IN THE FEDERAL COURT OF AUSTRALIA)
)
NEW SOUTH WALES DISTRICT REGISTRY) No NG 914 of 1996
)
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF THE COURT
B E T W E E N:
CHEAIB CHEAIB
Appellant
-AND-
MINISTER OF STATE FOR
IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
Coram: Lockhart, O'Loughlin, Merkel JJ
Place: Sydney
Date: 17 June 1997
REASONS FOR JUDGMENT
O'LOUGHLIN J: This appeal, from a judge of this Court, is concerned with the power of the Minister of State for Immigration & Multicultural Affairs to cancel a visa that had earlier been issued pursuant to the relevant provisions of the Migration Act 1958 (Cth) ("the Act"). The learned trial judge found that the Minister possessed the necessary power and it is in respect of that finding that the appellant now appeals.
The material facts may be briefly stated. The appellant is and was at all material times, a Lebanese national. He married Ms Hana el Jarrar, an Australian citizen, in Beirut on 26 January 1994. She came to Australia, alone, some time shortly thereafter and on 27 November 1994, the appellant entered Australia pursuant to a permanent visa (sub-class 100 - spouse). His wife had acted as his sponsor.
The appellant and his wife lived together for only three months. They separated in February 1995 and were divorced on 13 March 1996. The appellant thereupon returned to Lebanon to sell his house. His plans were to use the proceeds of the sale to start a business in Australia. However, in his absence overseas, the Minister's delegate cancelled his visa pursuant to par 116(1)(d) and s 128 of the Act. The Minister's decision to cancel the appellant's visa was based on a claim that the appellant's marriage had been contrived for the purpose of his gaining residence in Australia.
The appellant returned to Australia on 4 September 1996. He was refused immigration clearance; he was told that his visa had been cancelled and that he could not enter Australia. He was taken into detention.
The visa that had been granted to the appellant was a permanent visa endorsed as follows:-
"Granted 06 Sep 94. Must not arrive after 06 Sep 98. Multiple travel. Holder(s) permitted to remain in Australia indefinitely."
The appellant submitted here and in the Court below, that as a matter of law, the Minister had no power to cancel his visa. He did not challenge the claim that his marriage had been contrived, nor has it been suggested that there was any improper exercise of power on the part of the Minister. The answer to the appellant's submission lies in a consideration of the relevant legislation and in particular, the meaning of the word "entered" and its derivatives.
It is convenient to start with a reference to the provisions of par 116(1)(d) of the Act. It provides as follows:-
"116(1) Subject to subsections (2) and (3), [neither of which are relevant to this appeal] the Minister may cancel a visa if he or she is satisfied that:-
(a) ...
(b) ...
(c) ...
(d) if (sic) its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder has so entered and been immigration cleared ; or
(e) ...
(f) ...
(g) ..."
Section 117 qualifies the general power of cancellation that is provided for in s 116. It states:-
"117(1) Subject to subsection (2), a visa held by a non-citizen may be cancelled under section 116:
(a) before the non-citizen enters Australia; or
(b) when the non-citizen is in immigration clearance (see section 172); or
(c) when the non-citizen leaves Australia; or
(d) while the non-citizen is in the migration zone.
(2) A permanent visa cannot be cancelled under section 116 if the holder of the visa:
(a) is in the migration zone; and
(b) was immigration cleared on last entering Australia."
Section 128 was the specific power under which the Minister operated. It states:-
"128If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii)it is appropriate to cancel in accordance with this Subdivision; and
(b) the non-citizen has not entered Australia;
the Minister may, without notice to the holder of the visa, cancel the visa."
It is also necessary to mention s 118. It provides that the Minister's powers to cancel a visa under various provisions of the Act, including s 116 (the general power to cancel) and s 128 (when the holder is outside Australia), "are not limited, or otherwise affected, by each other."
Finally the words "enter", "entered" and "entry" are respectively defined in s 5 of the Act to include "re-enter",
"re-entered" and "re-entry".
The issue that is raised by this appeal is whether the appellant, having earlier entered Australia on 27 November 1994, was nevertheless on 4 September 1996, when he attempted to re-enter, a non-citizen who, in the language of par 128(b) of the Act, "has not entered Australia".
The appellant's case revolves around the simple proposition that having once entered Australia on a particular visa in 1994, the appellant retains thereafter the status of someone who "has entered Australia". That being the case, the appellant contends that the power contained in s 128 was not available to the Minister to cancel the visa. The appellant submitted that the power of summary cancellation without prior notice is intended to be restrictive in its scope of operation. It was, submitted the appellant, unlikely that it was intended to apply to persons who are permanent residents of Australia but who happen to be temporarily overseas. In the particular circumstances of this case, the appellant had entered Australia in 1994, his entry had been prima facie lawful and he had acquired the status of an "Australian Permanent Resident". It was, the submission therefore concluded, inappropriate for the Minister to exercise his power of summary cancellation without notice.
There are, of course, other provisions of the Act which allow for the cancellation of a visa on notice. Those provisions are primarily contained in Subdivision C of Division 3 of Part 2 of the Act. That part is entitled "Control of Arrival and Presence of Non-Citizens". The title of Division 3 is "Visas for non-citizens" and Subdivision C, comprising ss 97 to 115, is headed "Visas based on incorrect information". In addition to Subdivision C, there are further provisions in subdivision D (ss 116 to 118) for the cancellation of visas but, again, that can only be done where prior notice is given to the affected person - see Subdivision E comprising ss 119 to 127 and entitled "Procedure for cancelling visas under subdivision D in or outside Australia".
Section 128, which provides for summary cancellation without notice, is found, significantly, in a separate subdivision - Subdivision F, entitled "Other procedure for cancelling visas under Subdivision D outside Australia". Notwithstanding the reference to "outside Australia", the appellant submitted that one should be entitled to assume that Parliament would not have intended a permanent resident, who may have resided in Australia for many years, who may have built up substantial assets in this country and who may have established himself or herself in the community, to be at risk that his or her visa might be cancelled without notice in the event of a short absence out of the country.
The appellant, both here and in the Court below, submitted that the decisions in Lee v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 142 and Ge v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 523 supported his submissions. In Lee's case, the applicant, a Malaysian national entered Australia as an immigrant on 13 September 1989. He returned to Malaysia on 28 November 1989 to attend his father's funeral and subsequently returned to Australia on 7 January 1990. On each occasion when he entered Australia, he did so pursuant to an entry permit which was expressed to be valid until 9 February 1990. The applicant failed, only as a result of an oversight, to obtain a "character clearance" before 8 February 1990. That obligation had been imposed as a condition in respect of his original entry. Because he had thereby become an illegal entrant, the applicant applied for a temporary entry permit. Regulation 35AA, as then enacted, contained provisions relevant to his application. Paragraph 35AA(1)(b) applied to persons who had entered Australia before 19 December 1989. Paragraph 35AA(1)(c), which imposed more stringent tests, applied to persons who had entered Australia on or after that date. The applicant's first entry had been 13 September 1989 but his second entry (or his re-entry) on 7 January 1990 was after 19 December 1989. His application was processed under par (c), on the basis that the applicant had entered Australia on or after 19 December. In granting judicial review, Einfeld J said at 148-149:-
"It is not suggested that this applicant is other than truthful and bona fide. The opportunity to test his assertions by cross-examination at the hearing was declined. There is thus no reason to doubt that the applicant has at all relevant times intended to migrate and to reside permanently in Australia. Nor is there any reason to question that he always intended to comply with Australian law in the due formalisation of his status here. It is easy to accept that only the trauma and tragedy of his father's death upset his firm and otherwise well organised plans in this regard.
In all these circumstances, I find myself unable to adopt a formula of interpretation which treats this man on 7 January 1990 as if he were a first time or occasional visitor to this country when in fact he was living in Australia at the time and was to all intents and purposes returning home. In my opinion, an Australian legal resident does not "enter" or "re-enter" his homeland in the statutory sense after every overseas trip, even though that is what physically occurs. The Migration Act and Regulations cannot have been intended to bear such a narrow and potentially oppressive interpretation."
Although his Honour noted the statutory definitions of "enter" and its derivatives, he did not find it necessary, in coming to his decision, to investigate the effect of these definitions on the facts of the case before him.
However, the learned trial judge said of the decision in Lee's case (supra):-
"The decision of Einfeld J in Lee (supra) is distinguishable because it did not involve cancellation of a visa. It related to provisions in a legislative context quite different from the present case, at a time when the Act was in a substantially different form."
With respect, this proposition must be correct and in my opinion it applies equally to circumstances of this case. The fact that "enter" is defined to include "re-enter" did not prevent the finding in Lee's case (supra) that the applicant "first entered" Australia on 13 September 1989.
In Ge's case (supra) the appellant arrived in Australia from his native China on 29 April 1990. He entered on a student visa. He returned to China on 29 August 1993 to visit his father but came back to Australia on 13 October 1993. Upon his return his visa was cancelled on the basis of allegations that the appellant had obtained his most recent visa through the use of false documents. The appellant subsequently applied for special entry permits. Each permit could only be applied for and granted "after entry". His applications were rejected and those decisions were affirmed by the Refugee Review Tribunal.
The same question arose as in Lee's case; when did the appellant "enter" Australia?
Section 89 of the Act, as then enacted, provided that in the circumstances there described, a person could be taken into custody on his or her arrival in Australia. In such a case, the person is taken not to have entered Australia unless and until he or she is granted an entry permit. The Minister argued that s 89 applied to Mr Ge and that as a result, he was not competent to make his applications as he had not yet entered Australia.
Sackville J came to the following conclusions:-
"In my view the better interpretation of cl 816.511 is that an application for a Class 816 permit is made "after entry" if the applicant has previously entered Australia, regardless of whether he or she has subsequently left Australia and regardless also of whether he or she holds a valid entry permit or visa at the date of the application."
The decision in Ge's case (supra) is distinguishable for the same reason that distinguished Lee's case (supra).
The learned trial judge concluded, and in my opinion, correctly so, that the statutory definition of "entered" in the present case enables the Minister to invoke s 128 in the circumstances where a non-citizen has either not entered or not re-entered Australia after being "outside Australia". In coming to that conclusion, he relied upon the following propositions. First, his Honour rejected the proposition that the appellant's receipt of a permanent visa warranted any particular consideration. There is, as his Honour said:-
"... no basis, in the language, of s128, from which to draw inferences from the special features of a visa which permits the holder to remain in Australia indefinitely, as opposed to any other visa such as a tourist, visitor, student, or transit visa. The section in terms must be read so as to apply to every type of visa."
Secondly, the trial judge concluded that because the statutory definition of the word "entered" included "re-entered", s 128 should be read as if the words "or re-entered" appeared in the section. In other words, the section would be interpreted as follows:-
"128If:
(a) the Minister is satisfied ..., and
(b) the non-citizen has not entered or re-entered Australia;
the Minister may, without notice to the holder of the visa, cancel the visa."(underlining inserted and added)
Thirdly, his Honour referred to and relied upon the Explanatory Memorandum that was issued at the time of the introduction of the relevant amending legislation. The appellant did not challenge his Honour's right to have recourse to this material. Paragraph 151 of that memorandum contained a commentary on s 50AN (now s 128) and also referred to s 50AB (now s 116):-
"151This section provides that, in cases where the visa holder has not entered Australia and there is a section 50AB cancellation ground, the Minister can cancel the visa, under this section, without prior notice to the holder. The requirement that the holder not have entered Australia applies only to future travel authorised by the visa and section 50AN will also apply to non-citizens who have previously been in Australia but are now outside it."
As his Honour correctly pointed out, the contents of this paragraph "strongly supports the submission that the section was intended to apply to non-citizens who have previously been in Australia but at the time of cancellation were outside Australia".
The appellant raised a further alternative submission. It was to this effect: where there is a specific power which permits cancellation of a visa subject to prior notice being given (such as s 116), the existence of another broader power (such as s 128), apparently covering the same ground but without the procedural safeguard of prior notice, should be read down so as not to apply to those cases where the more limited provision (i.e. s 116) is relevant and applicable. It was submitted that it is unlikely that Parliament intended that the Minister or his or her delegate should have the power to decide whether procedural safeguards were appropriate or not. This argument must be rejected. To adopt it would mean the emasculation of s 128; it would ignore the fact that the legislature saw fit to insert an express provision entitling the Minister, in certain circumstances, to summarily cancel a visa without prior notice.
In my opinion the learned trial judge came to the correct decision. The appeal should be dismissed with costs.
I certify that this and the preceding (twelve)12 pages are a true copy of the Reasons for Judgment of the Honourable Justice O'Loughlin.
Associate:
Dated: 17 June 1997