging visa which will remain in effect while the review of the application is under consideration.

If any of his family members were included in the application, he may combine the [sic] their applications for review of the decision on the same application form. Only one fee is payable for making a combined application.

Applications for review must be lodged with the Migration Internal Review Office (MIRO). The enclosed leaflet provides information about the review process, including addresses where you can make your application. Further information about review is available from one of the offices listed in the leaflet.

2. TO LODGE AN APPLICATION FOR ANOTHER VISA

As Mr Tjandra's application for a visa has been refused, there are limitations on the types of further application which he can lodge. An information form (No. 1026i) 'Limitations on Applications in Australia' is enclosed for his information.

3. TO DEPART AUSTRALIA

Mr Tjandra may wish to consider making arrangements for departure from Australia and he should contact the Compliance Section of this office to advise of the arrangements. If Mr Tjandra does not leave, make another visa application, or seek a review of the refusal decision, he will, as an unlawful non-citizen, become liable to be taken into immigration detention and removed from Australia." (emphasis supplied)

As noted earlier, what divides the parties is a pure question of construction. There is no point in the applicant's seeking further to persuade the Department that its construction is erroneous. Apparently the only class of visa relevant to the applicant's circumstances is an absorbed person visa. He does not intend to depart Australia.

In the circumstances, I think that the applicant is faced with a real threat of being taken into immigration detention and removed from Australia if he does not obtain the relief which he seeks. It is not in issue that he fears that this will happen. In my view, these considerations establish that his seeking of injunctive relief is not merely colourable, but is a response to be expected from one in the applicant's position who contends for the construction of para 34 (2) (b) propounded by him. Section 39B confers jurisdiction on the Court to grant the substantive relief sought.

Section 21 of the FCA Act, also relied on by the applicant, does not confer jurisdiction but gives power to grant declaratory relief in relation to a matter in which the Court has jurisdiction otherwise. As noted above, in the present case the Court has jurisdiction pursuant to s 39B.

OUTLINE OF PARTIES' SUBMISSIONS

Outline of applicant's submissions

Prior to the Migration Amendment Act 1983 which came into force on 2 April 1984, the Act distinguished between "immigrants" and "prohibited immigrants". (The applicant refers to Salemi v Mackellar (No 2) (1977) 137 CLR 396 at 429-431 (Stephen J).) Before 2 April 1984 a person "ceased to be an immigrant" if he or she became absorbed into the Australian community or became a prohibited immigrant. Paragraph 34 (2) (b) encompasses a person, such as the applicant, because, before 2 April 1984, he ceased to be an "immigrant" by reason of his having become a "prohibited immigrant" upon expiration of his temporary entry permit.

The construction supported by the respondent has this vice: it excludes those persons who arrived in Australia during the
five year period from 2 April 1979 to 2 April 1984 and who have satisfied the requirements of absorption at common law, from the benefit of an absorbed person visa under s 34. There is no obvious reason for excluding them from this benefit. The respondent's construction treats the expression "had ceased to be an immigrant" as equivalent to "had been absorbed". The effect of that construction is to introduce a condition additional to those set out in sub-s 34 (2), namely that the person must have been in Australia on and from 2 April 1979, being the date five years before 2 April 1984.

If, contrary to the foregoing submissions, the expression "had ceased to be an immigrant" is confined in its reference to persons who had become absorbed at common law prior to 2 April 1984, there is no reason to impose, as part of the common law test, the "five year rule" which was imposed by the previous sub-s 7 (4) of the Act. If this had been the legislature's intention, s 34 could easily, and would, have required expressly that the person have been in Australia on 2 April 1979 or have ceased to be a prohibited immigrant before 2 April 1984.

Outline of respondent's submissions

The applicant arrived in Australia on 6 June 1981 and was granted a temporary entry permit, valid for a stay of ten days until 15 June 1981. Upon the expiry of that period he became a prohibited immigrant: sub-s 7 (3) of the Act as then in force. He remained a prohibited immigrant until the commencement of the Migration Amendment Act 1983 on 2 April 1984, when he became a prohibited non-citizen: s 38 of that Act.

A "prohibited immigrant" was an "immigrant", the former being a sub-class of the latter. It was impossible in law for a prohibited immigrant, such as the applicant, to have become a member of the Australian community while a prohibited immigrant: The Queen v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168 at 173-174.

REASONING

In its original form, the Act was "An Act relating to Immigration, Deportation and Emigration". Sub-section 5 (1) contained the following inclusory definition of "immigrant":

"'immigrant' includes a person intending to enter, or who has entered, Australia for a temporary stay only, where he would be an immigrant if he intended to enter, or had entered, Australia for the purpose of staying permanently; ..."

This inclusory definition assumed that a person who entered Australia with an intention to stay permanently was an immigrant. "Immigrant" is not a technical word or a word of art. In common parlance, it signifies "a person who settles as a permanent resident in a different country" (New Shorter Oxford English Dictionary, "immigrant" A n. 1) and "one who ... comes into a country ... of which one is not a native for the purpose of permanent residence" (The Macquarie Dictionary,
2nd Revised Edition, "immigrant" n. 1 and "immigrate" v.i. 1); and cf Potter v Minahan (1908) 7 CLR 277 at 301-304 (O'Connor J); Ex parte De Braic (1971) 124 CLR 162 at 166-167 (Windeyer J).

Part II (ss 6-58) of the Act dealt with "IMMIGRATION AND DEPORTATION" and Division 1 (ss 6-11) of that Part dealt with "Entry Permits". Section 6 provided for the issue of entry permits. Sub-section 6 (1) provided that an immigrant who entered Australia when not holding an entry permit which was in force, thereupon became a "prohibited immigrant". This expression was not defined. Sub-section 6 (6) provided that an entry permit which was intended to operate as a temporary one, was to be expressed to authorise the holder to remain in Australia for a specified period only.

Sub-section 7 (1) empowered the Minister to cancel a temporary entry permit and sub-s 7 (3) provided that upon the expiration or cancellation of a temporary entry permit, the holder became a "prohibited immigrant" unless a further entry permit came into force. Sub-section 7 (5) empowered an officer appropriately authorised by the Minister to require a person who was a prohibited immigrant by virtue of sub-s 7 (3) to leave Australia and required the person to comply with the officer's requirement. Importantly, sub-s 7 (4) provided as follows:

"7(4)Notwithstanding section ten of this Act, a person who has become a prohibited immigrant by virtue of the last preceding sub-section ceases to be a prohibited immigrant at the expiration of a period of five years from the time at which he became a prohibited immigrant unless, at the expiration of that period, a deportation order in relation to him is in force."

Section 10 provided that a person who became a prohibited immigrant ceased to be such if and when an entry permit or further entry permit was granted to the person, "and not otherwise." Section 13 and sub-s 14 (2) empowered the Minister to order the deportation of an "immigrant" for certain specified causes occurring within five years after his or her entry into Australia. Section 18 empowered the Minister to order the deportation of a person who was a prohibited immigrant under any provision of the Act. Section 38 empowered an officer, without warrant, to arrest a person whom he reasonably supposed to be a prohibited immigrant.

Clearly, the words "and not otherwise" in s 10 were to be read subject to sub-s 7 (4). Sub-section 7 (4) did not address the question of the status of a person who had ceased to be a "prohibited immigrant" upon expiration of the five-year period. In the absence of an indication to the contrary, one could be excused for thinking, on the basis of the terminology, that unless it was possible for such a person to have been absorbed into Australian society during the five year period (it was not - see later) he or she would have the status of an immigrant.

The status of "prohibited immigrant" attracted the disadvantages of the summary sanctions referred to above. Where it operated, sub-s 7 (4) had the effect of removing the officer's power given by sub-s 7 (5) to require the person to leave Australia, the Minister's power under s 18 to order the person's deportation, and an officer's power of summary arrest under s 38. But sub-s 7 (4) did not have the purpose or effect of rendering all of the Act's provisions expressed to relate to "immigrants" inapplicable to the person upon expiration of the five-year period.

It is convenient at this point to refer to Salemi v Mackellar (No 2) (1977) 137 CLR 396 at 429-431 (Stephen J) relied on by the applicant. I do not think that the passage referred to in that case supports the proposition that "immigrant" and "prohibited immigrant" are mutually exclusive categories. On the contrary, Stephen J's statement (at 430) that "an immigrant (not being an alien or prohibited immigrant) who has resided for more than five years in Australia without conviction ... becomes immune from deportation" assumes that some immigrants may be prohibited immigrants.

What I have said should not be taken to indicate that upon expiry of the five year period without detection, a former prohibited immigrant's position was necessarily in all respects straightforward. In particular, if the "causes" for deportation referred to in s 13 and sub-s 14 (2) had also not arisen within the five year period, upon the expiration of that period he or she both ceased to have the status of a "prohibited immigrant" and became immune from deportation under those provisions relating to immigrants. But, importantly, those provisions still referred to the person, necessarily as at a time after expiration of the five year period, as an "immigrant". All that was addressed in sub-s 7 (4) was the notion of ceasing to be a prohibited immigrant, while that of ceasing to be an immigrant was to be found outside the Act - in fact in the general law notion of absorption into the Australian community.

The Migration Amendment Act 1983 (Act No 112 of 1983), which commenced on 2 April 1984, amended the title of the Act so that it came to read "An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons." This signalled that the "naturalisation and aliens" power in s 51 (xix) rather than the "immigration and emigration" power in s 51 (xxvii) of the Constitution was now intended to underpin the Act.

The Act of 1983 omitted the definition of "immigrant" from sub-s 5 (1) and "replaced" it with a definition of "non-citizen", namely, "a person who is not an Australian citizen." The notion of Australian citizenship is the subject of the Australian Citizenship Act 1948. The 1983 Act substituted "a non-citizen" for "an immigrant" and "prohibited non-citizen" for "prohibited immigrant" in ss 6, 7, 10, 18 and 38 which were noted above. Section 13 and sub-s 14 (2) were replaced and provided for deportation of non-citizens for causes arising within ten years of a person's becoming present in Australia as a permanent resident. Importantly for present purposes, sub-s 7 (4) of the Act was repealed and sub-s 38 (1) of the 1983 Act provided that a person who was, immediately before, in effect, 2 April 1984, a prohibited immigrant by virtue of a provision of the Act other than s 16, thereupon became a prohibited non-citizen for the purposes of the Act. Clearly, this transitional provision applied to the applicant. Accordingly, for example, s 18 empowered the Minister to order his deportation as a prohibited non-citizen. There was no provision to the effect that the five-year period to which sub-s 7 (4) had referred continued to run in favour of a prohibited immigrant in whose favour it had commenced to run, such as the applicant, or that such a person would cease to be a prohibited non-citizen upon expiration of such a period.

In consequence of these provisions, it was no longer possible for a prohibited immigrant to cease to have that status by the passing of time "without detection". The applicant, who had been in Australia only some two years and ten months as at 2 April 1984, was deprived of the benefit of remaining a prohibited immigrant who could rely on sub-s 7 (4) and the passing of time to remove that status. He was, as from 2 April 1984, classified neither as an "immigrant" nor as a "prohibited immigrant" but as a "non-citizen" and a "prohibited non-citizen". Moreover, s 10 provided that he would cease to be a "prohibited non-citizen" upon the grant of a further entry permit to him "and not otherwise".

The classification of the applicant as a prohibited non-citizen who could cease to have that status only upon the grant of a further entry permit and who was liable to summary deportation is inconsistent with a concurrent intention that he was to be treated as having ceased to be an immigrant.

Sub-section 8 (2) of the 1983 Act was as follows:

"8(2)Where a person who, upon the commencement of this Act -

(a) is a non-citizen within the meaning of the Principal Act as amended by this Act; and

(b) is not the holder of an entry permit (not being a temporary entry permit),

had, at a time before that commencement, ceased to be a prohibited immigrant within the meaning of the Principal Act by virtue of the operation of sub-section 7 (4) of that Act, that person becomes, upon that commencement, a prohibited non-citizen for the purposes of the Principal Act as amended by this Act."

This provision did not apply to the applicant because, although he was on 2 April 1984 a non-citizen and did not hold an entry permit, he had not by 2 April 1984 ceased to be a prohibited immigrant by the operation of the former sub-s 7 (4). Accordingly, s 8 did not categorise him as a "prohibited non-citizen", but as noted above, he was so categorised by the operation of s 38 of the 1983 Act.

Sub-section 8 (2) of the 1983 Act was addressed in s 16 of the Migration Laws Amendment Act (No 2) 1992 (Act No 176 of 1992). That section, which commenced on 1 January 1993, provided as follows:

"16 Subsection 8 (2) of the Migration Amendment Act 1983 does not apply, and never has applied, to a person who:

(a)on the commencement of that Act, was in Australia; and

(b)before that commencement, had ceased to be an immigrant; and

(c)since that commencement, has not left Australia."

Section 16 was clearly intended to protect a class of persons from the possibility of categorisation as non-citizens by sub-s 8 (2). These were persons who, inter alia, had ceased to have the status of "immigrant" before 2 April 1984. Subject to the addition of a para (d), which is not presently relevant, and the omission of any reference to sub-s 8 (2), the present sub-s 34 (2) with which I am concerned is directed to benefiting the same class of persons as s 16 was.

Perhaps s 16 was enacted for more abundant precaution. Apparently it was feared that the reference in sub-s 8 (2) of the 1983 Act to a person who had "ceased to be a prohibited immigrant" before the commencement of that Act might be construed to encompass some persons who had also ceased to be immigrants before that commencement. As will be seen below, it had been stated authoritatively in The Queen v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168 that it was not possible for a person, for as long as he or she was a prohibited immigrant, to cease to be an immigrant. Perhaps the drafter of s 16 had in contemplation persons who had, prior to 2 April 1984, first ceased to be prohibited immigrants and subsequently, but still before 2 April 1984, ceased to be immigrants by absorption into the Australian community.

I shall return shortly to the question whether the applicant, who had become and not ceased to be a prohibited immigrant before 2 April 1984, could have ceased to be an immigrant before that date. But first I will note the course of legislation which has led to the enactment of s 34 with which I am immediately concerned. The Migration Reform Act 1992 (Act No 184 of 1992) introduced a new visa system. Sections 14 to 18 of the Act were repealed and, inter alia, a new section 14 was introduced as follows:

"14(1) A non-citizen in the migration zone who holds a visa is a lawful non-citizen.

'(2) ............................................

'(3) A non-citizen in the migration zone who:

(a) on 2 April 1984 was in Australia; and

(b) before that date, had ceased to be an immigrant; and

(c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 November 1993; and

(d) immediately before 1 November 1993, was not a person to whom section 20 of this Act as in force then applied;

is a lawful non-citizen."

Paragraphs 14 (a), (b) and (c) are similar to paras 16 (a), (b) and (c) of the Migration Laws Amendment Act (No 2) 1992 set out earlier. Paragraphs 14 (3) (a), (b), (c) and (d) are identical to the present paras 34 (2) (a), (b), (c) and (d) with which I am concerned and which were quoted earlier in these Reasons, except for the change of the date 1 November 1993 to 1 September 1994 (the source of this change need not be discussed). Sub-section 15 (1) provided that a non-citizen in the migration zone who was not a lawful non-citizen was an unlawful non-citizen.

After certain amendments to the Act which are irrelevant for present purposes, the "absorbed person visa" was introduced by s 26AB of the Act which was inserted in it by s 8 of the Migration Legislation Amendment Act 1994 (Act No 60 of 1994). As a result of sub-s 83 (5) of that Act, the newly introduced s 26AB was re-numbered, s 34, sub-ss (1) and (2) of which were set out earlier.

Was it possible for the applicant who had become and remained a "prohibited immigrant" as at 2 April 1984 to have "ceased to be an immigrant" by that date for the purpose of para 34 (2) (b)?

The very nomenclature "immigrant" and "prohibited immigrant" suggests that the latter is a sub-class of the former and in my opinion it is. Moreover, it would be an odd construction which would accord to an immigrant who had become a prohibited immigrant, a benefit which would not have been available if the person had remained an "immigrant". To do so would seem to be to reward "overstaying". Assume that an immigrant entered Australia on a temporary entry permit a few days before the commencement of the 1983 Act on 2 April 1984. Such a person would not have ceased to be an "immigrant" by that date. Yet, according to the construction suggested by the applicant, an immigrant who had entered earlier, even only a little earlier, on a temporary entry permit and who had "overstayed" and thereby become a "prohibited immigrant", would have satisfied para 34 (2) (b). Paragraph 34 (2) (b) and its predecessor provisions were intended to refer to circumstances which found favour with the legislature. Acquiring the status of a prohibited immigrant is, in language and concept, opposed to that notion.

It is put that it is anomalous that persons such as the applicant should have been deprived of the statutory benefit which arose from the effluxion of the five year period without detection. What was taken away as from 2 April 1984 was a possibility that a prohibited immigrant would lose that status by the effluxion of further time without detection and, in consequence I suppose, a dependent possibility of subsequent absorption into the Australian community and loss of "immigrant status" at that time. It does not strike me as obviously or necessarily anomalous or unjust that the legislature produced that result by the 1983 Act as part of a new legislative regime then enacted. Certainly the denial of such possibilities to "overstayers" is less an anomaly than that of favouring them as against lawful immigrants to which I referred above.

Authority supports the construction to which I have referred. In The Queen v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168, Barwick CJ (with whom McTiernan, Windeyer, Owen and Gibbs JJ agreed) addressed a submission that a person could become a member of the Australian community and thereby at once cease to be both an immigrant and prohibited immigrant, in these terms:

"It scarce needs saying that a prohibited immigrant may not by any means become a member of the Australian community whilst he is a prohibited immigrant. By the very description he is not a person having any title to remain in the country. Once a prohibited immigrant, he remains both an immigrant and a prohibited immigrant subject to ss. 7 and 10.

..................................................

Clearly a person who has sought and obtained a temporary entry permit cannot during its duration become a member of the Australian community. He remains of necessity an immigrant in fact under the terms of the entry permit bound to remove himself and liable to be removed. A person whose entry permit has expired becomes at the moment of its expiry a prohibited immigrant. He may not cease to be a prohibited immigrant unless at his request a further permit, whether a further temporary entry permit or a permit to remain, is granted or five years elapse from that expiry without the making of an order for his deportation.

The Parliament by the Act has thus ensured that no immigrant shall obtain a title to become a member of the Australian community without the concurrence of the Australian people expressed through the grant by its Executive Government of an entry permit to remain or by a lapse of five years from the expiry of a temporary entry permit without Executive action. I so express my conclusion because in my opinion a person whose temporary entry permit has expired and who does not obtain a permit to remain may not become a member of the Australian community during the five years which must elapse before he ceases to be a prohibited immigrant pursuant to the provisions of s. 7 (4). Thereafter a question will remain whether he has subsequently become a member of the community and has ceased to be an immigrant. He does not in my opinion automatically cease to be an immigrant upon the expiry of those five years. He merely ceases to be liable to deportation as a prohibited immigrant who has become such by reason of the lapse of an entry permit." (at 173-174)

Far from being inconsistent with the views expressed in this passage, as I indicated earlier, what Stephen J said in Salemi v Mackellar (No 2) (1977) 137 CLR 396, lends some support to the proposition that "prohibited immigrant" is a sub-class of "immigrant".

The applicant was an "immigrant" when he entered Australia on 6 June 1981. While continuing to be an immigrant, he became a "prohibited immigrant" upon the expiration of his entry permit on 15 June 1981. He did not cease to be a "prohibited immigrant" before 2 April 1984. His status as a "prohibited immigrant" from 15 June 1981 to 2 April 1984 signified that it was impossible for him to be absorbed into the Australian community during that period and thereby cease to be an immigrant before 2 April 1984.

Since writing the foregoing, the respondent has brought to the applicant's and the Court's attention the decision of Northrop J on 12 July 1996 in Yong Khim Teoh v The Minister for Immigration and Ethnic Affairs (VG 767 of 1995). His Honour's Reasons for Judgment were published three days after the present case was heard on 9 July 1996. Reference was not made to the case on the hearing. The parties have supplied written submissions as to the relevance of that case to the issue before me. In the context of facts not materially different from those of the present case, his Honour reached the same conclusion as that which I have expressed above in relation to the construction and effect of para 34 (2) (b). Obviously, I do not think that his Honour was clearly wrong and in these circumstances I am required to follow him: see Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605 at 627 and the cases which I cited there. On this further ground, the application must be dismissed.

CONCLUSION

In my view, for the foregoing reasons, the application should be dismissed with costs.

I certify that this and the preceding 23 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated: 23 July 1996

Heard: 9 July 1996

Last written

Submission: 19 July 1996

Place: Sydney

Decision: 23 July 1996

Appearances: Ms L McCallum of counsel instructed by Corby Levingston, solicitors, appeared for the applicant.

Mr A Robertson SC with Mr P Braham of counsel instructed by The Australian Government Solicitor appeared for the respondent.

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