Sit v Minister for Immigration and Multicultural Affairs

[2002] FCA 931

FEDERAL COURT OF AUSTRALIA

Sit v Minister for Immigration & Multicultural Affairs [2002] FCA 931

LING YEE SIT v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1049 of 2001

WHITLAM J
30 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1049 of 2001

BETWEEN:	LING YEE SIT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	30 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to 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	N 1049 of 2001

BETWEEN:	LING YEE SIT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	30 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of the decision of the Migration Review Tribunal (“the Tribunal”) given on 18 June 2001, whereby it affirmed a decision refusing to grant the applicant a Return (Residence) (Class BB) visa.  The Tribunal was not satisfied that the applicant met the requirement that she was an Australian permanent resident.

2. The applicant claimed to be a permanent resident on the basis that she was the holder of a class of permanent visa known as an absorbed person visa. Section 34(2) of the Migration Act 1958 (“the Act”) provides:

   “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. The Tribunal was satisfied that the applicant met the requirements of pars (a), (c) and (d) of s 34(2). The applicant arrived in Australia from Hong Kong on 27 September 1981. She has remained in Australia since that date. On arrival in Australia the applicant was granted a temporary entry permit for 21 days. The Tribunal found that that permit expired on 18 October 1981 and that she was not granted a further entry permit before 2 April 1984. Therefore, the Tribunal held that, by virtue of s 7(3) of the Act as in force immediately before 2 April 1984, the applicant became a prohibited immigrant.

4. Before the Tribunal the applicant adduced evidence which was designed to show that by 2 April 1984 she had, in fact, been absorbed into the Australian community. She submitted to the Tribunal that on this basis par (b) of s 34(2) was satisfied. However, the Tribunal declined to make findings of fact on that question. Instead, it applied the provisions of the Act as in force prior to 2 April 1984 to hold that because the applicant remained a prohibited immigrant, she did not cease to be an immigrant before that date. In doing so, the Tribunal purported to follow the approach laid down in a number of cases in this Court.

5. Those cases were Yong v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 566, Tjandra v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577, Rooney v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 590 and Boon Yin Chee v Minister for Immigration and Ethnic Affairs (13 June 1997, unreported).  Boon Yin Chee was decided by a Full Court of this Court (Lockhart, Heerey and Sundberg JJ) and specifically approved the three earlier decisions of single judges of the Court. The Full Court held that a person, who was a prohibited immigrant as at 2 April 1984, could not as a matter of law have ceased to be an immigrant on or before that date and could not, therefore, satisfy the condition in s 34(2)(b) of the Act.

6. Counsel for the applicant accepts that I am bound to apply the decision in Boon Yin Chee, but presses an argument that he says was not considered in the earlier cases. This argument depends on what is said to be the old common law rule that on the repeal of a statute that had itself altered the pre-existing law, the pre-existing law revived. Section 7(4) of the Act, which provided for a person ceasing to be a prohibited immigrant upon the expiration of a five-year period, was repealed with effect from 2 April 1984. Accordingly, so the argument goes, when the expression “ceased to be an immigrant” as it presently appears in s 34(2)(b) was first inserted in the Act by amendments made in 1992, the meaning of that expression was to be found, in the absence of some statutory definition, solely in the general law notion of absorption into the Australian community.

7. In fact, in Tjandra Lindgren J referred (at 583) to a very similar submission. In any event, the submission must be rejected. Lindgren J explains why it is impossible for a person who had become and remained a “prohibited immigrant” as at 2 April 1984 to have “ceased to be an immigrant” by that date for the purposes of s 34(2)(b). The application will be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            30 July 2002

Counsel for the applicant:	R B Wilson
Solicitor for the applicant:	Peter Leung
Counsel for the respondent:	R M Henderson
Solicitors for the respondent:	Clayton Utz
Date of judgment:	30 July 2002