Sales v Minister for Immigration and Citizenship [2008] FCAFC 132 | Case summary

Federal Court of Australia (Full Court)|2008-07-17|Before: Flick J, Buchanan J, Buchanan JJ, Graham JJ

Introduction 21 The appellant, whose name at birth was Charles Edward Morley, is a British subject. He arrived at Fremantle on the SS 'Strathaird' on 3 May 1954 when he was two years old and disembarked in Sydney on 12 May 1954. He is now 56 years old. He came with his father, mother and two sisters on an assisted passage under an Agreement between the United Kingdom and Australian governments. The family was nominated by Mr Sales' grandparents, the father and mother of his own mother, who then lived in Australia. He has never left Australia but he is not an Australian citizen. On 19 February 2004 he changed his name by Deed Poll to Charles Edward Sales. 22 At the time of the family's arrival, immigration to Australia was regulated by the Immigration Act 1901-1949 (Cth) ('the Immigration Act'). Subject to what appears below, the Immigration Actdid not provide for entry permits or visas. The Immigration Act identified, instead, various classes of 'prohibited immigrants' whose immigration was prohibited by s 3. They included persons who were not able to pass a dictation test, persons suffering from various kinds of mental or physical illness, persons of undesirable character and persons who could not prove they were the holder of a passport from a recognised government. The members of Mr Sales' family did not fall into any class of prohibited immigrant. 23 The Immigration Restriction Acts 1901-1905 (as the Immigration Act 1901 was then known), wereconsidered by the High Court in 1908. To constitute a person as an 'immigrant' within the meaning of those Acts, it was not necessary that the person should have an intention of permanently settling in Australia. An intention to land was all that was required (per O'Connor J in Potter v Minahan (1908) 7 CLR 277 at 306). 24 O'Connor J considered that every British subject born in Australia and whose home was in Australia, had a right to remain in, depart from, or re-enter Australia as and when he thought fit, unless there was in force in Australia a positive law to the contrary (at 304). His Honour considered that this right flowed from a fundamental principle of international law which he expressed as follows at 304-305: 'Speaking generally, every person born within the British Dominions is a British subject and owes allegiance to the British Empire and obedience to its laws. Correlatively he is entitled to the benefit and protection of those laws, and is entitled, among other things, to entry and residence in any part of the King's Dominions except in so far as that right has been modified or abolished by positive law.' 25 British subjects enjoyed a preferred status under the Immigration Restriction Act 1901. Persons convicted of serious crimes were potentially liable, upon the expiration of the relevant term of imprisonment, to be deported from the Commonwealth of Australia if they then failed to pass the dictation test. However, this relevant exposure to deportation did not apply to persons who were British subjects either natural-born or naturalized (see s 8). 26 In 1940 the Immigration Act as it then existed was amended to include a prohibitory provision applicable to any 'alien' who, on demand by an officer within the meaning of the Act, failed to satisfy the officer: '(a) that he is the holder of a landing permit, issued by or on behalf of the Minister, authorizing the admission of the holder into Australia, and that he is able to comply with the conditions specified therein; or (b) that his admission into Australia has otherwise been authorized by or on behalf of the Minister.' (Emphasis added) (see s 3(1)(ge)) 27 The Immigration Act did not contain a definition of the word 'alien'. However, by following a process of reasoning similar to that employed by Fullagar J in Wong Man On v The Commonwealth (1952) 86 CLR 125, it may be inferred that the word 'alien' generally speaking distinguished immigrants who were not British subjects, either natural-born or naturalized, from immigrants who were British subjects, either natural-born or naturalized. 28 As at 3 May 1954 there was no prohibitory provision in the Immigration Act which required British subjects to be the holder of landing permits. 29 The ImmigrationActwas repealed by the Migration Act 1958 (Cth) ('the old 1958 Act') which, relevantly, commenced on 1 June 1959. That Act introduced definitions of 'alien', 'immigrant', 'entry permit' and 'temporary entry permit'. Section 6(2) of the old 1958 Act empowered officers within the meaning of the Act to grant, to immigrants, entry permits and by s 6(6) provision was also made for entry permits that were to operate as temporary entry permits. Under s 6(1) an immigrant who, not being the holder of an entry permit that was in force, entered Australia thereupon became a prohibited immigrant. Section 6(1) was not confined in its operation to immigrants who were aliens. 30 However, there was no provision in the old 1958 Act that deemed immigrants already residing in Australia to be holders of entry permits. Nor was there any provision that required such persons to obtain entry permits. 31 Some changes were made in 1989 but it is not suggested that there was, at that time at least, any relevant change to the status of any member of the Morley family as a direct result. Further important changes were made by the Migration Reform Act 1992 ('the 1992 Reform Act') and the Migration Legislation Amendment Act 1994 ('the 1994 Amendment Act'). Those changes commenced on 1 September 1994. Under the regime thereby created, non-citizens within Australia who did not hold a visa became unlawful non-citizens. The introduction of that regime was accompanied by a number of measures to create special visa classes and to make provision for those who did not hold, in some cases, any form of visa or entry permit. 32 The Minister's position is, for reasons to be further explained, that Mr Sales was, after 1 September 1994, the holder of two visas in classes of visas created at that time - an absorbed person visa and a transitional (permanent) visa. It will be necessary to further explain the statutory method by which those two classes of visa were created and why Mr Sales was said to hold a visa in each class. First, it will be helpful to explain the origins of the present proceedings. 33 Under s 501 of the Migration Act 1958 (Cth) in its present form ('the current Act') the Minister may cancel a visa on 'character grounds'. In 1989 Mr Sales was convicted of a particularly brutal murder. He was sentenced to a mandatory term of life imprisonment. The sentence was later reset and he was granted parole. He was returned to prison for breaching the terms of his parole. He spent almost 18 years in prison as a result of this conviction and was due to be released in August 2006. At the time of his conviction for murder Mr Sales was 38 years old. By that time he already had a history of criminal offences, some serious, spanning more than 20 years. 34 Mr Sales was initially informed on 25 March 1998 that he might be liable for visa cancellation pursuant to s 501 of the current Act as a result of his latest conviction. He was later told, on 23 September 2001, that a decision on whether to cancel his visa would not proceed. Later again, on 8 August 2006, he was told that the matter had been reactivated. Mr Sales was told that the Minister was considering cancelling his absorbed person visa. He was advised that the effect of s 501F of the current Act would be that his transitional (permanent) visa would also be taken to be cancelled. He was given 14 days to respond and make representations why his absorbed person visa should not be cancelled. 35 On 21 December 2006, Allsop J issued a writ of certiorari preventing the Minister from giving effect to any decision to cancel Mr Sales' 'visas, namely an absorbed person's visa and a transitional (permanent) visa' (Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807). He did so because he took the view that Mr Sales had been denied procedural fairness by being given only 14 days to make his response. 36 On 11 April 2007 Mr Sales was advised by letter that consideration was being given to whether his transitional (permanent) visa should be cancelled. He was required to make a response about whether or not he passed the character test by 8 May 2007 and about why the Minister should not cancel that visa by 22 May 2007. He was also told that the effect of s 501F would be 'that any other visa you hold is also taken to have been cancelled'. No direct reference was made, in that letter, to an absorbed person visa. 37 In an Issues Paper provided to the Minister for Immigration and Citizenship, Mr Andrews, on 20 September 2007, the Minister was asked to decide whether to cancel Mr Sales' transitional (permanent) visa. He was told that the earlier decision (which was set aside by Allsop J) had been to cancel that visa. He was told that the effect of Allsop J's decision was that Mr Sales had not been afforded procedural fairness in relation to the decision to cancel that visa. This information was incorrect but its only relevance now concerns Mr Andrews' intentions when, shortly thereafter, he decided to cancel Mr Sales' transitional (permanent) visa. The Issues Paper mentioned that Mr Sales was the holder of an absorbed person visa but it made no proposal that it should be independently cancelled. It recorded that the absorbed person visa would be cancelled automatically due to the effect of s 501F. 38 The Minister determined, on 25 September 2007, to exercise his discretion to cancel Mr Sales' transitional (permanent) visa. He set out his reasons for decision in an accompanying Statement of Reasons, which commences: 'This statement relates to cancellation of the Transitional Permanent (Class BF) visa held by MR SALES at the time of my decision. Any other visas held by the visa holder will be cancelled by operation of law, pursuant to s 501F(3) of the Act.' 39 The concluding paragraph of the Statement of Reasons said: 'Having given full consideration to all of these matters, I decided to exercise my discretion to cancel MR SALES'S Transitional Permanent (Class BF) visa under section 501(2).' 40 Mr Sales made an application seeking judicial review of the Minister's decision. The grounds for the application are not ones which have any continuing relevance for the purpose of the present proceedings. The application was dismissed by Flick J on 21 December 2007 (Sales v Minister for Immigration and Citizenship [2007] FCA 2094). Mr Sales filed an appeal. The grounds of the appeal then filed also have no continuing relevance. When the appeal came on for hearing Mr Johnson, who appears for the Minister, drew the Court's attention to the possibility that an argument might exist to the effect that Mr Sales had not been 'granted' a transitional (permanent) visa. The significance of this possibility was that s 501(2) refers to the cancellation of a visa which has been granted to a person. In Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 ('Moore')a Full Court had expressed the view that transitional (permanent) visas, of the kind Mr Sales was thought to hold, were not 'granted' or taken to be granted for the purpose of s 501(2) and therefore not liable to cancellation. 41 The issue identified by Mr Johnson was an important one. The Minister sought, and the Court allowed, time for the position to be considered. In due course the Court was informed that the Minister proposed to defend the decision which had been made and wished to put in issue the observations in Moore. 42 Directions were made for the filing of evidence and submissions. Evidence was filed by the Minister providing the Court with such archival material as could be found relating to the circumstances of Mr Sales' parents' application for assisted passage on 21 July 1953, the processing of that application in the United Kingdom and the arrangements made for the family to travel to Australia on the 'Strathaird' which departed on 8 April 1954, arriving at Fremantle on 3 May 1954 and thereafter at Adelaide on 6 May 1954, Melbourne on 8 May 1954 and Sydney on 12 May 1954. 43 Arrangements were made for the appointment of senior and junior counsel to represent Mr Sales under O 80 of the Federal Court Rules. An amended notice of appeal was filed without objection. We have had the benefit of full and helpful written and oral argument about the issues raised by that notice of appeal which states the following grounds: '1. The Respondent's decision dated 25 September 2007 purporting under sub-section 501(2) of the Migration Act 1958 ("the Act") to cancel what was claimed to be the Appellant's Transitional (Permanent) (Class BF) Visa was vitiated by jurisdictional error because the Appellant did not hold any such visa at that or any other time. 2. Further or in the alternative, if contrary to the above the Appellant held a Transitional (Permanent) (Class BF) Visa as at 25 September 2007, the Respondent's purporting to cancel that visa under sub-section 501(2) of the Act was vitiated by jurisdictional error because such visa was not "granted" to the Appellant so as to attract that power in circumstances where, by virtue of Regulation 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994, the Appellant was merely taken to be a "holder" of a such a visa without there having been a grant or deemed grant of such a visa. 3. In the premises, the Respondent's purported decision dated 25 September 2007 under sub-section 501(2) of the Act did not have the effect of enlivening the operation of sub-section 501F(3) of the Act, with the consequence that the Absorbed Person's Visa held by the Appellant under section 34 of the Act was not cancelled and remains in force.' 44 The grounds of appeal raise a substantial case of a different character to that which had earlier been pursued on Mr Sales' behalf. The three issues which are raised by those grounds may, in the light of the submissions made by the parties, be stated as follows: 1. Was Mr Sales 'the holder' of a transitional (permanent) visa? (Question 1) 2. If yes, then was such a visa 'granted' to Mr Sales within the meaning of s 501(2) of the current Act? (Question 2) 3. Did the steps taken by the Minister represent action to directly cancel Mr Sales' absorbed person visa so that if the matters stated in 1 and 2 above are decided in his favour nevertheless his absorbed person visa has been effectively cancelled so that he has become an unlawful non-citizen? (Question 3)

The overall scheme 45 The power which the Minister exercised in the present case is to be found in s 501(2) of the current Act. Section 501(2) provides: '(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.' (Emphasis added) 46 No issue in the present case arises from the requirements stated in s 501(2)(a) and (b). Mr Sales does not pass the character test. The debate turns upon the effect of the opening words of s 501(2). Those opening words postulate two conditions. First, there must be a relevant visa which is capable of cancellation. Secondly, the visa must have been 'granted' to a person. 47 If the Minister decides to cancel a visa under s 501 then s 501F(3) of the current Act has the effect that the Minister 'is taken to have decided to cancel' any other visa (subject to exceptions not here relevant). However, s 501F(3) is not engaged if a decision is made to cancel a visa which is not held (Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229). 48 Under the current Act the visa system is the method by which non-citizens are either granted or refused permission to travel to and enter Australia and/or to remain in Australia. Section 29 of the current Act provides that the Minister may grant permission, to be known as a visa, to do either or both of those things. A visa is granted by a record of it being made (see s 67 of the current Act). The general scheme is stated in ss 13(1) and 14(1) which are in the following terms: '13(1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. 14(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.' 49 Being an unlawful citizen in the migration zone (defined in s 5 of the current Act to include, generally speaking, the whole of Australia) has significant consequences. Section 189(1) provides: '(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.' 50 Section 196(1) and (4) provide: '(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa. … (4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.' 51 It may be seen, therefore, that holding a visa, of some kind or other, is now an essential precondition for a non-citizen to remain in Australia. When the present visa system was established in 1994 it was necessary to make provision for non-citizens who had entered Australia under pre-existing arrangements. As I mentioned earlier, the Minister considered that Mr Sales held each of two types of visa created for this purpose: an absorbed person visa and a transitional (permanent) visa.

Absorbed person visa 52 Section 34(1) and (2) of the current Act provide: '(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.' 53 It was explained in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2008) 228 CLR 566 ('Nystrom') that s 34 was enacted in 1994 to overcome the unintended effect of amendments made to the old 1958 Act in 1984 which had caused certain non-citizens to be prohibited non-citizens. Part of the steps taken in 1994 was to undo these unintended consequences from the date of their effect - i.e. 2 April 1984 (see Nystrom at [13], [19], [103]-[109]). 54 Mr Sales meets the requirements of s 34. He is therefore taken to have been granted an absorbed person visa on 1 September 1994. The power of the Minister to 'cancel a visa that has been granted to a person' under s 501 of the current Act accordingly extends to Mr Sales' absorbed person visa. At an earlier period, as has been shown, the Minister purported to cancel this visa but the decision was set aside. It would have been open to the Minister to have cancelled this visa under s 501(2). The consequence would have been that any other visa held by Mr Sales would have been cancelled (s 501F of the current Act). The question whether the Minister took effective steps to cancel the absorbed person visa on the most recent occasion requires further attention when Question 3 is examined.

Transitional (permanent) visa 55 Section 31 provides that there are to be prescribed classes of visas as well as the classes provided for in specific sections of the current Act. Section 31(1) and (2) provide: '(1) There are to be prescribed classes of visas. (2) As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A and 38.' 56 Regulation 2.01 of the Migration Regulations 1994 provides: 'For the purposes of section 31 of the Act, the prescribed classes of visas are: (a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and (b) the following classes: (i) transitional (permanent); and (ii) transitional (temporary). 57 The Minister considered that Mr Sales held a transitional (permanent) visa as identified by reg 2.01(b)(i). It was a visa of this kind which the Minister decided to cancel pursuant to s 501(2). 58 The class of transitional (permanent) visa was created under the authority of s 40 of the 1992 Reform Act which made extensive amendments to the old 1958 Act which operated from 1 September 1994. Section 40(5) of the 1992 Reform Act was in the following terms: '(5) The regulations may provide that, from 1 November 1993, visas or permits in a specified Principal Act class and held by specified persons immediately before that date are to continue in force as visas in a specified amended Act class.' (the date later became 1 September 1994) 59 It is important to note that s 40(5) authorised the continuation in force of a visa or permit which was already held. The existing visa or permit was to continue in force as a visa in a class specified by the regulations. 60 Section 40(1) of the 1992 Reform Act defined 'Principal Act class' as follows: '"Principal Act class" means a class of visas or permits that is provided for by regulations under the Principal Act.' 61 It is common ground that no class of permit established by any such regulations is relevant to the present case. However, the 1994 Amendment Act inserted a new subs (1A) into s 40 of the 1992 Reform Act in the following terms. '(1A) For the purposes of the definition of "Principal Act class": (a) permits granted before 19 December 1989 are taken to be a class of permits provided for by regulations under the Principal Act; and (b) visas granted before 19 December 1989 are taken to be a class of visas provided for by regulations under the Principal Act.' 62 It will be necessary to return shortly to the significance of the date: 19 December 1989. 63 Regulation 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994 (the Transitional Regulations) was made in reliance on s 40(1A) of the 1992 Reform Act. It provided: '4(1) Subject to regulation 5, if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.' (Regulation 5 is not relevant) 64 Regulation 3(1) defined a permanent entry permit as follows: '(1) permanent entry permit means an entry permit the effect of which is not subject to a limit as to time but does not include an entry visa that is operating as an entry permit. 65 The Transitional Regulations also made the following provisions in reg. 3: '(1) the old Act means the Migration Act 1958 as in force immediately before 1 September 1994. (2) Unless the contrary intention appears: … (b) expressions that are used in the old Act and in these Regulations have the same meanings in these Regulations as in that Act; … 66 The Minister argued that the effect of reg 3(2)(b) was that reg 4(1) therefore took effect in accordance with the statutory provisions in effect immediately before 1 September 1994. This meant that any relevant changes to the old 1958 Act which took effect before 1 September 1994 were fully operative. Relevantly, changes coming into effect on and from 19 December 1989 (the date referred to in s 40(1A) of the 1992 Reform Act), were incorporated into the operation of reg 4(1) of the Transitional Regulations. There was one particular change that was relied upon which took effect on and from 19 December 1989. It concerned the definition of 'entry permit'. 67 Immediately before 1 September 1994, s 5 of the old 1958 Act (as it had been amended by the Migration Legislation Amendment Act 1989 with effect on and from 19 December 1989) provided: '"entry permit" means permission to enter or remain in Australia; 68 Prior to 19 December 1989 the definition read: '"entry permit" means a permit issued under section six of this Act.' 69 Section 6 of the old 1958 Act provided (before the amendments in 1989): '(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. (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. (4) For the purposes of the last preceding sub-section, where a notation in a form approved by the Minister as a form of entry permit is made by an officer in a passport or other document of identity held by a person and the notation does not specify the name of any person as the person to whom it relates, the notation has effect as if it were expressed to relate to the person holding the passport or other document. (5) An entry permit may be granted to an immigrant before he enters Australia or after he has entered Australia (whether before or 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. (7) A woman who enters Australia in the company of, and whose name is included in the passport of, or any other document of identity of, her husband shall be deemed to be included in any entry permit granted to her husband before his entry and written on that passport or other document of identity, unless the contrary is stated in the entry permit. (8) A child under the age of sixteen years who enters Australia in the company of, and whose name is included in the passport of, or any other document of identity of, a parent of the child shall be deemed to be included in any entry permit granted to that parent before the entry of that parent and written on that passport or other document of identity, unless the contrary is stated in the entry permit.' (Emphasis added) 70 An entry permit under s 6 of the old 1958 Act was clearly something issued or noted in writing. It was not suggested that any member of Mr Sales' family had been granted such an entry permit. 71 Section 6 of the old 1958 Act was replaced on and from 19 December 1989 by a series of detailed provisions regulating the grant of various kinds of visas to travel to Australia and entry permits to enter and remain in Australia. It was not suggested any of the provisions introduced with effect from 19 December 1989 have any application in the present case, except the new definition 'entry permit'. Indeed, there is no suggestion that Mr Sales, or his parents, were ever granted an entry permit of any kind in the form of a specific document or specific written permission. Rather, the Minister argued that it should be accepted that Mr Sales had 'permission' to enter Australia. Although it was not suggested that any such 'permission' had any legal consequence for any statutory provision to which the new definition of 'entry permit' may have applied, it was contended that the new definition nevertheless had effect for the purpose of reg 4(1) of the Transitional Regulations, with the result that Mr Sales was, by operation of that regulation (as given content by the 1989 definition) a holder of a permanent entry permit (i.e. permission to remain in Australia without a limit as to time) which therefore continued in force as a transitional (permanent) visa. 72 In my view this argument cannot be accepted. Although I see some tension between reg 3(2) of the Transitional Regulations and s 40(1A) which was inserted into the 1992 Reform Act in 1994, it was s 40(1A) of the 1992 Reform Act which provided the legislative authority for the regulation which applied in the present case (reg 4(1) of the Transitional Regulations). Section 40(1A) did not authorise a regulation which purported to operate upon a class of permit not granted before 19 December 1989. No such permit had been granted to Mr Sales. The alteration to the definition of 'entry permit' which, in any event, took effect on and from (not before) 19 December 1989, could have no application to Mr Sales' circumstances. 73 The Transitional Regulations could not adopt or incorporate definitions which had the effect of transgressing or exceeding any limitations imposed by the statute which enabled them. Here, in my view, the relevant statutory limitation was a clear one. It was only entry permits or visas granted before 19 December 1989 which could, by regulation, be continued in force as visas in a newly identified class. Before 19 December 1989 the only entry permit which could have been granted was that provided by s 6 of the old 1958 Act. That was so both by reason of the defined meaning of 'entry permit' at that time, where used in the old 1958 Act, and because s 6 of the old 1958 Act was the statutory provision which, until 19 December 1989, provided for the grant of entry permits. No member of Mr Sales' family was granted such a permit, whether upon arrival (when there was no provision for entry permits for British subjects) or upon the commencement of the old 1958 Act or later. 74 The Minister's contentions faced further difficulties, even if the statutory restriction in s 40(1A) of the 1992 Reform Act was overlooked. A definition in a statute is an aid to the construction of substantive provisions of the statute but it has no independent force (see Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635; Hurstville City Council v Hutchison 3G Australia Pty Ltd (2003) 200 ALR 308 at [63]; Secretary, Department of Family and Community Services v Laurent (2003) 132 FCR 211 at [31]-[32]; Kelly v R (2004) 218 CLR 216 at [84]). The altered definition adopted on and from 19 December 1989 only had significance for any statutory provision to which it gave meaning or content. Even upon the assumption, therefore, that amendments to the old 1958 Act before 1 September 1994 had been effectively adopted by the Transitional Regulations themselves, it would still be necessary to identify the grant of an entry permit, by or under some relevant statutory provision, upon which reg 4(1) could operate. 75 The requirement for the grant of an entry permit pursuant to an identified statutory power was also emphasised by the reference, in reg 4(1) to 'the holder of a permanent entry permit…' At all relevant times, 'the holder', in the old 1958 Act was defined as follows: '"the holder", in relation to an entry permit, means the person to whom the entry permit was grantedor a person who is deemed to be included in the entry permit.' 76 In my view, this meaning also contemplated something done in accordance with, by, under, or as contemplated by, the old 1958 Act. It did not refer to a circumstance (entry into Australia while the Immigration Act was in force) which had no connection with the grant of an entry permit and which was not later, by the use of appropriate statutory language, taken to represent the grant of an entry permit. 77 It was clear that s 6 of the old 1958 Act (before the amendments which took effect on and from 19 December 1989) contemplated the grant of an entry permit by the issue of a document or written endorsement on a passport or other document of identity. The amendments which took effect on and from 19 December 1989 (ss 11P - 11ZL as inserted by s 6 of the Migration Legislation Amendment Act 1989) also contemplated specific decisions (grant or refusal) made or evidenced in writing. Section 11ZD dealt expressly with the circumstances in which an entry permit might be granted to a non-citizen after entry into Australia. It provided in s 11ZD(1): '(1) A permanent entry permit shall not be granted to a non-citizen after entry into Australia unless at least one of the following paragraphs applies to the non-citizen: (a) he or she has been granted territorial asylum in Australia by instrument of a Minister; (b) he or she: (i) is the holder of a valid temporary entry permit; and (ii) is the spouse or child of an Australian citizen or of the holder of a valid permanent entry permit; (c) he or she: (i) is the holder of a valid temporary entry permit; and (ii) is the aged parent of an Australian citizen or of the holder of a valid permanent entry permit; and the balance of his or her family is in Australia; (d) he or she is the holder of a valid temporary entry permit and the Minister has determined, in writing, that the non-citizen has the status of refugee within the meaning of: (i) the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951; or (ii) the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967; (e) he or she: (i) is the holder of a valid temporary entry permit; (ii) is authorised to work in Australia; and (iii) is not a prescribed non-citizen; (f) he or she is the holder of a valid temporary entry permit and there are strong compassionate grounds for the grant of a permanent entry permit to him or her; (g) he or she is the holder of a valid temporary entry permit and there are strong humanitarian grounds for the grant of a permanent entry permit to him or her.' 78 None of these conditions applied to Mr Sales. There was nothing in the 1989 amendments to suggest that 'permission' to enter Australia prior to 1958, when no entry permit was required, was taken to be an entry permit. Indeed, by a provision inserted in 1989 (by s 4 of the Migration Legislation Amendment Act 1989) 'valid entry permit' was defined as follows: ' "valid entry permit" means an entry permit that: (a) was granted under this Act, whether before or after the commencement of section 4 of the Migration Legislation Amendment Act 1989; (b) has not been cancelled under this Act; and (c) has not expired, or otherwise stopped being in force, under this Act or the regulations; and includes a visa that has effect as if it were an entry permit because of section 10, but does not include a visa or similar notation, or a form of provisional authority to enter Australia, issued, before 1 November 1979 on behalf of the Commonwealth.' 79 In my view the conclusion is inevitable that the altered definition of 'entry permit' included in the old 1958 Act on and from 19 December 1989 could not, if it had any relevance at all for the operation of reg 4(1) of the Transitional Regulations, have the operation or effect for which the Minister contended. 80 The altered definition of 'entry permit' was expressed, conventionally, under s 5 of the old 1958 Act to apply 'unless the contrary intention appears'. Adoption of expressions used in 'the old Act' by reg 3(2) was similarly qualified. In my view there is abundant material to suggest that the new definition of 'entry permit' was not intended to operate for the purpose of the Transitional Regulations and was, in any event, never intended to be employed in the fashion suggested to us by the Minister in this case. 81 Apart from all other considerations, I do not think Mr Sales fell within the meaning and intent of reg 4(1), properly construed. He was not in Australia 'as the holder of' a permanent entry permit or any form of entry permit. He was in Australia as a person whose entry was not prohibited when he arrived and who had never been required to leave or obtain a permanent entry permit. 82 Finally, even if the question was whether Mr Sales had 'permission to enter or remain in Australia' in the relevant sense, the answer would be in the negative. No such permission was required (Manatiy v Minister for Immigration and Multicultural Affairs [2007] FCA 28 at [2]). The absence of any relevant prohibition does not amount to an act that could be described as 'permission'. Even if an Australian official were present on arrival and allowed, in the sense of not impeding, the entry of the family into Australia, this could not be described as the grant of 'permission to enter Australia' as required. 83 Whichever way the issue is examined, Question 1 must be answered in the negative.

Question 2 84 Strictly speaking this question does not arise, in my view, for the reasons earlier given. 85 I agree with Gyles and Graham JJ that s 501(2) of the current Act presupposes and requires the 'grant' of a relevant visa. The necessity for the 'grant' of a visa is, in my view, emphasised by the definition of 'holder' in s 5 of the current Act which provides: 'holder, in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.' 86 The effect of reg 4(1) of the Transitional Regulations was that a permanent entry permit (if the legal foundation for a person being in Australia) continued in effect as a transitional (permanent) visa. The question, therefore, whether any such visa had been granted (i.e. such a visa as referred to in reg 4(1)) must be addressed by examining whether a permanent entry permit had been granted. That is reinforced by the fact that the old 1958 Act (and therefore the Transitional Regulations) adopted a meaning of 'the holder' as follows (which I set out again for convenience): '"the holder", in relation to an entry permit, means the person to whom the entry permit was grantedor a person who is deemed to be included in the entry permit.' 87 The drafting technique in reg 4(1), of providing that a permanent entry permit continued in effect as a transitional (permanent) visa, may be compared with the provisions of reg 5 (where the holder of a permanent entry permit granted on or after 1 September 1992 was, in certain circumstances, 'taken, on 1 September 1994, to hold a transitional (permanent) visa'), regs 5A, 6 and 7 (where permanent visas, in specified circumstances, 'continued in effect' as transitional (permanent) visas) and reg 9 (where holders of two specified old visas were 'taken to have been granted' transitional (permanent) visas). 88 It does not appear to me that any of regs 4(1), 5A, 6 or 7 of the Transitional Regulations operated to grant a transitional (permanent) visa or deem it to have been granted. They gave a new title and status to an entry permit or visa which had earlier been granted. Any enquiry about whether a transitional (permanent) visa had been 'granted' in such a case must necessarily focus, therefore, on whether there had been an effective grant of the relevant entry permit or visa before the Transitional Regulations came into effect. 89 Regulations 5 and 9 operated differently. Regulation 9 operated as the deemed grant of a transitional (permanent) visa in the circumstances it identified. Regulation 5 is less clear. I accept that there may be room for debate, in connection with reg 5, about a distinction between being the holder of, or being granted, a transitional (permanent) visa but that is not the present case. 90 In Moore the Full Court said (at [44]-[45]): '44 By reg 4(1) of the Migration Reform (Transitional Provisions) Regulations a person may be taken to be a "holder" of a transitional (permanent) visa without there having been a "grant" or deemed grant of such a visa. Regulation 4(1) simply provides for a permanent entry permit to continue in effect as such a visa. 45 Section 501F(3) operates in respect of other visas "held" by a person in circumstances where a visa "granted" to that person has been cancelled under s 501. It may be seen that a decision by the Minister to cancel an absorbed person visa granted to the appellant would have the effect of cancelling a transitional (permanent) visa held by the appellant, but this process of cancellation could not operate in reverse. The appellant's transitional (permanent) visa could not have been the subject of a valid cancellation by the Minister under s 501(2) of the Act. The fact that transitional (permanent) visas were not 'granted' or taken to be granted was not raised in Nystrom.' 91 In Kostopoulos v Minister for Immigration and Citizenship [2008] FCA 855 a judge of this Court declined to follow Moore. He concluded that the power in s 501(2); 'was plainly intended to authorise the Minister to cancel whatever visa was held by a person who the Minister thought ought no longer be able to remain in Australia having regard to that person's character.' and: 'I have no doubt that the powers intended to be exercised in relation to any visa and that the words "that has been granted" were not intended to condition or limit the power.' 92 With respect, I do not share the view that the words 'that has been granted' in s 501(2) are not words of limitation. However, there could be no doubt in Kostopoulos, on the view which I take of the operation and effect of the Transitional Regulations, that Mr Kostopoulos was the holder of a transitional (permanent) visa as the result of an earlier grant of a permanent entry permit. He was granted a permanent entry permit on 8 July 1970 which lapsed for a short time in 1977 but was reinstated upon his return to Australia later that year. As he had been granted a permanent entry permit (which continued in force as a transitional (permanent) visa) it was, in my respectful view, correct to conclude, not only that a transitional (permanent) visa was held, but also that such visa had been 'granted' within the meaning of s 501(2). The answer to those questions, however, did not turn upon whether reg 4(1) of the Transitional Regulations operated as a grant of the visa. For reasons which I have explained, it turned upon an examination of the factual position at the time that the entry permit commenced to have effect. In the case of Mr Kostopoulos, reg 4(1) of the Transitional Regulations appears to have been fully effective to operate upon the earlier grant of a permanent entry permit. 93 This appears also to have been the approach taken to reg 4(1) of the Transitional Regulations in Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 at [28]-[29], Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 at [13]-[18] and Andary v Minister for Immigration and Multicultural Affairs [2002] FCA 1380 at [7] (appeal dismissed in Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211). 94 The Court in Mooredid not directly examine the matters to which I have referred but did say (at [2]): 'The appellant arrived in Australia with his parents, his sister and younger brother in August 1977. On arrival he was granted permanent residency status, presumably by way of a permanent entry permit.' 95 On this assumption, in my respectful view the observations made at [44]-[45] are open to doubt. However, on the facts of the present case I am spared any difficulty of considering whether the observations in Moore should nevertheless be applied because I have concluded for other reasons (stated in relation to Question 1) that Mr Sales was not in Australia 'as the holder of', nor was he granted, a permanent entry permit to which reg 4(1) of the Transitional Regulations could have any application.

Question 3 96 The Minister argued that any mistake made in cancelling, or purporting to cancel the transitional (permanent) visa which Mr Sales was thought to hold, rather than the absorbed person visa, should be disregarded. I do not accept that the matter may be approached in this way. The Minister's attention was directed specifically and in unmistakeably clear terms to the proposal that a transitional (permanent) visa should be cancelled with the 'automatic' result that an absorbed person visa would also be cancelled; not by decision of the Minister, but rather by operation of s 501F of the Act. It is not clear why, on the second occasion when it was proposed to take action against Mr Sales, attention was focussed on a transitional (permanent) visa when on the first occasion it was focussed on the absorbed person visa. It appears that the officers of the Minister's Department responsible for preparing the advice to him misunderstood the character and intended effect of the earlier decision and of Allsop J's judgment setting it aside. Be that as it may, a choice was made. The choice may have been mistaken but it does not represent a mistake of the kind upon which the Minister sought, if necessary, to rely. As Mr Sales held no transitional (permanent) visa the decision purporting to cancel such a visa was of no legal effect. That being so there has been no effect upon his absorbed person visa which he continues to hold. It follows that he is not, at the present time, an unlawful non-citizen.

Conclusion 97 The matters argued in the present appeal were not relied upon before Flick J. The disposition of the appeal does not, therefore, turn on the identification, or even suggestion, of any error in his Honour's decision. However, it is now apparent that, for reasons not earlier advanced, the Minister acted in excess of his powers under the current Act. 98 Written submissions by counsel for Mr Sales emphasised that he wished an opportunity to make further representations about why his absorbed person visa should not now be cancelled. An affidavit outlining the nature of the representations he wished to make was filed, in accordance with directions earlier made, at the time the written submissions were filed. However, it was not suggested by the respondent that there could be no utility in granting the relief sought and it was therefore unnecessary for the affidavit to be read. There is therefore no reason to withhold relief in this case. 99 I would make the following orders: 1. The appeal is upheld. 2. The orders made by Flick J on 21 December 2007 are set aside and in lieu it is ordered that: (a) The decision of the Minister for Immigration and Citizenship dated 25 September 2007 to cancel a Transitional Permanent (Class BF) visa, said to be held by the appellant, is set aside. (b) The respondent pay the appellant's costs, if any, of the proceeding at first instance, such costs to be taxed if not agreed. 3. The respondent pay the appellant's costs of the appeal, such costs to be taxed if not agreed. 100 I should think that further formal orders giving effect to conclusions that Mr Sales' absorbed person visa has not been cancelled and that he is not an unlawful non-citizen would not be necessary.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Counsel for the Appellant: Dr J Griffiths SC; Ms C Spruce on 23 June 2008 The Appellant appeared in person on 3 April 2008

Migration Reform Act 1992(Cth)

Migration (Offences and Undesirable Persons) Amendment Act 1992(Cth)

Migration Act 1958(Cth)ss 5, 501, 501F

5 Subdivision AB of Div 3 of Pt 2 (ss 51A-64 inclusive) sets out a code of procedure for the Minister in dealing with individual decisions whether to grant or refuse to grant a visa to an applicant. Subdivision AC of Div 3 of Pt 2 of the Act (ss 65-69 inclusive) deals with the grant of visas. It is quite clear that the grant of a visa to a particular applicant is an act of the Minister (or the delegate of the Minister) following a certain procedure. Section 67 provides that "A visa is to be granted by the Minister causing a record of it to be made". 6 It can hardly be doubted that the phrase "a visa that has been granted to a person" in s 501(2) relates to the grant of a visa by the Minister in accordance with the Act to a particular person. 7 A series of provisions refers to pre-existing permits or certificates as deemed to be or taken to be a visa "granted" under the Act to the person concerned - see ss 3(4)(a), 33(2), 34(2) and 35(2). 8 Significantly, in the context of visa cancellation, s 501F provides: "(1) This section applies if the Minister makes a decision under section 501 … to cancel a visa that has been granted to a person. … (3) If: (a) the person holds another visa; and (b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection; the Minister is taken to have decided to cancel that other visa." (Emphasis added.) 9 In our opinion, s 501(2) authorises cancellation of a visa that has been granted to a person by the Minister or the delegate of the Minister in the normal way pursuant to the Act or is deemed or taken by express statutory provision to be granted to a person. In particular, it would not authorise cancellation of a visa that is simply "held" by a person. 10 A transitional (permanent) visa may be regarded as held by a person but it cannot be regarded as granted in the normal way as the new regime, providing for the grant of visas, did not apply to such visas. Neither can it be said that such a visa is deemed or taken to be granted by express provision as is the case, for example, with the absorbed person visa. 11 The respondent submits that this conclusion is incorrect because the word "grant" means "given" and that, in this case, the visa was given by the operation of reg 4(1) of the Migration Reform (Transitional Provisions) Regulations made pursuant to s 40(5) of the Migration Reform Act 1992 (Cth). Whatever the position might be in another context, "grant" and "granted" in this statutory scheme refer to the grant of a visa by the Minister or the delegate of the Minister to a particular applicant, together with those situations where there is an express statutory provision which deems the visa to have been granted. It is not apt to refer to conferral upon a class by operation of law. It was pointed out by the respondent that in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 the members of the High Court assumed that a transitional (permanent) visa could be cancelled pursuant to s 501(2) and that at [118] Heydon and Crennan JJ, with whose reasons Gleeson CJ agreed, spoke of the two visas (including the transitional (permanent) visa), as being "granted simultaneously". However, it is clear that the argument advanced by the appellant in this case was not advanced nor considered either in this Court or in the High Court in Nystrom 228 CLR 566. The same may be said of other authorities, including decisions of the High Court, referred to by the respondent. 12 The respondent also submitted that an entry permit, which continued in effect as a transitional (permanent) visa, was itself "granted" and that state applied to the continued operation of it as a visa. It was submitted that Finkelstein J had so held in Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 where his Honour said (at [28]-[29]): "The effect of the transitional provisions, and the regulations to which I have referred, is that permission to remain in Australia which was once known as an "entry permit" is to be treated as permission to remain in Australia pursuant to a "visa". Moreover, the power to cancel a visa that is conferred by s 501(2) should, in my opinion, be construed to allow the cancellation of a permit to remain in Australia, which by force of the transitional provisions continues in force as a visa. That is, because permission to remain in Australia granted before the Migration Reform Act continues in force as a visa, it may be cancelled as a visa. Any other construction would result in the absurd position that a non-citizen who constitutes a danger or threat to the Australian community by reason of his or her past criminal conduct could not be removed from Australia." However, the argument which was considered by his Honour was that the applicant only held an entry permit and not a visa. There was no issue raised as to whether if a visa was held it was "granted to the person". 13 In Andary v Minister for Immigration and Multicultural Affairs [2002] FCA 1380, Kiefel J said (at [8]): "The applicant submitted that he might also have been the holder of an absorbed person's visa pursuant to s 34 of the Act. If this was so it was not made clear how this could advance the applicant's argument. As Dowsett J pointed out, if he did hold such a visa, he also plainly held a transitional (permanent) visa which was cancelled. Upon that cancellation the Minister is taken to have decided to cancel any other visa: s 501F(3)." (Emphasis added.) Again, it is clear that her Honour was not considering any argument based upon the visa not having been "granted to the person". 14 These decisions were referred to by Bryant CFM (as her Honour then was) in Timperio v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 182 FLR 23. Her Honour's conclusions are expressed in rather tentative form. She said (Timperio 182 FLR 23 at [33]): "Whilst the arguments in those two cases did not specifically address the point now raised by the applicant, namely that his visa was not "granted" it may be that argument is misconceived. Either the transitional (permanent) visa was granted by reg 4 of the Migration Reform (Transitional Provisions) Regulations or he was granted an entry permit when he entered Australia with his parents in 1954, which entry permit continues in effect on or after 1 September 1994 as a transitional (permanent) visa. The Minister had power to cancel that visa." 15 However, the terms of reg 4(1) were as follows: "4(1) Subject to regulation 5, if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia." (Emphasis added) It will be observed that a criterion was being "the holder" of a permanent entry permit rather than having been "granted" a permanent entry permit. Furthermore, the permit continued in effect as a transitional (permanent) visa but there is no reference to that visa being deemed to be, or taken to have been, granted. This is to be contrasted, for example, with reg 9 where holders of two specified old visas were "taken to have been granted" transitional (permanent) visas. 16 The only decision of this Court which has addressed this argument directly is that of Moore J in Kostopoulos v Minister for Immigration and Citizenship [2008] FCA 855. The critical reasoning of that decision is as follows (at [35]-[36]): "However, I am firmly convinced that the power to cancel conferred by s 501 was intended to be exercisable in relation to a transitional (permanent) visa. In this case, the applicant held such a visa because he had been originally granted an entry permit. When s 180A was enacted in 1992, the applicant held an entry permit that had been granted. That permit could have been cancelled by exercise of the power conferred by s 180A. The removal of the reference to a power to cancel "a valid entry permit that had been granted" occurred at a time when, by the combined effect of legislative amendments and the promulgation of regulations, visas became the sole means of conferring a right to remain lawfully in Australia. It is inconceivable, in my view, that the amendments made in 1994 to s 180A were intended to render immune from the power to cancel, an entry permit which had been transmogrified into a transitional (permanent) visa. The power conferred by what was then the renumbered s 501 was plainly intended to authorise the Minister to cancel whatever visa was held by a person who the Minister thought ought no longer be able to remain in Australia having regard to that person's character. Obviously I am not concerned here with the appropriateness of the underlying policy or the way in which the power has been exercised in this or any other case. However, I have no doubt the power is intended to be exercisable in relation to any visa and the words "that has been granted" were not intended to condition or limit the power. These words remained as the truncated residue of the formulation first appearing in s 180A, namely "a valid visa or a valid entry permit that has been granted"." 17 It will be seen that a good deal turned upon the terms of s 180A of the Act introduced by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth) which relevantly provided, in part: "(1) The Minister may refuse to grant a visa or an entry permit to a person, or may cancel a valid visa or a valid entry permit that has been granted to a person, if …" That provision hardly assists the conclusion - rather to the contrary. Whether a permit or a visa was involved, it had to be "granted". 18 In our respectful opinion, the decision by Moore J was unduly influenced by a consideration put by the respondent here - that to construe the provision in the manner sought by the appellant would lead to an anomalous exception from the power to cancel a class of visa. It may be conceded that there appears to be no good reason why that particular category of visa holders should be excluded from the operation of s 501 as a matter of policy, although we are far from convinced that the class of persons who would only hold a transitional (permanent) visa and no other would be of any great magnitude. The most that can be drawn from that conclusion is that something has gone wrong in the drafting process. There are various ways in which that can now be cured if desired. One would be to omit "granted" and substitute "held"; another would be to add after "granted" the words "or held"; or, as in s 500A, to simply refer to cancelling the relevant visa and to omit reference to "grant" or "holding" of the visa. However, those drafting devices would disturb a provision of general operation applicable to a coherent current system. A more likely course would be to legislate to deem transitional (permanent) visas to have been "granted", as is the case with other special kinds of visa. 19 In our opinion, what cannot be done is to construe s 501(2) as if it had been amended in some relevant respect. In our respectful opinion, Moore J fell into that error by excising the words "that has been granted" from the section. Purposive construction does not authorise the Court to constructively amend legislation to give effect to its idea of what Parliament might have had in mind. As was said by Mason CJ, Wilson and Dawson JJ in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518: "It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law." Kostopoulos [2008] FCA 855 was wrongly decided. We should add, for the sake of completeness, that the observations of the Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at [42]-[45] are properly to be regarded as obiter dicta. 20 Thus, for this independent reason, the appellant is entitled to succeed regardless of the answer to question 1. On each basis we agree that the appeal ought to be allowed and concur in the orders proposed by Buchanan J. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gyles and Graham.

Sales v Minister for Immigration and Citizenship

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