FEDERAL COURT OF AUSTRALIA

Leung v Minister for Immigration and Multicultural Affairs [2001] FCA 1691

MIGRATION – application for review of a decision of the Migration Review Tribunal to refuse applicant a Resolution of Status (Temporary) (Class UH) Visa – whether applicant satisfied the criteria specified in cl 850.21 of Sch 2 of the Migration Regulations – whether applicant was a citizen of the People’s Republic of China immediately before the date of entry to Australia – whether applicant was ‘usually resident’ in the People’s Republic of China immediately before the date of entry to Australia – whether at the material time the applicant was voluntarily residing in Hong Kong – whether the Tribunal erred in failing to consider the issue of voluntariness – whether Hong Kong is a ‘country’ for the purpose of cl 850.21 of Sch 2 of the Migration Regulations – whether Hong Kong was within and part of the country which is the People’s Republic of China for the purpose of cl 850.21 of Sch 2 of the Migration Regulations.

Migration Act 1958 (Cth) ss 31(1)(3), 65(1)

R v Barnet London Borough Council; ex parte Shah [1983] 2 AC 309 applied

Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 applied

Koe v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 289 considered

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

referred to

Yusuf v Minister for Immigration and Multicultural Affairs [2001] 180 ALR 1 applied

WAI YUK LEUNG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 71 of 2001

MANSFIELD J

ADELAIDE

3 DECEMBER 2001

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent costs of the application.

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

REASONS FOR JUDGMENT

1                     This is an application to review a decision of the Migration Review Tribunal (the Tribunal) of 22 May 2001.  The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant to the applicant a Resolution of Status (Temporary) (Class UH) Visa Subclass 850 (the visa).  The applicant applied for the visa on 14 May 1998, and the delegate’s decision refusing to grant it was made on 22 October 1999.

2                     Section 31(1) of the Migration Act 1958 (Cth) (the Act) provides for prescribed classes of visas.  Section 31(3) provides for criteria for eligibility for particular visas to be prescribed.  Regulation 2.01 of the Migration Regulations (the Regulations) then creates prescribed classes of visas as set out in Sch 1 to those regulations, and reg 2.02 creates prescribed subclasses of visas as set out in Sch 2 to those regulations.  Item 1216A of Sch 1 then provides for the Resolution of Status (Temporary) (Class UH) visas and criteria for eligibility and Item 850 of Sch 2 provides for the subclass of that visa and further criteria for eligibility. 

3                     Under s 65(1) of the Act, if the Tribunal was satisfied that the applicant met the prescribed criteria for eligibility for the visa, it was obliged to grant the visa to him.  So far as the present applicant is concerned, the only issue impeding the delegate of the respondent, and on review the Tribunal, from being satisfied that the applicant satisfied the criteria specified for the grant of the visa is whether he met the criteria specified in cl 850.213 and cl 850.213(d) of Sch 2 to the Regulations.  He satisfied the other specified criteria.  If, therefore, the Tribunal should have been satisfied that he met the criteria specified in cl 850.213 and cl 850.213(d), he would have been eligible to be granted the visa:  see s 65(1) of the Act.

4                     It is desirable, however, to refer more extensively to the provisions of cl 850.21 to Sch 2 of the Regulations as the meaning and scope of operation of cl 850.213 may be illuminated by its context.

5                     The Resolution of Status (Temporary) visa class was established by Statutory Rule 279 of 1997, regs 10 and 12.  Clause 850.21 provides criteria to be satisfied at the time of the application for the visa.  It is relevantly in the following terms:

“850.211         If:

(a)               the applicant:

(i)                 was in Australia on 1 September 1994;  and

(ii)               was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied;  and

(iii)             has not been granted a substantive visa on or after 1 September 1994;  or

(b)               the applicant is a person to whom section 48 of the Act applies, the applicant has not been refused a visa, or had a visa cancelled, under section 501 of the Act. 

850.212           (1)        The applicant entered Australia, as the holder of:

(a)               a valid passport of a country mentioned in subclause (3);  and

(b)               an entry permit or an entry visa that had effect as an entry permit.

(2)                The applicant so entered Australia on or before the date specified in subclause (3) in relation to that country.

(3)                The countries and dates mentioned in subclauses (1) and (2) are as follows:

(a)               Iraq – 31 October 1991;

(b)               Kuwait – 31 October 1991;

(c)                Lebanon – 30 November 1991;

(d)               PRC – 1 November 1993;

(e)                Sri Lanka – 1 November 1993;

(f)                 Socialist Federal Republic of Yugoslavia – 1 November 1993;

(g)               Federal Republic of Yugoslavia – 1 November 1993;

(h)               Former Yugoslav Republic of Macedonia – 1 November 1993;

(i)                 Republic of Bosnia and Herzegovina – 1 November 1993;

(j)                 Republic of Croatia – 1 November 1993;

(k)               Republic of Slovenia – 1 November 1993.

850.213                     Immediately before the date when the applicant entered Australia as mentioned in clause 850.212, the applicant was a citizen of the country the government of which issued the passport, and was usually resident:

(a)                …

(b)                …

(c)                 …

(d)                if the applicant was a citizen of PRC – in PRC;  or

(e)                 …

(f)                  …”

6                     PRC means the People’s Republic of China:  reg 1.03.  As is apparent, cl 850.213 and cl 850.213(d) require that, immediately before the date the applicant entered Australia (which must be before 1 September 1994:  see cl 850.211(a)(i)), the applicant was a citizen of the PRC, being the country the government of which issued the passport.  He met that criterion.  But cl 850.213 and 850.213(d) also require that, at that time, he was “usually resident” in the PRC.  It was the obstacle established by that criterion which he was unable to satisfy.

THE TRIBUNAL’S REASONS

7                     The applicant is aged 59.  He was born in, and is a citizen of, the PRC.  He first arrived in Australia on 31 December 1985 as the holder of a visitor’s visa.  He held at the time a valid PRC passport issued on 13 January 1984.  However, he entered Australia on a Hong Kong travel document.  In support of his entry, he submitted a certificate from the PRC that he had no criminal record in the PRC up to 1968, and a certificate from Hong Kong not limited as to time that he had no criminal record in Hong Kong.  He has not left Australia since then. 

8                     The Tribunal found that the applicant was not usually resident in the PRC immediately before the time he entered Australia on 31 December 1985.  It said:

“The visa applicant left the PRC in 1968 and lived in Hong Kong for the next 17 years until December 1985 when he entered Australia.  The Tribunal notes that although the visa applicant held a passport from the PRC he also held a Certificate of Identity issued to him from the Government of Hong Kong and it was on this document that he chose to enter Australia.  The visa applicant was married in Hong Kong in 1977 and had 2 children from that marriage that were born in 1980 and 1983 in Hong Kong.  The visa applicant according to his own evidence worked and operated a successful business in Hong Kong.  The visa applicant acknowledged that he, his wife and children lived in Hong Kong and it was their home.”

9                     The other issue ventilated before the Tribunal was whether Hong Kong is a “country” as that term is used in cl 850.212 and cl 850.213 of the Migration Regulations.  The applicant contended that it was not, but was in fact an integral part of the PRC as at 31 December 1985.  The Tribunal rejected that contention.  The Tribunal’s reasoning appears in the following passage:

“The Tribunal notes that Hong Kong in December 1985 had a distinct area with identifiable borders.  It had its own immigration laws, and was inhabited by a permanent identifiable community, and therefore in the Tribunal’s opinion it was a ‘country’ in accordance with the meaning and purpose of the Migration Regulations.  In 1985 Hong Kong enjoyed a degree of autonomy in relation to its administration.  This lends further support to the submission that it is a ‘country’.  In addition, as a matter of everyday usage of language, it is not inappropriate to refer to a person as coming from, belonging to, or returning to Hong Kong.  The Territory was not simply a place or area but possessed the foregoing additional elements, which make it appropriate to be treated as a country for the purposes of the Regulations.”

CONSIDERATION OF THE GROUNDS OF REVIEW

10                  The applicant through his counsel contended that the Tribunal erred in both those critical conclusions.

11                  The principal contention in relation to the finding of fact that the applicant was, at the relevant time, usually resident in Hong Kong was that the Tribunal had failed to address the question whether the applicant had left the PRC to reside in Hong Kong voluntarily.  It was contended that it was necessary for the Tribunal to have done so, based upon a passage in the speech of Lord Scarman in R v Barnet London Borough Council;  ex parte Shah [1983] 2 AC 309 at 343 – 344 in the following terms:

“Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.  There is, of course, one important exception.  If a man’s presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence.”

12                  The passage was referred to with approval by Gummow J in Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 at 519 – 520. 

13                  I accept that if at the material time, namely immediately before the applicant arrived in Australia, the applicant was not voluntarily residing in Hong Kong, then there may be merit in that contention.

14                  The circumstances in which the applicant left the PRC in 1968 were the subject of a statement of the applicant, submitted to the Tribunal through his advisers on 20 April 2001.  He said that he fled the PRC in 1968 fearing political attack during the Cultural Revolution.  He was unable to return to China until 1980.  Thereafter, however, he was able to travel freely between the PRC and Hong Kong, and he did so.  Clearly, under cl 850.213 the time at which the place of usual residence is to be determined is the time immediately before the date the applicant entered Australia.  If he was at that time living in a particular place not through choice but through some other circumstance, it would be necessary to have regard to that matter in determining the place of his usual residence at that time.  There may be periods of degree involved in such an assessment.  I consider, therefore, that the Tribunal was required to address the issue of voluntariness only if the issue emerged that, at the time immediately before the applicant entered Australia, the applicant may not have adopted voluntarily and for settled purposes Hong Kong as part of the regular order of his life.

15                  In this matter, whatever the circumstances in which the applicant first left the PRC to reside in Hong Kong in 1968, the information provided by the applicant to the Tribunal through his representatives clearly shows that, at least for some years, he had resided voluntarily in Hong Kong.  The Tribunal was informed that the applicant was permitted to reside in Hong Kong on the basis of a renewable residency permit issued by the PRC authorities.  Prior to entering Australia, he worked for a Chinese company based in Hong Kong.  He was required to travel frequently between Hong Kong and the PRC.  In 1984 and 1985, he made five such trips.  That material does not leave any room for a finding of fact that, immediately before his departure for Australia, the applicant was not voluntarily usually resident in Hong Kong.  In the light of that material from the applicant, in my judgment, the Tribunal did not err in failing to consider the issue of voluntariness.  It was not raised by the applicant.  Moreover, even if the Tribunal should have addressed that issue, any failure on its part to do so would not lead to the application being remitted for further consideration on that score.  Given the applicant’s own material, any enquiry on the issue of the voluntariness of the applicant’s residence in Hong Kong immediately before he left for Australia, as I have found above, would admit only of one answer.  It would therefore be futile to refer the matter back to the Tribunal for that purpose.

16                  The applicant’s second contention concerns the conclusion of the Tribunal that, given that the applicant at the relevant time was usually resident in Hong Kong, the applicant was not at that time usually resident in the PRC.  In effect, the contention is that for the purpose of cl 850.213, Hong Kong was within and part of the country which is the PRC, at the time of his arrival in Australia on 31 December 1985 and (presumably) up to 1 November 1993, the date specified in cl 850.212(3)(d).  It was submitted that the Tribunal’s reliance upon the decision of Tamberlin J in Koe v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 289 (Koe) was misplaced because it addressed the status of Hong Kong in a quite different context, namely whether the expression “country of former habitual residence” in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act), in appropriate circumstances, could include Hong Kong.

17                  In Koe, Tamberlin J at 296 said:

“The objective of the Convention is to provide a practical humanitarian solution to the problems of refugees.  It should be interpreted with this objective in mind.  Individuals should not be denied the protection of the Convention by an unnecessarily narrow reading of the definition of ‘refugee’.  It is not appropriate to conclude that an applicant has no recourse under the Convention simply because his or her ‘country’ of former habitual residence happens to be a colony or other entity that is not an independent sovereign state.”

As his Honour then said, the identification of the relevant country serves the purpose of identifying whether a person is without national protection, and secondly the purpose of providing a reference point for the assessment of the degree of risk of persecution. 

18                  In this matter, the relevant enquiry is whether the applicant who, at the material time was usually resident in Hong Kong, was within the meaning of cl 850.213 at that time usually resident in the country the PRC.  In an abbreviated form, the question was expressed as being whether, for the purposes of that clause, the PRC included Hong Kong.  In my view, it is important not to rephrase the question, as was suggested in submissions, by asking whether Hong Kong is separately “a country” so recognised by implication by cl 850.212 and cl 850.213 so as to be excluded from the scope of operation of those sub-clauses.  That is because the purpose of the particular class and subclass of visa appears to be to provide a means of granting legal status to persons who entered Australia lawfully and have been resident in Australia for many years (at least since 1 September 1994) without procuring substantive legal status.  The visa further restricts the categories of persons who may be eligible for the visa to those who arrived in Australia from particular specified countries only, and who did so prior to certain specified dates which vary from country to country.  In the course of submissions counsel agreed that the countries specified were countries in which there had been some form of significant internal dissent or repression adversely affecting some groups within those countries, or more colloquially (as counsel said) “hotspots”.  Obviously the circumstances applicable in each of the named countries differs.  But I accept that it is evident that they are each countries in which, prior to the dates severally specified in relation to them, there was some internal turmoil which led or may have led to persons who were usually resident in those countries seeking refuge elsewhere, including Australia.

19                  The Tribunal’s reasons set out above indicate why it concluded that the applicant was not, immediately before 31 December 1985, usually resident in the PRC.  That passage takes the additional step of concluding that for the purpose of the Regulations, Hong Kong was a “country”.  A fair and sensible reading of the Tribunal’s reasons reveals that, in effect, it concluded that the factors to which it referred meant that Hong Kong was not part of the country the PRC at that time, within the meaning of the expression PRC as used in cl 850.212 and at 850.213 of the Regulations:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  The factors to which it referred are matters which, in my view, are capable of leading to that conclusion.  The Tribunal, although it referred to Koe, did not in my view place undue or misplaced emphasis upon that decision.  As counsel for the applicant pointed out, the decision concerned a different question and was resolved in part by identifying the purposes of the use of the terms “country of habitual residence” and “country of nationality” in Article 1A(2) of the Convention.  However, the Tribunal did not treat Koe as deciding the present issue.  It did not assume that the objectives of Article 1A(2) of the Convention are the same as those discernible in cl 850.21 of the Regulations.  It used considerations to which Tamberlin J had regard in Koe in deciding the question which it was called upon to decide in this matter.  But it has not been shown that any of those considerations were matters to which it could not properly have regard:  cp Yusuf v Minister for Immigration and Multicultural Affairs [2001] 180 ALR 1 at [82] (Yusuf).  In view of the purpose of cl 850.21 of the Regulations to which I have referred above, the conclusion of the Tribunal is fortified.  Of the elements necessary to qualify as an eligible person to be granted the visa, relevantly that the person be a long term resident in Australia, and that such persons are among those who may have had reason to seek refuge from internal dissent or oppression in their prior country of usual residence, the latter underlying qualification is not one which would apply to Hong Kong or to persons whose usual residence was Hong Kong. 

20                  The applicant contends that the Tribunal did not consider the submissions put forward on his behalf by his representative that Hong Kong fell within the expression “the PRC” in cl 850.21 of the Regulations.  Those submissions were contained in a letter to the Tribunal dated 2 April 2001.  The Tribunal expressly referred to that submission both in the section of its Reasons for Decision headed “Evidence” and in the section headed “Findings”.  It has referred at some length to sections of that submission.  It is not incumbent upon the Tribunal to adopt a point by point refutation of each of the contentions made in that submission: see Yusuf at [68] per McHugh, Gummow and Hayne JJ.  It has obviously rejected the underlying theme of the contentions that Hong Kong was not expressly included in the countries referred to in cl 850.212 and cl 850.213 to avoid any diplomatic concern in relation to the PRC.  It has done so by determining that, for the purposes of those clauses, Hong Kong was not intended to be included as part of the PRC.  As I have said, on the basis of the common submission of the applicant and the respondent as to the genus of the countries expressly referred to in cl 850.21, that genus of “hotspots” is not suggested in any submission to be one in which Hong Kong appropriately falls.  Accordingly, despite the detailed submissions made on behalf of the applicant including reference extensively to “historical literature” concerning the status of Hong Kong, in my view the Tribunal’s conclusion on this aspect of the case on the material before it has not been shown to have been in error.  Although it is not a factor relevant to the proper meaning of “the PRC” in cl 850.21, I observe that on the applicant’s own case it was precisely because Hong Kong was beyond the reach of the perceived potential oppression which he feared that he went to Hong Kong in 1968. 

21                  For these reasons, in my view, the application should be dismissed.  The applicant should pay to the respondent costs of the application to be taxed.

Associate:

Dated:              30 November 2001