Mariappan v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FCA 1183

FEDERAL COURT OF AUSTRALIA

Mariappan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1183

File number(s): VID 973 of 2023
Judgment of: O’CALLAGHAN J
Date of judgment: 15 October 2024
Catchwords: MIGRATION — application for declaration that applicant holds an “absorbed person visa” within the meaning of s 34 of the Migration Act 1958 (Cth) (Migration Act) — where sole issue was whether applicant had “ceased to be an immigrant” by 2 April 1984 within the meaning of s 34(2)(b) of the Migration Act — where applicant was a “prohibited immigrant” within the meaning of the Migration Act in force at 2 April 1984 — where court bound by authority in R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168, which held that a “prohibited immigrant” cannot be absorbed into the community or cease to be an immigrant — where Minister accepted certain facts relied upon by the applicant to support contention that he had, in fact, been absorbed into the community — application dismissed
Legislation:

Migration Act 1958 (Cth) ss 34, 34(2)(b)

Federal Court Rules 2011 (Cth) s 16.07(2)
Cases cited:

Boon Yin Chee v Minister for Immigrationand Multicultural Affairs

Chee v Minister for Immigrationand Multicultural Affairs (1997) 46 ALD 542

Clubb v Edwards (2019) 267 CLR 171

Eqi Wong v Minister for Immigrationand Ethnic Affairs [1997] FCA 1002

Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494

R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168

Rooney v Minister for Immigrationand Ethnic Affairs (1996) 67 FCR 590

Sit v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 40

Tjandra v Minister for Immigrationand Ethnic Affairs (1996) 67 FCR 577

Yong v Minister for Immigrationand Ethnic Affairs (1996) 67 FCR 566
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 47
Date of hearing: 5 September 2024
Date of last submissions: 9 September 2024
Counsel for the Applicant: M Guo
Solicitor for the Applicant: Carina Ford Immigration Lawyers
Counsel for the Respondent: G Hill SC with M Hosking
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 973 of 2023
BETWEEN:

NAGAYAH MARIAPPAN

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:

O’CALLAGHAN J

DATE OF ORDER:

15 OCTOBER 2024

THE COURT ORDERS THAT:

1.The proceeding be dismissed.

2.The applicant pay the respondent’s costs as agreed, or in the absence of an agreement as determined by taxation by a Registrar of this Court.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

O’CALLAGHAN J

Introduction

  1. The applicant, Mr Nagayah Mariappan, is a citizen of Malaysia.  He came to Australia, aged 20, in January 1981.  He has remained here ever since.

  2. By way of a statement of claim filed on 20 November 2023, he says that he is the holder of an…

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AGLC
Mariappan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1183
Case
[2024] FCA 1183
Decision Date

CaseChat Overview and Summary

The case of Mariappan v Minister for Immigration, Citizenship and Multicultural Affairs involved the applicant seeking a declaration that he held an "absorbed person visa" under section 34 of the Migration Act 1958 (Cth). The central issue was whether the applicant had "ceased to be an immigrant" before 2 April 1984, as required by section 34(2)(b) of the Act. The applicant was a "prohibited immigrant" within the meaning of the Migration Act in force at 2 April 1984. The court found itself bound by the authority of R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168, which held that a "prohibited immigrant" cannot be absorbed into the community or cease to be an immigrant. Despite the Minister accepting certain facts that the applicant had integrated into Australian society, the court was unable to find that the applicant had ceased to be an immigrant due to this binding precedent.

The legal issues before the court involved interpreting section 34(2)(b) of the Migration Act in the context of the applicant’s status as a "prohibited immigrant" and the binding effect of the decision in Forbes. The court needed to determine whether the applicant had ceased to be an immigrant before 2 April 1984, and if so, whether this was affected by his status as a "prohibited immigrant." The court also had to consider the argument that the term "ceased to be an immigrant" should not be construed by reference to the concept of "prohibited immigrant" as it had been repealed by the time absorbed person visas were introduced. However, the court found it unnecessary to delve into this argument due to the binding nature of Forbes.

The court reasoned that, although the applicant had provided extensive evidence of his integration into Australian society, this was irrelevant due to the binding precedent in Forbes. The court noted that the applicant met all criteria for an absorbed person visa except for the statutory requirement that he had ceased to be an immigrant before 2 April 1984. Despite the Minister accepting certain facts about the applicant's integration, the court could not find that he had ceased to be an immigrant because, as per Forbes, a "prohibited immigrant" cannot be absorbed into the community. Therefore, the court dismissed the application.

The final orders of the court were that the proceeding be dismissed and that the applicant pay the respondent's costs as agreed or, in the absence of an agreement, as determined by taxation by a Registrar of the Court.

Orders

Orders of the court

1. The proceeding be dismissed.

2. The applicant pay the respondent’s costs as agreed, or in the absence of an agreement as determined by taxation by a Registrar of this Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

I should also briefly note that the applicant submitted in the alternative that, because absorbed person visas under s 34 of the Migration Act were only introduced on 1 September 1994, the term “ceased to be an immigrant” in s 34(2)(b) should not be construed by reference to the concept of “prohibited immigrant”, as that statutory status had been repealed by September 1994. Given that s 34(2)(b) expressly requires consideration of whether a person had ceased to be an immigrant before 2 April 1984, I am doubtful that that submission has any merit. But because I am bound to apply Forbes, it is not necessary for me to say anything more about it.Facts accepted by the Minister It follows that all the factual matters relied on in the statement of claim to found the contention that the applicant was, in fact, absorbed into the community by 2 April 1984 are beside the point. At the hearing, I was asked by counsel for the applicant to nevertheless find facts relevant to absorption and to infer on the basis of those facts that the applicant, if not for his status as a “prohibited immigrant”, had been absorbed into the community, “so that there is a platform for others to determine whether Forbes is still correct”. Counsel for the Minister submitted that I should neither find facts nor draw any conclusion about whether the applicant had been absorbed. It was submitted that it would be inappropriate to do so for two “prudential” reasons, citing Clubb v Edwards (2019) 267 CLR 171. First, if, on appeal the High Court were to revisit the correctness of Barwick CJ’s statement in Forbes this would, on the Minister’s submissions, likely require the Court to reconsider more broadly what amounts to absorption for constitutional purposes. Any conclusion I make on the current state of constitutional law about whether the applicant had been absorbed into the community would therefore be of little value if, in that hypothetical scenario, the law may ultimately change. Secondly, counsel for the Minister submitted that in this case there may be very little dispute between the parties as to the underlying facts, which is contained in documentary evidence, and that the High Court would be in just as good a position as this Court to consider the evidence and undisputed facts and to then draw relevant legal inferences. As it happened, counsel for the Minister, whilst not conceding their relevance to the question of absorption, accepted at the hearing a number of the facts relied upon by the applicant. It is, in those circumstances, appropriate that I record them. The Minister accepted that Mr Mariappan:(1)had not been absent from Australia from his arrival to 2 April 1984 (the early period). (2)had an Australian-citizen sister during the early period.(3)had been employed in Australia throughout the early period, first as a casual cleaner in 1982; and subsequently, at Dupond Industries in Sydney, continuously since 1983.(4)had contributed to and participated in community soccer clubs during the early period, specifically:(a)the Noosa Soccer Club in 1981 which won the Sunshine Coast Football League’s competition that year, as reported in a local newspaper featuring Mr Mariappan’s name, and for which Mr Mariappan was the club’s “number 1 goalkeeper for the 1st Team”.(b)the Smithfield Rangers, when he moved from Noosa to Sydney.(5)did not have any criminal record during the early period or at all.(6)paid income tax, including the Medicare levy, without claiming the foreign residency exemption, during the early period.(7)had adopted and embraced an Australian nickname, and adopted a new substantive name of Thomas Selveraj, and ceased to use his birth name of Nagayah Mariappan, during the early period.(8)has now accumulated superannuation in excess of about $480,000.(9)has not departed Australia ever since arrival.(10)is now a member of various community clubs.(11)has been continuously employed in Australia since 2 April 1984.(12)has continually paid Australian income taxes including the Medicare levy, without claiming the foreign residency exemption since 2 April 1984.

Evidence

Evidence Before The Court

As the Minister has admitted that the applicant meets all criteria for an absorbed person visa except s 34(2)(b), the only issue is whether he had ceased to be an immigrant before 2 April 1984. The evidence The applicant read and relied upon the affidavit of Ms Carina Ford, solicitor for the applicant, affirmed 8 November 2023. Among other things, this affidavit annexed submissions and other material provided by the applicant to the Department of Home Affairs in support of his request that the department acknowledge his status as the holder of an absorbed person visa. The applicant also tendered a supplementary court book, marked Exhibit #A3, which included material that was inadvertently omitted from Ms Ford’s affidavit. The Minister read an affidavit of Mr Michael Spencer, Acting Inspector in the Border Systems Support Section within the Australian Border Force, affirmed 21 June 2024, which set out uncontroversial factual matters relating to the applicant’s arrival in Australia and his visa status. Pursuant to a statement of agreed facts filed by the parties on 4 September 2024, the following facts were agreed between the parties:1.When the Applicant arrived in Australia on 12 January 1981, he was granted a temporary entry permit which expired on 12 January 1982.2.Other than the entry permit referred to in paragraph 1 above, the Applicant was not granted an entry permit or visa prior to 2 April 1984.3.The Applicant was not exempt under the former s 8 of the Migration Act 1958 (Cth) from the requirement to obtain an entry permit. Relevant statutory provisions as at 2 April 1984 Because the claim raises the question of whether the applicant had ceased to be an immigrant by 2 April 1984, it is necessary to have regard to the relevant provisions of the Migration Act in force between his arrival in 1981 and 2 April 1984 (which I will refer to as the “1984 Migration Act”). The 1984 Migration Act provided for entry by immigrants into Australia to be regulated by entry permits to be granted by officers of the Department of Immigration (s 6(2)). Such permits could be cancelled by the Minister in his absolute discretion (1984 Migration Act s 7(1)). The 1984 Migration Act also provided for the deportation of aliens and immigrants under various conditions. Section 6 the 1984 Migration Act provided:6. Immigrant not to enter Australia without entry permit(1)An immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant.(2)An officer may, in accordance with this section and at the request or with the consent of an immigrant, grant to the immigrant an entry permit.…(5)An entry permit may be granted to an immigrant either upon his arrival in Australia or after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of this Part).(6)An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions.…

Decision

Reasons for decision

Consequently, the applicant accepted that he was a “prohibited immigrant” as at 2 April 1984 within the meaning of the 1984 Migration Act.The decision in Forbes is binding As French J recognised in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494 at [33], the statutory criterion of whether a person has “ceased to be an immigrant” in s 34(2)(b) of the Migration Act “imports a constitutional question”, namely whether that person has been absorbed into the community. As his Honour explained at [36], this is because the immigration power in s 51(xxvii) of the Constitution “does not authorise the Parliament to legislate with respect to persons who, having immigrated to Australia, have made their permanent home here and have become members of the Australian community”. In other words, a person who has been absorbed into the community is not an “immigrant” for constitutional purposes. Justice French went on to say, however, that the constitutional question of whether a person has been absorbed into the community can be affected by legislation, explaining at [37] that:[t]he Parliament can make laws which would prevent a person who migrates to Australia from being accepted into the community except under certain circumstances or conditions: O’Keefe v Calwell (1949) 77 CLR 261 at 276-277 (Latham CJ), see also Koon Wing Lau v Calwell (1949) 80 CLR 533; R v Forbes; Ex parte Kwan Lee (1971) 124 CLR 168, especially at 173-174 (Barwick CJ) … These cases reflect the broad principle that absorption may be precluded by community non-acceptance which can be effected by statute, eg, by the limitation imposed by temporary entry permits and the creation of such classifications as “prohibited immigrant” … In R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168, the applicant, Mr Lee, was a person whose temporary visa had expired and was threatened with deportation. Constitutional questions (whether ss 10, 18 and 20 of the Migration Act were valid laws of the Parliament of the Commonwealth) arose and the matter was removed to the High Court. Barwick CJ (with whom McTiernan, Windeyer, Owen and Gibbs JJ agreed) described the applicant’s “basic submission” put by Mr T E F Hughes QC as follows at 172, namely that:the Commonwealth Parliament has no power under s. 51 (xxvii.) [of the Constitution] to pass a law which would authorise the deportation of a person who is not an immigrant and that a person who has been absorbed into the Australian community, or as it was said, as an alternative expression of the same concept, has achieved a “settlement” in Australia, is not an immigrant though he came into this country as a person who at the time of his entry was not part of the Australian community. The applicant therefore says that once he became, as he claims to have become, a member of the Australian community he ceased to be both an immigrant and a prohibited immigrant. That submission was not accepted. As Barwick CJ explained at 172–3:The applicant’s submissions in my opinion ought not to be accepted. In my opinion, they are clearly erroneous. There can be no doubt that the Parliament has power under s. 51 (xxvii.) to say who, if not being a member of the Australian community at the time of entry, shall enter Australia either for a temporary stay or for permanent residence and to fix the terms upon which such person may enter and may remain in Australia. It was said in O’Keefe v. Calwell that immigration as a concept involves two elements (a) entry into the country and (b) absorption into the community of the country. Parliament clearly has authority to legislate with respect to both elements and laws which control those elements can be made under s. 51 (xxvii.). It can say who may enter and it can say on what terms if at all a person so entering may become a member of the Australian community. In the Act Parliament has exercised these powers. It is there provided quite unequivocally that a person who is not already a member of the Australian community may not enter Australia except in pursuance of an entry permit. See definition of ‘immigrant’ s. 5 (1) ss. 5 (2), 6 (2). If he has no permit and enters Australia he is a prohibited immigrant. It scarce needs saying that a prohibited immigrant may not by any means become a member of the Australian community whilst he is a prohibited immigrant. By the very description he is not a person having any title to remain in the country. Once a prohibited immigrant, he remains both an immigrant and a prohibited immigrant subject to ss. 7 and 10.(Citations omitted, emphasis added.)

Ratio Decidendi

Legal Principle Established

The answer to the dispute turns on the relevant part of s 34 of the Migration Act 1958 (Cth) (Migration Act), set out below. For the reasons that follow, I am bound to accept the Minister’s contention and the proceeding must be dismissed.The issue for determination The statement of claim is in these terms:1. The Applicant first arrived in Australia on 12 January 1981.2. On 2 April 1984, the Applicant was in Australia.3. At some time prior to 2 April 1984, the Applicant ceased to be an immigrant.ParticularsThe cessation of the Applicant being an immigrant at some time in the period from 12 January 1981 to 2 April 1984 is inferred from some or all of:(a)the time elapsing between when the Applicant entered Australia and 2 April 1984, being a period of about 39 months;(b)the Applicant forming an intention to settle permanently in Australia during that time, including as inferred from matters subsequent to 2 April 1984, such as:i.the accumulation of a substantial amount of superannuation in excess of about $480,000;ii.the absence of any departure from Australia in the 42 years since arrival;iii. the long-standing membership of various community clubs;iv. continued employment in Australia;v.continued payment of Australian income taxes including [the] Medicare levy, without claiming the foreign residency exemption;(c) the lack of any absences from Australia throughout that time;(d)the existence of family ties in Australia, including that of his Australian citizen sister and her husband (the Applicant’s brother-in-law);(e) the Applicant’s employment in Australia throughout that time;(f) the Applicant’s places of residence throughout that time;(g)the Applicant’s contribution to and participation in community activities, including via community soccer clubs;(h) the absence of any criminal record whatsoever;(i)the payment of income tax in Australia, including Medicare levy, without claiming the foreign residency exemption;(j)the adoption and embracing of an Australian nickname, and the adoption of a new substantive name of Thomas Selveraj and cessation of the use of his birth name of Nagayah Mariappan.Further particulars may be provided prior to trial.4.At no time between 12 January 1981 and 2 April 1984 had the Applicant left Australia, where ‘left Australia’ has the meaning it had in the Migration Act 1958 (Cth) (the Act) before 1 September 1994.5.Immediately before 1 September 1994, the Applicant was not a person to whom section 20 of the Act as in force then applied.6.Pursuant to section 34 of the Act, by reason of the matters in paragraphs 2 to 5, the Applicant is taken to have been granted an absorbed person visa on 1 September 1994. The Minister’s defence filed on 19 January 2024 was as follows:1. The Respondent admits paragraph 1.2. The Respondent admits paragraph 2.3. The respondent denies paragraph 3.Particulars:The applicant did not ‘cease to be an immigrant’ before 2 April 1984 because at that time he was a ‘prohibited immigrant’.The applicant arrived in Australia on 12 January 1981. His incoming passenger card is stamped with a temporary entry permit stating that he could remain in Australia for 12 months. At the time of the applicant’s entry into Australia, ss 7(3), 7(4) and 10 of the Act provided:[s] 7(3) Upon the expiration or cancellation of a temporary entry permit, the person who was the holder of the permit becomes a prohibited immigrant unless a further entry permit applicable to him comes into force upon that expiration or cancellation.[s] 7(4) Notwithstanding section ten of this Act, a person who has become a prohibited immigrant by virtue of the last preceding sub-section ceases to be a prohibited immigrant at the expiration of a period of five years from the time at which he became a prohibited immigrant unless, at the expiration of that period, a deportation order in relation to him is in force.[s] 10 A person who has become a prohibited immigrant ceases to be a prohibited immigrant if and when an entry permit or further entry permit is granted to him, and not otherwise.These provisions were not amended until the Migration Amendment Act 1983 (Cth) came into operation on 2 April 1984.The applicant’s temporary entry permit expired 12 months after his arrival in Australia. He remained in Australia after the expiration of that period. No further entry permit applicable to the applicant came into force at this time, nor was the applicant the subject of an exemption under s 8(1)(e) of the Act (as then in force).The applicant therefore became a prohibited immigrant on the expiration of his temporary entry permit under s 7(3) of the Act (as in force at the relevant time). The applicant could not have ceased to be a prohibited immigrant before 2 April 1984 under s 7(4) of the Act, as a period of 5 years had not passed between the expiration of his entry permit and 2 April 1984.The applicant was a ‘prohibited immigrant’ on 2 April 1984, and therefore could not, as a matter of law, have ‘ceased to be an immigrant’ before that date.4. The respondent admits paragraph 4.5. The respondent does not know and therefore cannot admit paragraph 5.6. The respondent denies paragraph 6.ParticularsThe respondent repeats the matters in paragraph 4 above, and says that because the applicant did not cease to be an immigrant before 2 April 1984, he does not satisfy s 34(2)(b) of the Migration Act 1958 (Cth), and is not taken to have been granted an absorbed person visa by operation of law.