Sharma, Kaushal v Minister for Immigration and Multicultural Affairs

[1997] FCA 1050

FEDERAL COURT OF AUSTRALIA

MIGRATION - application for injunction to restrain deportation - whether applicant eligible for absorbed person visa - whether applicant had ceased to be an immigrant by reason of grant of a temporary entry permit - whether the a person holding a temporary entry permit could be absorbed into the Australian community. 

WORDS AND PHRASES - “immigrant” - “cease to be an immigrant”.

Judiciary Act 1903 (Cth), s 39B.
Migration Act 1958 (Cth), ss 5(1), 34.
Migration Act 1958 - 1984 (Cth), ss 6, 7.
Migration Amendment Act 1983 (Cth), ss 8, 38.
Migration Laws Amendment Act (No 2) 1992 (Cth), s 16.
Migration Legislation Amendment Act 1994 (Cth), s 26AB.
Migration Reform Act 1992 (Cth), s 14(3).

Chee v  Minister For Immigration And Multicultural Affairs (Fed Ct/FC, 13 June 1997, Unreported), cited.
Ex parte De Briac (1971) 124 CLR 162, cited.
R v Forbes; Ex Parte Kwok Kwan Lee (1971) 124 CLR 168, applied.
Rooney V Minister For Immigration And Ethnic Affairs (1996) 67 FCR 590, followed.
Tjandra v Minister For Immigration And Ethnic Affairs (1996) 67 FCR 577, followed.
Yong v Minister For Immigration And Ethnic Affairs (1996) 67 FCR 566, followed.

KAUSHAL SHARMA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 711 of 1997

SACKVILLE J
SYDNEY

10 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 711  of   1997

BETWEEN:	KAUSHAL SHARMA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		SACKVILLE J
DATE OF ORDER:		10 OCTOBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 711 of 1997

BETWEEN:	KAUSHAL SHARMA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	10 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Proceedings
The applicant is an Indian citizen. He arrived in Australia in 1983 and has remained in this country ever since. The applicant claims that he is deemed to have been granted an absorbed person visa on 1 September 1994, pursuant to s 34 of the Migration Act 1958 (Cth) (“Migration Act”). Section 34, which was introduced into the Migration Act as from 1 September 1994, is as follows:

“(1)There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed persons 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)     ...”.

On 10 June 1997, a migration agent wrote a letter to the Department of Immigration and Multicultural Affairs on behalf of the applicant.  The letter sought information of what was said to be the applicant’s status as an absorbed person.  On 21 August 1997, the applicant was taken into detention, where he has been ever since.  On 25 August 1997 an officer of the Compliance Division of the Department advised the applicant by facsimile sent to the detention centre that an “assessment” had been made that he was not an absorbed person.  The applicant received a copy of that facsimile on 26 August 1997.

The applicant instituted proceedings, described as an application for an order of review, on 3 September 1997.  The application sought to review what was described as “the decision of the [Minister] that the applicant is not an absorbed person under [s 34 of the Migration Act]... made on 25 August 1997”. The relief sought included a declaration that the applicant is an “absorbed person” within s 34 of the Migration Act and an order restraining the Minister from deporting or removing the applicant from Australia.

At the hearing the applicant was represented by Mr Khalsa, a registered migration agent.  Mr Braham, who appeared on behalf of the Minister, had no objection to Mr Khalsa being given leave to appear for the applicant.  Accordingly, to the extent necessary, I granted leave for Mr Khalsa to appear on the applicant’s behalf.

Neither party suggested that there was jurisdiction to review the “assessment” made by the Compliance Officer of the applicant’s status: cf Tjandra v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577 (Fed Ct/Lindgren J), at 579. However, Mr Braham accepted that the Court had jurisdiction, pursuant to s 39B of the Judiciary Act 1903 (Cth), to entertain the applicant’s claim for an injunction against the Minister to restrain his deportation. Mr Braham also accepted that s 485(1) of the Migration Act (which deprives the Court of jurisdiction in respect of certain decisions, including a decision not to grant a visa), did not apply in the present case because s 34 of the Migration Act operates of its own force to deem that an absorbed person has been granted a visa on 1 September 1994.  These concessions follow the reasoning of Lindgren J in Tjandra, at 579 - 582, and are well-founded.

It was common ground between the parties that the applicant is a “non-citizen in the migration zone”; that he was in Australia on 2 April 1984; that he has never left Australia since that date; and that he was not a person to whom s 20 of the Migration Act applied. It follows that the only issue between the parties is whether the applicant, before 2 April 1984, “had ceased to be an immigrant” within the meaning of s 34(2)(b) of the Migration Act.

The Facts
The basic facts were not in dispute.  In May 1981, the applicant began a world tour on a bicycle.  Thereafter, he travelled through a number of Asian countries.  In 1983, the Australian High Commission in Kuala Lumpur issued the applicant with a visitor’s visa.  This was valid for one journey before 30 October 1983 for a stay of up to three months, subject to the grant of an entry permit on arrival.  On 11 October 1983, the applicant arrived in Perth and was granted a temporary entry permit, valid for three months.

After his arrival in Perth, the applicant travelled by bicycle to the eastern States. His entry permit expired on 11 January 1984 and (as is common ground) he became a “prohibited immigrant” the following day, by virtue of s 7(3) of the Migration Act.  The applicant then applied in Canberra for a further entry permit.  On 16 January 1984, he was granted a further temporary entry permit, valid until 11 April 1984.  Like the earlier temporary entry permit, the one issued in January 1984 prohibited the applicant from undertaking employment, except with permission.

On 2 April 1984, the applicant received a further temporary permit, permitting him to remain in Australia with temporary entry status until 11 May 1984.  Thereafter the applicant remained in Australia, apparently living and working in the Sydney area.  He has never left the country.  Nor has he applied for or received any further entry permit.

The Legislative Background
The operation of s 34(2)(b) of the Migration Act and the antecedent legislation have been considered in several reported cases: Yong v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 566 (Fed Ct/Northrop J); Tjandra, supra; Rooney v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 590 (Fed Ct/Lee J). In Chee v Minister for Immigration and Multicultural Affairs, (Fed Ct/FC, 13 June 1997, unreported), the Court said (at 3) that these three cases “definitively and correctly review the history of the relevant paragraphs of [s 34]” and that their construction of s 34(2)(b) is correct.

The legislative background to s 34(2)(b) of the Migration Act is explained at length by Northrop J in Yong, at 571-576, and by Lindgren J in Tjandra, at 583-587. It is not necessary to repeat the full analysis here. Several points should, however, be noted.

The Migration Act, until the enactment of the Migration Amendment Act 1983 (Cth) (the “1983 Act”) (which came into force in 2 April 1984), contained the following inclusory definition of “immigrant” in s 5(1):

“‘immigrant’ includes a person intending to enter, or who has entered, Australia for a temporary stay only, where he would be an immigrant if he intended to enter, or had entered, Australia for the purpose of staying permanently...”.

The Migration Act, in its pre 1984 form, provided that an entry permit that was intended to operate as a temporary entry permit had to be expressed to authorise the relevant person to remain in Australia for a specified period only: s 6(6). The Minister was empowered to cancel a temporary entry permit at any time: s 7(1). Upon the deportation or cancellation of a temporary entry permit, the person who was the holder of the permit became a prohibited immigrant, unless a further entry permit was issued: s 7(3). A person who became a prohibited immigrant by virtue of s 7(3) ceased to be a prohibited immigrant at the expiration of five years from the date he or she became a prohibited immigrant, unless a deportation order had come into force in the meantime: s 7(4). The Minister was empowered to order the deportation of a prohibited immigrant: s 18.

The 1983 Act, unlike the earlier legislation, had its constitutional basis in the power conferred by s 51(xix) of the Constitution (“naturalisation and aliens”), rather than the power conferred by s 51(xxvii) (“immigration and emigration”). Among other changes, the 1983 Act substituted the expression “non-citizen” for “immigrant” and “prohibited non-citizen” for “prohibited immigrant”. It also repealed s 7(4) of the Migration Act, so that a prohibited non-citizen did not cease to hold that status merely by the effluxion of time.  Thus, although the applicant escaped detection after he became a prohibited non-citizen in May 1984, and for many years after 1984, this, of itself, did not alter his status.

The origins of s 34 of the Migration Act lie in s 16 of the Migration Laws Amendment Act (No2) 1992 (Cth) (the “1992 Act”).  As the Explanatory Memorandum to the 1992 Act makes clear, s 16 was introduced because advice had been received concerning the effect of s 8(2) of the 1983 Act (the terms of which need not be set out). Section 16 of the 1992 Act provided as follows:

“Subsection 8(2) of the Migration Amendment Act 1983 does not apply, and never has applied, to a person who:
(a)      on the commencement of that Act, was in Australia; and
(b)      before that commencement, had ceased to be an immigrant; and
(c)       since that commencement, has not left Australia.”

The Explanatory Memorandum to the 1992 Act explained the purpose of s 16 as follows:

“35 The Attorney-General’s Department recently advised that the effect of subsection 8(2) of the Migration Amendment Act 1983 was to make absorbed persons who did not hold permits prohibited non-citizens and, following further amendments to the Act that commenced on 19 December 1989, illegal entrants. Previously the view was taken that absorbed persons who were present in Australia on 2 April 1984 and had not left since were lawfully present here as permanent residents. An absorbed person was a person who had ceased to be an immigrant for the purposes of the Commonwealth’s legislative power with respect to immigration, if that person became part of, or absorbed into, the wider Australian community.

36 Before 2 April 1984, only “immigrants” needed entry permits to enter and remain lawfully in Australia. If a person was absorbed, that is, ceased to be an immigrant, he or she did not need an entry permit to enter and remain lawfully in Australia. However, from 2 April 1984 the obligation to hold an entry permit applied to all non-citizens rather than only immigrants. The effect of the amendments was that absorbed persons who did not hold entry permits lost their lawful resident status from the commencement of section 8(2) of the Migration Amendment Act 1983. That section provides that where a person is a non-citizen and is not the holder of an entry permit, and had ceased to be a prohibited immigrant because of section 7(4) of the Migration Act 1958 as then in force, the person becomes a prohibited non-citizen. Section 7(4) applied to many absorbed persons, and accordingly on commencement of section 8(2) of the Migration Amendment Act 1983 they became prohibited non-citizens. Clause 15 has the effect of restoring their lawful status from that date.”

The immediate predecessor to s 34(2) of the Migration Act was s 14(3) (since repealed), which was introduced by the Migration Reform Act 1992 (Cth). Section 34 itself, was inserted into the Migration Act by the Migration Legislation Amendment Act 1994 (Cth) (the “1994 Act”).  The Explanatory Memorandum accompanying the 1994 Act provides the following commentary:

“23 Absorption is a constitutional doctrine developed by the High Court in the interpretation of placitum 51(xxvii) of the Constitution (the ‘immigration and emigration’ power). The doctrine holds that a person who arrives in Australia as an immigrant does not remain an immigrant for all time. At some point the immigrant will be ‘absorbed’ into the Australian community and will cease to be an immigrant. When this occurs, the person will have moved beyond the scope of legislation which depends on the immigration power in the Constitution.

24 Because of problems caused by the absorption doctrine for the administration of the Migration Act, the constitutional basis of the Act was altered, with effect from 2 April 1984 (see the Migration Amendment Act 1983), so that it henceforth rested on placitum 51(xix) (the ‘naturalization and aliens’ power). An alien only ceases to be an alien by becoming an Australian citizen.

25 There remains a small number of absorbed persons, who are lawfully in Australia as permanent residents despite not holding an entry permit. The Reform Act provided that these persons were an exception to the universal visa requirement introduced by the Act (see subsection 14(3) of the Migration Act as amended by the Reform Act).

26 This section takes the further step of bringing absorbed persons within the visa system by deeming them to hold a permanent visa. They are thereby placed in the same position as all other permanent visa holders, eg their visas will be subject to the exercise of the cancellation power in section 180A of the Migration Act.”

The Submissions
The applicant submitted that he was not an immigrant for the purposes of the Migration Act, as it stood prior to 1984, when he entered Australia. This was because he did not, at that time, intend to settle here. However, he became an immigrant when his first entry permit expired on 11 January 1984, since he thereupon became a prohibited immigrant under s 7(3) of the Migration Act.  He ceased to be an immigrant when he received the second entry permit, on 16 January 1984.  At that point, he was no longer an immigrant, but a visitor.

The Minister submitted that the applicant was deemed to be an “immigrant” upon entering Australia pursuant to the definition contained in s 5(1) of the Migration Act. The only way he could cease to be an immigrant was by absorption into the Australian community. However, neither a prohibited immigrant nor the holder of a temporary entry permit was able to become absorbed into the Australian community. Thus, the applicant had not ceased to be an immigrant by 2 April 1984 and could not satisfy the terms of s 34(2)(b) of the Migration Act.

Reasoning
The three authorities to which I have referred each addressed the position of a person who was a prohibited immigrant immediately before 2 April 1984. It was held in each case, that a person who had become a prohibited immigrant had not thereby “ceased to be an immigrant” for the purposes of s 34(2)(b) of the Migration Act. Both Northrop J in Yong, and Lindgren J in Tjandra, accepted that “prohibited immigrants” were a sub-class of “immigrants”.  Both quoted from the judgment of Barwick CJ (with whom all other members of the Court agreed) in R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168, at 172 - 173, to support the proposition (in the words of Lindgren J in Tjandra, at 588) that a person’s

“status as a ‘prohibited immigrant’ [during a period leading up to 2 April 1984] signified that it was impossible for him to be absorbed into the Australian community during that period and thereby cease to be an immigrant before 2 April 1984”.

The reasoning of Lee J in Rooney was to the same effect.

The position of the present applicant is different from that considered in the three cases to which I have referred.  The applicant had become a prohibited immigrant on 12 January 1984, but received a further temporary entry permit on 16 January 1984, valid until 11 April 1984.  Thus, on and immediately before 2 April 1984 he was not a prohibited immigrant, since he had received a fresh temporary entry permit.  He was a prohibited immigrant during the period 12 to 15 January 1984 but, as the authorities have held, that status did not cause him to cease being an immigrant (assuming he was an immigrant on his arrival in Australia).

It is clear that the meaning of the term “immigrant” in s 34(2)(b) of the Migration Act is controlled by the provisions of the Migration Act in force during the period to which s 34(2)(a) and (b) refer: Yong, at 570ff, Rooney, at 592. In my view, the applicant was an “immigrant” when he entered Australia on a temporary entry permit, by reason of the definition of “immigrant” in s 5(1) of the Migration Act.  In Ex parte De Briac (1971) 124 CLR 162, which upheld the constitutional validity of the definition, Windeyer J (at 166) noted that the definition had the effect of including a person entering Australia for a temporary stay only. His Honour said that the definition was “only a convenient literary device to give a special denotation to the word ‘immigrant’ when it appears” in the Migration Act.  In Yong (at 571), Northrop J said that the definition had the effect of including persons entering Australia without the intention of settling here or making their permanent home here. The recent cases have accepted that a person granted a temporary entry permit on entering Australia was an “immigrant” for the purposes of the Migration Act in its pre-1984 form: Tjandra, at 583, 588; Yong, at 568, 571; Rooney, at 591, 592.

The only way the applicant could have “ceased to be an immigrant” was by becoming a member of the Australian community, in the sense of being absorbed into the Australian community: Yong, at 570, 572. This proposition is borne out by the legislative history of s 34(2) of the Migration Act, to which I have referred.  As I have already explained, the applicant did not cease to be an immigrant when he acquired the status of a “prohibited immigrant” on 12 January 1984.  Nor could he have ceased to be an immigrant at any time, prior to 2 April 1984, during which he held a temporary entry permit (that is, the whole of the period from his arrival in Australia on 11 October 1983 until 2 April 1984, except for the four days during which he was a prohibited immigrant).  The holding of a temporary entry permit precluded him from establishing that he had become absorbed into the Australian community.  This follows from the analysis by Barwick CJ in Forbes, at 172 - 173:

“It was said O’Keefe v Calwell (1949) 77 CLR 261, at 277, 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 [Migration 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.

The Act provides for three types of entry permit. Firstly, an entry permit for a temporary stay. In that case the permit must nominate the duration of the stay. See definition “temporary entry permit” s 5(1) and s 6(6). Secondly, an entry permit to enter and remain, s 6(3); that is a permit given to a person who is permitted to enter and to stay indefinitely. Thirdly there is a permit to remain in Australia. See s 6(3). Such a permit is appropriate where a person has been given a temporary entry permit and there has been a subsequent decision made before or after the expiry of such a permit that that person may remain indefinitely. See ss 10 and 6(2) and (3). Clearly a person who has sought and obtained a temporary entry permit cannot during its duration became [sic] a member of the Australian community.  He remains of necessity a immigrant in fact under the terms of the entry permit bound to remove himself and liable to be removed.  A person whose entry permit has expired becomes at the moment of its expiry a prohibited immigrant.  He may not cease to be a prohibited immigrant unless at his request a further permit, whether a further temporary entry permit or a permit to remain, is granted or five years elapse from that expiry without the making of an order for his deportation.

The Parliament by the Act has thus ensured that no immigrant shall obtain a title to become a member of the Australian community without the concurrence of the Australian people expressed through the grant by its Executive Government of an entry permit to remain or by a lapse of five years from the expiry of a temporary entry permit without Executive action.”

The bolded words in the extract make it clear that the Migration Act, at the relevant times, did not permit a person who (like the applicant) had sought and obtained a temporary entry permit to become a member of the Australian community.

The conclusion accords with the view expressed by Lee J in Rooney (at 592):

“It follows from the foregoing that under the [Migration 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 s 7(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 s 34 has a meaning consonant with those provisions.” (Emphasis added.)

It follows that the applicant had not “ceased to be an immigrant”, within the meaning of s 34(2)(b) of the Migration Act, before 2 April 1984.

I should mention one other matter.  Mr Khalsa relied on a paragraph in an affidavit sworn by the applicant, as follows:

“28.After my arrival in Sydney, I stopped touring by bicycle, settled in Sydney before 2 April 1984 and made Sydney my home from that time.”

He submitted that this demonstrated that the applicant had made Australia his home before 2 April 1984.

It must be said that it is very difficult to reconcile this statement with either the contents of the letter of 10 June 1987, sent to the Department on the applicant’s behalf, or with the Compliance Officer’s assessment, which took into account information supplied by the applicant at the interview.  But the applicant was not cross-examined and it is therefore appropriate to accept the applicant’s statement.  However, this statement cannot assist the applicant’s case because the fact that he held a temporary entry permit during the period 16 January 1984 to 2 April 1984 prevented him from ceasing to be an immigrant by absorption into the Australian community.

Conclusion
The application must be dismissed.

The applicant should pay the Minister’s costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:             10 October 1997

Appearing for the Applicant:	Mr R R S Khalsa, registered migration agent, with leave of the Court.
Counsel for the Respondent:	Mr P Braham.
Solicitor for the Respondent:	Australian Government Solicitor.
Date of Hearing:	3 October 1997
Date of Judgment:	10 October 1997