Boon Yin Chee v Minister for Immigration and Multicultural Affairs

Legislation Section 34 of the Act provides: "(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." The present Act defines "non citizen" in s 5(1) to mean "a person who is not an Australian citizen". The Act as currently in force does not define "absorbed person" or "immigrant". There is no dispute that the applicant meets the requirements of s 34(2)(a), (c) and (d) of the Act and there is no dispute that the applicant is a non citizen in the migration zone within the meaning of the Act. The question is: whether the applicant satisfies the requirement of s 34(2)(b) that she is a person who before 2 April 1984 had ceased to be an immigrant? As pointed out in submissions for the Minister, the Act in its present form was first enacted in a different form as the Migration Act 1958-1973 which came into operation on 1 June 1959 ("the original Act"). Section 5(1) of that Act defined "immigrant" as follows:

"'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; ..." Section 6 of the original Act provided that an immigrant who entered Australia when not holding a valid entry permit became a "prohibited immigrant". This term is not defined. Section 7(3) provided that upon expiration of a temporary entry permit the holder becomes a "prohibited immigrant" unless a further entry permit came into force. By s 10 of the original Act a person who became a "prohibited immigrant" ceased to be such upon the grant of an entry permit or further entry permit and not otherwise. Section 7(4) of the original Act provided: "Notwithstanding section 10 of this Act, a person who has become a prohibited immigrant by virtue of the last preceding subsection 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." (Emphasis added) The Migration Amendment Act 1983 (Cth) ("the 1983 Act") commenced on 2 April 1984. It omitted the definition of "immigrant" and replaced it with the definition of "non citizen" in the same terms as currently appears in the Act. The 1983 Act repealed subs 7(4) and provided, in s 38(1) that a person who was immediately before 2 April 1984 a prohibited immigrant by virtue of a provision of the original Act thereupon became a prohibited non-citizen. The present case In the present case the applicant from 22 November 1982, upon expiry of her temporary visa, became a prohibited immigrant pursuant to s 7(3) of the original Act. Section 7(4) of the original Act permitted the applicant, as a prohibited immigrant, to cease being a prohibited immigrant after five years from the time at which she became a prohibited immigrant. The five year period in the present case would have expired on 22 November 1987. In the interim, the 1983 Act intervened, repealing s 7(4) of the original Act as from 2 April 1984. The applicant's principal submission is that by becoming a prohibited immigrant she ceased to be an immigrant, and therefore satisfies s 34(2)(b) of the Act. There has been a line of recent decisions in this Court which, in my view, require rejection of the applicant's submissions. The most recent decision is that in Boon Yin Chee v Minister for Immigration and Multicultural Affairs (unreported, Full Federal Court, 13 June 1997), where Lockhart, Heerey and Sundberg JJ followed and applied earlier first instance decisions in Yong v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 566; Tjandra v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577, and Rooney v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 590. The above decisions were made in circumstances indistinguishable in substance or principle from the present. Their Honours make it clear in those decisions that a person in the situation of the present applicant did not cease to be an "immigrant" under s 34 by reason of having become a "prohibited immigrant" upon expiration of a temporary entry permit. The principles and reasons, which are on all fours with the instant case, need not be repeated in these reasons. In particular, I agree with the observations made by various judges in the above decisions to the effect that as a matter of logic it follows that a "prohibited immigrant" is a subset or class of the category of "immigrant". Further, as Lindgren J pointed out in Tjandra (at 587) it would be a peculiar interpretation which would confer an advantage on a "prohibited immigrant" which would not have been available if that person continued to have the status of an "immigrant". To do so would seem to reward overstaying. Notwithstanding the submissions made on behalf of the applicant, I cannot accept the submission that the line of authority referred to above is either wrong or distinguishable. I am clearly bound by the Full Court decision in Boon and I agree with the reasons given by other judges at first instance to a similar effect and note their endorsement by the Full Court in that case. Although cast in different language the substance of the final submission advanced for the applicant is that "immigrant" status ceases upon becoming a "prohibited immigrant". This is directly contrary to authority. The application is therefore dismissed but I make no order as to costs. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Solicitor for the Applicant: Corby Levingston Solicitors

Solicitor for the Respondent: Australian Government Solicitor