Ge v Minister for Immigration and Ethnic Affairs

[1994] FCA 776

GE WEN JUN v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG425 of 1994
FED No. 776/94
Number of pages - 8
Immigration Law
(1994) 53 FCR 523

COURT

FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
SACKVILLE J

CATCHWORDS

Immigration Law - applications for permanent entry permits - applications must be made "after entry" - applications made while applicant in custody under s.89(2) Migration Act 1958 - meaning of "after entry" - effect of departure from Australia since initial entry - whether words mean initial entry to Australia or most recent entry.

Immigration Law - application of cl.816.724(2) Migration (1993) Regulations - effect of deemed cancellation of applicant's visa upon return to Australia.

Migration Act 1958, s.89(2), s.89(8)(a)
Migration (1993) Regulations, cl.816.511, cl.816.724(2), cl.816.722(1).

Khoshabeh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 122 ALR 453.
Lee v Minister for Immigration, Local Government and Ethnic Affairs and Others (1992) 109 ALR 559.

HEARING

SYDNEY, 10 October 1994
#DATE 19:10:1994

Ms L McCallum instructed by Corby Levingston Solicitors for the applicant.

Mr G T Johnson instructed by Australian Government Solicitor for the respondent.

ORDER

THE COURT ORDERS THAT:

1. The decision of the respondent be set aside.

2. The matter be remitted to the respondent for determination according to law.

3. The respondent pay the applicant's costs.

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

JUDGE1

Introduction
SACKVILLE J The applicant seeks review under the Administrative Decisions (Judicial Review) Act 1977 of the decision of the respondent, made on 10 June 1994, to refuse the applicant a Class 816 Special (Permanent) Entry Permit and a Class 818 Highly Qualified On- Shore (Permanent) Entry Permit. The applicant applied for those permits on 11 March 1994. At that time (and at all times since 13 October 1993) the applicant was in custody, having been detained under s.89(2) of the Migration Act 1958 (the "Act") on his return to Australia from a visit to China.

1. Under the Migration (1993) Regulations, Class 816 and Class 818 entry permits can only be applied for and granted "after entry". The decision to refuse the application was made on the ground that the applicant could not demonstrate that, at the date of the application, he had "entered" Australia. This was said to follow from the terms of the Act, which provided that a person who had been taken into custody at an airport was deemed not to have entered Australia: s.89(8)(a). In these circumstances the respondent's delegate determined that the application had not been made "after entry". The applicant claimed that this conclusion was erroneous as a matter of law.

The Facts
3. There was no dispute as to the relevant facts, some of which were communicated to me without objection from the bar table.

(a) The applicant is a citizen of the People's Republic of China

("PRC"), having been born there in 1963. He is unmarried.

(b) The applicant first arrived in Australia on 29 April 1990. He had been issued with a student visa in Beijing on 28 March 1990. On arrival in Australia he received a temporary entry permit, valid until 21 December 1990.

(c) On 3 December 1990 the applicant was granted a further temporary entry permit, valid until 3 January 1992.

(d) The applicant lodged an application for refugee status with the Department on 18 April 1991. On 28 June 1991 he lodged an application for a Domestic Protection (Temporary) Entry Permit.

(e) On 15 January 1992 the applicant was granted a further temporary entry permit, valid until 25 December 1993.

(f) On 30 June 1993 the applicant was issued with a multiple travel visa, also valid until 25 December 1993. This visa was subject to the grant of an entry permit on each arrival.

(g) The applicant departed Australia for China on 29 August 1993. The principal purpose of the visit appears to have been to visit his father.

(h) The applicant returned to Australia on 13 October 1993. On that date his multiple travel visa was cancelled. I was informed that this was done on the basis of allegations that the applicant had obtained the visa through the use of "bogus documents" within the meaning of s.20 of the Act. On that date the applicant was placed into custody pursuant to s.89(2) of the Act. As already noted, he has remained in custody until the present time.

(i) On 11 March 1994 the applicant applied for a Class 816 Special

(Permanent) Entry Permit and a Class 818 Highly Qualified On-Shore (Permanent) Entry Permit.

(j) The Refugee Review Tribunal, on 18 March 1994, affirmed the decision of the primary decision-maker that the applicant was not a refugee under the 1951 Geneva Convention and that he should be refused the grant of a Domestic Protection (Temporary) Entry Permit.

(k) The applicant's application for a Class 816 or Class 818 entry permit was rejected on 10 June 1994.

(l) On 8 July 1994 the present application was filed.

The Act
4. As the Act is frequently amended, it is necessary to note that the references in this judgment to the Act are to the Act as in force at the relevant times.

1. A non-citizen who has entered Australia and who, before a visa was granted or issued, produced to an officer a "bogus document", is within s.20(1) of the Act. Where a person to whom s.20(1) applies has entered Australia, that person is an illegal entrant during the time he or she remains in Australia, is not a citizen and does not hold a properly endorsed entry permit or entry visa: s.14(2). Where, because of the operation of s.14(2), a person is an illegal entrant, even though the person holds a valid entry permit, that permit is taken to have been cancelled when the person entered Australia or when the entry permit was granted, whichever is later: s.35(2).

2. It was common ground between the parties, as I understood the position, that until any contrary determination of the Court (which was not sought in these proceedings), the entry permit held by the applicant must be taken as having been cancelled. The cancellation, by virtue of s.35(2) relates back to the date the permit was granted. In this case, the parties seemed to accept that the relevant date was 30 June 1993, the date of issue of the multiple entry visa. It may be that the statutory retrospective cancellation related back to January 1992, when the temporary entry permit was granted with effect until 25 December 1993. Nothing, however, appears to turn on this.

3. The Act defines "enter" to include "re-enter", "entry" to include "re-entry" and "entered" to include "re-entered": s.4(1). For the purposes of the Act, where a person arrives in Australia by an aircraft at a proclaimed airport, that person is deemed to have entered Australia, when he or she leaves the airport: s.4(5).

4. Section 89(2) of the Act provides that, if an authorised officer reasonably believes that a person who disembarks from an aircraft at a proclaimed airport would become an illegal entrant if the person were to enter Australia, that person may be taken into and kept in custody. It was under this subsection that the applicant was taken into custody on 13 October 1994. The Full Court has held that when the conditions precedent prescribed by s.89(2) are satisfied, the authority conferred by the section must be exercised: Khoshabeh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 122 ALR 453. Section 89(8)(a) provides that a person who is taken into or held in custody under s.89 is taken not to have entered Australia unless he or she is granted an entry permit. It follows that, in the present case, the applicant, who has remained in custody since 13 October 1993, is to be taken as not having "entered Australia" on or at any time after that date. See Li v Minister for Immigration (1991) 33 FCR 568, at 578-579, per Hill J. Mr Johnson accepted, however, that the applicant had been "in Australia" since October 1994, in the sense in which that phrase is used in the Migration (1993) Regulations.

Regulations
9. Class 816 and 818 permits were introduced by the Migration (1993) Regulations (Amendment), commencing on 1 March 1994. At the same time Part 815 of the Regulations introduced a Class 815 PRC (Permanent) Entry Permit, intended to provide for permanent residence in Australia by certain nationals of the PRC. However, there was no suggestion that the applicant was eligible for a Class 815 Permit.

1. I shall deal first with the requirements governing Class 816 permits. Again the provisions of the regulations to which I refer are those in force at the relevant times.

2. The purpose of a Class 816 permit was expressed to be to provide (inter alia) for permanent residence in Australia by "certain persons who have applied for determination that they are refugees": cl. 816.12(a). An application had to be made on or before 1 August 1994: cl. 816.512. Thus there was a five month "window of opportunity", between 1 March and 1 August 1994, for those persons otherwise eligible to apply for a Class 816 permit. Such a permit could be "applied for and granted only after entry": cl. 816.511.

3. In the case of a "principal applicant", as defined, it was necessary at the date of the application that he or she was "in Australia": cl. 816.722(1). It was common ground that the applicant satisfied the definition of a "principal applicant". (The definition included an age requirement, certain educational qualifications and a requirement that the applicant should have previously applied, whether successfully or not, for a determination of refugee status: cl. 816.131, cl. 816.721(a)). It was also necessary, in the case of a principal applicant, that he or she had been granted a visa overseas on or before 12 March 1992 and had used that visa to travel to and enter Australia on or before 1 November 1993: cl. 816.724(1). There was no dispute that the applicant was in Australia on 11 March 1994, the date of his application (despite not having "entered" Australia on or after 13 October 1993). Nor was there any dispute that the applicant satisfied the terms of cl. 816.724(1).

4. A further requirement for a Class 816 permit was stated by cl. 816.724(2):
   

"(2) If an applicant:

(a) travelled to, and entered, Australia on or before 1 November 1993 using a visa granted on or before 12 March 1992; and

(b) subsequently left Australia and returned using a visa other than the visa referred to in paragraph (1)(a); the applicant is taken to meet the requirements of this clause only if the visa used to return to Australia was a return visa."

1. The term "return visa" was defined to include a visa, granted in Australia, permitting return travel to Australia. It was common ground that the applicant came within cl.816.724(2)(a), but there was a dispute whether sub-paragraph (b) applied to the applicant and, if so, whether he satisfied the requirements of that sub-clause.

2. Class 818 permits were expressed to provide for permanent residence in Australia by certain persons who held or had undertaken study towards higher educational qualifications: cl. 818.12. While the phrase "principal applicant" was defined somewhat differently in Part 818 than in Part 816, it was accepted that the applicant met the terms of the definition. The specific requirements in Part 818 were in substantially identical terms to those in Part 816 to which reference has already been made. The parties accepted that the result of these proceedings should be the same in relation to each application.

Submissions
16. Both counsel modified their submissions in the course of argument. Mr Johnson's initial submission was that the requirement that an application be made "after entry" could not be satisfied where the applicant had left Australia and had not re-entered the country. On this submission, quite independently of the terms of cl. 816.722(1) (requiring a principal applicant to be "in Australia" at the time of the application), an applicant could not satisfy the requirements of cl. 816.511 if he or she were out of the country. Similarly, an applicant could not satisfy that requirement if he or she had been taken into custody under s.89(2) without being granted an entry permit, because such a person was taken not to have entered Australia by virtue of s.89(8)(a) of the Act. It was, in Mr Johnson's submission, necessary to consider only the applicant's position after he had left Australia in August 1993. The fact that the applicant had previously entered Australia pursuant to a valid entry permit was irrelevant.

1. Ms McCallum's initial submission was that the only requirement imposed by cl. 816.511 was that the applicant must have "entered" Australia prior to making the application. In this case the applicant had entered Australia in 1990. It was immaterial that the applicant had subsequently left Australia. Indeed, Ms McCallum argued that Part 816 specifically contemplated that an application might be made by someone who was outside Australia. For example, cl. 816.722(2) provided that, where the applicant was not a "principal applicant" (unlike the present applicant's case), he or she had to be in Australia or hold a return visa at the date of the application. That provision would not have been necessary had the phrase "after entry" borne the meaning attributed to it by Mr Johnson.

2. When it was pointed out in argument that Ms McCallum's formulation would allow the requirement in cl. 816.511 to be satisfied by an entry into Australia, however remote in time from the application and whether or not connected with an intention to live in Australia or even reside here temporarily, Ms McCallum modified her submission. She contended that the requirement that the application be made "after entry" implied that the applicant, from the date of original entry into Australia, should never have relinquished an intention to live or perhaps reside (albeit temporarily) in Australia.

3. Mr Johnson was faced with the difficulty that on his original formulation there seemed to be no work for cl. 816.722(1) to perform (cl. 816.722(1) requires a principal applicant to be "in Australia" at the time of the application). If an applicant is not able to apply from outside Australia in any event, what was the point of cl. 816.722(1)? Moreover, Mr Johnson's contention did not appear to acknowledge that Part 816 contemplates that some applications could be made outside Australia, subject to the applicant meeting certain conditions.

4. These matters led Mr Johnson to modify his submission. He did so by accepting that an application could be made "after entry", within the meaning of cl. 816.511, if the applicant had not entered Australia at the time of the application, provided that he or she had left the country with a valid re-entry permit. On this basis, so Mr Johnson contended, there was work for cl. 816.722(1) to perform, in that it restricted the class of applicants otherwise eligible to apply. In this case he submitted that the applicant did not leave the country with a valid re-entry permit, since the visa issued in June 1993 was deemed to be cancelled.

5. I have referred to these changes of position, not for the purpose of being critical of counsel. Rather, the course of argument reflects the difficulty of construing regulations that are complex and not necessarily framed in a clear or consistent manner: compare Lee v Minister for Immigration, Local Government and Ethnic Affairs (1992) 109 ALR 559, at 566, per Einfeld J. The difficulty is compounded by the fact that whichever interpretation is adopted, anomalies are likely to result.

Construction of Reg. 816.511
22. In my view the better interpretation of cl. 816.511 is that an application for a Class 816 permit is made "after entry" if the applicant has previously entered Australia, regardless of whether he or she has subsequently left Australia and regardless also of whether he or she holds a valid entry permit or visa at the date of the application. It seems to me that the structure of Part 816 is to impose specific conditions upon the applicant, over and above the requirement in cl. 816.511 that the application be made "after entry". In other words, the specific requirements in Part 816 limit the scope the regulation would otherwise have.

1. In fact the conditions imposed by the regulation address the possible difficulty that cl. 816.511, of itself, does not sufficiently limit the categories of potential applicants. Thus a "principal applicant" must not only apply "after entry", but must apply while in Australia (a condition which, as Mr Johnson acknowledged, the applicant was able to meet). A principal applicant must also have received a visa overseas on or before 12 March 1992 (as the applicant did) and must have used that visa to travel to and enter Australia on or before 1 November 1993 (as the applicant also did). Where the applicant subsequently leaves Australia and returns using a visa, the visa used to return to Australia must be a return visa.

2. The conclusion I have expressed receives some support from the observations of the Full Court in Khoshabeh v Minister for Immigration, at 456:
   

"Normally the word 'enter' is appropriate to describe what happens when a person first comes within Australia. It is a word appropriate to describe what happens when a person, whether a citizen of Australia or a non-citizen, comes from outside Australia into Australia. Thereafter that person can be described as being present in Australia."

1. I accept that care must be taken in applying observations made in one context to another. But this language shows that 'entry' is at least capable of referring to the first entry into Australia, rather than the most recent entry or the most recent attempt to enter Australia.

2. Having regard to the detailed restrictions in Part 816, it does not seem to me appropriate to read any more stringent requirements into the phrase "after entry" than those which are necessarily implied. The imposition of further restrictions on the potential class of applicants, such as those suggested by Mr Johnson, is a matter for those promulgating or drafting the regulations. Certainly amendments to the Regulations occur with some regularity. The phrase "after entry", in my opinion, is perfectly apt to describe a situation where an applicant has entered Australia lawfully but has subsequently left the country. It may well be that, in order for the application to be made "after entry", the applicant must not at any time have abandoned his or her intention to return to Australia, whether as a permanent or temporary resident. However, it does not seem to me to be necessary to resolve that question. If such a qualification is to be incorporated into the phrase, the applicant, on the facts, nonetheless satisfies the test. On the evidence it is clear that he intended to return to Australia and indeed was prevented from rejoining the Australian community only by being taken into custody on 13 October 1993.

3. Similarly I do not think that cl. 816.511 precludes an application from a person outside Australia, or who has been refused entry into Australia, if that person does not hold a valid re-entry visa. It is true that, on the facts agreed between the parties, the applicant's multiple entry visa was deemed to be cancelled from the date of its issue. But as Ms McCallum pointed out, Part 816 provides an opportunity for persons who have unsuccessfully sought refugee status to apply for permanent residence. At least some persons who have failed in their application for refugee status are likely to remain in Australia without a valid visa or entry permit. It would be curious if the absence of such a visa or permit were of itself fatal to a person who happened to have left the country for a short period and sought unsuccessfully to re-enter, but did not have the same consequence for an illegal entrant who had remained within the country.

1. Ms McCallum also pointed out that, if the applicant had used bogus documents, but remained within the country, he could have been detained in custody under s.92 of the Act as an illegal entrant, by force of s.14(2) and s.20(1) of the Act. That person would, nonetheless, be eligible to apply for a Class 816 or Class 818 permit. I did not understand Mr Johnson to contend that an illegal entrant of this kind would be incapable of establishing that his or her application was "after entry", at least where the original entry into Australia was pursuant to a valid permit or visa. It seems anomalous that an illegal entrant, guilty of the use of bogus documents and in custody, should be eligible to apply for a Class 816 or Class 818 permit, but the applicant would be ineligible by reason of what are said to be the same circumstances.

2. I recognise that it is by no means easy to discern the intent of Part 816 and Part 818 in relation to the particular circumstances of the applicant. I also recognise that the meaning I have accorded to cl. 816.511 is not necessarily applicable to all regulations in which the phrase "after entry" is used. Each question of construction must depend on the context in which the language appears. I have, however, concluded that the decision to reject the applications under Part 816 and Part 818, on the ground that the applications were not made "after entry", was erroneous as a matter of construction.

An Alternative Argument
30. Mr Johnson submitted that, if his primary contention were to be rejected, relief should nonetheless be denied to the applicant on discretionary grounds. In particular, he submitted that the applicant was doomed to fail because of non-compliance with cl.816.724(2) (the equivalent of which in Part 818 is cl. 818.723(2)). This was because the applicant had left Australia and returned using a visa other than the visa that authorised his entry into Australia in 1990. It was therefore necessary for him to have used a return visa, as required by cl.816.724(2). The applicant could not comply because he had no valid visa at all, his having been retrospectively cancelled through the operation of s.14(2), s.20(1) and s.35(2) of the Act.

1. In my opinion this submission is not correct. Clause 816.724(2) is directed to quite a different situation than that of a person who obtained a visa which was issued in Australia, but which is deemed to have been cancelled. The provision seems to me to be concerned with the case where an applicant has returned to Australia, relying on a visa that has been issued without regard to his or her status in Australia. The intention of the provision is to render ineligible someone who has left Australia but returns, for example, on a tourist visa issued outside the country.

2. Perhaps more importantly, I do not think that the language of cl. 816.724(2) applies to the applicant's situation. Mr Johnson contended that the applicant "used" an invalid visa for his return. But if the visa was invalid and was not accepted as a basis for entry it is difficult to see how it can be said that the applicant "returned using a visa", within the meaning of that language in cl. 816.724(2)(b). If on the other hand it is accurate to describe the applicant as having "returned using a visa", the visa he did use was a return visa. In short, I do not think it is open to the respondent to disregard the deemed cancellation of the visa when submitting that the applicant had "used" the visa for the purposes of the cl. 816.724(b), but to rely on the invalidity of the visa when submitting that the applicant did not use a return visa to return to Australia, within the meaning of the concluding words of cl. 816.724.

3. It follows that I do not regard this argument as a basis for withholding relief to which the applicant is otherwise entitled.

Conclusion
34. The decision of the respondent that cl. 816.511 and cl. 818.511 of the Migration (1993) Regulations prevented the applicant from applying for or being granted, respectively, a Special (Permanent) Entry Permit and a Highly Qualified On-Shore (Permanent) Entry Permit should be set aside. The matter should be remitted to the respondent for determination according to law. Subject to any contrary argument, the respondent should pay the applicant's costs.