Dhingra v Minister for Immigration & Multicultural Affairs

[1999] FCA 1350

Sanjeev Dhingra v Minister for Immigration and Multicultural Affairs [1999] FCA 1350
Migration - Statutory Interpretation

Dhingra v Minister for Immigration and Multicultural Affairs [1999] FCA 1350

SANJEEV DHINGRA v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 987 of 1999

MOORE J

29 SEPTEMBER 1999

SYDNEY

MIGRATION - Migration Act 1958 (Cth) - applicant convicted in 1999 of offence under the s 83G of the Act as at 1993 - subsequent release on bail from imprisonment into immigration detention - immigration detention on the basis of being an unlawful non-citizen by the operation of s 243(2) of the current Act - amendments to the legislation and effect of such amendments - difference between and consequences of being deemed to be an illegal entrant and unlawful non-citizen - whether a person convicted of an offence under s 83G of the Act as at 1993 is thereby convicted of an offence for the purpose of s 243(2) of the Act in its current form.

STATUTORY INTERPRETATION - Migration Act 1958 (Cth) - competing constructions of consequences of conviction under provisions before and after amendments - circumstances where consequences of conviction are materially different in the statutory schemes - whether provisions before and after amendments confer discretionary or mandatory powers of detention and deportation.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth)(current at 31 January 1994) ss 59, 60, 83G, 92

Migration Act 1958 (Cth) ss 189, 198, 243

Migration Reform Act 1992 (Cth)

Migration Legislation Amendment Act 1994 (Cth)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 987 of 1999

BETWEEN:	SANJEEV DHINGRA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MOORE J
DATE OF ORDER:	29 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.       The question:

"Is a person convicted of an offence under s 83G of the Migration Act 1958 as at January 1993, thereby convicted of an offence for the purpose of s 243(2) of the Act as at July 1999?"

       be answered:

No.

2.       The question:

"If the answer to question 1 is "yes", is such a person thereby an unlawful non-citizen for the purpose of the Act?"

Unnecessary to answer.

3.       The question:

"Has the applicant been otherwise illegally detained?"

       Inappropriate to answer.

4.       The proceeding be adjourned to a date to be fixed being a date after any further consideration of bail conditions by the Supreme Court.

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 987 of 1999

BETWEEN:	SANJEEV DHINGRA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MOORE J
DATE:	29 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Application

1 Mr Sanjeev Dhingra ("the applicant") is presently in immigration detention. On 14 September 1999 he commenced proceedings under s 39B of the Judiciary Act 1903 (Cth). He sought declarations that he is not an unlawful citizen and that his immigration detention pursuant to ss 189 and 196 of the Migration Act 1958 (Cth) (that is, the Act in its present form ("the current Act")) is not authorised by law. The applicant also sought an order in the nature of a writ of habeus corpus directing the Minister for Immigration and Multicultural Affairs ("the Minister") to release him from detention. The applicant also sought an order prohibiting the Minister from further detaining him and removing him from Australia and sought damages for false imprisonment.

Factual Background

Factual Background

2       The applicant is a citizen of India who first entered Australia on a visitor entry permit on 7 April 1989. He made a number of unsuccessful applications for Australian permanent residence. On 13 January 1993 the applicant married an Australian citizen. Soon after he returned to India where he lodged an application with the Australian High Commission in New Delhi ("the Commission") to migrate to Australia on the basis of his marriage. On 13 October 1993 the Commission approved Mr Dhingra's application and granted him a Class 100 Spouse visa. He returned to Australia on this visa on 20 October 1993, and on arrival was granted an entry permit to remain in Australia permanently.

3       On 23 October 1996 the applicant was committed for trial at the District Court in Sydney on indictment that he:

"between 13 January 1993 and 1 February 1993 at Sydney in the State of New South Wales applied for a stay permit on the basis of satisfying a criterion for the permit because of being married to another person namely Angeline Singh, whereas at the time of the application, the accused did not intend to live permanently with the other person in a genuine and continuing marital relationship".

The applicant was convicted on 31 March 1999, and was remanded in custody. On 7 May 1999, Judge Mahoney of the District Court sentenced the applicant to fifteen months imprisonment from 31 March 1999 and imposed a fine of $3000 though the terms of the sentence enabled the applicant to be released on 1 April 2000.

4       The applicant appealed against the severity of the sentence. On 29 July 1999 bail was granted by a judge of the Supreme Court of New South Wales on the following terms:

"The Court orders:

That SANJEEV KUMAR DHINGRA be granted bail on the following conditions:

1. A) The applicant is to be of good behaviour whilst on bail.

B) His Honour directs that the applicant is not to be released except into the custody of an officer from the Dept of Immigration.

C) The applicant is to prosecute his application for leave to appeal with due diligence.

D) The applicant is to appear before the Court of Criminal Appeal on the date which is notified to his solicitor as the date of the hearing of his application for leave to appeal.

E) Bail is to be automatically revoked in the event of any breach of any one of these conditions and the applicant may thereupon be arrested by any Police Officer.

F) Bail may be entered into before any Justice of the Peace."

5 The appeal has yet to be heard. It appears to be common ground that when the applicant was granted bail, he was immediately detained by Departmental officers and placed in immigration detention as an unlawful non-citizen in purported reliance upon ss 189, 196 and 243(2) of the current Act. On 1 September 1999, a Departmental officer advised the applicant's solicitor that he had received advice to the effect that the Minister was able to remove the applicant from Australia on the basis that the applicant is an unlawful non-citizen.

The course of the proceedings

The course of the proceedings

6       When the matter first came before the Court on 15 September 1999, interlocutory relief was sought. It was refused but the application was listed for hearing on 20 September 1999 on the basis that certain preliminary questions be answered. The questions are:

1. Is a person convicted of an offence under s 83G of the Migration Act 1958 as at January 1993, thereby convicted of an offence for the purpose of s 243(2) of the Act as at July 1999?

2.       If the answer to question 1 is "yes", is such a person thereby an unlawful non-citizen for the purpose of the Act?

3.       Has the applicant been otherwise illegally detained?

Relevant Legislative Framework

Relevant Legislative Framework

7 Section 83G of the Act in the form it was in in January 1993 (which I shall refer to as "the 1993 Act") provided:

"83G(1) A person must not apply for a stay permit on the basis of satisfying a criterion for the permit because of being married to, or being, for the purposes of the regulations, the de facto spouse of, another person if, at the time of the application, the applicant does not intend to live permanently with the other person in a genuine and continuing marital relationship.

(2) A non-citizen in Australia convicted of an offence under subsection (1) becomes an illegal entrant.

(3) ..."

8       The Migration Reform Act 1992 amended s 83G of the 1993 Act by deleting the word "permit", and substituting the word "visa" and deleting the words "illegal entrant" and substituting the words "unlawful non-citizen". The Migration Legislation Amendment Act 1994 amended the 1993 Act by, inter alia, renumbering and relettering the Act (see s 83). The amendments made by these two amending Acts took effect on 1 September 1994. Section 83G was renumbered s 243.

9 Section 243 of the current Act provides:

"243 (1) A person must not apply for a stay visa on the basis of satisfying a criterion for the visa because of being married to, or being, for the purposes of the regulations, the de facto spouse of, another person if, at the time of the application, the applicant does not intend to live permanently with the other person in a genuine and continuing marital relationship.

(2) A non-citizen in Australia convicted of an offence under subsection (1) becomes an unlawful non-citizen.

(3) ..."

10 In order to understand the competing constructions of s 243(2), it is necessary to set out several provisions in the 1993 Act and the equivalent provisions in the current Act. It is to be recalled that 83G(2) of the 1993 Act deemed a person convicted of a relevant offence to be an illegal entrant. Such a person could be detained under s 92 and deported under either s 59 or s 60. Those sections, so far as are here relevant, provided:

"92. (1) An officer may, without warrant, detain in custody a person whom the officer reasonably supposes to be an illegal entrant.

(2) A person detained under subsection (1) or (10) may, subject to this section, be kept in the custody of any officer or in such other custody as the Minister or the Secretary directs.

(3) Where an officer detains a person under subsection (1) or (10), the officer shall forthwith inform the person detained of the reason for the detention, and that officer or another officer having the custody of that person shall take the detained person before a prescribed authority within 48 hours after the detention or, if it is not practicable to bring the detained person before a prescribed authority within that period, as soon as practicable after that period, and, if the detained person is not so brought before a prescribed authority, he or she shall be released.

(4) Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is an illegal entrant and, if the prescribed authority is satisfied that there are such reasonable grounds, he or she may, in writing, authorise the detention of that person in custody, but otherwise the prescribed authority shall order that person to be released.

(5) ..."

"59. (1) An illegal entrant is liable to deportation if the period of grace for the illegal entrant has ended.

(2) Where the Minister, after following the prescribed procedures, is satisfied that a person is, under subsection (1), liable to deportation, the Minister shall, in writing, order the deportation of the person.

(3) A deportation order made under this section may not be revoked.

(4) A deportation order made under this section in relation to a person shall be taken to revoke any deportation order made under section 60 in relation to the person."

"60. (1) The Minister may, after considering the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act.

(2) In spite of any other provision of this Act, a deportation order made under this section shall not be executed before the period of grace for the person has ended unless the person consents, in writing, to be being deported sooner."

11 Section 243(2) of the current Act deems a person to be an unlawful non-citizen. Such a person can be detained under s 189 and removed from Australia under s 198(2). Those sections relevantly provide:

"189 (1) If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.

(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter the migration zone; and

(b) would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person."

"198 (1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

(2) An officer must remove as soon as reasonably practicable an unlawful non-citizen:

(a) who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b) or (c); and

(b) who has not subsequently been immigration cleared; and

(c) either:

(i) has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or

(ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined."

Submissions of the Parties

12 Counsel for the applicant submits that the essential issue is whether the applicant is an unlawful non-citizen by force of s 243(2) of the current Act because of his conviction of an offence under s 83G of the 1993 Act. On 31 March 1999 the applicant was convicted of an offence under s 83G of the 1993 Act, the offence having been committed in early 1993. By s 38 and the Schedule of the Migration Reform Act 1992, and s 83 of the Migration Legislation Amendment Act 1994, s 83G was amended, and renumbered, to become s 243 of the current Act. Both of the above amendments commenced on 1 September 1994 (that is, after the commission of the offence for which the applicant was convicted in 1999). The applicant was released on bail from imprisonment on 29 July 1999 into the custody of an officer from the Department, and placed into immigration detention at Villawood Detention Centre. Counsel submits that the applicant is being held in immigration detention on the basis that he is an unlawful non-citizen because of the operation of s 243(2) of the current Act. He was indicted and convicted under s 83G(1) of the 1993 Act, not s 243 of the current Act. Counsel submits that he has not been "convicted of an offence under subsection (1)" as that expression appears in s 243(2).

13 Counsel for the applicant submits that the effect of s 83G(2) of deeming a person an illegal entrant is that such a person may, as a matter of ministerial discretion, be detained and, as a matter of ministerial discretion, be deported. That scheme differs from the scheme under the current Act if a person is deemed, by operation of s 243(1), to be an unlawful non-citizen. An unlawful non-citizen must be detained and must be removed from Australia. That being so, it is submitted, the expression "convicted of an offence under subsection (1)" must be treated as a reference to a conviction under s 243(1) in its present form only and not 83G(1) as well. That is because the consequences of conviction under s 83G(1) in the form it was in prior to the amendments to the 1993 Act were different and less onerous than the consequences of conviction under s 243(1).

14 The submissions of the Minister are, in their final form, notably narrow. No submission was pressed that upon conviction of an offence under s 83G(1) in March 1999 the applicant was exposed to the operation of s 83G(2) and consequential provisions notwithstanding the amendments to the Act made in 1992 and 1994. It is simply submitted on behalf of the Minister that the source of the power to detain the applicant is s 189 of the current Act and that power was lawfully exercised when the applicant was detained.

Conclusion

15 The starting point in considering the scope of s 243(2) are the changes to the legislative scheme effected, in particular, by the amendments made by the Migration Reform Act1992. While those changes, as reflected by the amendment to s 83G, were at one level a change in nomenclature, they also involved material changes to the scheme under which people entered and remained in Australia. The legal notion of entry changed. However neither counsel relied on any particular similarity or dissimilarity between the pre and post
1 September 1994 statutory schemes or what was comprehended by a stay permit or stay visa or the means of securing them.

16 Thus the question of whether conviction under s 83G(1) is "a conviction of an offence under subsection (1)" as that expression appears in s 243 is to be answered by reference to the competing constructions concerning the consequences of conviction under 83G(1) before the amendments were made to that section. If conviction under that section exposed a person to consequences materially different to the consequences to which a person is exposed if convicted under s 243(1), then s 243(2) should, in my opinion, be construed narrowly.

17 Conviction under s 83G(1) resulted in a person being deemed an illegal entrant. Under the 1993 Act an illegal entrant was liable to detention under s 92. It was decided in Gretch v Fetherstone (1991) 33 FCR 63 that the power to arrest under s 92(1) was a discretionary power. It was later decided in Grech v Heffey (1991) 34 FCR 93 that even if a person was detained under s 92(1) then when, as the section requires, the person is brought before a prescribed authority, the prescribed authority may, as a matter of discretion, authorise the detention of the person in custody. Plainly the scheme of s 92 was that either initially or subsequently an illegal immigrant could be detained but as a matter of discretion: see also Simonz v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 492 at 495and 497. I am bound to follow these judgments unless I consider they are plainly wrong (Bank of Western Australia v Federal Commissioner of Taxation (1994) 55 FCR 233). I do not and, in my respectful opinion, each judgment correctly decided the issue of construction which arose. I do not view the later judgment of the Full Court in Khoshabeh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 104 as indicating otherwise. In that case the Full Court was called on to consider whether s 89(2) of the 1993 Act obliged the authorised officer to detain a person arriving in Australia in the circumstances identified in the section or whether the authorised officer had a discretion to do so. It is plain that the Full Court concluded that the power to detain must be exercised and did so having regard to the language and purpose of s 89. The approach of the Full Court is similar to that of the High Court in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51. The effect of s 92, conferring a discretionary power to detain, is to be contrasted with the effect of s 189 of the current Act which requires the detention of an unlawful non-citizen. Thus, conviction under s 83G(1) may have resulted in detention while conviction under s 243(1) would result in detention.

18 The difference between the provisions in the 1993 Act and the current Act concerning deportation is not as marked. In my opinion the better view is that the combined operation of ss 59 and 60 of the 1993 Act is that the Minister has a discretion whether to deport an illegal entrant before the expiration of the period of grace (which, simply described, was 28 days from the date upon which a person became an illegal entrant: see s 13) but after the expiration of that period the Minister was obliged to deport the person if, after following prescribed procedures, the Minister was satisfied that the person was an illegal entrant: see s 14. I accept there are various decisions including Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 411 and 418 and Chan v Minister for Immigration and Ethnic Affairs (1993) 47 FCR 408 at 410 and 412 and Minister for Immigration and Ethnic Affairs v Keenan (1993) 47 FCR 244 where the authority conferred on the Minister by s 60 is described as a power and not a duty. However this is consistent with what I view as the scope of s 60, subject to the operation of s 59. This appears to have been the view of Burchett and Lee JJ in Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 at 371 though their Honours considered that, as a consequence of the effect of ss 59 and 60, a narrow construction of s 20 was appropriate. Section 20 was, in those proceedings, the section conferring on the applicant the status of illegal entrant. The operation of s 83G(2) is clear and susceptible of neither a narrow or a broad meaning. That is, it unambiguously declares that a person convicted under s 83G(1) is an illegal entrant. It was not suggested that s 198 of the current Act confers a discretionary power to remove from Australia an unlawful non-citizen. It appeared to be common ground that the Minister was obliged to remove an unlawful non citizen.

19 The language of s 243(2) speaks of conviction under s 243(1) being conviction for an offence of applying for a stay visa, as defined, in the proscribed circumstances. It is not, in terms, the same offence as that created by s 83G(1). Moreover, though the effect of becoming an illegal immigrant by operation of 83G(2) is, in many respects, the same as the effect of becoming an unlawful non-citizen by operation s 243(2), there is nonetheless a difference concerning detention. In my opinion this difference is a material one bearing upon the liberty of the individual. Section 243(2) should not be broadly construed: see Donaldson v Broomby (1982) 60 FLR 124 at 126, Marshall v Watson (1971) 124 CLR 640 at 649 and Re Bolton; ex parte Beane (1987) 162 CLR 514 at 523. Conviction of the offence identified in s 83G(1) should not be treated as a conviction of the offence identified in s 243(1) for the purposes of the operation of s 243(2). In my opinion the applicant did not become, by operation of s 243(2), an unlawful non-citizen and on that footing amenable to detention under s 189.

20       Accordingly, I would answer question 1 in the negative which would render it unnecessary to answer question 2. I do not propose to answer question 3. The questions were formulated with comparative haste given what was thought to be the need to progress the matter with expedition. Question 3 is cast in wide terms and may, on one view, require consideration of the detention of the applicant flowing directly from the bail conditions ordered by the Supreme Court of New South Wales. As a result of submissions made by the parties and the Commonwealth Director of Public Prosecutions who intervened, at my direction, in the proceedings, it is relatively clear that the applicant's bail conditions will be reviewed by the Supreme Court shortly. Whether, and the basis on which the applicant is detained in custody pending the hearing of his appeal will be a matter for the Supreme Court.

21       I propose to answer the questions in the manner indicated above and adjourn these proceedings to a date to be fixed, being a date after any further consideration of bail conditions by the Supreme Court.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        29 September 1999

DATES OF HEARING:       15, 20 September 1999

DATE OF DECISION:       29 September 1999

PLACE:        SYDNEY

#DATE 29:09:1999

Appearances

Counsel for the Applicant:        T. Reilly

Solicitor for the Applicant:        Christopher Levingston & Associates

Counsel for the Respondent:        A.F. Backman

Solicitor for the Respondent:        Australian Government Solicitor

Counsel for the DPP (Cth):        M. Cinque