Rooney v Minister for Immigration and Ethnic Affairs
[1996] FCA 656
•25 JULY 1996
CATCHWORDS
IMMIGRATION - requirements for absorbed person visa - meaning of "immigrant" in para34(2)(b) of the Migration Act 1958 - whether applicant had ceased to be an immigrant before 2 April 1984 - consideration of the Migration Act 1958 and amendments.
Federal Court of Australia Act 1976 s 19
Judiciary Act 1903 s 39B
Migration Act 1958 s 34; sub-ss 7(3), 7(4); para 34(2)(b)
Potter v Minahan (1908) 7 CLR 277
R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168
Teoh v Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Northrop J, 12 July 1996)
LOUISE ROONEY and PHILLIP BLACKMORE v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
WAG 3 OF 1996
LEE J
PERTH
25 JULY 1996
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) NO. WAG 3 OF 1996
B E T W E E N: LOUISE ROONEY and PHILLIP BLACKMORE
Applicants
and
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER: LEE J
DATE OF ORDER: 25 JULY 1996
WHERE MADE: PERTH
THE COURT ORDERS THAT:
The applications be dismissed.
The applicants to 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 )
GENERAL DIVISION ) NO. WAG 3 OF 1996
B E T W E E N: LOUISE ROONEY and PHILLIP BLACKMORE
Applicants
and
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: LEE J
DATE : 25 JULY 1996
PLACE: PERTH
REASONS FOR JUDGMENT
Under s39B of the Judiciary Act 1903 and s19 of the Federal Court of Australia Act 1976 the applicants seek a declaration that each is entitled to an absorbed persons visa pursuant to s34 of the Migration Act 1958 ("the Act") and an order restraining the respondent ("the Minister") from taking any step to remove them from Australia.
The applicants, as citizens of the United Kingdom, were granted temporary entry permits when they entered Australia on 17 February 1983. The permits allowed the applicants to stay in Australia for a period of six months. Whilst in Australia the permits were renewed for a further period of six months. When the permits expired on 17 February 1984 the applicants failed to apply for the issue of another permit. At that time the applicants became prohibited
immigrants under sub-s7(3) of the Act as it then stood.
Each of the applicants obtained employment soon after arrival in Australia. At all times they maintained a relationship of husband and wife. They supported themselves from their income and filed income tax returns each year. They have owned their own home for approximately nine years and have held it free of any mortgage encumbrance for five years. They have not left Australia since their arrival in 1983.
On 29 November 1995 Mr Blackmore was contacted and interviewed by officers of the Minister's department in respect of his status under the Act. Ms Rooney attended the department on 30 November 1995. Each applied for and was granted a bridging visa. They have been informed that they are not eligible for the grant of an absorbed persons visa under s34 of the Act and will be required to leave Australia, or deported, if this application is unsuccessful.
Section 34 of the Act reads as follows:
"34.(1)There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas.
(2)A non-citizen in the migration zone who:
(a)on 2 April 1984 was in Australia; and
(b)before that date, had ceased to be an immigrant; and
(c)on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and
(d)immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;
is taken to have been granted an absorbed person visa on 1 September 1994.
(3)Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to absorbed person visas."
The applicants acknowledge that after 17 February 1984 they became prohibited immigrants but claim that before 2 April 1984 they had been absorbed in the Australian community and were no longer immigrants as at that date.
The thrust of the submissions made by counsel for the applicants was that the construction of s34 is not dependent on the terms of the Act as it stood before 2 April 1984 and that the meaning of "immigrant" as used in para34(2)(b) is the ordinary meaning of that term at law without regard to any qualifications or restrictions upon that meaning that may have been applied by other provisions of the Act in force before 2 April 1984.
The history of the relevant legislation is set out and considered in detail by Northrop J in Teoh v Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, 12 July 1996) and it is unnecessary for me to repeat it.
It is accepted that the word "immigrant" as defined in s5 of the Act before 2 April 1984 applied to the applicants when they arrived in Australia or, alternatively, that, in any event, under the ordinary meaning of that word they became immigrants shortly after their arrival. (See: Potter v Minahan (1908) 7 CLR 277 per O'Connor J at 301-302.) Whether, according to the meaning of the word "immigrant" as used in s34 of the Act, the applicants ceased to be immigrants before 2 April 1984 by becoming part of the Australian community by absorption, is the sole issue in the case.
In Teoh Northrop J held that the meaning of the term "immigrant" in s34 of the Act is controlled by the provisions of the Act in force in the period to which paras34(2)(a), (b) refer. I agree. If the terms of the Act before 2 April 1984 altered provisions of the common law that, otherwise, would control when the status of immigrant may be terminated, such statutory provisions in force in the period to which s34 refers are part of the context in which the meaning of the word "immigrant" as used in that section is to be determined unless the effect of such earlier statutory provisions was
removed by legislation which Parliament had directed was to operate retrospectively.
It was not submitted that Parliament had varied retrospectively the relevant terms of the Act in force before 2 April 1984.
In R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168 it was held that Parliament had authority to legislate, and had so legislated, to provide that neither a person who remained in Australia under the terms of an entry permit nor a person who remained in Australia as a prohibited immigrant could become a member of the Australian community. In Forbes the High Court stated that it was Parliament's intention to circumscribe an immigrant's ability at law to become a member of the Australian community. That intention continued to be reflected in the terms of the Act as it stood until 2 April 1984.
It follows from the foregoing that under the Act a person who was the holder of an entry permit or was a prohibited immigrant immediately before 2 April 1984 could not be a person who had ceased to be an immigrant before that date. Only a person who was able to rely on the terms of sub-s7(4) of the Act as it stood before 2 April 1984, namely, a person who had ceased to be a prohibited immigrant before 2 April 1984, by the effluxion of a period of five years without
the making of an order for the deportation of that person, could be a person who was able to cease to be an immigrant and become a member of the Australian community before 2 April 1984. The word "immigrant" in s34 has a meaning consonant with those provisions.
Accordingly, the applicants' circumstances do not meet the requirements of s34 of the Act and the applications must be dismissed.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.
Associate:
Date:
APPEARANCES
Counsel for the Applicants: I L K Marshall
Solicitors for the Applicants: Murie & Edward
Counsel for the Respondent: J D Allanson
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing : 19 July 1996
Date of Judgment : 25 July 1996
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