Vanniasingham, T. v Minister for Immigration and Ethnic Affairs

[1993] FCA 519

TISSABALAN VANNIASINGHAM v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG136 of 1993
FED No. 519
Number of pages - 3
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J(1)

CATCHWORDS

Immigration - appeal from Immigration Review Tribunal - whether in reg. 128 "temporary entry permit" has the meaning defined in the Act - whether it includes a Sri Lankan (temporary) entry permit - effect of Acts Interpretation Act 1901, s. 46.

Acts Interpretation Act 1901, s. 46

Migration Regulations 1958, reg. 128

HEARING

SYDNEY, 29 July 1993

#DATE 4:8:1993

Counsel for the Applicant: Mr N.J. Williams

Solicitors for the Applicant: Messrs Parish Patience

Counsel for the Respondent: Mr B. Skinner

Solicitor for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The decision of the Immigration Review Tribunal under appeal be set aside.

2. The matter be remitted to the Tribunal to be determined according to law.

3. The respondent pay the applicant's costs of the appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BURCHETT J This is an appeal under s. 138 of the Migration Act 1958 from a decision of the Immigration Review Tribunal established by s. 151 of that Act. The appeal, so called, lies to the original jurisdiction of the Court, and is limited to a question of law.

1. The applicant, who is a citizen of Sri Lanka, arrived in Australia on 2 March 1989, when he was granted an entry permit valid to 20 February 1990. On 6 August 1991 he was granted a Sri Lankan (temporary) entry permit valid to 31 December 1991. On 4 September 1991 the applicant applied for an extended eligibility (economic) entry permit under reg. 128. That application being refused on 27 October 1992, the applicant sought a review of the decision by the Tribunal. The Tribunal also had before it an application for a review of an earlier refusal of a skilled occupation entry permit. It was common ground that the Regulations applicable to the case were the Migration Regulations of 1989.

2. The Tribunal, in deciding the matter, referred to the terms of reg. 128 as the source of the criteria to be satisfied to enable the applicant to receive an extended eligibility (economic) entry permit. So far as is relevant for present purposes, reg. 128 provides:
   

"(1) The following criteria are prescribed in relation to an extended eligibility (economic) entry permit:

(a) the applicant:

. . .

(iii) is any of the following:

(A) a person who has held 1 or more than 1

temporary entry permit, or visa operating

as a temporary entry permit, permitting

temporary residence in Australia for an

aggregate period of more than 12 months

(other than a retirement, domestic worker

(diplomatic or consular) or expatriate

entry permit) and has permission to work

under an entry permit in force at the

time of the application ... ."

1. The expression "temporary entry permit" is defined in s. 4(1) of the Act, "unless the contrary intention appears", as "mean(ing) an entry permit that is subject to a limitation as to the time the holder is authorised to remain in Australia". The expression is not separately defined for the purposes of the Regulations, nor in reg. 128 itself. In that situation, s. 46 of the Acts Interpretation Act 1901 is designed, subject to its terms, to ensure that the regulation shall be construed as using the expression with the meaning it has in the Act, and not otherwise. Section 46 relevantly provides:
   

"(1) Where an Act confers upon any authority power to

make, grant or issue any instrument (including rules,

regulations or by-laws), then:

(a) unless the contrary intention appears, expressions used in any instruments so made, granted or issued shall have the same meanings as in the Act conferring the power ... ."

1. The Tribunal, however, seems to have thought that a contrary intention did appear, and that the Sri Lankan (temporary) entry permit granted to the applicant on 6 August 1991, although it fell within the statutory definition, was not a temporary entry permit within the meaning of reg. 128. It followed that the aggregate period referred to in sub-sub-para. (A) could not be shown, although the Tribunal apparently accepted the other threshold requirements of reg. 128 had been made out.

2. The Tribunal commenced its consideration of the question by noting that "(t)he meaning of a 'temporary entry permit permitting temporary residence in Australia' is not addressed anywhere in the Regulations or the Act". It seems to me that by putting the matter in this way the Tribunal took a wrong turning at the very commencement of its inquiry. For the words it put in quotation marks do not appear, as a single expression, in the regulation. The regulation refers to a "temporary entry permit, or visa operating as a temporary entry permit, permitting temporary residence in Australia". When attention is paid to the phrasing of the Act, it is apparent that the words "temporary entry permit" describe a particular kind of permit, to which a visa operating as a temporary entry permit is expressly put forward as an alternative, and that each of them is qualified as a thing of the kind specified having a particular effect - "permitting temporary residence in Australia". It is not appropriate to ignore the phrasing in order to seek a definition of an expression which is not there.

3. In any case, as the Tribunal recognized, the extended expression it attempted to extract from the regulation is not anywhere defined. The Tribunal took a further step away from the actual language of the regulation. It observed that reg. 2 contained a definition, unless the contrary intention appears, of the expression "temporary resident entry permit" as "mean(ing) an entry permit specified as a class 2 entry permit in Schedule 3". The expression "temporary resident entry permit" is another expression which does not appear in reg. 128. It is difficult to see, in a definition of an expression which does not appear in the regulation, an adequate indication of a contrary intention authorizing the Tribunal to depart from the statutory meaning of the expression which is used in the regulation. However, the Tribunal pointed out that class 2 of Schedule 3 does not include a Sri Lankan (temporary) entry permit. On that basis, it held that reg. 128 did not extend to such a permit, although it is plainly a temporary entry permit within the statutory definition, and certainly answers the description of permitting temporary residence in Australia for a sufficient period, when aggregated with the earlier period as to which there was no question, to answer the requirement of sub-sub-para. (A).

4. It hardly needs to be emphasized that if the draftsman of the Regulations had intended to limit the temporary entry permits to which reg. 128 refers in the way favoured by the Tribunal, that could have been done very easily by using the defined expression "temporary resident entry permit", which has been used in some of the other regulations. The fact that a different defined expression was used (defined in the Act itself) is a powerful indication of the actual intention. The Tribunal appears to have been beguiled by an a priori view of the meaning of reg. 128 into ignoring the words in which it is expressed.

5. Finally, it is really a supererogation to point out that the alternative in sub-sub-para. (A) of a "visa operating as a temporary entry permit", words plainly intended to have some meaning, would, like the applicant's temporary entry permit, not fall within class 2 of Schedule 3.

6. There was some discussion at the hearing of the appeal about the form of the applicant's Sri Lankan (temporary) entry permit. Such a temporary entry permit is provided for in Schedule 3 class 9 of the Regulations, under the heading "ENTRY PERMIT - HUMANITARIAN". It is given the code number 435. The applicant's permit is in the following terms:
   

"AUSTRALIA ENTRY PERMIT 435 TEMPORARY RESIDENT

BANKSTOWN CONDITIONS

1. VANNIASINGHAM T NO RESIDENCE (MA 33.4.A)

ISSUED ON 06 AUG 91 FOR STAY UNTIL 31 DEC 91."

1. The figures "435" plainly refer to the temporary entry permit itself, being its code number. They are followed by the words "temporary resident". It does not seem possible, in the face of these words, to contend that the applicant's permit was not, to use the very language of reg. 128, a "temporary entry permit ... permitting temporary residence in Australia". The, at first sight, contradictory expression "no residence" is followed by what appears to be a reference to the Migration Act, s. 33, subs. 4, para. (a) (the "A" appears to be an error). When that is understood, it is clear that the words "no residence" are not repugnant to the earlier words "temporary resident", but merely indicate that the entry permit is not to operate, for the purposes of s. 47 of the Act, as a basis in itself for the grant of a permanent entry permit, which would involve the right of permanent residence. That this is the purpose is sufficiently clear from the terms of s. 33(4)(a), and is consistent with the explanatory memorandum produced at the time reg. 119G was promulgated to permit the grant of a Sri Lankan (temporary) entry permit; that explanatory memorandum made it clear that "(t)hese entry permits are not valid for the purposes of the grant of a permanent entry permit after entry". It is unnecessary to consider whether the cryptic words chosen actually achieve their objective; that is, perhaps, for another case.

2. For these reasons, the applicant's appeal succeeds, and the decision of the Tribunal should be set aside. The matter should be remitted to the Tribunal to be determined according to law, and the respondent should pay the applicant's costs.