Minister for Immigration & Multicultural Affairs v Dhingra

Legislative Framework 4 The provision under which Mr Dhingra was convicted was s 83G of the Migration Act 1958 (Cth) ("the Act") in the form that it was in as at January 1993. That form was as follows: "83G(1) A person must not apply for a stay permit on the basis of satisfying a criterion for the permit because of being married to, or being, for the purpose of the regulations, the de facto spouse of, another person if, at the time of the application, the applicant does not intend to live permanently with the other person in a genuine and continuing marital relationship. (2) A non-citizen in Australia convicted of an offence under subsection (1) becomes an illegal entrant. (3) [not here relevant]."

5 Section 83B of the Act as at January 1993 defined a stay permit as follows: "stay permit" means: (a) a permanent entry permit; or (b) a preliminary permit." 6 The Migration (1993) Regulations, which commenced operation on 1 February 1993 provided in February 1993 by regulation 1.6 as follows: "1.6 (1) For a person to qualify as the de facto spouse of another person, those persons must, at the time the relevant application is made: (a) be living together as spouses (without being legally married) in a genuine domestic relationship that has continued for: (i) a period of 6 months; or (ii) a lesser period specified under subregulation (2); immediately preceding the application; and (b) not be legally married to each other; and (c) be of opposite sexes; and (d) have both reached: (i) the age of 16 years, if neither of them has an Australian domicile; or (ii) the age of 18 years, in any other case. (2) On written application, the Minister may specify that a lesser period than 6 months is to apply under paragraph (1)(a) for the purposes of a particular application, if the Minister is satisfied that: (a) there are exceptional circumstances affecting the persons to whom the particular application relates; and (b) there are compelling reasons for specifying that lesser period." 7 Immediately before the coming into operation of the Migration (1993) Regulations, the Migration Regulations provided by regulation 3A as follows: "(1) For the purposes of these Regulations, a person is the de facto spouse of another person if, at the time when an application for a visa or entry permit is made by either of the persons, they: (a) have lived together, for the whole of the immediately preceding 6 months (or such lesser period as is specified in a particular case, under subregulation (2)), on a genuinely domestic basis as spouses without being legally married to each other; (b) are not of the same sex; and (c) have both reached the age: (i) if neither of the persons has an Australian domicile - of 16 years; or (ii) in any other case - of 18 years." (2) For the purposes of subregulation (1), the Minister may, on written application, specify a period of less than 6 months if the Minister is satisfied that: (a) there are exceptional circumstances affecting the persons; and (b) there are compelling reasons for specifying that lesser period." 8 As at January 1993, the Act provided for one form of authority (a visa) to travel to Australia and another form of authority (an entry permit) to enter and remain in Australia. Since the coming into operation of the Migration Reform Act 1992 (Cth) ("the Reform Act"), the Act has provided for a single form of authority (a visa) to travel to and enter, and to remain in Australia. Relevantly the Reform Act came into operation on 1 September 1994. The Reform Act amended s 83G of the Act by deleting the word "permit" wherever occurring and substituting the word "visa", and by deleting the words "illegal entrant" whenever occurring and substituting the words "unlawful non-citizen" (schedule to the Reform Act). 9 The Migration Legislation Amendment Act 1994 (Cth), which relevantly took effect on 1 September 1994 immediately upon the coming into operation of the relevant parts of the Reform Act, amended the Act by renumbering, amongst other things, "the several sections of the … Act …" (s 83(5)). As a consequence of the renumbering s 83G became s 243. 10 Section 243 of the Act now provides: "243 (1) A person must not apply for a stay visa on the basis of satisfying a criterion for the visa because of being married to, or being for the purposes of the regulations, the de facto spouse of, another person if, at the time of the application, the applicant does not intend to live permanently with the other person in a genuine and continuing marital relationship. (2) A non-citizen in Australia convicted of an offence under sub-section (1) becomes an unlawful non-citizen. (3) [not here relevant]." 11 Section 238 of the Act contains the following definition: "stay visa" means: (a) a permanent visa; or (b) a preliminary visa." 12 The Migration Regulations 1994 do not in terms contain a definition of "de facto spouse". Regulation 1.15A(1) provides: "1.15A(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are: (a) in a married relationship, as described in subregulation (1A); or (b) in a de facto relationship, as described in subregulation (2)." 13 Subregulation 1.15A(2) is substantially more complex in its terms than regulation 1.6 of the Migration (1993) Regulations. Regulation 1.6 of the Migration (1993) Regulations specified objective criteria pursuant to which a person would qualify as the de facto spouse of another person. Subregulation 1.15A(2) provides that persons are in a de facto relationship only if they satisfy certain objective criteria and the Minister is satisfied of certain matters touching on their relationship (eg that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others). It may be, although it is not necessary to decide for the purposes of this appeal, that real difficulties now stand in the way of establishing that a person who has applied for a stay visa in reliance on an asserted de facto relationship has committed an offence against s 243(1).

CONTENTIONS OF THE PARTIES 14 The respondent contends that the offence under s 83G(1) of the Act (as in operation in January 1993) of which he has been convicted is not the same offence as the offence now created by s 243(1) of the Act. Reliance is placed first on the differences between a "stay permit" under the Act as in force before 1 September 1994 and a "stay visa" under the Act as in force from 1 September 1994. Secondly, reliance is placed on the different ways in which the Migration (1993) Regulations and the Migration Regulations 1994 deal with de facto relationships. As the offence of which the respondent was convicted was alleged to have occurred between 13 January and 1 February 1993, it would seem that the more relevant comparison is that between the Migration Regulations (see para 7 above) and the Migration Regulation 1994. The Migration (1993) Regulations did not commence operation until 1 February 1993. 15 The appellant contends that the elements of the offence under s 83G(1) (as in force in January 1993) are identical to the elements of the offence under s 243(1). Further, and possibly in the alternative, the appellant contends that upon the respondent committing in January 1993 an offence against s 83G(1) of the Act, he became subject to the civil liability provided for by s 83G(2) of the Act (ie of becoming an illegal entrant) and the subsequent amendment of s 83G did not extinguish that liability. Reliance is placed on s 8 of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act").

CONSIDERATION 16 The issue for determination is one of statutory construction. Ultimately the search is for the intention of the legislature as disclosed by the words of the Act viewed as a whole and having regard to legitimate aids to construction (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 per Mason and Wilson JJ at 319-321). 17 Section 8 of the Acts Interpretation Act relevantly provides: "8 Where an Act repeals in whole or in part a former Act, then unless the contrary intention appears the repeal shall not: (a) [not here relevant]; or (b) [not here relevant]; or (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or (d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid; and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed." 18 Section 8A of the Acts Interpretation Act provides: "8A A reference in section … 8 to the repeal of an Act or a part of an Act includes a reference to: (a) a repeal effected by implication; (b) the abrogation or limitation of the effect of the Act or part; and (c) the exclusion of the application of the Act or part to any person, subject matter or circumstance." 19 It is not necessary in this case to determine the effect of s 8A of the Acts Interpretation Act (but see Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at 301) or to give consideration to the general principles of the common law designed to avoid giving retrospective effect to statutory provisions (see Mathieson v Burton (1971) 124 CLR 1 per Gibbs J at 20-23). In our view, it is plain that s 83G(2), as in force in January 1993, did not subject any person who committed an offence under s 83G(1) to liability as an illegal entrant. Rather it attached that liability to any person convicted of an offence under s 83G(1). The distinction is not one of mere semantics: a person may commit an offence without thereafter being convicted of that offence and a person may be wrongly convicted of an offence and either not appeal or not successfully appeal. 20 As at 1 September 1994, the date that the amendments to s 83G came into effect, the respondent had not been convicted of an offence against s 83G(1) and was not under any liability for that reason as an illegal entrant. 21 In determining the true meaning and effect of s 243 of the Act, no significance attaches to the renumbering of the Act effected by the Migration Legislation Amendment Act 1994. Such renumbering was no more than a tidying-up exercise. 22 The crucial issue to our minds is whether the offence created by s 83G(1) of the Act as in force in January 1993 is in reality the same offence as that now provided for by s 243(1) of the Act. Only if it is, in our view, can s 243(2) be construed as attaching civil liability to it, that is, the civil liability of becoming an unlawful non-citizen. 23 It was an element of the offence of which the respondent was convicted that he applied for a permanent entry permit or a preliminary permit (see ss 83B and 83G(1)). That is, the offence of which the applicant was convicted was an offence relating to applications for documentation giving permission to enter or remain in Australia (see s 4 of the Act as in force in January 1993). The offence now created by s 243 of the Act is an offence relating to applications for documentation with a wider significance - namely, documentation giving permission to travel to and enter Australia and to remain in Australia (see s 29 of the Act). 24 Ultimately, the question of whether the offence of which the respondent was convicted is the same offence as that now created by s 243(1) is one of impression and judgment. The terms of s 243(2) are to this extent ambiguous or uncertain in meaning. 25 A determination that the offence of which the respondent was convicted is an offence against s 243(1) within the meaning of s 243(2) will have serious consequences for the respondent. He will become liable to mandatory removal from Australia (s 198(2) of the Act). If it is held that s 243(2) does not reach to the respondent, it seems that his visa may be liable to cancellation but he will not be liable to mandatory removal from Australia. 26 The serious nature of the consequences for the respondent, and others in his position, of the construction of s 243(2) for which the appellant contends has the consequence that the legislature is not lightly to be assumed to have intended the subsection to be so construed. In Beckwith v The Queen (1976) 135 CLR 569 Gibbs J at 576 observed: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences …. The rule is perhaps one of last resort." 27 In Re Bolton; ex parte Beane (1987) 162 CLR 514 at 520 Mason CJ, Wilson and Dawson JJ emphasised that where the proper construction of a statutory provision is uncertain, a court will not be justified in reading into the provision an implication carrying serious consequences for the liberty of the individual. 28 As Hill J points out, these common law rules, if they conflict with s 15AA of the Acts Interpretation Act, cannot prevail against the statute. But we do not see any conflict in this case. First, it is far from easy to identify in a statute as diverse in its subject matter as the Act "the purpose or object underlying the Act." Secondly, it would be rarely, if ever, that the general provision made by s 15AA with respect to the interpretation of all statutes would be found to render nugatory the special rules which have always applied to particular types of statute, such as penal statues. 29 Although we have found the issue a difficult one, we conclude that the offence of which the respondent was convicted is not the same offence as that now created by s 243(1). That is, we agree with the learned primary judge that a person "convicted of an offence under subsection (1)" within the meaning of 83G(2) of the Act as in force in January 1993 is not a person "convicted of an offence under subsection (1)" within the meaning of s 243(2) of the Act. In reaching this conclusion we have not found it necessary to give consideration to the significance, if any, so far as Mr Dhingra is concerned of the different ways in which regulations made under the Act have dealt with the concept of de facto spouses. 30 In our view the appeal should be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Burchett and Branson.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

HILL J 31 I have had the benefit of reading in draft form the joint judgment of Burchett and Branson JJ. There is therefore no need for me to set out the circumstances in which the present appeal arises, or the issues which arise between the parties. 32 I am in agreement with their Honours that the provisions of s 8 and 8A of the Acts Interpretation Act 1901 have no application to the present case and for the reasons they advance. In my view the only real question in the case is whether a conviction under s 83G of the Migration Act 1958 ("the Act") as in force pre-1994 attracts the operation of s 243(2) of that Act as in force after 1994, so as to result in the person convicted becoming "an unlawful non-citizen" and thus liable to deportation under s 198 of the Act. 33 There may be a danger in stating the issue to be whether the offence under s 83G is in substance the same offence as the offence under s 243(1) if that question is taken as requiring, as the submissions of the appellant suggest, a consideration of whether in substance the terms used in each section have similar effect. So stated there is raised the question of what is meant by the phrases "similar effect" or "in substance". 34 It is obvious that the question is ultimately one of statutory construction. But the issue is in no way dependent upon the renumbering of the Act as a result of the amendments made in 1994 by the Migration Legislation Amendment Act 1994 ("the 1994 Act"). The question would require the same answer if, instead of the renumbering, Parliament had merely amended s 83G(1) to insert the language of s 243(1). 35 Counsel for Mr Dhingra accepts that the question is not to be resolved, as the learned primary Judge held, by reference to the different consequences that flow from conviction of the offence under s 83G(1) on the one hand and the offence under s 243(1) on the other. If there are different consequences which arise under each section, those consequences flow from the abolition of the status of illegal non-citizen, and its replacement by the status of unlawful non-citizen . On one view it may be argued that an illegal non-citizen may not be a lawful non-citizen, with the consequence that he is an unlawful non-citizen. Section 14 of the Act which deems non-citizens who are illegal entrants at the time the Migration Reform Act 1992 ("the 1992 Reform Act") came into effect to be unlawful non-citizens was enacted, as the section itself says for the avoidance of doubt. But it is not necessary to decide the issue. The fact that the consequences are different, if indeed they are, could not be decisive of the issue. For example, the fact that a monetary penalty was imposed originally and a custodial penalty imposed once s 284 came into the Act would not result in the conclusion that the offence sections differed. Whether they do depends upon the terms of the offence, not the sanction for breach. 36 The matter was largely debated before us on the basis that the issue for decision was whether there was a substantial identity between the offences under s 243(1) and s 83G(1). As I have already indicated I have reservations as to whether the proper test to be applied is as subjective as that. Before considering that question it is convenient to say something of the principles of construction which may have operation. 37 A reason why the resolution of the present case appears to be difficult is an apparent conflict between two rules. The first is what may be termed the common law rule that statutes creating offences are to be strictly construed: cf Beckwith v R (1976) 135 CLR 569. The second is the rule embodied in the Acts Interpretation Act 1901, s 15AA that: "In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object." 38 The former rule, while stated in terms of statutes creating offences, can, no doubt, be extended to the interpretation of statutes which, while not directly creating offences, do entail very serious consequences to the subject, such as deportation: cf Re Bolton; ex parte Beane (1987) 162 CLR 514 at 520 per Mason CJ, Wilson and Dawson JJ. However, as the judgment of Gibbs J in Beckwith points out, this rule may be considered to be one of last resort. Ultimately there is no reason why a special rule of construction should be extended to the interpretation of penal statutes any more than to taxation statutes (the rule as enunciated in cases such as Chandler & Co v Collector of Customs (1907)4 CLR 1719 per O'Connor J is usually said to apply to penal statutes as well as to revenue statutes). It is a rule which can operate only in the event of ambiguity, but mere ambiguity will not suffice to result in an interpretation in favour of the subject. As O'Connor J said in Chandler at 1735: "I take it, therefore, that in the interpretation of a penal or a taxing statute mere ambiguity of expression or loose or inaccurate language will not prevent a Court from giving effect to the meaning of the legislature if, by the application of the ordinary rules of construction applicable to all other Statutes, that meaning can be ascertained." 39 The statutory rule, as expressed in s 15AA may not add anything to the ordinary rule of construction that seeks to give effect to Parliamentary intention as found in the language which Parliament has used and the legislative context, the word "context" being used in the broad sense used by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. If there were to be a conflict between the application of the common law rule first stated and the statutory rule, then it is obvious that the statutory rule would necessarily prevail. I do not think that Re Bolton is authority to the contrary. As Deane J pointed out in that case at 532, there was no clear legislative intent to be discerned from the legislation then under consideration or extrinsic material to which the Court was entitled to have recourse. 40 The legislative background to 243(1) and (2) is expressly stated in s 237 of the Act. That section states, relevantly: "This Subdivision was enacted because: (a) under the regulations, a person satisfies a criterion for certain visas that give, or might lead to, authorisation for the person's permanent residence in Australia if the person is married to, or is the de facto spouse of, and has a genuine and continuing marital relationship with, either an Australian citizen or a permanent resident of Australia; and (b) … (c) some persons attempt to get permanent residence under the regulations by: (i) entering into a marriage that is not intended to result in a genuine and continuing marital relationship; or (ii) pretending to be a de facto spouse; or (iii) …" 41 Apart from the consequence under s 243(2) which results from a conviction under s 243(1), an offence under s 243(1) may lead to a custodial sentence: s 243(3). The penalty acts as a deterrent. In a case where it has not acted to deter the proscribed conduct so that there has in fact been a breach of s 243(1), the further consequence of the conviction under s 243(2) is that the person becomes an unlawful non-citizen. The consequences of becoming an unlawful non-citizen include that the person must be detained (s 189) and "removed", that is to say deported: s 198. 42 The same policy was evident in s 83G (indeed it is set out in s 83A) although the consequences of becoming an illegal entrant differed. Detention was not obligatory (see s 92 of the Act prior to amendment); deportation was, however, mandatory, at least after a period of grace (see ss 59 and 60 of the Act prior to amendment). 43 There were three ingredients of the offence under s 83G(1). The first was that there be an application for a "stay permit". The second ingredient was that the basis of the application had to be either that the applicant for the permit was married to another person or that the applicant was the de facto spouse of another person. The third ingredient of the offence was that the applicant in fact did not intend to live permanently with that person in a "genuine and continuing marital relationship". Under s 243(1) there are likewise three ingredients of the offence. The first is an application for a "stay visa". The second is that the ground of that application be that the applicant have married another person or be the de facto spouse of the other person at the time of the application. The third is that the applicant not intend to have such a relationship with the other person which is genuine and will continue. 44 The Appellant's submission was, in effect, that the Court should embark upon a consideration of each ingredient and this would reveal that in substance, each offence involved what, for practical purposes, were the same underlying ingredients . 45 For the purposes of s 243, a stay visa is defined to be either a "permanent visa" or "a preliminary visa" Each of these expressions is defined in s 30. Each is a visa to remain, whether or not it is also a visa to travel to, and enter Australia). The difference, as the names would suggest, relate to whether the permission to remain is indefinite or limited in time. 46 It is obvious that the change in language from "stay permit" to "stay visa" resulted from the fact that by virtue of the 1992 Reform Act which came into force on 1 September 1994, the system of both permits and visas which had previously existed was replaced with a system only of visas. A non-citizen, desiring to travel to Australia and remain here was, prior to 1 September 1994, required to obtain an entry permit, (a stay permit) which gave permission to enter the country and remain here and a visa, which gave the person permission to travel to Australia. The system implemented in 1994 referred only to the grant of visas. A visa could be a visa to travel to and enter Australia or a visa to remain in Australia or a visa to travel to, enter and remain in Australia: s 29. While it is therefore true that a stay permit could carry with it different rights than a stay visa, (where either the stay visa was one governing permission to travel to Australia and nothing else, or where the stay visa covered not only permission to enter and remain, but also permission to travel) both would, if applied for in Australia, (and Mr Dhingra appears to have applied for his stay permit after he had entered Australia) ordinarily carry with them permission to remain in the country. In other words the stay visa granted the same basic permission as the stay permit, but was potentially broader. I would understand, from what we were told from the bar table that the current practice is that a stay visa now covers travel to Australia as well as permission to enter and remain. But that, presumably, is where the visa is issued when the applicant is out of the country. 47 The transitional provisions to the 1992 Reform Act provided in s 40 that regulations could be proclaimed to provide that from 1 September 1994, visas or permits of a class defined in the Act prior to amendment would continue in effect as visas of a class dealt with in the Act as amended. The Migration Reform (Transitional Provisions) Regulations, regulation 4 had the effect of continuing a stay permit issued before 1994 as a visa, either permanent or temporary, depending upon whether the original permit was permanent or temporary under the then law. The effect, therefore, of Mr Dhingra applying for and being granted a stay permit was that he became a person deemed to have a stay visa as a result of the 1992 Reform Act. 48 The second ingredient includes reference to "de facto spouse", a reference not relevant to the facts of the present case. It is not clear to me why the differences should matter where the offence charged is one alleging marriage. The pre and post 1994 Acts contained no definition of the expression either before or after the 1992 Reform Act. There were definitions in the Regulations as they applied before and after 1 February 1993 and in the Migration Regulations 1994. The first two of these definition are set out in the joint judgment. I do not repeat them. The definition in the 1994 Regulations is different again as their Honours say. The relevant date on which Mr Dhingra made his application is not shown on any document in the appeal book. All that is known is that it was in a time period which spanned the two sets of regulations operative in 1993. It is obvious that each definition is different. The difference is obviously a difference of degree and therein lies the difficulty in the present case. How great must the difference be before, on the test adopted by the appellant, offences differently stated are equated? 49 In the present case I think the question can be answered very simply particularly where there are different consequences of stay permits and stay visas as well as different terminology. If one asked whether Mr Dhingra was ever convicted of an offence of making an application for a stay visa, the answer has to be no. It is just not to the point that a stay visa has some similarity in effect to a stay permit. A stay permit is not a stay visa and Mr Dhingra was never convicted of any offence which concerned a stay visa. 50 There may be another reason. The penalty applicable to the offence which Mr Dhingra committed was that to be found in s 83G(3). It was not that to be found in s 243(3). As to that there could be no controversy, although it happens that the penalty in either case was the same. But if this is correct, why should not the penalty to be found in s 83G(2) apply to Mr Dhingra, rather than the penalty to be found in s 243(2)? 51 I adverted earlier to the question of legislative purpose. There is nothing in the extrinsic materials which casts light one way or the other on the legislative purpose. That falls then to be ascertained by reference to the language which Parliament has itself used. The troublesome part of this case is that there is no rational explanation for why Parliament should have determined, in 1992 when the Reform Act was passed, that the consequences of conviction of an offence of misstating the facts concerning a marital or de facto relationship should carry with it different consequences depending upon whether the offence was committed before or after the 1992 Reform Act came into effect. It borders on the absurd that Parliament should have wished to free a person who had committed an offence under s 83G from the consequences of potential imprisonment and deportation so long as the conviction occurred after the 1992 Reform Act came into force but allow those consequences to flow if the conviction occurred before the 1992 Reform Act. 52 No doubt where one interpretation causes absurdity it should be discarded in place of an interpretation which does not, even where so to do may involve the insertion into the legislation of words which are not there: cf Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297. As Mason and Wilson JJ point out in that case at 320: "But there are cases in which inconvenience of result or improbability of result assist the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning…"

53 I think the answer in the present case lies in the fact that the alternative interpretation is not reasonably open on the literal words which Parliament has used. There is no ambiguity in them. In those circumstances I am of the view that the provisions of ss 243(1) and (2) should prevail. The questions posed should thus be answered in the way suggested in the joint judgment. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Counsel for the Appellant: J Basten QC and S McNaughton

Solicitor for the Appellant: Australian Government Solicitor

Solicitor for the Respondent: Christopher Levingston & Associates