Boon Yin Chee v The Minister for Immigration and Multicultural Affairs

[1997] FCA 604

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	)   VG73 of 1997
)
GENERAL DIVISION	)

BETWEEN:             

BOON YIN CHEE
First Applicant

LILIANA TEO
Second Applicant

  AND:  

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE(s):	LOCKHART, HEEREY and SUNDBERG JJ
PLACE:	MELBOURNE
DATED:	13 JUNE 1997

REASONS FOR JUDGMENT

THE COURT:
           This is an appeal from the judgment of a judge of the Court, Merkel J, given on 7 February this year.  His Honour's judgment was with respect to a motion seeking summary dismissal of the substantive application before the Court.  His Honour ordered that the application be dismissed with costs. 

The application which was before the Court in its original jurisdiction was made by the two appellants, and it sought a declaration that each of the persons are taken to have been granted what is described in the Migration Act 1958 (Cth) (‘the Act’) as an "absorbed person visa" on 1 September 1994, pursuant to s 34 of the Act.

The appellants also sought an injunction to restrain the respondent, the Minister for Immigration and Multicultural Affairs, from taking any steps to deport them from Australia. 

The relevant facts are not in dispute, and they may be briefly stated.  The appellants arrived in Australia, in the case of one appellant on 8 June 1981, and in the case of the other on 12 September 1982.  They were granted temporary entry permits, which expired in one case on 8 July 1981, and in the other on 12 December 1982. 

The second appellant claimed initially that her permit had been extended to 16 March 1983, and that it expired on that date, but nothing turns on that matter.  Both appellants have resided in Australia since their arrival. 

The relevant provision of the Act with which this appeal is concerned, is s 34, and it 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 issue that was before the court at first instance and that is before this Court on appeal is whether the appellants can satisfy the criterion specified in s 34(2)(b). That is to say whether before 2 April 1984 they had ceased to be immigrants.

The learned primary Judge followed three judgments of single Judges of this Court, each of which had arrived at the same conclusion as his Honour.  The cases in question are as follows: Yong v The Minister for Immigration and Ethnic Affairs (1996) 67 FCR 566 (Northrop J); Tjandra (aka Yek) v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577 (Lindgren J); and Rooney and Another v The Minister for Immigration and Ethnic Affairs (1996) 67 FCR 590 (Lee J).

Indeed, Lindgren J, in the concluding paragraph of his judgment in Tjandra, made specific reference to the judgment of Northrop J in Yong, but in terms making it clear that Lindgren J had written his reasons for judgment before becoming aware of Northrop J’s judgment given a short time before.

The primary Judge in this case said that the substantive facts with which each of the other three cases were concerned were not distinguishable from the facts in this case. We endorse his Honour's statement. Merkel J said that the ultimate conclusion reached by the Court in each of the cases was that a person who was a prohibited immigrant as at 2 April 1984 could not as a matter of law have ceased to be an immigrant on or before that date and therefore could not satisfy the criterion for an absorbed person visa set out in s 34(2)(b). His Honour concluded that he was not satisfied that the decisions were wrong, let alone clearly wrong, thereby using the language applied in the Bank of Western Australia v The Federal Commissioner of Taxation (1994) 125 ALR 605 at 627.

The primary Judge also said that nothing in s 34 itself or in the relevant legislative history or in the parliamentary debates justified 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 time after 2 April 1984.

His Honour noted that the case was likely to produce what he described as a harsh result to the two appellants who have resided in Australia for some 14 to 15 years. However, his Honour concluded that the result was a consequence of the particular requirements of s 34 which did not entitle the applicants to the visa for which that section makes provision.

We have considered each of the judgments of Northrop J, Lindgren J, Lee J and, of course, the primary Judge in this case. In our opinion, those cases definitively and correctly review the history of the relevant paragraphs of section 34. The construction of section 34(2)(b), which appealed to their Honours and which was the same in each case, is, in our view, correct. We see no reason therefore why, although this is the first time a Full Court of this Court has looked at this question, we should ourselves definitively write about the proper interpretation of s 34(2)(b); that work has been done for us by the Judges in the judgments to which the Court has referred and we agree with that interpretation.

In the result the Court is of the opinion that the appeal from the judgment of Merkel J should be dismissed.  The order of the Court is that the appeal be dismissed and that the orders made by Merkel J on 7 February 1997 be confirmed.

The Court is of the opinion that the usual order for costs should apply and therefore orders the appellants to pay the costs of the respondent of the appeal.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lockhart

Associate:

Dated:            13 June 1997

Counsel for the Applicants:	Mr T A Fernandez
Solicitor for the Applicants:	T A Fernandez
Counsel for the Respondent:	Mr K H Bell
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 June 1997
Date of Judgment:	13 June 1997