Mariappan v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2024-10-15|Before: O'Callaghan J

THE COURT ORDERS THAT:

The proceeding be dismissed.
The applicant pay the respondent's costs as agreed, or in the absence of an agreement as determined by taxation by a Registrar of this Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'CALLAGHAN J

Introduction

The applicant, Mr Nagayah Mariappan, is a citizen of Malaysia. He came to Australia, aged 20, in January 1981. He has remained here ever since.
By way of a statement of claim filed on 20 November 2023, he says that he is the holder of an "absorbed person visa", having, he contends, ceased to be an immigrant by 2 April 1984.
The Minister contends that Mr Mariappan did not and could not "cease to be an immigrant" by 2 April 1984 because he was, at all relevant times after the expiry of his original entry permit in January 1982, a "prohibited immigrant".
The answer to the dispute turns on the relevant part of s 34 of the Migration Act 1958 (Cth) (Migration Act), set out below.
For the reasons that follow, I am bound to accept the Minister's contention and the proceeding must be dismissed.

The issue for determination

The statement of claim is in these terms:
The Applicant first arrived in Australia on 12 January 1981.
On 2 April 1984, the Applicant was in Australia.
At some time prior to 2 April 1984, the Applicant ceased to be an immigrant. Particulars The cessation of the Applicant being an immigrant at some time in the period from 12 January 1981 to 2 April 1984 is inferred from some or all of: (a) the time elapsing between when the Applicant entered Australia and 2 April 1984, being a period of about 39 months; (b) the Applicant forming an intention to settle permanently in Australia during that time, including as inferred from matters subsequent to 2 April 1984, such as: i. the accumulation of a substantial amount of superannuation in excess of about $480,000; ii. the absence of any departure from Australia in the 42 years since arrival; iii. the long-standing membership of various community clubs; iv. continued employment in Australia; v. continued payment of Australian income taxes including [the] Medicare levy, without claiming the foreign residency exemption; (c) the lack of any absences from Australia throughout that time; (d) the existence of family ties in Australia, including that of his Australian citizen sister and her husband (the Applicant's brother-in-law); (e) the Applicant's employment in Australia throughout that time; (f) the Applicant's places of residence throughout that time; (g) the Applicant's contribution to and participation in community activities, including via community soccer clubs; (h) the absence of any criminal record whatsoever; (i) the payment of income tax in Australia, including Medicare levy, without claiming the foreign residency exemption; (j) the adoption and embracing of an Australian nickname, and the adoption of a new substantive name of Thomas Selveraj and cessation of the use of his birth name of Nagayah Mariappan. Further particulars may be provided prior to trial.
At no time between 12 January 1981 and 2 April 1984 had the Applicant left Australia, where 'left Australia' has the meaning it had in the Migration Act 1958 (Cth) (the Act) before 1 September 1994.
Immediately before 1 September 1994, the Applicant was not a person to whom section 20 of the Act as in force then applied.
Pursuant to section 34 of the Act, by reason of the matters in paragraphs 2 to 5, the Applicant is taken to have been granted an absorbed person visa on 1 September 1994.
The Minister's defence filed on 19 January 2024 was as follows:
The Respondent admits paragraph 1.
The Respondent admits paragraph 2.
The respondent denies paragraph 3. Particulars: The applicant did not 'cease to be an immigrant' before 2 April 1984 because at that time he was a 'prohibited immigrant'. The applicant arrived in Australia on 12 January 1981. His incoming passenger card is stamped with a temporary entry permit stating that he could remain in Australia for 12 months. At the time of the applicant's entry into Australia, ss 7(3), 7(4) and 10 of the Act provided: [s] 7(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. [s] 7(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. [s] 10 A person who has become a prohibited immigrant ceases to be a prohibited immigrant if and when an entry permit or further entry permit is granted to him, and not otherwise. These provisions were not amended until the Migration Amendment Act 1983 (Cth) came into operation on 2 April 1984. The applicant's temporary entry permit expired 12 months after his arrival in Australia. He remained in Australia after the expiration of that period. No further entry permit applicable to the applicant came into force at this time, nor was the applicant the subject of an exemption under s 8(1)(e) of the Act (as then in force). The applicant therefore became a prohibited immigrant on the expiration of his temporary entry permit under s 7(3) of the Act (as in force at the relevant time). The applicant could not have ceased to be a prohibited immigrant before 2 April 1984 under s 7(4) of the Act, as a period of 5 years had not passed between the expiration of his entry permit and 2 April 1984. The applicant was a 'prohibited immigrant' on 2 April 1984, and therefore could not, as a matter of law, have 'ceased to be an immigrant' before that date.
The respondent admits paragraph 4.
The respondent does not know and therefore cannot admit paragraph 5.
The respondent denies paragraph 6. Particulars The respondent repeats the matters in paragraph 4 above, and says that because the applicant did not cease to be an immigrant before 2 April 1984, he does not satisfy s 34(2)(b) of the Migration Act 1958 (Cth), and is not taken to have been granted an absorbed person visa by operation of law.
By amended notice of dispute dated 18 July 2024, the Minister further admitted that immediately before 1 September 1994, the applicant was not a person to whom s 20 of the Migration Act as in force then applied.
Section 34 of the Migration Act relevantly provides: Absorbed person visas (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.
As the Minister has admitted that the applicant meets all criteria for an absorbed person visa except s 34(2)(b), the only issue is whether he had ceased to be an immigrant before 2 April 1984.

The evidence

The applicant read and relied upon the affidavit of Ms Carina Ford, solicitor for the applicant, affirmed 8 November 2023. Among other things, this affidavit annexed submissions and other material provided by the applicant to the Department of Home Affairs in support of his request that the department acknowledge his status as the holder of an absorbed person visa. The applicant also tendered a supplementary court book, marked Exhibit #A3, which included material that was inadvertently omitted from Ms Ford's affidavit.
The Minister read an affidavit of Mr Michael Spencer, Acting Inspector in the Border Systems Support Section within the Australian Border Force, affirmed 21 June 2024, which set out uncontroversial factual matters relating to the applicant's arrival in Australia and his visa status.
Pursuant to a statement of agreed facts filed by the parties on 4 September 2024, the following facts were agreed between the parties:
When the Applicant arrived in Australia on 12 January 1981, he was granted a temporary entry permit which expired on 12 January 1982.
Other than the entry permit referred to in paragraph 1 above, the Applicant was not granted an entry permit or visa prior to 2 April 1984.
The Applicant was not exempt under the former s 8 of the Migration Act 1958 (Cth) from the requirement to obtain an entry permit.

Relevant statutory provisions as at 2 April 1984

Because the claim raises the question of whether the applicant had ceased to be an immigrant by 2 April 1984, it is necessary to have regard to the relevant provisions of the Migration Act in force between his arrival in 1981 and 2 April 1984 (which I will refer to as the "1984 Migration Act").
The 1984 Migration Act provided for entry by immigrants into Australia to be regulated by entry permits to be granted by officers of the Department of Immigration (s 6(2)). Such permits could be cancelled by the Minister in his absolute discretion (1984 Migration Act s 7(1)). The 1984 Migration Act also provided for the deportation of aliens and immigrants under various conditions.
Section 6 the 1984 Migration Act provided:
Immigrant not to enter Australia without entry permit (1) An immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant. (2) An officer may, in accordance with this section and at the request or with the consent of an immigrant, grant to the immigrant an entry permit. … (5) An entry permit may be granted to an immigrant either upon his arrival in Australia or after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of this Part). (6) An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions. …
The effect of ss 7 and 10 of the 1984 Migration Act was that an immigrant who was required by s 6 to obtain an entry permit became a "prohibited immigrant" once the entry permit expired, unless and until the person obtained a further entry permit, or a period of five years had elapsed.
Section 7 relevantly provided:
Cancellation, expiration and renewal of temporary entry permits.

… (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. …

Section 10 provided: "A person who has become a prohibited immigrant ceases to be a prohibited immigrant if and when an entry permit or further entry permit is granted to him, and not otherwise".
As the parties agreed, the applicant's original temporary entry permit, which was granted when he arrived in Australia on 12 January 1981, expired on 12 January 1982. He was not subsequently granted another entry permit prior to 2 April 1984.
Section 8 provided for certain exemptions from the requirement to obtain an entry permit. The parties also agreed that none applied to the applicant.
Consequently, the applicant accepted that he was a "prohibited immigrant" as at 2 April 1984 within the meaning of the 1984 Migration Act.

The decision in Forbes is binding

As French J recognised in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494 at [33], the statutory criterion of whether a person has "ceased to be an immigrant" in s 34(2)(b) of the Migration Act "imports a constitutional question", namely whether that person has been absorbed into the community. As his Honour explained at [36], this is because the immigration power in s 51(xxvii) of the Constitution "does not authorise the Parliament to legislate with respect to persons who, having immigrated to Australia, have made their permanent home here and have become members of the Australian community". In other words, a person who has been absorbed into the community is not an "immigrant" for constitutional purposes.
Justice French went on to say, however, that the constitutional question of whether a person has been absorbed into the community can be affected by legislation, explaining at [37] that: [t]he Parliament can make laws which would prevent a person who migrates to Australia from being accepted into the community except under certain circumstances or conditions: O'Keefe v Calwell (1949) 77 CLR 261 at 276-277 (Latham CJ), see also Koon Wing Lau v Calwell (1949) 80 CLR 533; R v Forbes; Ex parte Kwan Lee (1971) 124 CLR 168, especially at 173-174 (Barwick CJ) … These cases reflect the broad principle that absorption may be precluded by community non-acceptance which can be effected by statute, eg, by the limitation imposed by temporary entry permits and the creation of such classifications as "prohibited immigrant" …
In R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168, the applicant, Mr Lee, was a person whose temporary visa had expired and was threatened with deportation. Constitutional questions (whether ss 10, 18 and 20 of the Migration Act were valid laws of the Parliament of the Commonwealth) arose and the matter was removed to the High Court.
Barwick CJ (with whom McTiernan, Windeyer, Owen and Gibbs JJ agreed) described the applicant's "basic submission" put by Mr T E F Hughes QC as follows at 172, namely that: the Commonwealth Parliament has no power under s. 51 (xxvii.) [of the Constitution] to pass a law which would authorise the deportation of a person who is not an immigrant and that a person who has been absorbed into the Australian community, or as it was said, as an alternative expression of the same concept, has achieved a "settlement" in Australia, is not an immigrant though he came into this country as a person who at the time of his entry was not part of the Australian community. The applicant therefore says that once he became, as he claims to have become, a member of the Australian community he ceased to be both an immigrant and a prohibited immigrant.
That submission was not accepted. As Barwick CJ explained at 172-3: The applicant's submissions in my opinion ought not to be accepted. In my opinion, they are clearly erroneous. There can be no doubt that the Parliament has power under s. 51 (xxvii.) to say who, if not being a member of the Australian community at the time of entry, shall enter Australia either for a temporary stay or for permanent residence and to fix the terms upon which such person may enter and may remain in Australia. It was said in O'Keefe v. Calwell 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. (Citations omitted, emphasis added.)
The same reasoning has been applied in many cases since, including Yong v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 566 (Northrop J); Tjandra v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 577 (Lindgren J); Rooney v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 590 (Lee J); Chee v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 542 (Merkel J); Eqi Wong v Minister for Immigration and Ethnic Affairs [1997] FCA 1002 (Tamberlin J); Boon Yin Chee v Minister for Immigration and Multicultural Affairs (Lockhart, Heerey and Sundberg JJ, 13 June 1997, unreported); and Sit v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 40 (Moore, Tamberlin and Hely JJ).
The Minister relied on Forbes as authority for the proposition that a "prohibited immigrant" cannot be absorbed into the community, and therefore cannot have "ceased to be immigrant".
Counsel for the applicant submitted that Forbes is not authority for an argument it did not decide. Counsel contended that because what he called "the Communist Party Case point" was not argued in Forbes, it did not decide any argument about how Barwick CJ's statement is to be reconciled with the principle in Australian Communist Party v Commonwealth (1951) 83 CLR 1 (Communist Party Case) that "Parliament cannot recite itself into power". See Communist Party Case at 206 (McTiernan J); 222 (Williams J), 258, 263-5 (Fullagar J).
Although not referred to by name, the Communist Party Case point was raised in Forbes. So much is apparent from the summary of the submissions made by Mr Hughes on behalf of the applicant, set out in the Commonwealth Law Reports at pages 169-170: The immigration power cannot support a law that purports to subject an entrant to permanent liability to deportation after the expiration and non-renewal of an entry permit after absorption: Ex parte Walsh and Johnson; In re Yates. If s. 10 purports to prescribe that an entrant cannot become absorbed within five years it is invalid. Upon expiration of an entry permit an entrant becomes free to be absorbed: Reg. v. Green; Ex parte Cheung Cheuk To; R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly; Ah Sheung v. Lindberg; Potter v. Minahan. The Parliament can regulate the process of absorption, but it cannot alter its nature or define what it is. (Citations omitted, emphasis added.)
But in any event, as counsel for the applicant recognised during the course of his oral address, the correctness of Forbes and its interaction with the Communist Party Case is not for me to determine, and I am bound to follow and apply the ratio of the decision of the High Court in Forbes.
That is to say, a person who was a "prohibited immigrant" as defined in the Act as at 2 April 1984 could not have ceased to be an immigrant.
And as the applicant accepts, he was a "prohibited immigrant" at 2 April 1984. So, by force of the ratio in Forbes, he had not ceased to be an immigrant by that date within the meaning of s 34(2)(b).
I should also briefly note that the applicant submitted in the alternative that, because absorbed person visas under s 34 of the Migration Act were only introduced on 1 September 1994, the term "ceased to be an immigrant" in s 34(2)(b) should not be construed by reference to the concept of "prohibited immigrant", as that statutory status had been repealed by September 1994. Given that s 34(2)(b) expressly requires consideration of whether a person had ceased to be an immigrant before 2 April 1984, I am doubtful that that submission has any merit. But because I am bound to apply Forbes, it is not necessary for me to say anything more about it.

Facts accepted by the Minister

It follows that all the factual matters relied on in the statement of claim to found the contention that the applicant was, in fact, absorbed into the community by 2 April 1984 are beside the point.
At the hearing, I was asked by counsel for the applicant to nevertheless find facts relevant to absorption and to infer on the basis of those facts that the applicant, if not for his status as a "prohibited immigrant", had been absorbed into the community, "so that there is a platform for others to determine whether Forbes is still correct".
Counsel for the Minister submitted that I should neither find facts nor draw any conclusion about whether the applicant had been absorbed. It was submitted that it would be inappropriate to do so for two "prudential" reasons, citing Clubb v Edwards (2019) 267 CLR 171.
First, if, on appeal the High Court were to revisit the correctness of Barwick CJ's statement in Forbes this would, on the Minister's submissions, likely require the Court to reconsider more broadly what amounts to absorption for constitutional purposes. Any conclusion I make on the current state of constitutional law about whether the applicant had been absorbed into the community would therefore be of little value if, in that hypothetical scenario, the law may ultimately change.
Secondly, counsel for the Minister submitted that in this case there may be very little dispute between the parties as to the underlying facts, which is contained in documentary evidence, and that the High Court would be in just as good a position as this Court to consider the evidence and undisputed facts and to then draw relevant legal inferences.
As it happened, counsel for the Minister, whilst not conceding their relevance to the question of absorption, accepted at the hearing a number of the facts relied upon by the applicant. It is, in those circumstances, appropriate that I record them.
The Minister accepted that Mr Mariappan:
had not been absent from Australia from his arrival to 2 April 1984 (the early period).
had an Australian-citizen sister during the early period.
had been employed in Australia throughout the early period, first as a casual cleaner in 1982; and subsequently, at Dupond Industries in Sydney, continuously since 1983.
had contributed to and participated in community soccer clubs during the early period, specifically:
1. the Noosa Soccer Club in 1981 which won the Sunshine Coast Football League's competition that year, as reported in a local newspaper featuring Mr Mariappan's name, and for which Mr Mariappan was the club's "number 1 goalkeeper for the 1st Team".
2. the Smithfield Rangers, when he moved from Noosa to Sydney.
did not have any criminal record during the early period or at all.
paid income tax, including the Medicare levy, without claiming the foreign residency exemption, during the early period.
had adopted and embraced an Australian nickname, and adopted a new substantive name of Thomas Selveraj, and ceased to use his birth name of Nagayah Mariappan, during the early period.
has now accumulated superannuation in excess of about $480,000.
has not departed Australia ever since arrival.
is now a member of various community clubs.
has been continuously employed in Australia since 2 April 1984.
has continually paid Australian income taxes including the Medicare levy, without claiming the foreign residency exemption since 2 April 1984.
The Minister also agreed that:
when Mr Mariappan arrived in Australia, his English was poor but he worked very hard to improve it.
during the early period, Mr Mariappan formed ties with Australians Anthony Kubus with whom he shared a house in Sydney in 1981, and Shirley Kubus (Anthony's mother), who he still visits four decades on.
since 1981, Mr Mariappan has treated Australia as his home.
Mr Mariappan has accumulated substantial savings in Australian bank accounts.
Mr Mariappan is an active participant within his local religious community.
Counsel for the applicant contended that the Minister is to be taken from his defence to have made admissions that are slightly more extensive than the facts agreed. He submitted, in effect, that because the particulars in [3] of the defence did not deny the particulars in [3] of the statement of claim relied upon by the applicant to support the contention that he had ceased to be an immigrant, the Minister is deemed to have admitted those facts by virtue of rule 16.07(2) of the Federal Court Rules 2011 (Cth). But that submission cannot be accepted. A respondent need not, and should not, plead to particulars. And while the particulars in [3] of the defence take a point of law, not a point of fact, the operative denial in [3] of the material fact (that the applicant had ceased to be an immigrant at some point prior to 2 April 1984) is unqualified.

Conclusion

This court has previously observed, in applying the ratio in Forbes, that the result may be seen to work an unfairness. See, for example, Boon Yin Chee at 2 (Lockhart, Heerey and Sundberg JJ). In this case, I was told by counsel that the problem only came to light when some (unspecified) need for Mr Mariappan to "regularise" his status arose a little time ago. After the hearing, the parties filed a joint note which confirmed that he presently holds a 'Bridging Visa E' entitling him to remain in Australia, but not work. It was granted on 16 August 2024 and will expire on 15 November 2024, but he can apply for and may be granted a new bridging visa.
Mr Mariappan has led an apparently blameless life here, he has paid his taxes and the like, and he has not once left the shores of this country since his arrival as a twenty-year-old man, more than 43 years ago. He has family here, a superannuation fund, and the Minister accepts that he has treated Australia as his home since his arrival.
So although the result is undoubtedly unfair to Mr Mariappan, as I have explained, and as his counsel at the hearing recognised, I am bound to follow the ratio in Forbes and to dismiss the proceeding. The applicant must pay the Minister's costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.

Migration Amendment Act 1983(Cth)

Migration Act 1958(Cth)ss 34, 34(2)(b)

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