Boon Yin Chee & Anor v The Minister for Immigration & Multicultural Affairs [1997] FCA 46 (7 February 1997)

CATCHWORDS

Immigration - "Absorbed person visa" - Meaning of immigrant in s.34(2) of the Migration Act 1958 - Whether each of the applicants had "ceased to become an immigrant" by reason of having become a "prohibited immigrant" - Whether application cannot succeed.

Migration Act 1958 (Cth) s.34.

R. v. Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14; (1971) 124 CLR 168;

Teoh v. Minister for Immigration and Ethnic Affairs Northrop J, unreported, 12 July 1996;

Tjandra (aka Yek) v. Minister for Immigration and Ethnic Affairs (1996) 138 ALR 511;

Rooney and Blackmore v Minister for Immigration and Ethnic Affairs Lee J, unreported, 25 July 1996.

VG612\96 BOON YIN CHEE & LILIANA TEO V. THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

MERKEL J.

MELBOURNE

7 FEBRUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION No. VG 612 of 1996

B E T W E E N :

BOON YIN CHEE and LILIANA TEO Applicants

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM: MERKEL J

PLACE: MELBOURNE

DATE: 7 FEBRUARY 1997

MINUTES OF ORDERS

The Court Orders that:

1. The Application be dismissed.

2. The applicants pay the respondent's taxed costs of and incidental to the Application.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION No. VG 612 of 1996

B E T W E E N :

BOON YIN CHEE and LILIANA TEO Applicants

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM: MERKEL J

PLACE: MELBOURNE

DATE: 7 FEBRUARY 1997

REASONS FOR JUDGMENT

Introduction

On 4 October 1996 Boon Yin Chee ("the first applicant") and Liliana Teo ("the second applicant") filed an Application seeking:

* a declaration that each of them are persons taken to have been granted an absorbed person visa on 1 September 1994 pursuant to s.34 of the Migration Act 1958 (Cth);

* an injunction restraining the Minister (the respondent) from taking any steps to deport the applicants from Australia.

On 6 November 1996 the respondent filed a Notice of Motion seeking summary dismissal of the Application.

The motion was heard by me on 21 November 1995.

The facts

The facts are not relevantly in dispute.

The applicants arrived in Australia on 8 June 1981 and 12 September 1982 respectively. They were granted temporary entry permits which expired on 8 July 1981 and 12 December 1982 respectively. The second applicant claims that her permit was extended to 16 March 1983 and that it expired on that date. Nothing turns on that matter. Both applicants have resided in Australia since their arrival.

During 1996 the applicants, acting through their solicitor, stated to the Department of Immigration, that pursuant to s.34 of the Act, they were persons who had been taken to have been granted an absorbed person visa on 1 September 1994.

On 20 September 1996 the Department informed the applicants, through their solicitor, that they were not entitled to an absorbed person visa under s.34.

The legislation

Section 34 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."

It is common ground that the issue arising on the present motion is whether the applicants can satisfy the criterion in s.34(2)(b).

The applicants' contentions

The applicants contend that whether they had ceased to be an immigrant under s.34(2)(b) was a mixed question of fact and law which involved consideration of whether they had been absorbed into the Australian community. They submitted that that issue required investigation at trial. They also contended that, when proper regard is had to the parliamentary debates in respect of the sub-section, the clear legislative intent was that it was to operate as at 1 September 1994, rather than 2 April 1984. It was said that that construction re-enforced their primary submission that whether they had become absorbed, i.e. ceased to be an immigrant, required a factual investigation.

The respondent's contentions

The respondent contended that, on the undisputed facts, the conclusions that must be arrived at were -

* the applicants became prohibited immigrants upon the expiration of their temporary entry permits (s.7(3) of the Migration Act 1958 (No.62 of 1958)) and had that status as at 2 April 1984;

* as a result of later amendments to the Act after 2 April 1984, each applicant became a prohibited non-citizen, then an illegal entrant and finally, an unlawful non-citizen;

* a person who was a prohibited immigrant as at 2 April 1984 cannot as a matter of law, be a person who "had ceased to be an immigrant" as at or before that date;

* accordingly, the applicants cannot satisfy the criterion set out in s.34(2)(b) and are not entitled to absorbed person visas under the section.

The respondent submitted that those conclusions accord with and are supported by decisions of the Court in relation to factual situations which are not relevantly distinguishable from the facts of the present case: see Yong Khim Teoh v. Minister for Immigration and Ethnic Affairs Northrop J, unreported, delivered 12 July 1996, Tjandra (aka Yek) v. Minister for Immigration and Ethnic Affairs (1996) 138 ALR 511 and Rooney and Blackmore v. Minister for Immigration and Ethnic Affairs Lee J, unreported, delivered 25 July 1996. See also The Queen v. Forbes; Ex parte Kwok Kuan Lee [1971] HCA 14; (1971) 124 CLR 168 at 173-4.

Conclusions

In the present case the application for summary dismissal should only be acceded to if the Court is satisfied that the applicants' case cannot succeed in accordance with the principles set out in General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129.

There are now three decisions of the Court in which single judges have examined the legislative history of the many and varied, but relevant, amendments to the Act and arrived at the conclusions contended for by the respondent. The fact situations considered in these cases are not distinguishable from those arising in the present case. The ultimate conclusion reached by the Court in each case is that a person who was a prohibited immigrant as at 2 April 1984 cannot, as a matter of law, have ceased to be an immigrant on or before that date and accordingly cannot satisfy the criterion for an absorbed person visa set out in s.34(2)(b). I am not satisfied that the decisions are wrong let alone clearly wrong. Accordingly, it is appropriate to follow and apply them: see Bank of Western Australia v. Federal Commissioner of Taxation (1994) 125 ALR 605 at 627 and the cases there referred to.

Further, nothing in the section itself, the relevant legislative history or the parliamentary debates justifies an interpretation of s.34(2)(b) to the effect that a person is to be entitled to an absorbed person visa if that person ceases to be an immigrant for that purpose at some point of time after 2 April 1984.

I am satisfied that the respondent's submissions are correct and that the applicants' case cannot succeed. Accordingly it is appropriate to dismiss the Application with costs.

The outcome of the present application is likely to produce a harsh result to the two applicants who have resided in Australia and therefore been part of the Australian community for some 14-15 years. However, insofar as the present case is concerned, that result is a consequence of the particular requirements of s.34 of the Act which does not entitle the applicants to the visa provided for by the section.

I certify that this and the preceding (5) pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel.

Associate:

Date:

Heard: 21 November 1996

Place: Melbourne

Judgment: 7 February 1997

Appearances: Mr T A Fernandez of the firm of T A Fernandez appeared for the applicants.

Ms. Jennifer Ellis of the Australian Government Solicitor appeared on behalf of the respondent.