Hogermeer v Minister for Immigration and Multicultural &
[2004] FCA 418
•19 MARCH 2004
FEDERAL COURT OF AUSTRALIA
Hogermeer v Minister for Immigration & Multicultural &
Indigenous Affairs [2004] FCA 418NORMAN LEONARD HOGERMEER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W130 of 2003
CARR J
19 MARCH 2004
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W130 OF 2003
BETWEEN:
NORMAN LEONARD HOGERMEER
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RespondentJUDGE:
CARR J
DATE OF ORDER:
19 MARCH 2004
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs of 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
WESTERN AUSTRALIA DISTRICT REGISTRY
W130 OF 2003
BETWEEN:
NORMAN LEONARD HOGERMEER
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
CARR J
DATE:
19 MARCH 2004
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
This is an application, pursuant to s 39B of the Judiciary Act 1903 (Cth) for prerogative injunctive and declaratory relief in relation to the respondent’s decision, made on 14 November 2002, to cancel the applicant’s BF Transitional (Permanent) visa pursuant to the provisions of s 501 of the Migration Act 1958 (Cth) (“the Act”).
The sole basis of the application is that the applicant is not and never has been an alien within the meaning of s 51(xix) of the Constitution. The applicant contends that he is not subject to the power purported to be exercised by the respondent under s 501(2) of the Act. That is, the applicant’s case is that the respondent has no power to remove him from Australia. The initial hearing of this application took place on 7 October 2003. At that stage the High Court of Australia had reserved judgment in Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143. At the conclusion of the hearing in this matter, I adjourned it to a date to be fixed (if necessary) and made directions whereby the applicant was given leave, within 21 days of the High Court of Australia delivering judgment in Shaw, to file and serve written submissions in relation to what he considered to be the significance (if any) of that decision in the determination of this application. The respondent was given leave to file and serve, within 21 days of service of the applicant’s submissions, his submissions in response. I made an order that stated that if neither party requested a further hearing of the matter, judgment was to be taken to be reserved. I also ordered that either party might have liberty to apply on 7 days written notice to the other party.
As events transpired, the applicant did not file any submissions about the significance of the decision in Shaw. In response to a reminder which I caused to be sent to the parties his solicitor confirmed that he did not intend to file further submissions.
The respondent filed supplementary submissions on the assumption (correctly made) that the intent of the Court orders was not to prevent him from making written submissions on the significance of Shaw in the event of the applicant deciding not to make additional written submissions.
As I considered that I would be assisted by hearing from the applicant what he contended was the appropriate course for this Court to take, in the light of the decision in Shaw, I listed the matter for this afternoon for the purpose of hearing oral submissions from him and if necessary from both parties. When the matter was called on for hearing this afternoon I asked Mr H N H Christie, counsel for the applicant, whether his client conceded that the decision in Shaw obliged me to dismiss this application. Mr Christie informed me that he did not have instructions to make such a concession but he also told me that he was unable to put to me any basis upon which I could take any other course. The situation was that he had advised his client about the decision in Shaw and simply did not have instructions to concede.
FACTUAL BACKGROUND
The evidence in this matter shows that the applicant is, and has been since his birth in India on 14 June 1952, a citizen of the Republic of India. His parents have never been Australian citizens nor naturalised. The applicant first entered Australia on 13 July 1971 and has never left Australia since that time.
The applicant has been convicted in the Supreme Court of Western Australia and the District Court of Western Australia for offences which enlivened the respondent’s discretion to cancel his visa under s 501 of the Act.
In Shaw, in the joint judgment of Gleeson CJ, Gummow and Hayne JJ at [32], their Honours said this:
‘This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act [a reference to the Australian Citizenship Act 1948 (Cth)] on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised. The scope of any earlier operation of the power does not fall for consideration.’
Heydon J questioned the assumption upon which the proceedings in Shaw had been conducted. That assumption was that from 1 January 1901 all British subjects were not aliens. However, his Honour agreed that on that assumption, the orders proposed by Gleeson CJ, Gummow and Hayne JJ should be made for the reasons which they gave. In my view, the assumption questioned by Heydon J has no bearing upon the application of the ratio decidendi of Shaw which I consider to be reflected in par [32], part of which I have set out above.
At par [22] of the joint judgment, their Honours referred to citizens of countries which included India and who by virtue of s 7 of the Citizenship Act have been classified as British subjects by reason, relevantly to this matter, of their citizenship of India. Their Honours observed that that was an exercise of the legislative power with respect to aliens. They added this:
‘The new statutory status rendered those persons a class of aliens with special advantages in Australian law, as mentioned above. It can hardly be said that, as the relevant political facts and circumstances stood in 1948, those citizens could not possibly answer the description of aliens in the ordinary understanding of that word.’
In my view, the same would apply even more clearly to the circumstances of the applicant, being an Indian citizen, born in India in 1952, of non-Australian citizen parents.
In my view, the application of the decision in Shaw obliges me to dismiss this application. The application will be dismissed with costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. Associate:
Dated: 16 April 2004
Counsel for the Applicant: Mr H N H Christie Solicitors for the Applicant: Messrs Christie & Strbac Counsel for the Respondent: Mr M T Ritter Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 6 October 2003, 19 March 2004 Date of Judgment: 19 March 2004
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