Sit v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 40 (11 March 2003)

Last Updated: 11 March 2003

FEDERAL COURT OF AUSTRALIA

Sit v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 40

MIGRATION - appeal - whether appellant is an "Australian permanent resident" - whether Full Court should follow judgment of an earlier Full Court - where specific submissions differ.

WORDS & PHRASES - "ceased to be an immigrant"

Migration Act 1958 (Cth), s 34

Tjandra (aka Yek) v Minister for Immigration & Multicultural & Ethnic Affairs (1996) 138 ALR 511 approved

Boon Yin Chee v Minister for Immigration & Multicultural & Ethnic Affairs (Lockhart, Heerey & Sundberg JJ, 13 June 1997, unreported) followed

Telstra Corporation Limited v Treloar (2000) 102 FCR 592 followed

LING YEE SIT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 868 OF 2002

MOORE, TAMBERLIN & HELY JJ

SYDNEY

11 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 868 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	LING YEE SIT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, TAMBERLIN & HELY JJ
DATE OF ORDER:	11 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with 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	N 868 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	LING YEE SIT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, TAMBERLIN & HELY JJ
DATE OF ORDER:	11 MARCH 2003
WHERE MADE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 This is an appeal from a judgment of a judge of this Court of 30 July 2002. The primary Judge dismissed an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, (now the Minister for Immigration and Multicultural and Indigenous Affairs and collectively "the Minister") to refuse to grant the appellant a Return (Residence) (Class BB) visa under the Migration Act 1958 (Cth) ("the Act").

THE FACTS

2 The facts are not in issue. The appellant is from Hong Kong and arrived in Australia on 27 September 1981. A little less than 20 years later she applied to the Department of Immigration and Multicultural Affairs ("the Department") for a Return (Residence) (Class BB) visa, which was refused on 5 August 1999 by a delegate of the Minister. The application for that visa raised for consideration whether the appellant was an "Australian permanent resident" which, in turn, raised a question of whether the appellant had a permanent visa. The relevant visa the appellant said she held was "an absorbed person visa". On 27 September 1999 the appellant lodged an application for review of the delegate's decision. The Tribunal affirmed the delegate's decision not to grant a protection visa on 18 June 2001, as it was not satisfied that the applicant met the requirement that she was an Australian permanent resident.

3 When the appellant arrived from Hong Kong in 1981 she was granted a temporary entry permit valid until 18 October 1981. She has remained in Australia since that time. The appellant is a single woman who lives with her mother at Belrose, and owns the property in equal shares with her sister and one of her two brothers. She has no family in Hong Kong. Her mother, two brothers and sister are all Australian citizens. Although she has been employed for a number of years since her arrival in Australia, she is currently unemployed as she cares full time for her elderly mother, whose health is poor. The appellant told the Tribunal that she is concerned about returning to Hong Kong, as she has no family there and feels that, as a woman of her age and experience, she would be unlikely to be able to find employment.

RELEVANT LEGISLATIVE PROVISIONS

4 It is convenient to set out the legislative provision of central importance. It is said by the appellant to confer on her an absorbed person visa. Section 34(2) of the Act reads:

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.

[Emphasis added]

THE TRIBUNAL'S DECISION

5 The Tribunal found that the appellant met the requirements of subsections 34(2)(a), (c) and (d) of the Act. The primary issue before the Tribunal was whether the appellant satisfied subsection 34(2)(b) of the Act, namely, whether the appellant had ceased to be an immigrant prior to 2 April 1984.

6 The Tribunal concluded that the appellant had not ceased to be an immigrant, and in doing so, followed the approach of this Court in a number of similar cases: see, for example, Tjandra (aka Yek) v Minister for Immigration & Multicultural & Ethnic Affairs (1996) 138 ALR 511 and Boon Yin Chee v Minister for Immigration & Multicultural & Ethnic Affairs (Lockhart, Heerey & Sundberg JJ, 13 June 1997, unreported).

ISSUES BEFORE THE PRIMARY JUDGE

7 Before the primary Judge, the appellant's counsel accepted that the previous authorities, specifically Boon Yin Chee (supra) must be followed. The primary Judge noted that Boon Yin Chee (supra), a decision of the Full Court, specifically approved three other decisions of this Court which dealt with the same legal issue. The Full Court in Boon Yin Chee (supra) held that a person who was a prohibited immigrant at 2 April 1984 could not have ceased to be an immigrant on or before that date and consequently could not satisfy s 34(2)(b) of the Act.

8 At the hearing, counsel for the appellant advanced an argument which he submitted had not been considered in the previous cases. The primary Judge said, at [6]:

This argument depends on what is said to be the old common law rule that on the repeal of a statute that had itself altered the pre-existing law, the pre-existing law revived. Section 7(4) of the Act, which provided for a person ceasing to be a prohibited immigrant upon the expiration of a five-year period, was repealed with effect from 2 April 1984. Accordingly, so the argument goes, when the expression "ceased to be an immigrant" as it presently appears in s 34(2)(b) was first inserted in the Act by amendments made in 1992, the meaning of the expression was to be found, in the absence of some statutory definition, solely in the general law notion of absorption into the Australian community.

9 However, the primary Judge observed that this submission had been considered previously by Lindgren J in Tjandra (supra), who rejected this argument. The application was dismissed with costs.

CONSIDERATION OF ISSUES IN THE APPEAL

10 Counsel for the appellant has submitted that having regard to the legislative history leading to the enactment of s 34, the expression "ceased to be an immigrant" raised for consideration the question of absorption, and the question of whether a person had "ceased to be an immigrant" did not turn on the legal status of that person under the Act as at 2 April 1984. The meaning of the expression "ceased to be an immigrant" in the context of s 34 was considered by the Full Court in Boon Yin Chee (supra). Counsel for the appellant accepted that he would need to satisfy us that a departure from the construction adopted by the Full Court in the earlier matter was warranted. However there are compelling reasons why a Full Court should follow a judgment of an earlier Full Court, particularly when issues of construction are involved. Those reasons were discussed by a Full Court in Telstra Corporation Limited v Treloar (2000) 102 FCR 592. Branson and Finkelstein JJ said (at [26] and following):

Speaking generally, appellate courts accept that they should act with caution before reviewing an earlier decision: see, eg, Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99-101. Courts have said it may be done if the earlier decision is `manifestly wrong' or `clearly erroneous', or if `strong reasons' are shown, or if the `maintenance [of the earlier authority] is contrary to the public interest': see the examples given by Aickin J in Queensland v Commonwealth [1977] HCA 60; (1977) 139 CLR 585 at 620ff; see also Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 168 ALR 687 at 694. But, apart from suggesting caution, the cases provide little real guidance as to the circumstances in which it will be appropriate to review an earlier decision.

The problem is very real when what is at issue is the construction of a statute. For one thing, statutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances the generality of the statutory language is deliberate and allows the courts to develop a body of law to fill the gaps. This may lead to disagreement among judges about what the statute means. It would be sound policy that once that intent has been discerned by an appellate court then that should be the end of the matter.

The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand. See also the approach of the Full Court in Brooks v Federal Commissioner of Taxation [2000] FCA 721; (2000) 173 ALR 235 at 253.

11 In our opinion, the appellant has not demonstrated that the conclusion of the Full Court in Boon Yin Chee (supra) was plainly wrong. Indeed it may well be that the submission now put by the appellant was considered and rejected by that Full Court. In that matter their Honours said that there was nothing in the legislative history that justified an interpretation to the effect that a person is to be entitled to an absorbed person visa if that person ceased to be an immigrant for that purpose at some time after 2 April 1984. However, whether or not the specific submission put in this appeal was considered and rejected in Boon Yin Chee (supra), we are not persuaded the ultimate conclusion of the Full Court was plainly wrong and that the appellant has met the threshold discussed in Telstra Corporation Limited v Treloar (supra), which would justify us reviewing that decision.

12 The appeal should be dismissed with costs.

I certify that the preceding 12 (twelve) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Tamberlin & Hely.

Associate:

Dated: 11 March 2003

Counsel for the Applicant:	Mr R B Wilson
Solicitor for the Applicant	Peter Leung Solicitors
Counsel for the Respondent:	Ms R M Henderson
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 February 2002
Date of Judgment:	11 March 2003