Manatiy v Minister for Immigration and Multicultural Affairs

THE VISA APPLIED FOR 5 The class of visa Mrs Manatiy applied for is described in Sch 2 of the Migration Regulations 1994 as a "Subclass 832 Close Ties" visa. For present purposes the particular requirements of cl 832 she claims she met were those of subcl 832.212(4). It provided: "(4) An applicant meets the requirements of this subclause if the applicant: (a) first entered Australia before the applicant turned 18; and (b) has never held either of the following: (i) a student visa; (ii) an entry permit, or a transitional (temporary) visa within the meaning of the Migration Reform (Transitional Provisions) Regulations, for the purposes of a course of study; and (c) has turned 18; and (d) before turning 18, spend the greater part of the period that the Minister regards as the applicant's formative years in Australia; and (e) ceased to hold an entry permit or a substantive visa before turning 18." 6 The case advanced in this application - though not directly before the Tribunal - relates to the proper construction of subpara (e) of the above sub-clause and, in particular, of the terms "entry permit" in that subpara.

THE TRIBUNAL'S DECISION 7 The Tribunal accepted a concession made by Mrs Manatiy's solicitor that she did not hold an "entry permit" under the Migration Act. It regarded this concession as having been made correctly because it, in turn, erred as to what was the proper definition of an "entry permit" for the purposes of a Subclass 832 visa. The basis of this error - now accepted by the respondent Minister - is explained below. 8 In consequence of the concession so made, the case put to the Tribunal and rejected by it was that Mrs Manatiy "ceased to hold … a substantive visa". She does not contest that conclusion in this application.

MATTERS OF LEGISLATIVE HISTORY 9 I have referred above to the change wrought in relation to British subjects by the enactment of the Migration Act 1958. On its coming into force, an immigrant who was not a holder of an entry permit became a prohibited immigrant upon their entry into Australia: s 6(1). I would note in passing that this Act had no presently relevant retrospective effect upon Mrs Manatiy and her parents. It did not seek to regulate the presence in Australia of persons who had lawfully entered the country prior to its commencement. 10 Section 5(1) of the 1958 Act (as enacted) defined "entry permit" and "immigrant" to mean (unless a contrary intention appeared): "'entry permit' means a permit issued under section six of this Act: '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." 11 I would note in passing that it was the above definition of "entry permit" that was relied upon erroneously by the Tribunal. Mrs Manatiy clearly did not hold a visa under the original s 6 of the Act. 12 Section 6(3) of the Act in turn provided that: "(3) An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both." 13 As is clear from s 7 and s 11, a person already in Australia could be granted a further entry permit as, for example, where a temporary entry permit was about to, or had, expired. Such permits would necessarily seem to be permits to remain in Australia, not permits to enter. 14 Finally I would note that s 9 of the Act, as enacted, provided that an entry permit lapsed upon the departure of the holder of an entry permit from Australia unless it contained a permission to be absent from Australia before expiry or cancellation of the permit. 15 As the Second Reading Speech on the 1958 Bill made plain, the Government of the day was mindful of the effect of the new entry permit system on British subjects, though it sought to provide reassurance to them. As the portfolio Minister said (see Commonwealth Parliamentary Debates, House of Representatives, May 1958 at 1397): "I cannot emphasize too strongly that these new arrangements will not add to existing formalities. British subjects who now enter without visés or prior authority will have entry permits stamped in their passports in exactly the same way as before, to show date and place of arrival; nor will they be refused entry permits except on my express authority." 16 Insofar as concerned Mrs Manatiy it was the 1958 Act in its above form that applied to her on her leaving Australia in 1973. If she wished to return to Australia she could not do so as of right: s 6(1) and s 9 of the Act. 17 The Migration Legislation Amendment Act 1989 repealed and replaced both the 1958 Acts' s 5(1) definition of "entry permit" and its s 6. The new s 5(1) definition was as follows: "'entry permit' means permission to enter or remain in Australia." 18 Insofar as presently relevant, the new s 6 provided: "Illegal entrants 6. (1) On entering Australia, a non-citizen becomes an illegal entrant unless: (a) he or she is the holder of a valid entry permit; … (3) A non-citizen who is the holder of a valid entry permit becomes an illegal entrant if he or she stops being the holder of a valid entry permit while he or she is in Australia." A new s 17A provided for the mandatory deportation of illegal entrants. 19 The Migration Reform Act 1992 substituted a single form of authority (a "visa") to travel to, enter and remain in Australia for the then dual authority system of a visa which permitted travel to Australia and an entry permit which permitted a person to enter or remain in Australia. From the commencement of that Act entry permits ceased to be required. They were not, though, devoid of future significance. 20 When the Subclass 832 visa was introduced, the then subpara 832.212(4)(b) (now 832.212(4)(e)) referred only to ceasing to hold a substantive visa. It was amended by the Migration Amendment Regulations 2000 (No 2) (being Statutory Rules No 62 of 2000), which commenced on 1 July 2000. The amendment consisted of omitting the words "a substantive visa" and inserting the words "an entry permit or a substantive visa". 21 The explanatory Statement for Statutory Rules No 62 of 2000 states: "This item inserts a reference to an entry permit in 832.212(4)(b). The reference to an entry permit has been made because most applicants eligible under this subclass would have entered Australia under an entry permit rather than a substantive visa." 22 Importantly for present purposes, Reg 1.03 of the Migration Regulations 1994 defined "entry permit" as follows: "entry permit has the meaning given by subsection 4(1) of the Act as in force immediately before 1 September 1994, and includes an entry visa operating as an entry permit." The definition so picked up was that introduced by the Migration Legislation Amendment Act 1989, i.e. "entry permit" means "permission to enter or to remain in Australia". The Reg 1.03 definition (hence the 1989 Amendment Act definition) governs the meaning of that formula in relation to the requirements of Sch 2 for a Subclass 832 visa. 23 To revert to the Tribunal's reasons, the mistake made in relation to accepting her solicitor's concession was that it applied the original s 5(1) definition of the 1958 Act and not the quite differently worded definition picked up by Reg 1.03. 24 Finally, it was recognised at the time of the 1992 legislation that there was a small number of "absorbed persons" who were lawfully in Australia as permanent residents despite not holding entry permits. In the Migration Legislation Amendment Act 1994 provision was made for a special class of permanent visa for such persons to be known as "absorbed person visas": see Migration Legislation Amendment Bill 1994, Explanatory Memorandum, paras 22-27. I would note in passing that, because of her departure from Australia in 1973, Mrs Manatiy rendered herself ineligible for such a visa: see the Migration Act 1958, s 23 (now 34); although British subjects who entered Australia prior to 1958 and who remained here thereafter could qualify for that visa. Apparently Mrs Manatiy's mother holds such a visa. The point of present emphasis, though, is that the 1992 and 1994 legislation made possession of a valid visa the sole criterion for determining the lawful status of a non-citizen within Australia: see Crock, Immigration and Refugee Law in Australia, Federation Press 1998, 52; on absorbed persons visas see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 230 ALR 370 at [12]-[22].

THE PRESENT APPLICATION 25 The respondent Minister has objected to the applicant seeking relief in this Court in respect of a claim which was not made to the Tribunal and which was disavowed by her solicitor. It is further contended that even if the case now sought to be put had been presented to the Tribunal it could not have succeeded. Mrs Manatiy did not meet the requirements of subpara 823.212(4)(e) in any event. In these circumstances it is said, even accepting that a common mistake was made by the Tribunal and Mrs Manatiy in relation to the applicable definition of "entry permit", it would nonetheless be futile to remit the matter to the Tribunal. 26 Mr Ower for Mrs Manatiy in contrast has submitted that the case he now seeks to put concerning an entry permit clearly arose from the materials before the Tribunal and the mistake it shared with Mrs Manatiy's solicitor was the cause of its not dealing with it. 27 I have heard full argument on the case put by Mrs Manatiy. As I am satisfied it must be decided adversely to her, I will give my reasons for that decision without dealing with the Minister's primary objection as such. 28 The simple and direct answer to the present application is that when Mrs Manatiy entered Australia in 1956 and while she remained in Australia until 1973, she did so in virtue of a legal regime which did not require her to have permission so to enter or to reside in Australia. As a British subject, proof of which was provided in her father's passport, she had a right to enter Australia. While British subjects seeking to enter Australia after the coming into force of the Migration Act were required to obtain an entry permit permitting them to enter and remain in Australia, Mrs Manatiy's continued presence in Australia from that time was unaffected by this legislative change. Her right to remain in Australia existed in virtue of the lawful rights she had when she entered Australia in 1956. It was not abrogated by the Act. Nor did the Act abrogate any permission she had to enter Australia. Her original entry was as of right, none of the prohibitions of s 3(1) of the Immigration Act having application to her. Until her departure in 1973 she belonged to a class of persons lawfully in Australia who stood outside the entry permit regime for so long as they continued to remain in Australia. It was only when the universal system of visas for non-citizens was instituted in the 1992-1994 reforms that the existence of this class itself required address: see Nystrom at [14]-[16]. The principal response, as I have noted, was to be found in the deeming provision of s 23 (now s 34) of the Migration Act which effected the grant (subject to limitations) of absorbed person visas. One of its applications was to members of the class I have noted above who satisfied the requirements of s 23: on s 34 see Nystrom at [18]-[22]. 29 Mrs Manatiy's entry into Australia in 1956 and her remaining in Australia until 1973 were not in virtue of any permission given by the Commonwealth under either the Immigration Act or the Migration Act. In consequence, she could never "cease to hold an entry permit … before turning 18" for the purposes of subpara 832.212(4)(e). I accept the Minister's submission in this respect as also the submission that it would be futile to remit the matter to the Tribunal because of the Tribunal's mistake as to the proper meaning to be ascribed "entry permit" in that subpara. The actual result would remain the same. 30 In reaching this conclusion I have implicitly rejected the case put by the applicant. Though it has shifted somewhat in the course of written and oral submissions, it is premised on the agreed proposition that the preposition "or" in the operative (1989) definition of "entry permit", i.e. "permission to enter or remain in Australia" is to be read disjunctively. While I agree with this premise as far as it goes, it does not in my view capture the full scope and burden of the 1989 definition. Considered in the context of the entry permit system instituted in the 1958 Act, the definition had to accommodate itself to multiple possibilities. I simply instance (a) permissions to enter for a purpose but not to remain; (b) permissions to enter and to remain; and (c) permissions to remain, the non-citizen being already in Australia. To be added to these were those permissions which facilitated, as well, re-entry into Australia. A consequence of this, in my view, is that the preposition "or" in the 1989 definition on its proper construction is to be read as "and/or", i.e. conjunctively and disjunctively to accommodate the above possibilities. Thus a person who has permission to enter and to remain in Australia has an entry permit, not two such permits. I would note that such was made explicit in the original s 6(3) of the 1958 Act, as it is currently (in relation to visas) in the present s 29 of the Migration Act. 31 On the limited premise I noted above, the applicant's case is that on the commencement of the 1958 Act she ceased to have permission to enter Australia (i.e. to re-enter without a permit to enter) and, as that occurred before she turned 18, she thus complied with the requirement of subpara 832.212(4)(e). 32 My earlier conclusion that Mrs Manatiy was not the holder of an entry permit at any time from 1956 (when she entered Australia) until 1973 (when she left Australia) is sufficient to dispose of this submission. But even if it be accepted contrary to my view that the rights she had as a British subject could properly be characterised as giving "permission to enter or reside in Australia" - i.e. as being an "entry permit" for Subclass 832 visa purposes - the permission she had was one to enter and reside in Australia. Mrs Manatiy, as she was bound to, has conceded that her residence in Australia after 1958 and until 1973 was not unlawful. In other words, the "permission" she had was unaffected by the 1958 Act for as long as she remained in Australia. Both her entry and remaining were, and remained, lawful and the "entry permit" continued in effect. For the purposes of subpara 832.212(4)(e) she did not, in consequence, cease to hold an entry permit.

CONCLUSION 33 I will order that the application be dismissed. I will, as requested by Mr Ower, hear the parties on the question of costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Solicitor for the Applicant: McDonald Steed McGrath

Date of Hearing: 27 October 2006 and 23 November 2006