Cheaib Cheaib v Minister of State for Immigration and Multicultural Affairs [1997] FCA 562

CATCHWORDS

IMMIGRATION - cancellation of visa - interpretation of s 128 Migration Act - grounds that must be satisfied to cancel visa without notice - whether non-citizen has not entered Australia

Migration Act 1958: ss 5, 128

Lee v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 142

Khoshabeh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 104

Ge v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 523

Minister for Immigration and Ethnic Affairs v Keenan (1993) 47 FCR 244

CHEAIB CHEAIB v MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG914 OF 1996

LOCKHART, O’LOUGHLIN and MERKEL JJ

17 JUNE 1997

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG914 of 1996

)

GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: CHEAIB CHEAIB

Appellant

AND: MINISTER OF STATE FOR

IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

COURT: LOCKHART, O’LOUGHLIN and MERKEL JJ

DATE: 17 JUNE 1997

PLACE: SYDNEY

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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

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. NG914 of 1996

)

GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: CHEAIB CHEAIB

Appellant

AND: MINISTER OF STATE FOR

IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

COURT: LOCKHART, O’LOUGHLIN and MERKEL JJ

DATE: 17 JUNE 1997

PLACE: SYDNEY

REASONS FOR JUDGMENT

LOCKHART J.

This appeal from the judgment of a judge of the Court (Tamberlin J) concerns the construction of s. 128 of the Migration Act 1958 (‘the Act’).

The appellant is a Lebanese national. He was sponsored to come to Australia by his ex-wife, an Australian citizen, whom he has since divorced. They were married in Beirut on 26 January 1994. They lived together in Lebanon. The appellant’s wife came to Australia before the appellant. The appellant arrived in Australia on 27 November 1994, holding a permanent visa (sub class 100-spouse) which entitled him to enter and remain in Australia. The appellant and his wife lived together for a time in Australia after he arrived here; but three months later, on 28 February 1995, they separated. On 13 March 1996 they were divorced.

On 13 March 1996 the appellant left Australia for Lebanon, apparently to sell his house in Lebanon so that he could obtain funds to open a business in Australia. He was unable to sell the property whilst in Lebanon.

On 3 May 1996 the Minister’s delegate cancelled the appellant’s visa pursuant to s. 128 and s. 116(1)(d) of the Act, on the ground that the marriage of the appellant to his former wife was contrived for the purpose of his gaining residence status in Australia.

The appellant returned to Australia on 4 September 1996. He was detained at Sydney airport, refused immigration clearance and told that his visa had been cancelled and that he could not enter Australia.

There is in evidence a letter dated 3 May 1996 from the Department of Immigration and Multicultural Affairs addressed to the appellant in Beirut informing him that his visa was cancelled that day pursuant to ss. 128 and 116(1)(d) of the Act because it had been established that his marriage to his former wife was contrived for the purpose of gaining residence in Australia. The letter stated that the appellant had the opportunity to comment on the ground for cancellation and to give reasons why his visa should not have been cancelled. It also informed him that, as he was no longer the holder of an Australian visa, he was not entitled to travel to Australia; and that if he did, he would be refused immigration clearance and removed from Australia.

The appellant swore in an affidavit that the first time he saw the letter was when he was given a copy of it. He was uncertain when that was; but it appears to have been at or about the time he returned to Australia on 4 September 1996 after he had been detained by immigration officers.

Section 129 of the Act requires the Minister, when he has cancelled a visa under s. 128 to give the former holder of the visa a notice: a) stating the ground on which the visa was cancelled and particulars of it; b) inviting the former holder to show within a specified time that that ground does not exist or that there is a reason why the visa should not have been cancelled; c)stating that, if the former holder shows within the specified time that the ground does not exist, the cancellation will be revoked; d) stating that if the former holder shows there is a reason why the visa should not have been cancelled, the cancellation might be revoked.

The appellant commenced proceedings in this Court challenging the power of the respondent, the Minister of State for Immigration and Multicultural Affairs, to cancel his visa without prior notice under s. 128 of the Act.

Tamberlin J made orders, including an order declaring that the appellant had not been given notice in accordance with s. 129 of the Act, and ordered that the respondent give notice in accordance with that section. His Honour ordered that the application otherwise be dismissed and that the appellant pay one-half of the respondent’s costs.

The Court was informed by counsel that the Minister gave the s. 129 notice; that a submission was made by or on behalf of the appellant in response thereto, and that the Minister decided not to revoke the cancellation of the visa. We were also informed by counsel that in the meantime the appellant has returned to Lebanon.

Section 128 of the Act provides:

'If:

(a) the Minister is satisfied that:

(i) there is a ground for cancelling a visa under section 116; and

(ii) it is appropriate to cancel in accordance with this Subdivision; and

(b) the non-citizen has not entered Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.'

Section 116 relevantly provides that the Minister may cancel a visa if satisfied that, if the visa’s holder has not entered Australia or has so entered but has not been ‘immigration cleared’, the visa would be liable to be cancelled under Subdivision C (incorrect information given by the holder) if the visa’s holder had so entered and been ‘immigration cleared’.

Importantly, s. 5 of the Act defines ‘enter’ as including ‘re-enter’; ‘enter Australia’ in relation to a person as meaning ‘enter the migration zone’ (in essence that means Australia); ‘entered’ as including ‘re-entered’; and ‘entry’ as including ‘re-entry’.

The sole question raised in the appeal is whether the appellant answers the description, for the purposes of s 128(b) of the Act, of a non-citizen (namely, by definition under s. 5 of that expression, a person who is not an Australian citizen) who ‘has not entered Australia’. It is agreed that he is a non-citizen. Also, no challenge was made to the finding of the respondent that the appellant’s marriage to his former wife was contrived for the purpose of the appellant gaining residence in Sydney. Hence, there is no dispute that this constituted a ground for cancelling the appellant’s visa under s. 116 of the Act.

Put another way, the short question is whether the appellant, having entered Australia on 27 November 1994 and left here to return to Lebanon on 13 March 1996 and not having returned to Australia until 4 September 1996, was a person, being a non-citizen, who on 3 May 1996 (the date of the decision) ‘has not entered Australia’ within the meaning of s 128(b) of the Act.

Counsel’s Submissions

With this background in mind, counsel then faced the difficulty created by the definition of ‘enter’ as including ‘re-enter’, and like words in s 5.

Counsel for the appellant submitted that the learned primary Judge erred in holding that, because the term ‘enter’ is defined as including ‘re-enter’, the power under s. 128 was available.

Reliance was placed by counsel for the appellant on certain authorities of this Court in support of the proposition that the words ‘not entered’ in s. 128(b) do not apply to a person who entered Australia, became a permanent resident and then left Australia. The cases on which reliance was placed were Lee v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 142 (Einfeld J.); Khoshabeh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 104 (Full Court) and Ge v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 523 (Sackville J).

Counsel for the appellant further submitted that there is a ‘consistent structure’ revealed by the various sections of the Act which empower the Minister to cancel visas in certain circumstances; a consistency which was said to be relevant to the interpretation of the relevant statutory provisions. Reference was made to various sections (in particular ss. 109, 116, 128, 135(1)(b), 501(1) and s. 140(2)). It was argued that within this structure the power of summary cancellation without prior notice is intended to be restrictive in its operation. It is unlikely that it was intended to apply to persons who are permanent residents of Australia in circumstances where perhaps, by chance, those persons happen to be overseas for a period, as occurred here in the case of the appellant. It was argued that it is unlikely that a power of summary cancellation without notice is considered appropriate in such a case.

Counsel for the appellant also argued that the Court would be slow to adopt a construction which either deprived a visa holder of procedural protections which would otherwise be available on cancellation, or which allowed a public officer a choice to achieve the same effect. Reliance was placed on the judgment of the Full Court of this Court in Minister for Immigration and Ethnic Affairs v Keenan (1993) 47 FCR 244.

Counsel for the respondent argued that the phrase ‘has not entered Australia’ in s 128(b) is directed to the person’s geographic status at the date of the decision of the Minister to cancel the visa. This construction was said to result from:-

(a) the statutory definitions, especially the definition of ‘enter’;

(b) the terms of Subdivision F (in which s 128 appears), especially the Subdivision heading;

(d) the terms of ss. 116 to 119, especially paragraph 118(c) of the Act; and

(e) the Explanatory Memorandum.

Findings

As mentioned earlier, the definition of ‘enter’ in s 5 provides that the word includes ‘re-enter’.

Various cases have been decided which considered this definition, although none have considered it in the context of s 128.

Lee’s Case concerned a person (Mr Lee) who had been granted a temporary entry permit and wished to apply for a further permit pursuant to reg 35AA(1) of the Migration Regulations 1989. For the purposes of that regulation it was important to decide whether Mr Lee had entered Australia before or after 19 December 1989. He had first arrived in Australia on 13 September 1989 but had then left on 28 November 1989 and returned on 7 January 1990. Einfeld J decided that the relevant entry occurred on 13 September 1989.

One passage from Einfeld J’s judgment is relied on in particular by counsel for the appellant, namely, at 149 where his Honour said this:

‘In all these circumstances, I find myself unable to adopt a formula of interpretation which treats this man on 7 January 1990 as if he were a first time or occasional visitor to this country when in fact he was living in Australia at the time and was to all intents and purposes returning home. In my opinion, an Australian legal resident does not “enter” or “re-enter” his homeland in the statutory sense after every overseas trip, even though that is what physically occurs. The Migration Act and Regulations cannot have been intended to bear such a narrow and potentially oppressive interpretation.’

In Khoshabeh the Full Court of this Court (Northrop, Spender and Gray JJ) considered the proper construction of s 89(2) of the Act (now repealed) which was concerned with the power to detain persons in custody on arrival. While nothing in that case turned on the definition of ‘enter’, their Honours said at 108:

‘The definition contained in the Act of the word “enter” states only that it includes re-enter, which is not very helpful. Normally the word “enter” is appropriate to describe what happens when a person first comes within Australia. It is a word appropriate to describe what happens when a person, whether a citizen of Australia or a non-citizen, comes from outside Australia into Australia. Thereafter, that person can be described as being present in Australia.’

Ge’s Case was also relied upon by the appellant. That case considered a requirement that applications for certain permanent entry permits be made ‘after entry’. Sackville J said at 529:

'I accept that care must be taken in applying observations made in one context to another. But this language shows that “entry” is at least capable of referring to the first entry into Australia, rather than the most recent entry or the most recent attempt to enter Australia.' (first emphasis added)

Sackville J considered that an application is made ‘after entry’ if the applicant has previously entered Australia, regardless of whether he has subsequently left.

All of these cases are distinguishable: they do not involve the cancellation of a visa; the sections of the Act considered are quite different to those applicable to the present case; and at the time when those cases were decided the Act was in a substantially different form. This conclusion is supported by the above extract from Ge’s Case where Sackville J was careful to limit the construction of the phrase to the case before him.

The meaning of the expression ‘has not entered’ in s 128(b) must be gleaned from the ordinary meaning of the words; but read in the context of the relevant provisions of the Act. As mentioned earlier, the definition of ‘enter’ in s 5 provides that the word includes ‘re-enter’. It could not be apposite to describe an Australian citizen who temporarily leaves Australia and then returns here. But s 128 talks only of non-citizens, that is persons who are not Australian citizens.

The view that the phrase in s 128(b) ‘has not entered Australia’ is directed to a non-citizen who at the date of the decision is in fact outside Australia at the time of cancellation of the visa is supported by the heading and terms of Subdivision F of Division 3 of the Act; sections 118 and 119 of the Act; and the Explanatory Memorandum.

First, the heading. The heading to Subdivision F reads:

'Other procedure for cancelling visas under Subdivision D outside Australia.'

Subdivision F is preceded by Subdivision E, the heading of which is:

‘Procedure for cancelling visas under Subdivision D in or outside Australia’.

This suggests that Subdivision F is dealing with non-citizens who are outside Australia when the power of cancellation is exercised.

The subdivision heading is part of the Act, though not the section heading: s 13(1) of the Acts Interpretation Act 1901 (Cth).

This construction is supported by the object and purpose of Subdivision F. The power of cancellation vested in the Minister under s. 128 can be exercised without prior notice to the holder of the visa, unlike other powers vested in the Minister under the Act to cancel visas. The power under s. 128 is circumscribed by the requirement in s. 128(a) that the Minister must be satisfied that there is a ground for cancelling a visa under s. 116 and that it is appropriate to cancel it in accordance with Subdivision F; also of course the visa must be held by a non-citizen.

The evident intent of Subdivision F is to empower the Minister to cancel visas of non-citizens without prior notice where the person is outside Australia and the Minister is satisfied that cancellation of it without notice is appropriate in all the circumstances.

The terms of s. 118 of the Act are important as a guide to the construction of s. 128. I shall return to s. 118 later for a different purpose; but for present purposes I note that s. 118 refers to the power to cancel a visa under ss. 109, 116, 128, 134, 140 and 501 and in referring to s. 128 describes the power as:

'(c)section 128 (when holder outside Australia) ...'

Also s. 119(1) commences with the words:

'119(1) Subject to Subdivision F (non-citizens outside Australia) ...'

Thus references are made within the Act itself to the power conferred upon the Minister by s 128(b) as applying where the non-citizen is outside Australia.

The Explanatory Memorandum to the Migration Reform Bill 1992 is also helpful. The Explanatory Memorandum contains paragraph 151 which concerns s. 50AN of the bill, now s. 128 of the Act. Paragraph 151 has a heading ‘cancellation of visas of people outside Australia’.

The primary Judge referred to paragraphs 149 and 150 of the explanatory memorandum (but not paragraph 151) which read as follows:

'... This Subdivision provides for cancellation of a visa without prior notice. It is intended to be used in circumstances where there is a risk that a visa holder would respond to a notice by travelling to Australia in the belief that it would be more difficult for the person’s visa to be cancelled and the person removed.’ (par 149)

While there is no pre-cancellation notice, notification provisions will apply after the visa has been cancelled and there is an express power to revoke the cancellation if the former visa holder shows that the ground did not exist or there was a reason why the visa should not be cancelled.’ (Emphasis added) (par 150)

Paragraph 151 states:

'The requirement that the holder not have entered Australia applies only to future travel authorized by the visa and s 50AN will also apply to non-citizens who have previously been in Australia but are now outside it.'

Paragraph 135 of the Explanatory Memorandum is relevant. It is concerned with Subdivision E and reads as follows:

'... Subdivision E is applicable regardless of where the visa holder is. Note that subdivision F allows for an alternative procedure where the visa holder is outside the migration zone. Where the holder is outside the migration zone, the Minister may elect whether to apply the procedure in Subdivision E or the procedure in Subdivision F.'

In my opinion these matters strongly support the conclusion that the power of the Minister to cancel a non-citizen’s visa under s. 128 is directed to a non-citizen who is in fact outside Australia at the time of the cancellation, whether or not the non-citizen has been at some time in the past in Australia.

Counsel for the appellant, argued in the alternative, that:

‘where there was a specific power which permitted cancellation in specified circumstances and contained relevant procedural safeguards, the existence of a broad power, apparently covering the same ground but without the procedural safeguards, should be read down so as not to apply to those cases where the more limited provision subject to procedural safeguards is relevant. In other words, it is unlikely that Parliament intended that the Minister (or a delegate) should have the power to decide whether the procedural safeguards were appropriate or not, especially where such safeguards included prior written notice and a right of merit review.’

Reliance was placed by analogy on the judgment of the Full Court of this Court in Minister for Immigration and Ethnic Affairs v Keenan(1993) 47 FCR 244.

Keenan concerned s. 55 of the Act, in the form which it then took, when a non-citizen convicted in Australia of an offence could be deported by order of the Minister. The Minister was also empowered under s. 60 to deport an illegal entrant. The matters arising for consideration under the s. 60 power were more limited than the s. 55 power and there was no appeal to the Administrative Appeals Tribunal from a s. 60 decision. In Keenan the potential deportee was not only a convicted criminal, she was also an illegal entrant; but she was deported under the less rigorous process imposed by s. 60.

The Court held that where the criminal conviction was a material matter for consideration the decision could and should be made under s. 55. The Court also said that it would be an abuse of process to attempt to avoid the s. 55 review process by taking a decision to deport under s. 60.

By analogy, counsel for the appellant argued that in the present case s. 128 should be read down because of the procedural protections to the visa holder which are afforded by s. 116. These protections are specifically excluded when a cancellation is made under s. 128. I do not agree.

Section 118 (previously mentioned) is an important provision; it provides as follows:

'The powers to cancel a visa under:

(a) section 109 (incorrect information); or

(b) section 116 (general power to cancel); or

(c) section 128 (when holder outside Australia); or

(d) section 134 (cancellation of business visas); or

(e) section 140 (consequential cancellation of other visas); or

(f) section 501 (special power to refuse or cancel);

are not limited, or otherwise affected, by each other.'

In my view s. 118 operates to ensure that the Minister’s power of cancellation of visas under s. 128 is not limited or otherwise affected by the existence of powers of cancellation that emanate from other sources including ss 109 or 116.

Tamberlin J concluded that s 128 and the provisions that follow in Subdivision F were designed to provide an independent general power for the Minister to cancel visas, without notice, unconstrained by the presence of other cancellation powers provided under the Act in circumstances where the visa holder is outside Australia at the time of cancellation. His Honour found that Subdivision F established a specific regulatory framework to implement this purpose and permitted cancellation without prior notice. I agree with those views.

Counsel for the appellant also posed the hypothetical situation of a delegate who deliberately waited until a person had left Australia and then sought to rely upon the summary power of cancellation under s. 128. While such a situation is possible, a Court would most likely follow Keenan and hold that the delegate’s actions were an improper exercise of power.

I would dismiss the appeal with costs.

I certify that this and the preceding nineteen (19) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated: 17 June 1997

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) No NG 914 of 1996

)

GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

B E T W E E N:

CHEAIB CHEAIB

Appellant

-AND-

MINISTER OF STATE FOR

IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

Coram: Lockhart, O'Loughlin, Merkel JJ

Place: Sydney

Date: 17 June 1997

REASONS FOR JUDGMENT

O'LOUGHLIN J: This appeal, from a judge of this Court, is concerned with the power of the Minister of State for Immigration & Multicultural Affairs to cancel a visa that had earlier been issued pursuant to the relevant provisions of the Migration Act 1958 (Cth) ("the Act"). The learned trial judge found that the Minister possessed the necessary power and it is in respect of that finding that the appellant now appeals.

The material facts may be briefly stated. The appellant is and was at all material times, a Lebanese national. He married Ms Hana el Jarrar, an Australian citizen, in Beirut on 26 January 1994. She came to Australia, alone, some time shortly thereafter and on 27 November 1994, the appellant entered Australia pursuant to a permanent visa (sub-class 100 - spouse). His wife had acted as his sponsor.

The appellant and his wife lived together for only three months. They separated in February 1995 and were divorced on 13 March 1996. The appellant thereupon returned to Lebanon to sell his house. His plans were to use the proceeds of the sale to start a business in Australia. However, in his absence overseas, the Minister's delegate cancelled his visa pursuant to par 116(1)(d) and s 128 of the Act. The Minister's decision to cancel the appellant's visa was based on a claim that the appellant's marriage had been contrived for the purpose of his gaining residence in Australia.

The appellant returned to Australia on 4 September 1996. He was refused immigration clearance; he was told that his visa had been cancelled and that he could not enter Australia. He was taken into detention.

The visa that had been granted to the appellant was a permanent visa endorsed as follows:-

"Granted 06 Sep 94. Must not arrive after 06 Sep 98. Multiple travel. Holder(s) permitted to remain in Australia indefinitely."

The appellant submitted here and in the Court below, that as a matter of law, the Minister had no power to cancel his visa. He did not challenge the claim that his marriage had been contrived, nor has it been suggested that there was any improper exercise of power on the part of the Minister. The answer to the appellant's submission lies in a consideration of the relevant legislation and in particular, the meaning of the word "entered" and its derivatives.

It is convenient to start with a reference to the provisions of par 116(1)(d) of the Act. It provides as follows:-

"116(1) Subject to subsections (2) and (3), [neither of which are relevant to this appeal] the Minister may cancel a visa if he or she is satisfied that:-

(a) ...

(b) ...

(c) ...

(d) if (sic) its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder has so entered and been immigration cleared ; or

(e) ...

(f) ...

(g) ..."

Section 117 qualifies the general power of cancellation that is provided for in s 116. It states:-

"117(1) Subject to subsection (2), a visa held by a non-citizen may be cancelled under section 116:

(a) before the non-citizen enters Australia; or

(b) when the non-citizen is in immigration clearance (see section 172); or

(c) when the non-citizen leaves Australia; or

(d) while the non-citizen is in the migration zone.

(2) A permanent visa cannot be cancelled under section 116 if the holder of the visa:

(a) is in the migration zone; and

(b) was immigration cleared on last entering Australia."

Section 128 was the specific power under which the Minister operated. It states:-

"128If:

(a) the Minister is satisfied that:

(i) there is a ground for cancelling a visa under section 116; and

(ii)it is appropriate to cancel in accordance with this Subdivision; and

(b) the non-citizen has not entered Australia;

the Minister may, without notice to the holder of the visa, cancel the visa."

It is also necessary to mention s 118. It provides that the Minister's powers to cancel a visa under various provisions of the Act, including s 116 (the general power to cancel) and s 128 (when the holder is outside Australia), "are not limited, or otherwise affected, by each other."

Finally the words "enter", "entered" and "entry" are respectively defined in s 5 of the Act to include "re-enter",

"re-entered" and "re-entry".

The issue that is raised by this appeal is whether the appellant, having earlier entered Australia on 27 November 1994, was nevertheless on 4 September 1996, when he attempted to re-enter, a non-citizen who, in the language of par 128(b) of the Act, "has not entered Australia".

The appellant's case revolves around the simple proposition that having once entered Australia on a particular visa in 1994, the appellant retains thereafter the status of someone who "has entered Australia". That being the case, the appellant contends that the power contained in s 128 was not available to the Minister to cancel the visa. The appellant submitted that the power of summary cancellation without prior notice is intended to be restrictive in its scope of operation. It was, submitted the appellant, unlikely that it was intended to apply to persons who are permanent residents of Australia but who happen to be temporarily overseas. In the particular circumstances of this case, the appellant had entered Australia in 1994, his entry had been prima facie lawful and he had acquired the status of an "Australian Permanent Resident". It was, the submission therefore concluded, inappropriate for the Minister to exercise his power of summary cancellation without notice.

There are, of course, other provisions of the Act which allow for the cancellation of a visa on notice. Those provisions are primarily contained in Subdivision C of Division 3 of Part 2 of the Act. That part is entitled "Control of Arrival and Presence of Non-Citizens". The title of Division 3 is "Visas for non-citizens" and Subdivision C, comprising ss 97 to 115, is headed "Visas based on incorrect information". In addition to Subdivision C, there are further provisions in subdivision D (ss 116 to 118) for the cancellation of visas but, again, that can only be done where prior notice is given to the affected person - see Subdivision E comprising ss 119 to 127 and entitled "Procedure for cancelling visas under subdivision D in or outside Australia".

Section 128, which provides for summary cancellation without notice, is found, significantly, in a separate subdivision - Subdivision F, entitled "Other procedure for cancelling visas under Subdivision D outside Australia". Notwithstanding the reference to "outside Australia", the appellant submitted that one should be entitled to assume that Parliament would not have intended a permanent resident, who may have resided in Australia for many years, who may have built up substantial assets in this country and who may have established himself or herself in the community, to be at risk that his or her visa might be cancelled without notice in the event of a short absence out of the country.

The appellant, both here and in the Court below, submitted that the decisions in Lee v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 142 and Ge v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 523 supported his submissions. In Lee's case, the applicant, a Malaysian national entered Australia as an immigrant on 13 September 1989. He returned to Malaysia on 28 November 1989 to attend his father's funeral and subsequently returned to Australia on 7 January 1990. On each occasion when he entered Australia, he did so pursuant to an entry permit which was expressed to be valid until 9 February 1990. The applicant failed, only as a result of an oversight, to obtain a "character clearance" before 8 February 1990. That obligation had been imposed as a condition in respect of his original entry. Because he had thereby become an illegal entrant, the applicant applied for a temporary entry permit. Regulation 35AA, as then enacted, contained provisions relevant to his application. Paragraph 35AA(1)(b) applied to persons who had entered Australia before 19 December 1989. Paragraph 35AA(1)(c), which imposed more stringent tests, applied to persons who had entered Australia on or after that date. The applicant's first entry had been 13 September 1989 but his second entry (or his re-entry) on 7 January 1990 was after 19 December 1989. His application was processed under par (c), on the basis that the applicant had entered Australia on or after 19 December. In granting judicial review, Einfeld J said at 148-149:-

"It is not suggested that this applicant is other than truthful and bona fide. The opportunity to test his assertions by cross-examination at the hearing was declined. There is thus no reason to doubt that the applicant has at all relevant times intended to migrate and to reside permanently in Australia. Nor is there any reason to question that he always intended to comply with Australian law in the due formalisation of his status here. It is easy to accept that only the trauma and tragedy of his father's death upset his firm and otherwise well organised plans in this regard.

In all these circumstances, I find myself unable to adopt a formula of interpretation which treats this man on 7 January 1990 as if he were a first time or occasional visitor to this country when in fact he was living in Australia at the time and was to all intents and purposes returning home. In my opinion, an Australian legal resident does not "enter" or "re-enter" his homeland in the statutory sense after every overseas trip, even though that is what physically occurs. The Migration Act and Regulations cannot have been intended to bear such a narrow and potentially oppressive interpretation."

Although his Honour noted the statutory definitions of "enter" and its derivatives, he did not find it necessary, in coming to his decision, to investigate the effect of these definitions on the facts of the case before him.

However, the learned trial judge said of the decision in Lee's case (supra):-

"The decision of Einfeld J in Lee (supra) is distinguishable because it did not involve cancellation of a visa. It related to provisions in a legislative context quite different from the present case, at a time when the Act was in a substantially different form."

With respect, this proposition must be correct and in my opinion it applies equally to circumstances of this case. The fact that "enter" is defined to include "re-enter" did not prevent the finding in Lee's case (supra) that the applicant "first entered" Australia on 13 September 1989.

In Ge's case (supra) the appellant arrived in Australia from his native China on 29 April 1990. He entered on a student visa. He returned to China on 29 August 1993 to visit his father but came back to Australia on 13 October 1993. Upon his return his visa was cancelled on the basis of allegations that the appellant had obtained his most recent visa through the use of false documents. The appellant subsequently applied for special entry permits. Each permit could only be applied for and granted "after entry". His applications were rejected and those decisions were affirmed by the Refugee Review Tribunal.

The same question arose as in Lee's case; when did the appellant "enter" Australia?

Section 89 of the Act, as then enacted, provided that in the circumstances there described, a person could be taken into custody on his or her arrival in Australia. In such a case, the person is taken not to have entered Australia unless and until he or she is granted an entry permit. The Minister argued that s 89 applied to Mr Ge and that as a result, he was not competent to make his applications as he had not yet entered Australia.

Sackville J came to the following conclusions:-

"In my view the better interpretation of cl 816.511 is that an application for a Class 816 permit is made "after entry" if the applicant has previously entered Australia, regardless of whether he or she has subsequently left Australia and regardless also of whether he or she holds a valid entry permit or visa at the date of the application."

The decision in Ge's case (supra) is distinguishable for the same reason that distinguished Lee's case (supra).

The learned trial judge concluded, and in my opinion, correctly so, that the statutory definition of "entered" in the present case enables the Minister to invoke s 128 in the circumstances where a non-citizen has either not entered or not re-entered Australia after being "outside Australia". In coming to that conclusion, he relied upon the following propositions. First, his Honour rejected the proposition that the appellant's receipt of a permanent visa warranted any particular consideration. There is, as his Honour said:-

"... no basis, in the language, of s128, from which to draw inferences from the special features of a visa which permits the holder to remain in Australia indefinitely, as opposed to any other visa such as a tourist, visitor, student, or transit visa. The section in terms must be read so as to apply to every type of visa."

Secondly, the trial judge concluded that because the statutory definition of the word "entered" included "re-entered", s 128 should be read as if the words "or re-entered" appeared in the section. In other words, the section would be interpreted as follows:-

"128If:

(a) the Minister is satisfied ..., and

(b) the non-citizen has not entered or re-entered Australia;

the Minister may, without notice to the holder of the visa, cancel the visa."(underlining inserted and added)

Thirdly, his Honour referred to and relied upon the Explanatory Memorandum that was issued at the time of the introduction of the relevant amending legislation. The appellant did not challenge his Honour's right to have recourse to this material. Paragraph 151 of that memorandum contained a commentary on s 50AN (now s 128) and also referred to s 50AB (now s 116):-

"151This section provides that, in cases where the visa holder has not entered Australia and there is a section 50AB cancellation ground, the Minister can cancel the visa, under this section, without prior notice to the holder. The requirement that the holder not have entered Australia applies only to future travel authorised by the visa and section 50AN will also apply to non-citizens who have previously been in Australia but are now outside it."

As his Honour correctly pointed out, the contents of this paragraph "strongly supports the submission that the section was intended to apply to non-citizens who have previously been in Australia but at the time of cancellation were outside Australia".

The appellant raised a further alternative submission. It was to this effect: where there is a specific power which permits cancellation of a visa subject to prior notice being given (such as s 116), the existence of another broader power (such as s 128), apparently covering the same ground but without the procedural safeguard of prior notice, should be read down so as not to apply to those cases where the more limited provision (i.e. s 116) is relevant and applicable. It was submitted that it is unlikely that Parliament intended that the Minister or his or her delegate should have the power to decide whether procedural safeguards were appropriate or not. This argument must be rejected. To adopt it would mean the emasculation of s 128; it would ignore the fact that the legislature saw fit to insert an express provision entitling the Minister, in certain circumstances, to summarily cancel a visa without prior notice.

In my opinion the learned trial judge came to the correct decision. The appeal should be dismissed with costs.

I certify that this and the preceding (twelve)12 pages are a true copy of the Reasons for Judgment of the Honourable Justice O'Loughlin.

Associate:

Dated: 17 June 1997

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NO. NG914 of 1996

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CHEAIB CHEAIB

Appellant

AND MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

COURT: LOCKHART, O'LOUGHLIN and MERKEL JJ

PLACE: SYDNEY

DATE: 17 JUNE 1997

REASONS FOR JUDGMENT

MERKEL J

I have read the reasons for judgment of Lockhart J and O'Loughlin J. I agree that the appeal should be dismissed with costs for the reasons given by their Honours.

I would only add a brief comment on the relevance of the definition of "enter" in s.5 of the Migration Act 1958 to the interpretation of s.128. Section 5 provides, inter alia, that in the Act, unless the contrary intention appears, "enter includes re-enter".

For the reasons given by the learned trial judge and their Honours, s.128 is intended to operate in respect of non-citizens who are outside of Australia at the time of the cancellation of a visa pursuant to the section. When a non-citizen has either not entered Australia or, having left Australia, has not re-entered Australia that person is subject to the exercise of the cancellation power conferred under s.128. In my view the section applies irrespective of whether a person has re-entered Australia on a prior occasion provided that the person is outside Australia at the time of cancellation.

I certify that this and the preceding 1 page are a true copy of the Reasons for Judgment of the Honourable Justice Merkel.

Associate:

Date: 17 June 1997

Counsel for the Appellant: Mr J Basten QC

Solicitors for the Appellant: Parish Patience

Counsel for the Respondent: Mr A Robertson SC

Mr N J Williams

Solicitors for the Respondent: Australian Government

Solicitor

Date of Hearing: 26 February 1997

Date of Judgment: 17 June 1997

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