FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural & Indigenous Affairs v Hollis [2004] FCAFC 176 MIGRATION – appeal – whether respondent unlawfully removed from Australia – applicant a migrant and British subject in 1971 – judgment in his favour delivered at first instance two weeks before High Court decision in Shaw v Minister for Immigration and Multicultural Affairs – whether respondent should have leave to raise new issue by way of Notice of Contention on appeal – leave granted – whether respondent's entry permit remained in force despite his departure from Australia Migration Act 1958 (Cth), s 5, 6(8), 9, 11, 13(1), 83(2), 196, 198 Migration Reform Act 1992 Migration Amendment Act 1983, s 37, 38(3) Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 applied MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v RICHARD MICHAEL HOLLIS W248 of 2003 W235 of 2003 CARR, NORTH & SELWAY JJ 6 JULY 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA W248 OF 2003 WESTERN AUSTRALIA DISTRICT REGISTRY W235 OF 2003 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT AND: RICHARD MICHAEL HOLLIS RESPONDENT JUDGES: CARR, NORTH & SELWAY JJ DATE OF ORDER: 6 JULY 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The applicant have leave to appeal against the orders made on 24 November 2003. 2. The appeal be allowed. 3. The orders made on 24 November 2003 be set aside and in lieu thereof it be ordered that the application be dismissed with no order as to costs of the proceedings at first instance. 4. The respondent pay the appellant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA W248 OF 2003 WESTERN AUSTRALIA DISTRICT REGISTRY W235 OF 2003 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT AND: RICHARD MICHAEL HOLLIS RESPONDENT JUDGES: CARR, NORTH & SELWAY JJ DATE: 6 JULY 2004 PLACE: PERTH REASONS FOR JUDGMENT THE COURT: INTRODUCTION 1 This is an application for leave to appeal from an order made by Lee J on 24 November 2003 in the form of a declaration that the applicant (i.e. the Minister) had not been authorised or empowered by the Migration Act 1958 (Cth) ("the Act") to remove the respondent from Australia on 19 November 2001. As might be surmised, the applicant did so on that date. As part of the application, the applicant seeks leave to appeal from a costs order made by his Honour at the same time. 2 Since filing her notice of motion for leave to appeal, the applicant has filed a notice of appeal in the second set of proceedings referred to above as W235 of 2003. The respondent concedes that the judgment at first instance is in substance final. He makes no other submissions in relation to the application for leave. 3 In our opinion, the judgment is in substance final and for that reason leave to appeal should be granted. We think that this matter should proceed as the hearing of Appeal No W248 of 2003 which was filed on the basis that the appeal lay as of right. Furthermore, the judgment should not be allowed to stand as it conflicts with the decision of the High Court of Australia in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 which was delivered about a fortnight later. Henceforth we shall refer to the Minister as the appellant. factual and procedural background 4 The respondent was born in the United Kingdom on 4 July 1958 of parents who were then citizens of the United Kingdom. 5 The respondent first arrived in Australia with his parents and siblings on 12 May 1971, entering Australia as a member of the family included in his father's passport. His father was granted an entry permit on that date which was endorsed in the passport. Pursuant to what was then s 6(8) of the Act, the respondent was deemed to have been included in the entry permit granted to his father. 6 The respondent's incoming passenger card was also stamped with an entry permit. Neither that stamp nor the entry permit stamped in his father's passport was expressed to be for a specified period only. 7 It is common ground that under the relevant provisions of the Act, the respondent and other members of his family were, following their entry into Australia, permanent residents. 8 The details of the respondent's life in Australia, his criminal record, his return to the United Kingdom in breach of parole and bail conditions, his marital history and his subsequent journeys to and from Australia are set out in the reasons of the primary judge. It is not necessary to recite them here. 9 It is sufficient for present purposes to refer to the following. The respondent left Australia at some time after November 1983 (possibly as late as January 1986, but he concedes that it was after 2 April 1984) and returned to the United Kingdom. The significance of the date 2 April 1984 emerges below. On 16 May 1995 he was granted a tourist visa permitting him to travel to, enter, and remain in Australia for 3 months. He arrived on 16 June 1995 travelling on a British passport which had been issued to him on 2 December 1994. He remained in Australia beyond the terms of his visa and eventually left Australia, again for the United Kingdom, on 16 November 1996. Seven days before departure he married an Australian citizen. 10 On 23 March 1998, while in the United Kingdom, the respondent was granted a Spouse Provisional (Temporary) visa. He returned to Australia on 3 April 1998. The respondent and his wife separated after his return to Australia. On 8 September 1999 his application for a permanent visa was refused. After twice being taken into detention, on 31 October 2000 the respondent was removed from Australia to the United Kingdom. 11 The respondent returned to Australia some time in 2001 without having been granted a visa. On 7 November 2001 he was again taken into detention. 12 On 19 November 2001, the respondent filed the present proceedings in this Court seeking review of the Minister's decision to cancel his "Permanent Resident visa". He also sought interlocutory relief. The respondent was removed from Australia and returned to the United Kingdom on the same day. 13 A consent order was made that the questions arising from the claims for relief sought in paragraphs 1-4 of the Amended Substituted Application be tried before and separately from the questions arising from the remainder of the relief claimed by the applicant. The relief sought in paragraphs 1-4 was as follows: '1. A declaration that the [Respondent] was on 19 November 2001 unlawfully removed by the [Appellant], acting through his servants or officers, from Australia and was immediately prior thereto unlawfully detained by the [Appellant]. 2. A declaration that the [Respondent] is entitled to enter Australia, alternatively entitled to enter and remain in Australia with the same rights and privileges in relation to the entry and re-entry into Australia as an Australian citizen. 3. An order that the [Appellant] within 7 days of the date of this Order, at his own expense, communicate with the [Respondent] and make arrangements for the return by air of the [Respondent] to Perth so as to ensure that the [Respondent] arrives in Perth within 14 days of the date of this Order. 4. An injunction precluding the [Appellant] by his servants or officers from prohibiting or obstructing the [Respondent] on his arrival at Perth from entering Australia on the presentation by the [Appellant] on his arrival to such servant or officer of a valid British passport.' 14 At the hearing before the primary judge the respondent contended that when he left Australia at a time between 1983 and 1986, and when he returned in 1995 he was neither an immigrant nor an alien within the meaning of those terms in the Constitution: Re Patterson; Ex parte Taylor (2001) 207 CLR 391. Counsel for the appellant acknowledged that the primary judge was bound by Re Patterson, but made a formal submission to his Honour that the decision was wrong. the decision at first instance 15 His Honour accepted that the respondent was not an alien at the time he first left Australia. His Honour stated that he was not satisfied that the appellant had shown that the respondent had abandoned or terminated his status as a non-alien in Australia before he returned to this country in 1995. He then turned to the question whether the respondent, after arrival as a migrant, became absorbed into the Australian community and thus a person beyond the reach of the Commonwealth's power to legislate in respect of immigrants (Constitution, s 51(xxvii)). He concluded that that was the case. His Honour found that the appellant had not discharged what he described as the onus of demonstrating that the respondent had repudiated his relationship with Australia and abandoned Australia as his home thereby abandoning his status as an absorbed member of the Australian community. Accordingly, so his Honour found, the appellant was not authorised to remove the respondent from Australia. 16 His Honour delivered judgment on 24 November 2003. On 9 December 2003 the High Court of Australia delivered judgment in Shaw. At par [32] of the reasons for judgment of Gleeson CJ, Gummow and Hayne JJ, their Honours said this: 'This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised.' the issues in the appeal 17 The respondent did not concede that he was to be regarded as an alien for the purposes of s 51(xix) of the Constitution. His counsel made a formal submission that Shaw was wrongly decided, to preserve the respondent's position should this matter reach the High Court. He made no further submission in relation to that issue. 18 The appellant caused notices to be served as required by s 78B of the Judiciary Act 1903 (Cth). No Attorney-General has sought to intervene. 19 In written submissions the respondent acknowledged that the issues of whether: * he had ever become absorbed into the Australian community; or * at some stage had acquired the status of a person beyond the scope of the immigration power; and * by his actions had divested himself of that status; were redundant. 20 That means that, subject to the matters raised in the respondent's notice of contention (if he is granted leave to raise them), the appeal must be allowed. 21 The issue in the appeal is thus solely that raised by the respondent in his notice of contention, to which we now turn. the notice of contention 22 Mr A N Siopis SC, senior counsel for the respondent (with Mr P J Hannan), both of whom appeared pro bono publico, conceded that he needed leave to raise the matters sought to be advanced in the notice of contention, because they had not been argued below. Counsel submitted that leave should be granted because of the importance of the matter to the respondent, the lack of prejudice to the appellant and because there were no factual issues to be resolved. The respondent accepted that the factual position was as disclosed in cross-examination at first instance, that is, that he left Australia after 2 April 1984, being the date upon which the Migration Amendment Act 1983 commenced. Mr P R Macliver, counsel for the appellant, told us that he had no instructions to oppose the grant of leave. We granted leave to the respondent to raise the matters contained in his notice of contention, for the reasons advanced by the respondent. 23 The essence of the respondent's notice of contention was that, even if he was to be regarded as an alien (which he formally denied) he was on 19 November 2001 (the date the appellant caused him to be removed from Australia) a non-citizen in the migration zone who held a visa that was in effect, and hence was a lawful non-citizen for the purposes of s 13(1) of the Act. By reason of the stamps endorsed in his father's passport on 31 March 1971 and 12 May 1971 respectively, he had, at all material times since his arrival in Australia, held a visa to enter and remain in Australia. This resulted from the operation of s 83(2) and the definitions of "old visa" and "visa" in s 5 of the Act as inserted by the Migration Reform Act 1992. Accordingly, he submitted that he was not amenable to removal from Australia under s 198 of the Act. 24 The respondent's arguments, in more detail, were as follows: 1. The term "visa" for the purposes of s 13(1) included an "old visa" - see s 5(1) of the Act which provides: 'Visa has the meaning given by section 29 and includes an old visa.' The term "old visa" is defined in s 5(1) of the Act as follows: 'old visa means a visa, document, or notation that: (a) permits a person to travel to Australia; and (b) was issued before 1 September 1994; and (c) has not been cancelled or otherwise stopped being in effect.' 2. The old visa was constituted by two stamps in his father's United Kingdom passport. The first stamp, on page 7 of that passport was as follows: 'ENDORSEMENT FOR AUSTRALIA (subject to grant on arrival of an entry permit under the Migration Act 1958) The person(s) indicated in this passport is/are travelling to Australia Under an official assisted passage scheme. Flt/Ship: Australis Date of departure: 16.4.71 Issued at London: 31.3.71 [signature] AUTHORISING OFFICER WA 34005/6' 25 The second stamp, on page 9 of the passport, was in the following terms: 'DEPARTMENT OF IMMIGRATION PERMITTED ON 12 MAY 1971 TO ENTER AUSTRALIA FREMANTLE 25' 26 Section 13 of the Act relevantly provides that a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. Section 14 relevantly provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. 27 Section 196 of the Act provides for the detention of an unlawful non-citizen. Section 198 provides for the removal from Australia of unlawful non-citizens. 28 As Mr Siopis submitted, an essential question in the appeal was whether the respondent held "… a visa that is in effect …". 29 The appellant's answering submission, in summary, is that the respondent is a non-citizen who does not hold a visa that is in effect. It is common ground that the respondent is a non-citizen. The issue is thus distilled to the question whether at the time of his removal from Australia the respondent held a visa that was in effect. To answer that question it is necessary to review some statutory history. 30 At the time of the respondent's entry into Australia, on 12 May 1971, the former s 6 of the Act relevantly provided: * 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 (s 6(3); * 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) (s 6(5)); * an entry permit that is intended to operate as a temporary entry permit shall be expressed to authorise 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 (s 6(6)); * 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 (s 6(8)). 31 A key part of the respondent's submission was based on the definitions in s 5 of the Act (as in force when he arrived in Australia) of "enter" – "includes re-enter", and "entry" – "includes re-entry". His point was that the entry visa deemed to be have been granted to him as a child included in his father's passport entitled him to re-enter Australia. 32 Section 11 of the Act at that time provided that a visa or similar notation or a form of provisional authority to enter Australia issued to a person on behalf of the Commonwealth was not to be deemed an entry permit and did not entitle that person to enter Australia or to be granted an entry permit. 33 Sub-section 38(3) of the Migration Amendment Act 1983 provided: '38 (3)An entry permit, visa, return endorsement or any other instrument in force under the Principal Act immediately before the commencement of this Act has, subject to the Principal Act as amended by this Act, effect after the commencement of this Act as if it were in force under the Principal Act as amended by this Act.' 34 Sub-section 9(1) of the Act as amended by s 37 and the Schedule to the Migration Amendment Act 1983, with effect from 2 April 1984, i.e. before the respondent left Australia,provided: '9(1) Where a non-citizen who is the holder of an entry permit leaves Australia, the entry permit has no force or effect in relation to him upon or after his re-entry into Australia.' 35 The respondent contended that the visa constituted by the stamps in his father's passport was "permission for [his] re-entry" from time to time after his first arrival in Australia. Accordingly, so the respondent submitted, he did not need to apply for the various other visas for which he in fact had applied and which were granted to him. The appellant had purported to remove him from Australia on the basis that those (unnecessary) visas were not in force at the time of that removal, but he was not authorised or empowered to effect such removal. 36 Mr Siopis submitted that the reference to "leave Australia" meant "leave Australia permanently" because to construe s 9(1) literally would render the right to re-enter an illusory right. Only when an immigrant left Australia with the intention of not returning would his or her entry permit have no force or effect. This was demonstrated by s 9(2) which provided a mechanism in relation to temporary entry permits whereby a holder of such a permit could obtain a notation (within 6 months before re-entry) to the effect that the permit would not be invalidated by absence of the holder from Australia. It would not be expected, so the respondent contended, that the position of a permanent resident would be worse than the position of a holder of a temporary entry permit. 37 Mr Siopis submitted that "non-citizen" was to be construed as meaning a non-citizen who was not otherwise absorbed into the Australian community. He contended that when the respondent left for Britain in 1986 he had the same rights effectively as an Australian citizen to come and go. On its proper construction s 9(1) did not operate to effect immediately a cancellation of his right of re-entry which continued when he returned in 1995. 38 We shall consider that submission below. But first we will complete the relevant statutory history. 39 The Migration Reform Act 1992 substantially amended the Act with effect from 1 September 1994. One of the changes brought about by the Migration Reform Act was to replace temporary and permanent entry permits and return visas with temporary and permanent visas. The Migration Reform (Transitional Provisions) Regulations 1994 operated so as to deem the holders of certain entry permits and return visas immediately before 1 September 1994 to be the holders of transitional visas on and after that date. 40 Regulations 4 and 5 of the Migration Reform (Transitional Provisions) Regulations 1994 were the only regulations which applied to persons who were the holders of entry permits so as to deem such entry permits to continue in effect on and after 1 September 1994 as permanent or temporary visas. However, both those regulations only applied to a person who was in Australia immediately before 1 September 1994. Part of the appellant's case is that these regulations had no application to the respondent because he was in the United Kingdom on that date. OUR reasoning 41 In our opinion, the endorsement made in the respondent's father's passport on 31 March 1971 was "[a] visa or similar notation or a form of provisional authority to enter Australia …" within the meaning of s 11 of the Act as in force at that time. The effect of s 11 was that that endorsement was not deemed to be an entry permit and did not entitle the respondent to enter Australia or to be granted an entry permit. In fact the endorsement was expressed as being subject to grant on arrival of an entry permit under the Act. 42 The second stamp, on 12 May 1971, was, we think, an entry permit. But, in our view, the entry permit ceased to have any force or effect in relation to the respondent when he left Australia some time after 2 April 1984. 43 As we have mentioned, it was common ground that the respondent was a non-citizen at all material times. We do not accept the respondent's submission that the reference to "leave Australia" in s 9(1) should be construed as meaning "leave Australia permanently" or that the words "non-citizen" should be construed as meaning a non-citizen who was not otherwise absorbed into the Australian community. 44 As emerged in later argument, Mr Siopis' reliance upon the context of s 9(2) was misplaced. Section 9(2) was omitted by Act No 117 of 1979. That Act also introduced a new s 11A which enabled a person, including a person such as the respondent, being a permanent resident going overseas for some temporary purpose, to obtain a return endorsement valid for a period of time or a number of occasions. 45 We accept that, if the respondent had remained in Australia, the entry permit endorsed in the respondent's father's passport would have continued in force in relation to him after 2 April 1984, pursuant to s 38(3) of the Migration Amendment Act 1983, reproduced above. 46 But we see no ambiguity in the wording of s 9(1) which would prevent it from being read literally and require it to be read with the gloss proposed by the respondent. 47 In our opinion, when, at some date after 2 April 1984, the respondent left Australia, that entry permit had no force or effect in relation to him upon or after his re-entry into Australia. That is what s 9(1) provides. 48 Accordingly, when the respondent was removed from Australia he was an unlawful non-citizen and it was the statutory duty of the appellant's officers to remove him as soon as reasonably practicable. 49 In those circumstances, it is not necessary to consider the appellant's further argument based on the amendments introduced by the Migration Reform Act 1992. In our view, the appeal should be allowed with costs, the orders made at first instance set aside and in lieu thereof there be orders that the application be dismissed. In the somewhat unusual circumstances of the evolving High Court authority we think that there should be no order as to the costs at first instance. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 6 July 2004 Counsel for the Appellant: Mr P R Macliver Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr A N Siopis SC, with Mr P J Hannan (pro bono publico) Date of Hearing: 13 May 2004 Date of Judgment: 6 July 2004