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Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs

Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs

Case [1992] HCATrans 225 7 August 1992

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Statutory Construction

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M23 of 1992
B e t w e e n -
CHU KHENG LIM, AI HUI TANG,
CHINH PO LIM, YOU RY LIM, VAN
VIA DINH, DALY GOAL, KIM SUA
LIM, MUI HUI TAN, MANT TAING,
VAN CHIN PHU, CHI MENG CHEU,
VAN HAI TROUNG, SOK LEE POUV, CUI UI SUA, LIM KIM CHU, LIM CHI TECK, LIM CHI LENG, LIM CHU
SUOL, TRUONG VAN HOACH, KHAV
CHAN LANGE, LIM KIM MUOI, LIM
SOUL LEANG

First-named Plaintiffs

LY IENG, THOU DALES, THOU
RUTHANAC, OEUM VAN YIV, OEUM
VAN KIM, LY TRAI, LIM CHHEANG,
PHAU HEANG. LIM MAKARA, LIM
WILLIAM VUONG AI LE, HOK KOUN,
KAUV NET, LAO SOKHUN

Second-named Plaintiffs

and

Lirn(2)	7/8/92
MASON CJ BRENNAN J DEANE J DAWSON J
TOOHEY J
GAUDRON J MCHUGH J

THE MINISTER FOR IMMIGRATION,
LOCAL GOVERNMENT AND ETHNIC
AFFAIRS

First-named Defendant

and
THE COMMONWEALTH OF AUSTRALIA

Second-named Defendant

Case stated

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 AUGUST 1992, AT 9.50 AM

(Continued from 6/8/92)

MASON CJ: Yes, Mr Shaw.

MR SHAW:

If the Court pleases, we have overnight had the

opportunity of reading those additional papers
which my learned friend handed up yesterday. In
our submission, most of them are not relevant to
the questions which are subject to consideration,
but something is said in them and said twice which
leads us to retrace our steps a little in what we
said yesterday.
In the second submission called "Defendants' Supplementary Submissions-2" at page 5 in

paragraph 12 at the bottom of the page, the
submission says:
There are rational reasons why Parliament
might have seen fit to distinguish between
certain non-citizens arriving by boat and
those arriving by air. Because of the
controls at Australian airports, and the
controls which airlines are required to carry
out at the point of departure, it is much more
difficult for an airline passenger
surreptitiously to enter Australia undetected
than it is for a person arriving by boat.
There is therefore a need to provide stronger deterrents for unauthorised boat arrivals.

And there is a reference to Hansard:

Lim( 2)

7/8/92

"The Government is determined that a clear
signal be sent that migration to Australia may
not be achieved by simply arriving in this
country and expecting to be allowed into the
community ... Australia cannot afford to allow
unauthorised boat arrivals to simply move into
the community. "

And then it goes on:
It appears that the reason that the Act is
limited in operation to certain non-citizens
arriving in Australia between 19 November 1989
and 1 December 1992 is because Parliament
perceived a need to address the pressing
requirements of a current situation. The Act
was intended to operate as an interim measure
pending a comprehensive program of legislative
amendments -

and so on.
Those words, about the pressing requirements of the current situation are repeated in the third
submission on page 3 in paragraph…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs [1992] HCATrans 225
Case: [1992] HCATrans 225
Decision Date

CaseChat Overview and Summary

In the High Court of Australia, the first-named plaintiffs, led by Chu Kheng Lim, and the second-named plaintiffs, along with the first-named defendant, the Minister for Immigration, Local Government and Ethnic Affairs, and the second-named defendant, the Commonwealth of Australia, were engaged in a dispute concerning immigration law. The proceedings involved an examination of the legislative intent and application of certain provisions relating to non-citizens arriving in Australia.

The central legal issue before the High Court was to determine the rationale behind the specific temporal limitations imposed by the relevant legislation, particularly the period between 19 November 1989 and 1 December 1992, and whether this limitation was rationally connected to the purpose of the Act. The court was required to consider whether Parliament had a legitimate basis for distinguishing between non-citizens arriving by boat and those arriving by air, and if the Act was intended as an interim measure to address a pressing current situation.

The court's reasoning, as presented in the transcript, focused on the defendants' submissions regarding the perceived need for stronger deterrents for unauthorised boat arrivals due to the greater difficulty in detecting such entries compared to airline passengers. It was argued that Parliament distinguished between these modes of arrival because of the existing controls at airports and by airlines, which make surreptitious entry by air more challenging. The court noted references to Hansard indicating that the legislation was designed to address "pressing requirements of the current situation" and was intended as an interim measure pending a more comprehensive legislative program. The temporal limitation was thus understood as reflecting Parliament's perception of a need to address immediate concerns.

Orders