FEDERAL COURT OF AUSTRALIA

MIGRATION - application for review of decision of respondent - whether applicant eligible for absorbed person visa - whether applicant had ceased to be an immigrant by reason of having become a prohibited immigrant.

Migration Act 1958 (Cth), ss 5(1), 34

Migration Act 1958-73 (Cth), ss 5(1), 6, 7

Migration Amendment Act 1983 (Cth), ss 8, 38

Boon Yin Chee v Minister for Immigration and Multicultural Affairs (unreported, 13 June 1997, Full Federal Court), applied

Yong v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 566, followed

Tjandra v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577, followed

Rooney v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 590, followed

EQI WONG v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

NG 836 OF 1995

TAMBERLIN J

SYDNEY

26 SEPTEMBER 1997

THE COURT ORDERS THAT:

The application be dismissed.

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

REASONS FOR JUDGMENT

This is an application to review the decision of the Minister for Immigration and Ethnic Affairs (“the Minister”), notified on or about 9 October 1995, which refused to accept that the applicant was on 1 September 1994 granted an absorbed person visa pursuant to s 34 of the Migration Act 1958 (Cth) (“the Act”).

The grounds for the application are set out in the Amended Application filed on 14 December 1995. They are:

“1.       That the decision involved an error of law, being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision.

            Particulars

            (a)        The Respondent erroneously decided that, because the applicant had not been “absorbed” pursuant to the common law doctrine of absorption in force prior to 2 April 1984, the Applicant was not granted an Absorbed Person Visa pursuant to Section 34 of the Migration Act 1958 on 1 September 1994.

            (b)        The Respondent erroneously decided that the common law doctrine of absorption as in effect immediately prior to 2 April 1984 provides the sole legal basis for interpreting whether a person “ceased to be an immigrant” pursuant to section 34(2)(b) of the Migration Act.

2.         That there was no evidence or other material to justify the making of the  decision.

            Particulars

            (a)        The Respondent based his decision on the existence of the fact that the applicant had not ceased to be an immigrant before 2 April 1984 as required by Section 34 of the Migration Act. That fact did not exist.”

The applicant in the Amended Application states that it invokes the jurisdiction of the Court under the Act; s 39B of the Judiciary Act 1903 (Cth)and accrued jurisdiction, and the Federal Court of Australia Act 1976 (Cth).

On 10 November 1995 there had been filed a Notice of Objection to Competency on the ground that the Court had no jurisdiction to hear the application pursuant to s 39B of the Judiciary Act due to the operation of s 485(1) of the Act.

On 30 June 1997 a Notice of Motion was filed by the Minister which sought dismissal of the application

Agreed facts

The parties have agreed on certain facts and these are set out below:

1.         The applicant arrived in Australia on 22 August 1982.

2.         Upon entry the applicant was granted a temporary entry permit which was expressed to expire on 22 November 1982.

3.         After 22 November 1982 the applicant became an illegal entrant or prohibited non citizen.

4.         The applicant was in the Migration Zone on or before 2 April 1984.

5.         The applicant has not, since her entry to Australia on 22 August 1982 left Australia.

6.         The applicant was not a person to whom Section 20 of the Migration Act 1958 as in force as at 1 September 1994, was applicable.

7.         Section 34 of the Migration Act provides:

            (1)        There is c class of permanent visas to remain in, but not to 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)        Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to absorbed person visa.

8.         Section 34 of the Migration Act 1958 was incorporated into the current statutory scheme by Section 8 of the Migration Legislation Amendment Act 1994 (Act No 60 of 1994).

9.         On 2 April 1984, the Migration Amendment Act (Act No 112 of 1983) came into operation and was referrable to placitum 51(xix) of the Australian constitution.

10..      Prior to 2 April 1984 the Migration Act was referable to placitum 51(xxvii).

11.       On 2 April 1984, subsection 7(4) of the migration Act was omitted by operation of Section 8(1)(b) of the Migration Amendment Act 1983 (Act No 112 of 1983).”

Legislation

Section 34 of the Act provides:

“(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.”

The present Act defines “non citizen” in s 5(1) to mean “a person who is not an Australian citizen”. The Act as currently in force does not define “absorbed person” or “immigrant”.

There is no dispute that the applicant meets the requirements of s 34(2)(a), (c) and (d) of the Act and there is no dispute that the applicant is a non citizen in the migration zone within the meaning of the Act.

The question is: whether the applicant satisfies the requirement of s 34(2)(b) that she is a person who before 2 April 1984 had ceased to be an immigrant?

As pointed out in submissions for the Minister, the Act in its present form was first enacted in a different form as the Migration Act 1958-1973 which came into operation on 1 June 1959 (“the original Act”). Section 5(1) of that Act defined “immigrant” as follows:

“‘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; ...”

Section 6 of the original Act provided that an immigrant who entered Australia when not holding a valid entry permit became a “prohibited immigrant”. This term is not defined.

Section 7(3) provided that upon expiration of a temporary entry permit the holder becomes a “prohibited immigrant” unless a further entry permit came into force. By s 10 of the original Act a person who became a “prohibited immigrant” ceased to be such upon the grant of an entry permit or further entry permit and not otherwise.

Section 7(4) of the original Act provided:

“Notwithstanding section 10 of this Act, a person who has become a prohibited immigrant by virtue of the last preceding subsection 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.” (Emphasis added)

The Migration Amendment Act 1983 (Cth) (“the 1983 Act”) commenced on 2 April 1984. It omitted the definition of “immigrant” and replaced it with the definition of “non citizen” in the same terms as currently appears in the Act. The 1983 Act repealed subs 7(4) and provided, in s 38(1) that a person who was immediately before 2 April 1984 a prohibited immigrant by virtue of a provision of the original Act thereupon became a prohibited non-citizen.

The present case

In the present case the applicant from 22 November 1982, upon expiry of her temporary visa, became a prohibited immigrant pursuant to s 7(3) of the original Act.

Section 7(4) of the original Act permitted the applicant, as a prohibited immigrant, to cease being a prohibited immigrant after five years from the time at which she became a prohibited immigrant. The five year period in the present case would have expired on 22 November 1987. In the interim, the 1983 Act intervened, repealing s 7(4) of the original Act as from 2 April 1984.

The applicant’s principal submission is that by becoming a prohibited immigrant she ceased to be an immigrant, and therefore satisfies s 34(2)(b) of the Act.

There has been a line of recent decisions in this Court which, in my view, require rejection of the applicant’s submissions. The most recent decision is that in Boon Yin Chee v Minister for Immigration and Multicultural Affairs (unreported, Full Federal Court, 13 June 1997), where Lockhart, Heerey and Sundberg JJ followed and applied earlier first instance decisions in Yong v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 566; Tjandra v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577, and Rooney v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 590.

The above decisions were made in circumstances indistinguishable in substance or principle from the present. Their Honours make it clear in those decisions that a person in the situation of the present applicant did not cease to be an “immigrant” under s 34 by reason of having become a “prohibited immigrant” upon expiration of a temporary entry permit. The principles and reasons, which are on all fours with the instant case, need not be repeated in these reasons.

In particular, I agree with the observations made by various judges in the above decisions to the effect that as a matter of logic it follows that a “prohibited  immigrant” is a subset or class of the category of “immigrant”.  Further, as Lindgren J pointed out in Tjandra (at 587) it would be a peculiar interpretation which would confer an advantage on a “prohibited immigrant” which would not have been available if that person continued to have the status of an “immigrant”.  To do so would seem to reward overstaying.

Notwithstanding the submissions made on behalf of the applicant, I cannot accept the submission that the line of authority referred to above is either wrong or distinguishable.  I am clearly bound by the Full Court decision in Boon and I agree with the reasons given by other judges at first instance to a similar effect and note their endorsement by the Full Court in that case.

Although cast in different language the substance of the final submission advanced for the applicant is that “immigrant” status ceases upon becoming a “prohibited immigrant”. This is directly contrary to authority.

The application is therefore dismissed but I make no order as to costs.

Associate:

Dated:              26 September 1997