Yong v Minister for Immigration and Ethnic Affairs

[1996] FCA 572

CATCHWORDS

JUDICIAL REVIEW - decision of Minister for Immigration and Ethnic Affairs - Migration Act 1958.

IMMIGRATION - requirements for absorbed person visa - meaning of "immigrant" in paragraph 34(2)(b) of the Migration Act - whether applicant had ceased to be an immigrant before 2 April 1984 - consideration of the Migration Act 1958 and amendments.

The Queen v Forbes; Ex Parte Kwok Kwan Lee (1971) 124 CLR 168

Ex Parte De Braic (1971) 124 CLR 162

Potter v Minahan (1908) 7 CLR 277 at 301-302

Migration Act 1958

YONG KHIM TEOH v THE MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS
NO VG 767 OF 1995

NORTHROP J
MELBOURNE
12 JULY 1996

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY  No VG 767 of 1995

GENERAL DIVISION

B E T W E E N :

YONG KHIM TEOH
  Applicant

A N D :

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

COURT:         NORTHROP J

PLACE:         MELBOURNE

DATE: 12 JULY 1996

MINUTES OF ORDER

THE COURT ORDERS THAT the further hearing of the application be adjourned to a date to be fixed.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY  No VG 767 of 1995

GENERAL DIVISION

B E T W E E N :

YONG KHIM TEOH
  Applicant

A N D :

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

COURT:         NORTHROP J

PLACE:         MELBOURNE

DATE: 12 JULY 1996

REASONS FOR JUDGMENT

The question raised by this application is whether s.34 of the Migration Act 1958 has granted to the applicant Mr Yong Khim Teoh an absorbed person visa. Section 34 provides:-

"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."

At the commencement of the hearing, the parties requested the Court to determine a question, pursuant to the provisions of O.29 of the Federal Courts Rules, before the further hearing of the application.  The question was implicit in the relief sought, as stated by the parties, which was:-

"A declaration that Mr Teoh can have, before 2 April 1984, "ceased to be an immigrant" pursuant to s. 34(2)(b) of the Migration Act 1958, notwithstanding that the last temporary entry permit he held expired on 15 January 1981."

A number of facts were agreed to enable the Court to determine the question to be determined by the declaration sought but, in order to enable the Court to understand the context in which the particular question arose, counsel for Mr Teoh read his affidavit sworn on 30 November 1995. The Court, having agreed to the request of the parties, does not have to make findings of fact arising from the affidavit but it appears that those facts, together with the facts agreed to, disclose a prima facie case that Mr Teoh, having immigrated to Australia, has subsequently become a member of the Australian community. The Court cannot determine that question at present since the question sought to be determined is whether, on the correct construction and application of s.34 of the Migration Act, Mr Teoh had ceased to be an immigrant, pursuant to paragraph 34(2)(b) of the Migration Act, before 2 April 1984.
           Mr Teoh was born in Malaysia on 20 July 1955.  Thus he is now 39 years of age.  His parents were Chinese but resident in Malaysia.  He obtained his education in schools in Malaysia where the English language was the medium of instruction.  He completed the "O" levels.  In 1972 and 1973, while in Malaysia, he studied subjects in the Victorian State curriculum through an affiliate of Taylors College of Melbourne.  He obtained the Victorian HSC in 1973.

On 25 February 1974, while still 18 years of age, Mr Teoh arrived in Australia and was allowed to enter under a temporary entry permit. He commenced tertiary education courses in Melbourne. Between 18 January 1978 and 7 March 1978 he visited his father in Malaysia. He returned to Australia on 7 March 1978 and has resided in Australia since that date. His last temporary entry permit expired on 15 January 1981. Thereupon he became a prohibited immigrant pursuant to subsection 7(3) of the Migration Act as then in force.

Mr Teoh obtained tertiary academic qualifications. He has employment. In July 1995 he voluntarily contacted an officer of the Department for Immigration and Ethnic Affairs. On 4 August 1995, he requested that he be considered as having an absorbed person visa. By letter dated 22 August 1995, an officer of the Department advised him that he did not have an absorbed person visa because he did not satisfy the requirements of paragraph 34(2)(b) of the Migration Act since before 2 April 1984, he had not ceased to be an immigrant.  The letter stated that Mr Teoh was an unlawful non-citizen and liable for mandatory detention and removal.  The letter requested him, or his representative, to contact the department "to arrange an appointment to discuss" his
continued stay in Australia.  Mr Teoh commenced this application on 15 September 1995 seeking in substance a declaration that he has an absorbed person visa which permits him to remain in Australia indefinitely.

Section 34 was inserted into the Migration Act by section 8 of the Migration Legislation Amendment Act 1994 (Act No. 60 of 1994) and came into operation on 1 September 1994; see subsection 2(3) of Act No. 60 of 1994. This follows from the fact that section 5 of the Migration Laws Amendment Act 1993 (Act No. 59 of 1993) had amended subsection 2(3) of the Migration Reform Act 1992 (Act No. 184 of 1992) by omitting from that subsection "1 November 1993" and substituting "1 September 1994". Section 8 of Act No. 60 of 1994 inserted a number of new sections making provision for special purpose visas which were contained in sections 26AA, 26AB and s.26AC. Section 26AB was renumbered and became section 34.

Section 34 provides criteria by which it is to be determined whether a person is to be taken to have been granted an absorbed person visa. On its face, section 34 should be easy to construe and apply to the facts applicable to any particular person. Unfortunately this is not the case.

It is not disputed that on 1 September 1994, when section 34 came into operation, and ever since, Mr Teoh was and is a non-citizen within the meaning of that word in the Migration Act. He is in the migration zone. On 2 April 1984 he was in Australia and since that date he has not left Australia. He is not a person to whom section 20 of the Migration Act in force immediately before 1 September 1994, applied.

The dispute between the parties arises from the construction of paragraph 34(2)(b) namely whether, before 2 April 1984, Mr Teoh "had ceased to be an immigrant".

The word "immigrant" had a factitious meaning given to it by definition contained in section 5 of the Migration Act in operation before 2 April 1984 but that definition was revoked and ceased to apply on 2 April 1984.  That definition was, unless a contrary intention appeared,:-

""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 meanings of the word "immigrant" both in its normal sense and in its factitious sense are illustrated by observations made by Windeyer J in The Queen v Forbes; Ex Parte Kwok Kwan Lee (1971) 124 CLR 168 and Ex Parte De Braic (1971) 124 CLR 162. In Forbes, Windeyer J said at 175-6:

"I said in what I wrote in De Braic's Case that the definition of "immigrant" in the Migration Act 1958 is factitious, in that it includes not only persons who are immigrants properly so called but also other persons who have entered, or who seek to enter, Australia from abroad. However the provisions of the Act relating to such persons are, I have no doubt, laws with respect to immigration and thus within constitutional power. The question under the Act is not, as I see it, whether a person coming to Australia from abroad has settled himself in Australia as part of the Australian community. It is whether, under the terms on which he was permitted to enter Australia, he could lawfully have done so."

In De Braic, Windeyer J said at 166:-

"A person who comes from another country to settle here, if permitted by our law to do so, is thus an immigrant in the ordinary sense of the word.  It has been said that to qualify for that description he must intend to make his permanent home in this country.  There are weighty statements to that effect.  But, notwithstanding them, I am not satisfied that to be an immigrant, within the ordinary sense of that word, a newcomer must have relinquished all hope or expectation of ever returning to live or die in his native land.  However, it is unnecessary to come to any conclusion upon the meaning of the word "immigrant" or "migrant" in ordinary parlance.  The only question is whether, when the word is used with the special extended denotation that the statute gives it, the relevant provisions of the statute are not laws with respect to immigration."

These views are reflected in the various definitions of the word "immigrant" appearing in the Shorter Oxford Dictionary and the Macquarie Dictionary.  They are consistent with judicial opinions, see for example Ex Parte Walsh; In re Yates (1925) 37 CLR 36. At that time there was no definition of the word "immigrant" in the Immigration Act 1901.

The normal meaning to be given to the word immigrant is clearly stated by O'Connor J in Potter v Minahan 1908 7 CLR 277 at 301-302. The Court was considering the meaning to be given to the word "immigrant" in s.3 of the Migration Restriction Acts 1901-1905.  His Honour said:-

""Immigrate" is not a word with any acquired or technical meaning.  It must therefore be taken to have been used in its ordinary signification unless it is apparent on an examination of the Act that the legislature has applied it in some different or modified sense.  As to the meaning of the word, four dictionaries of high authority were referred to in the course of the argument:  they are in substantial agreement, and their general purport may well be described in the words of Mr. Justice Cussen in the case of Ah Sheung v. Lindberg (1906) V.L.R., 323, at p. 332; 27 A.L.T., 189:- "In its ordinary meaning immigration implies leaving an old home in one country to settle in a new home in another country, with a more or less defined intention of staying there permanently, or for a considerable time." To describe as an "immigrant" a person who is coming back to the country which is his home is a contradiction in terms."

Irrespective of the normal meaning of the word "immigrant", there is evidence in this case to support the conclusion that Mr Teoh was an immigrant properly so called.  Whether he had ceased to be an immigrant before 2 April 1984 is a separate and distinct question namely whether Mr Teoh had become a member of the Australian community before that date. This depends upon a mixed question of fact and of law.  The question is whether he had become a member of the Australian community and had ceased to be an immigrant; c/f Barwick CJ in Re Forbes at 173-4.  Put another way, the question is whether, under the terms on which Mr Teoh was permitted to enter Australia, could he have settled himself in Australia as part of the Australian community; c/f Windeyer J in Re Forbes at 175-6.  The aphorism "once an immigrant always an immigrant" used by Isaacs J in Ex parte Walsh, is not correct.  The other aphorism "once an alien always an alien" used by his Honour may have force.

This is the issue between the parties in the present case. If the words "prohibited immigrant" instead of the word "immigrant" had been used in paragraph 34(2)(b), the meaning of section 34 would have been clear. Mr Teoh would not have an absorbed person visa. His counsel contended that according to the usual rules of construction it is not permitted to supply words to legislation and that the paragraph should not be read as referring to a prohibited immigrant. Counsel for Mr Teoh contended that the respondent was attempting to construe paragraph 34(2)(b) by inserting words to the effect "within the meaning of the Migration Act 1958 in operation immediately before 2 April 1984" after the word "immigrant". This, she said, was impermissible. Counsel for the respondent contended that there was no need to add words and that on any view, Mr Teoh was an immigrant under the Migration Act immediately before 2 April 1994.  As a step in resolving this issue, consideration will be given to the daunting task of attempting to understand and explain some of the many amendments to the Migration Act 1958.

The relevant provisions of the Migration Act (Act No. 62 of 1958) came into operation on 1 June 1959.  It repealed and replaced the earlier Immigration Act.  The principles adopted in the Migration Act were completely different from those contained in the Immigration Acts.  Some of the differences are referred to by Barwick CJ in Forbes at 174 and lead the Chief Justice to comment:-

"Consequently, many of the statements to be found in reasons for judgment given in cases decided by this Court under the provisions of the former Act have little, if any, relevance to situations which arise under this Act (the Migration Act)."

This observation, however, does not affect the statements relating to the nature of an immigrant.

The Migration Act appears to have been enacted under the power conferred by placitum (xxvii) of section 52 of the Constitution namely the power to make laws for the peace, order and good government of the Commonwealth with respect to "Immigration and emigration" and matters incidental thereto.  The long title to the Migration Act was "An Act relating to Immigration, Deportation and Emigration".

For the purposes of deciding the question presently before the Court, it is sufficient to say that the relevant provisions of the Migration Act remained substantially in the form as originally enacted until the Migration Amendment Act 1983 (Act No. 112 of
1983) came into operation on 2 April 1984. Section 5 of the Migration Act contained a number of definitions.  It is clear that Mr Teoh is an alien within the defined meaning of that word contained in section 5.  The definition of "immigrant" was inserted.  It is clear that the Legislature accepted the normal meaning to be given to that word where it appeared in the Migration Act but gave it the factitious meaning as explained earlier in these reasons with the result that the meaning was extended to include persons entering Australia without the intention of settling here or making their permanent home here.  The words "entry permit" were defined to mean "a permit issued under section six of this Act."  The words "temporary entry permit" were defined to mean "an entry permit referred to in sub-section (b) of section six of this Act."  There was no definition of the words "prohibited immigrant".

Under subsection 6(1) an immigrant who, not being the holder of an entry permit that was in force, entered Australia, thereupon became a prohibited immigrant.  Power was conferred on officers of the Department to grant an entry permit to an immigrant and could be granted before or after the immigrant entered Australia.  If the entry was intended to operate as a temporary entry, under subsection 6(6) the entry permit had to be "expressed to authorize the person to whom it relates to remain in Australia for a specified period only" and such a permit could be granted subject to conditions.

Under section 7 the Minister had power to cancel a temporary entry permit. There was power to grant a further entry permit (not limited to a temporary entry permit) during the continuation or after the cancellation of a temporary entry permit. Subsections 7(3) and (4) are set out in full:-

"(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.

(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."

Subsection 7(5) authorized an officer to require a prohibited immigrant to leave Australia and a person who failed to comply with that requirement committed a criminal offence while under section 18 the Minister had power to order the deportation of a prohibited immigrant.  Under section 10, a prohibited immigrant ceased to be a prohibited immigrant if an entry permit or a further entry permit was granted to that person.

For present purposes, the provisions of subsection 6(4) are of importance.  It enables a prohibited immigrant to cease to be a prohibited immigrant on the happening of a condition, properly described as a condition precedent, to the application of the operative part of the subsection.  The condition precedent is the expiration of the period of five years from the time that person became a prohibited immigrant.  The subsection has no application if, at the expiration of that time, a deportation order in relation to that person was in force.  It is important to note that the subsection does not provide that the person concerned ceases to be an immigrant.  An immigrant ceases to be an immigrant upon absorption into the Australian community.

The effect of these provisions of the Migration Act are stated succinctly and clearly by Barwick CJ in Re Forbes in a judgment with which all the other members of
the Court agreed. Among other issues, the High Court had to consider the extent of the power conferred by placitum 51(xxvii) of the Constitution. At 172-173 the Chief Justice said:-

"It was said in O'Keefe v. Calwell (1949) 77 C.L.R. 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 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 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 a member of the Australian community. He remains of necessity an 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. I so express my conclusion because in my opinion a person whose temporary entry permit has expired and who does not obtain a permit to remain may not become a member of the Australian community during the five years which must elapse before he ceases to be a prohibited immigrant pursuant to the provisions of s. 7(4). Thereafter a question will remain whether he has subsequently become a member of the community and has ceased to be an immigrant. He does not in my opinion automatically cease to be an immigrant upon the expiry of those five years. He merely ceases to be liable to deportation as a prohibited immigrant who has become such by reason of the lapse of an entry permit. The Act thus nominates at the point of entry of a person not entitled to enter Australia through the terms of an entry permit and the provisions of Pt II of the Act not only the conditions upon which the entry may take place but whether or not, and when the immigrant, can begin to become a member of the Australian community. In my opinion the provisions which ensure this, including s. 10, are valid."

Attention is directed to the following sentence appearing in that passage: "Once a prohibited immigrant, he remains both an immigrant and a prohibited immigrant subject to ss 7 and 10." This sentence suggests that the class of prohibited immigrants is a sub-set of the class of immigrants.

It should be noted that on the facts of this case and the provisions of the Migration Act then in operation, Mr Teoh became a prohibited immigrant on 15 January 1981 upon the expiration of the latest temporary entry permit which had been granted to him. He remained an immigrant. If subsection 7(4) had continued in operation he would have ceased to be a prohibited immigrant on 15 January 1986. Thereafter it would have been possible for him to cease to be an immigrant and become part of the Australian community.

The relationship between the powers conferred by the Constitution to make laws with respect to "naturalization and aliens" within placitum 51(xix) of the Constitution and the power to make laws with respect to "immigration and emigration" within placitum 5(xxvii), has given rise to conflicting opinions; see for example Pochi v MacPhee (1982) 151 CLR 101 and Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178. Reference may be made also to the power to deport under the provisions of the Migration Act and the Australian Citizenship Act 1948.

The Migration Amendment Act 1983 (Act No 112 of 1983) ("the 1983 Act") made substantial amendments to the Migration Act. This Act came into operation on 2 April 1984, an important date with respect to section 34 of the Migration Act which, it will be recalled, came into operation on 1 September 1994.

The 1983 Act, and since 2 April 1984, the Migration Act, appear to have been enacted by the Parliament pursuant to the power conferred by placitum 51(xix) of the Constitution with respect to "Naturalization and aliens" and matters incidental thereto.  The 1983 Act amended the long title to the Migration Act from "An Act relating to Immigration, Deportation and Emigration" to "An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons." It removed the definitions of "alien" and of "immigrant" from section 5 of the Migration Act.  Generally, it replaced the word "immigrant" with the word "non-citizen" which was defined to mean "a person who is not an Australian citizen".  Reference needs to be made to the Australian Citizenship Act 1948 in order to determine whether a person is an Australian Citizen. The change in terminology affected
the wording of sections 6 and 7 of the Migration Act particularly with respect to an "immigrant" and a "prohibited immigrant".  These persons became a "non-citizen" and a "prohibited non-citizen" respectively.

In the 1983 Act, the Migration Act 1958 is referred to as the Principal Act. By reason of paragraph 8(1)(b) of the 1983 Act, subsection 7(4) of the Migration Act was omitted as from 2 April 1984. Thus the inchoate or potential right of a prohibited immigrant to cease to be a prohibited immigrant by effluxion of time, was abolished.  These persons remained liable to be taken into detention and deported as prohibited non-citizens.

Of greater concern, subsection 8(2) of the 1983 Act appeared to have the effect of re-classifying persons who had ceased to be prohibited immigrants by reason of subsection 7(4) of the Migration Act as prohibited non-citizens and liable to detention and deportation. Sub-section 8(2) of the 1983 Act provided:-

"(2)Where a person who, upon the commencement of this Act-

(a)is a non-citizen within the meaning of the Principal Act as amended by this Act; and

(b)is not the holder of an entry permit (not being a temporary entry permit),

had, at a time before the commencement, ceased to be a prohibited immigrant within the meaning of the Principal Act by virtue of the operation of sub-section 7 (4) of that Act, that person becomes, upon that commencement, a prohibited non-citizen for the purposes of the Principal Act as amended by this Act."

Upon the 1983 Act coming into operation, on 2 April 1984, Mr Teoh became a "prohibited non-citizen".  He may well have continued to be an immigrant but after that date the Migration Act made no express reference to immigrants.  As a prohibited non-citizen, and applying the provisions of the Migration Act as expounded by Barwick CJ in Re Forbes, Mr Teoh could not thereafter become absorbed into the Australian community while remaining a non-citizen. At the hearing there was no suggestion made that Mr Teoh had become an Australian citizen or for that matter, a permanent resident under section 5A of the Australian Citizenship Act.

The Parliament appears to have realised that sub-section 8(2) of the 1983 Act may have caused injustice.  Section 16 of the Migration Laws Amendment (No 2) Act 1992 (Act No 176 of 1992) came into operation on 1 January 1993.  It provided:-

"16.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."

This section appears to have been enacted in the absence of a proper understanding of the law. Subsection 7(4) of the Migration Act in operation immediately before 2 April 1984 affected the prohibited immigrant status of an immigrant.  It did not affect the status of that person as an immigrant.  The subsection removed the legal barrier preventing the immigrant becoming absorbed into the Australian community.  Whether such a person had ceased to be an immigrant depended on the answer to a different question.  This is
made clear by a proper understanding of the Migration Act and the exposition of the law by Barwick CJ in Re Forbes. In order for s 8(2) to have any application it would be necessary to establish that the immigrant had ceased to be a prohibited immigrant under subsection 7(4) of the Migration Act at a time sufficient to enable that person, on facts proved, subsequently to have been absorbed into the Australian community before 2 April 1984.  This issue need not be considered further.

A number of amendments were made to the Migration Act which do not directly affect this case.  The terminology of "non-citizen" changed.  On 19 December 1989, Mr Teoh became an illegal entrant in accordance with subsection 6(2) of the Migration Legislation Amendment Act 1989 (Act No. 59 of 1989). On 1 September 1994 he became an unlawful non-citizen in accordance with subsection 15(2) of the Migration Reform Act 1992 (Act No. 184 of 1992).

Act No. 184 of 1992 (the Migration Reform Act 1992), it will be recalled, came into operation on 1 September 1994. It introduced a new visa system. Among other things it repealed sections 14 to 18, of the Migration Act and inserted, among other provisions, a new section 14, subsection (3) of which provided:-

"(3)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 November 1993; and

(d)immediately before 1 November 1993, was not a person to whom section 20 of this Act as in force then applied;

is a lawful non-citizen."

This subsection was omitted from the Migration Act by section 5 of Act No. 60 of 1994. The subsection appears to have been a forerunner of section 34 of the Migration Act which was inserted by section 8 of Act No. 60 of 1994 as section 26AB and then renumbered section 34. This section was one of three which extended the new visa system.

The use of the word "immigrant" in section 34 may be the result of a misunderstanding of the law. Given its normal meaning, it is clear that in law, Mr Teoh could not have ceased to be an immigrant since the requirements of the Migration Act, at all times, prevented him from becoming absorbed into the Australian community.  That was the only way by which he could have ceased to be an immigrant.

Accordingly, the primary submission made on behalf of Mr Teoh cannot be accepted.

As a secondary contention, counsel for Mr Teoh contended that the concept of an "immigrant" and the concept of a "prohibited immigrant" were completely separate and distinct and in this regard section 7 of the Migration Act had no application to Mr Teoh once subsection 7(4) had been repealed. That is, she submitted, Mr Teoh could cease to be an "immigrant" within the meaning of subsection 34(2)(b), by becoming a "prohibited
immigrant".  She referred to what was said by Stephen J in Salimi v McKellar (1977) 137 CLR 514 at 429 to 431 where his Honour made reference to three distinct classifications namely "immigrants, aliens and prohibited immigrants". His Honour then commented on the statutory provisions relating to these three classifications. Counsel contended that this passage supported her contention.

In my opinion this is not so.  Prohibited immigrants are a sub-set of immigrants.  This is made clear by what Barwick CJ said in Re Forbes.  At all relevant times Mr Teoh was a prohibited immigrant or a prohibited non-citizen.  As a result he could not be absorbed into the Australian community.  Therefore he could not cease to be an immigrant.

Mr Teoh does not come within the requirements of paragraph 34(2)(b) of the Migration Act. Therefore section 34 does not grant him an absorbed person visa. This result may seem harsh. Much of the difficulty has been the continual changes in the policy of the Migration Act and the frequent amendments to that Act.  Having regard to the peculiar facts relating to Mr Teoh, there is much to support the view that the Minister give special consideration to allowing him to remain in Australia.  This was hinted at in the letter to him dated 22 August 1995.

In the result, on the question under consideration, the Court refuses to make the declaration sought by the applicant.

Accordingly, the further hearing of the application will be adjourned to a date to be fixed.

I certify that this and the preceding eighteen (18)
pages are a true copy of the Reasons for Judgment of
The Honourable Justice R.M. Northrop.

Associate:

Date:

ATTACHMENT

Counsel for the Applicant:                 Ms M. Kennedy

Solicitors for the Applicant:               Stedman Cameron

Counsel for the Respondent:             Mr K. Bell

Solicitors for the Respondent:           Australian Government Solicitor

Date of Hearing:  21 June 1996