IMMIGRATION - deportation - German citizen - migrant resident of Australia - absence overseas - re-entry on visa - criminal conviction not disclosed - whether prohibited immigrant under Migration Act 1958 as at 1979 and 1982 - statutory effect of visitor's visa before and after 1979 - visa - error of law - simplistic test of "immigrant" status. Migration Act 1958 s.6A, 31A, 11, 18, 16 Migration Amendment Act 1983 Migration Amendment Act 1979 Potter v Minahan (1908) 7 CLR 277 ROLF HELMUT SCHUBERT v THE HONOURABLE MICHAEL YOUNG MINISTER OF' STATE FOR IMMIGRATION AND ETHNIC AFFAIRS AND THE COMMONWEALTH OF AUSTRALIA NO. G174 of 1987 FRENCH J. 29 MAY 1987 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. G174 of 1987 BETWEEN: ROLF HELMUT SCHUBERT Applicant and THE HONOURABLE MICHAEL YOUNG Minister of State for Immigration and Ethnic Affairs and the COMMONWEALTH OF AUSTRALIA Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 29 May 1987 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Respondent made on 8 April 1987 to deport the Applicant be set aside. 2. The question of whether the Applicant should be deported from Australia be remitted to the Respondent for reconsideration according to law. 3. The Respondent pay the Applicant's costs of the application. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. G174 of 1987 BETWEEN: ROLF HELMUT SCHUBERT Applicant and THE HONOURABLE MICHAEL YOUNG Minister of State for Immigration and Ethnic Affairs and the COMMONWEALTH OF AUSTRALIA Respondent CORAM: FRENCH J. 29 May 1987 REASONS FOR JUDGMENT The American poet Robert Frost once wrote that "Home 15 where, when you go there, they have to let you in". The proposition embodied in those lines lies at the heart of this application for review of a deportation order. Rolf Helmut Schubert is a citizen of the Federal Republic of Germany. He was born on 12 July 1927. In 1965 Mr Schubert, his wife Edith and their 13 year old daughter Veronika, migrated to Australia. 2. They had been touring in Pakistan in 1964. While there, and encouraged by officials of the Australian High Commission, they decided to migrate to this country. In October 1964 each was issued with a "visa without time limit" by the Commission in Karachi. Mr Schubert travelled to Australia in February 1965 in advance of his wife and daughter to investigate employment prospects and accommodation. On 4 April 1965 they joined him in Melbourne. He had a succession of jobs between 1965 and 1971 working variously as a motor mechanic, a tool maker and on the installation of elevators and the construction of power lines. In 1971 he was offered a position at Mt. Hagen in the then Territory of Papua New Guinea. The position involved opening and running a trading office for BNG Trading Co. Limited. He and his wife left Australia in that year. It is not clear from the evidence whether their daughter remained here then or went with them. Ultimately she married and settled down in Queensland. Mr Schubert operated the trading office from 1971 to 1975. 3. In 1973 he and his wife started up their own import/export business under the name "Hagen Star Service Station". They were, by his account, successful in that venture. On 25 July 1975 he, presumably accompanied by his wife, returned to Australia for a short time to visit their daughter in Queensland. Thereafter they went on holiday to Africa between August and December 1975. They returned to Papua New Guinea at the end of that year. In the interim, in October 1975 Papua New Guinea became an independent country pursuant to the Papua _ New Guinea Independence Act 1975 (Cwth). On 19 June 1978 Mr Schubert appeared in the National Court of Justice of New Guinea at Mt. Hagen charged with the offence of unlawfully and indecently dealing with a girl under the age of 12 years. He pleaded not quilty but was convicted and on 20 June was sentenced to a term of imprisonment for 2 years. He has at all times maintained that he was innocent of this charge. 4. During his incarceration, representations were made his behalf by the German Consul in New Guinea to the Minister on for Justice seeking his early release so that he could qo to Australia for treatment of an ear infection which could not, it was said, be dealt with locally. He had served 6 months of his term when Mrs Rooney, the then Minister for Justice, authorised his release on the following conditions. "(a) That he go to Brisbane for medical treatment and return. (b) That his doctors in Brisbane provide the with a report on the expected duration treatment. (c) That the consul of the Federal Republic of and solicitors acting for him give a undertaking that they would use their best to ensure his return to Papua New Guinea as the treatment was complete. (d) On his return Schubert was to serve the of his sentence. Minister of the Germany written efforts soon as remainder Neither the fact of his conviction nor the fact of release were communicated to Australian authorities. his He then applied to the Australian High Commission in New Guinea and was granted what Mr W. Perram, the Director Enforcement Operations for the first respondent, has described a minute dated 6 April 1987 as "....a 3 month visitor visa". of in 5. The respondents tendered in evidence a bundle of photocopies of documents from the departmental file. Among them was an almost unreadable copy of the application for the grant of the visitors visa in 1979. It could however be discerned that the purpose of the intended visit as stated on the application was "visit relatives". A cross had been placed in a box marked "Medical Treatment" but that had then been struck out. A declaration in support of the application and signed by Mr Schubert contained the following text:- "I declare that neither I nor any accompanying dependent family member listed in this form - has a criminal record." As appears from a consideration of the statutory framework later in these reasons, no legal entitlement to enter Australia attached to the issue of the "visitors visa". On 1 March 1979 Mr Schubert arrived in Australia at Brisbane Airport. On his incoming passenger card he stated that he intended to visit relatives. As he did not hold a valid return or onward ticket he was issued with an entry permit to remain in Australia for only 7 days. The term of that entry permit was later extended to expire on 8 June 1979. In the event he departed from Sydney on 30 April 1979. His outgoing passenger card indicated that his destination was Germany. He and his wife, whose movements between March and April 1975 do not appear from the evidence, started a world tour which lasted some 3 years. In the meantime the Australian High Commission in Papua New Guinea had become aware of his conviction and release. His name was placed on a Migrant Alert List, a procedure evidently designed to ensure inter alia, that he would not be granted a visa by any Australian embassy or consular office without reference to the Department of Immigration and Ethnic Affairs in Australia. Notwithstanding this fact. on 15 October 1982 he and his wife applied for and were issued with visitors' visas by the Australian High Commission in New Delhi. The visas were said to be valid until 15 October 1983. Although the issuing officer checked the Migrant Alert List he missed Schubert's name. Copies of the relevant application forms were before the Court and show the purpose of the visit as "visit relatives". In each case there is a series of questions on the form including the question"- "Have you or has any member of your family included in this application been convicted of a criminal offence in any country." Boxes for "Yes" or "No" answers to the question were not marked on either application. That is to say, the questions were not answered. On 16 June 1983 the Schuberts arrived by ship at Darwin. Again the Migrant Alert system failed to operate. They were granted temporary entry permits authorising a stay in Australia of 6 months subject to the condition endorsed on the permit "employment prohibited without written permission of an authorised officer". In December 1983 the Schuberts each applied to the Regional Office of the Department in Canberra seeking a further entry permit. 8. As they were about to leave Canberra for Brisbane to visit their daughter they were told to report to the Brisbane office of the Department. Shortly afterwards the Canberra office discovered that Mr Schubert was on the Migrant Alert List and advised the Brisbane office to reject the application for a further entry permit. On 11 January 1984 the Schuberts were contacted by officers of the Department at their daughter's address in Queensland. In the interview that followed Mr Schubert made it clear that he and his wife wished to reside in Australia and that any effort to have them leave would be strongly opposed. On 22 April 1984 he wrote to the then Minister asserting that he and his wife and daughter were permanent residents. The letter which embodied a lengthy history of their movements and dealings with immigration authorities since 1964 concluded with a plea for "the recognition of our permanent resident of Australia status in the near future". Subsequently on a date which does not emerge from the evidence Mr & Mrs Schubert made application for what 1s described in a departmental minute as "resident status". 9. Those applications were refused on the grounds that they did not meet any of the qualifying conditions under s.6A of the Migration Act 1958 which governs the grant of entry permits to non citizens after their entry into Australia. In a letter dated 23 April 1985 advising Mr Schubert of the rejection of the applications, the representative of the department's Regional Director in Brisbane said:- "It will therefore be necessary for you and your wife to make arrangements to depart Australia within a period of 21 days of the date of this letter and I would appreciate it if you would let me know within 7 days the details of your departure giving date and port of departure and flight number." The Schuberts sought administrative review of this decision by the Immigration Review Panel. This non statutory advisory body subsequently recommended that the "application for resident status not be approved". The recommendation was accepted and advice of that outcome was conveyed to the Schuberts by a letter dated 22 November 1985 signed by the Senior Assistant Secretary of the Review Branch of the department. Tt included a direction by that officer pursuant to s.31A of the Migration Act that they leave Australia within 21 days of the date of the letter. 10. They subsequently purchased airline tickets to Frankfurt with a departure date of 8 January 1986. However, through their solicitors they requested an extension of the departure time to enable Mr Schubert to undergo eye surgery in January. The request was supported by 2 letters from an eve specialist in Brisbane. The departure date was extended to 28 February 1986. On 10 February 1986 representations for a further extension of time were made to the then Minister by Mr Clarrie Millar MHR. The basis for the further extension was the Schuberts' need to obtain spare parts from Germany for the camper van which they wished to ship back with them to that country. A further extension was granted to 31 March 1986 A week before they were due to leave Mrs Schubert disappeared. On 28 March 1986 she was found dead in her car south of Gladstone in Queensland. li. In spite of a post mortem examination no cause of death was determined. It was accepted by police that there were no suspicious circumstances. The time for Mr Schubert's departure from Australia was, extended until after his wife's burial and the completion of any coronial inquiry. In the event she was cremated. On 26 May 1986 the Regional Director of the Department in Brisbane wrote to Mr Schubert indicating that he should make bookings to leave Australia within 21 days of the date of the inquiry. However on 3 September 1986 the Gladstone Magistrate, Mr R.J. Ruback SM decided that an inquest was unnecessary and made a recommendation to that effect to the Justice Department. In the meantime, on 11 July 1986, Mr Schubert had lodged a further application on a form entitled "Application for Resident Status in Australia". The application was accompanied by a covering letter from his solicitors and an application for a further entry permit. On 19 November 1986 he was interviewed by officers of the Department in Sydney and the following points as summarised in the Departmental Minute dated 6 April 1987 were made. 10. ll. 12. 13. 14. 15. 16. 17. 18, 19. 12. He had no contacts in West Germany. He was not eligible for the pension in West Germany. His investments were in Australia. He was now residing in a caravan park in Cronulla. There was a "bit of tension" between him and his daughter because of financial difficulties. He now had relations with two women one of whom had said she would like to marry him or live with him and the other of whom wanted to take him back to Perth to live with her. His passport was still valid. The visitor's visa he was issued in New Delhi, it was agreed, was subject to conditions of undertakings. He had completed 10 years education. He had skills as an industrial salesman and had worked overseas in mining, selling machines, motor work and electrical work. He had worked in Australia from 1965 until 1971. He had not worked in Australia since arriving in 1983. He had lived off his income and had submitted certificates of debenture stocks and had assets of $87,000.00. He also owned his own mobile home valued at $80,000.00 and $30,000 to $40,000 worth of equipment and a car and a property - he "did not know what had become of it". He had no assets overseas. He had his conviction in Papua New Guinea. He had not been deported or excluded from any country. He had a medicare card and had used it to make claims. He would depart voluntarily if he had to. 20. 21. 22. 13. He had been a permanent resident in Australia from 1965 until 1975 and had been promised in Papua New Guinea that he could return freely to Australia. He would like to go as a free man not as a criminal ~ he could make his own way out. He could not go to any other country except Germany and he would be "alienated there". The officer who prepared the departmental minute Mr W. Perram set out an extensive history of Mr Schubert's movements and dealings with the department. He recommended at the conclusion of the minute:- "(4) Mr Schubert be refused the grant of an endorsed temporary entry permit. (ii) Mr Schubert be refused the grant of permanent residence. (iiil)Mr Schubert not be permitted to depart voluntarily. (iv) An order for his deportation should be made." The recommendation so made was approved on 8 April 1987. The approval is evidenced by an endorsement on the minute Mr J. Mahoney, the then Ministerial delegate. Mr Mahoney also signed a deportation order on that day which read as follows:- "WHEREAS ROLF HELMUT SCHUBERT being a non citizen, entered Australia on the 16th day of June 1983 AND WHEREAS the said ROLF HELMUT SCHUBERT is deemed to be a prohibited non citizen by virtue of sub-section 16(1) of the Migration Act 1958 in that he was not, at the time of entry, an Australian citizen and who was a person who had been convicted of a crime and sentenced 14. to imprisonment for a period of not less than one (1) year and he is not the holder of an entry permit of the kind referred to in that sub-section. NOW I JOHN RICHARD MAHONEY, Assistant Secretary, Compliance Branch, Department of Immigration and Ethnic Affairs and delegate of the Minister of State for Immigration and Ethnic Affairs DO HEREBY ORDER, pursuant to section 18 of the Migration Act 1958 that the said ROLF HELMUT SCHUBERT be deported from Australia." In the minute the following paragraphs appeared under the heading "ASSESSMENT" :- "38. Mr Schubert is, on the evidence, relying on his previous residence in Australia from 1965 until 1971 as a basis for claiming that he now has the right of residence in Australia. However, he left Australia in 1971 for Papua New Guinea and was resident in that country for about 8 years. From 1975 onwards Papua New Guinea has been a completely independent country. It would be difficult to accept that Mr Schubert would have remained unaware of that fact given the associated publicity, but in any case his right of residence in Australia was lost because of the length of his residence in another country. 39. Mr Schubert has twice applied for visitor visas for Australia and twice been permitted to enter Australia as a visitor for specified periods on the basis of these visas. By applying for entry to Australia as a visitor it could reasonably be concluded that Mr Schubert was aware of his status and that, seen in retrospect, he was using Australia's provisions for the entry of visitors for his own convenience and without disclosing his conviction in Papua New Guinea. His subsequent claims and applications for residence must be considered in the light of the conditions attaining at the time, to which he agreed when he applied for the visas." Reference was made to the Ministerial Policy on Illegal Immigrants which was tabled in Parliament on 17 October 1985. 15. After noting that Mr Schubert's status could be regularised by grant of an endorsed temporary entry permit the minute went on:- "However you may consider that in view of Mr Schubert's actions and circumstances and his expressed wish to remain permanentiy in Australia, the grant of an endorsed temporary entry permit, in the context of further temporary stay per se would be inappropriate." The author of the minute considered whether there was anything in Mr Schuberts'' circumstances that militated against a decision to enforce his departure from Australia and in particular whether he could be considered as fulfilling the requirements of para.6A(1)(e) of the Migration Act if he were the holder of a temporary entry permit in force. It was pointed out that the delegate could take into account :- 1. His claim of prior residence from 1965 until 1971. 2. That he has a daughter who is an Australian resident and citizen. 3. His long absence from West Germany and his claim that he is not eligible for a pension in that country. 4. His claim to relationships with two Australian women. 5. His wife's death in Australia. 6. That he has disputed his criminal conviction in Papua New Guinea. 16. Weighing in the balance the other way, it was said were the following factors:- 1. Despite his claims, his conviction was a matter of record. 2. He had twice entered Australia as a visitor after failing to admit his conviction on his applications. 3. He had made it clear that in entering Australia as a visitor on the second occasion he had no intention of leaving. 4. In applying as he did for visitor entry, it could be expected that he was aware that he held no legal right to permanent residence in Australia on the basis of his earlier residence. 5. That he had worked without permission. 6. His daughter is an adult who did not appear to be dependent on him and from whom he was in any event geographically separated. 7. 'That he has no dependants in Australia. 8. That he had previously been refused resident status but failed to leave Australia and was granted considerable concessions so that his affairs could be resolved to his satisfaction. 9. That his relationships with the two women are on the evidence, not long term relationships nor de facto relationships. 10. That although he has claimed to be ineligible for a pension in West Germany, he is also ineligible for a pension in Australia and would not he eligible for some time, even if he were to be granted permanent residence. Reference was then made to factors weighing against permitting voluntary departure and the minute concluded:- 17. "46. It is considered that in all of the material put forward in Mr Schubert's case, there are no sufficiently compelling factors or circumstances to counter a decision to order his deportation, which you may find appropriate having regard to all the facts and taking into account the policy on illegal immigrants." The form of the minute sets out factors which are relevant to the recommendation made and which it is said may be taken into account by the delegate in making his decision. The delegate's decision as expressed does not indicate which of the factors were taken into account however, given that the minute appears to have been treated by the respondent as embodying the reasons for the decision, I will treat it as such for the purposes of this application. The Application for Review On 27 April 1987 Mr Schubert filed in this Court an application for an order to review the deportation decision order and associated decisions. The amended application which was filed on 4 May 1987 characterised the decisions for which review 1s sought as the following:- ",..a @ecision of the first named respondent and/or' the officers of the first named and second named respondents to:- 1. issue a deportation order in respect of the applicant. 2. deport the applicant. 3. fail or refuse to grant to the applicant a temporary entry permit. essential the decisi 18. default, fail or refuse the applicant and entry permit pursuant to Section 6A(1)(e) of the Migration Act 1958 (sic)." Although the grounds are variously expressed ground upon which review is sought in this case is on involved an error of law. the that The error alleged is particularised in the following way which describes as I understand it, the legally erroneous' views attributed to the decision maker:- "(a) (b) (c) (d) (Ce) That on 27 February 1979 the Applicant was not a permanent resident of Australia, or had lost or forfeited what permanent resident status he had previously had. That on or about 27 February 1979 the Migrant Status of the Applicant was that of a Visitor and not resident. That accordingly the Applicant did not have an entitlement to enter Australia on oor about that date. That the Applicant was deemed to be a Prohibited Non Citizen. That, accordingly, after that date the Applicant had np entitlement to remain in Australia or only a limited entitlement to do so." Before turning to the submissions put in support of the grounds it is necessary to consider the relevant statutory framework. 19. Statutory Framework The Migration Act 1958 must be considered initially as it stood between 1965 and 1979, the latter being the year in which the applicant is said to have first re-entered Australia after ceasing to be a resident. It must also be considered as it stands now in relation to the decisions under challenge. There were amendments in 1966, 1973 and 1976 which are not material for present purposs. There were also amendments in 1979 which did not come into effect until 29 October and 1 November in that year and so do not affect the position relating to the entry into Australia on 1 March 1979. Section 5 of the Act, as it was before October 1979, set out certain interpretations of terms including the following:- ""Enter" includes "re-enter" "Entered" includes "re-entered" "Entry" includes "re-entry" "Entry Permit" means a permit issued under section 6 of this Act." Each of these remains in the Act as it is today save for the deletion of the words "of this Act" in the interpretation of "entry permit". 20. As enacted in 1958 and until 1983 the Act included an interpretation of the term "immigrant" as follows:- ""Immigrant" includes a person intending to enter, or who has entered, Australia for a temporary stay only, where he would be an immigrant if he intended to enter, or had entered Australia for the purpose of staying permanently;" This definition no longer appears in the Act having been excluded by the Migration Amendment Act 1983 (No. 112 of 1983) at which time the term "non citizen" was introduced being defined asi- "A person who is not an Australian citizen". Under s.5 as it was prior to October 1979 there was no definition of the term "visa" although that word was used in s.11l which provided:- "11. A visa or similar notation or a form of provisional authority to enter Australia issued to a person on behalf of the Commonwealth shall not be deemed to be an entry permit and does not entitle that person to enter Australia or to be granted an entry permit." That section was repealed and the present s.ll substituted for it by the Miqration Amendment Act 1979 (No. 117 of 1979). It now provides:- 21. "1101) A document or notation to which this section applies issued to a person on behalf of the Commonwealth shall not be deemed to be an entry permit and does not entitle that person to enter Australia or to be granted an entry person. (2) A document or notation to which this section applies is - (a) avisa or return endorsement granted under this Act; or (b) a visa or similar notation or a form of provisional authority to enter Australia, issued, before the commencement of this section, on behalf of the Commonwealth." That amendment also introduced into the Act Division 1A - Visas and Return Endorsements. By the introduction of that division express provision was made for the first time for the issue by authorised officers of visas with respect to travel to Australia. Section 11C makes it an offence for the master, owner, agent and charterer of a vessel (which term under section 5 includes an aircraft) to bring into Australia a non-citizen if the person is not on his arrival in Australia in possession of a visa or return endorsement applicable to his travel to Australia or on that occasion and is not exempted by ministerial instrument or included in a class of exempt persons. Since 1979 therefore, a visa or return endorsement has constituted an authority to a carrier to bring a person in possession of such a document into Australia. 22. The legal nature of a visa prior to that time is unclear. There does not appear to be any reported Australian decision in which its significance has been considered. There is however American authority in which "visa" is defined as an endorsement made on a passport by the _ proper authorities denoting that it has been examined and that the bearer is permitted to proceed; a recognition by the country ad quem of the validity of the passport issued by the country a quo - U.S. v Vargas D.C.N.Y. 380 F.Supp. 1162,1168, U.S. Ex rel. Johanson v Phelps D.C. Vt., 14 F. 2d. 679, 682, U.S. v Rodriquez D.C.Cal. 182 F Supp. 479,484. Within the framework of the Migration Act as it stood prior to the 1979 amendments the visa might best be regarded as an administrative notation. It does not seem to have conferred any right or authority on any one nor to reflect the exercise of any statutory power. This is made clear by s.1l as it stood before the October 1979. In that sense the section could be regarded as declaratory. To say all this is not of course to say that, even before 1979, the issue of a visa was not a matter of considerable significance in the administration of the Migration Act 1958. 23. That is reflected in the provisions of s.16(1)(b) relating to the presentation of a forged visa or a visa obtained by a false representation. Section 6 provides, as it always has, for the issue of entry permits. Prior to the 1983 amendments it spoke in terms of the issue of entry permits to immigrants. As a result of the amendments the references in the section to immigrants have been deleted and replaced by references to non-citizens. It is desirable in this case to set out certain of the provisions of s.6 as it stood in 1965 and 1979. "6(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. (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 asa 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. 24. The current language of sub-sections (1), (2) and (3) of 8.6 is the same as that prior to 1979 save for the substitution of the word "non-citizen" for the word "immigrant" in 1983. Sub-section (5) following amendments in 1979, 1980 1983 now provides:- "(5) An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to section 6A, after he has entered Australia (whether or not that entry took place before or takes place after, the commencement of this part)." Section 6A which was inserted in 1980 and amended and in 1983 governs the conditions on which entry permits may be granted to non-citizens after their entry into Australia. Section 16 as it stood prior to the 1979 amendments included the following provisions:- "16(1) Where, after the commencement of this part or before the commencement of this part but after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia as an immigrant - (b) for the purpose of securing entry into Australia produces or produced to an officer a permit, certificate, passport, visa, identification card or other document which was not issued to him or is or was forged or was obtained by false representation; or (c) at the time of entry is or was a person of any of the following descriptions, namely:- 25. (ii) a person who has been convicted of a crime and sentenced to imprisonment for one year or more; or that person shall, notwithstanding s.10 of this Act be deemed to be a prohibited immigrant unless he is the holder of an entry permit endorsd with a statement that the officer granting that permit recognises him to be a person referred to in this sub-section." Section 16 was also amended in 1983 to delete the word "immigrant" and substitute reference to a person who is not at the time of entry an Australian citizen. Other amendments made to the section are not material for present purposes but each of the grounds upon which a person was deemed a prohibited immigrant in 1979 constitutes a ground upon which such person is now deemed a prohibited non citizen. Section 18 of the Act as it now stands provides:- "18. The Minister may order the deportation of a person who is a prohibited non-citizen under any provision of this Act." Whether Schubert Returned to Australia As Resident or Immigrant In his assessment of Mr Schubert's case set out in the minute dated 6 April 1987, Mr Perram contended that he had lost his "right of residence" in Australia because of the length of his vesidence in another country. 26. He went on to say:- "By applying for entry to Australia as a visitor it could reasonably be concluded that Mr Schubert was aware of his status and that, seen in retrospect, he was using Australia's provision for the entry of visitors for his own convenience and without disclosing his conviction in Papua New Guinea. " It is plain from that assessment and other material in the minute that the Minister's delegate acted in part on the basis that Mr Schubert was not a resident of Australia and that he had accepted the fact in 1979 and 1983 by applying for a visitor's visa. Counsel for Schubert submitted that the delegate erred in law in relation to Schubert's resident status on return to Australia in 1979. Because he was a resident, it was submitted, he did enter Australia in 1979 as an immigrant. It would follow that that his status under Australia's migration laws has misconceived. His period away for 3 years from 1979 until 1983 also said to have been brought about by a misconception of status as he was not then permitted to remain. Counsel for the respondent placed reliance upon the and 1983 visitor visa applications. had his not from been was his 27. "He entered Australia under a visitor's visa", said counsel, "and had no more status than that". The issue of the visa in 1979 however had no statutory significance. In 1982 it was no more than an authority to a carrier to bring an immigrant to Australia. After 1983 it was an authority to bring a non citizen to Australia. That is not to say that the application for a visitor's visa is not a factor to be weighed in determining whether Schubert had abandoned Australia as his home. Counsel for the respondent conceded that he was a resident of Australia up until 1975 when Papua New Guinea gained its independence. Thereafter, it was submitted, he was no longer a resident of this country. The concept of "resident" and "residence" in Australia was not expressly embodied in the Act prior to the 1979 amendments. A central role was Played however by the terms "immigrant" and "alien". Both have since 1983, been replaced by the term "non citizen". 28. An immigrant who became a prohibited immigrant was liable to deportation under s.18 of the Act. The departmental assessment proceeded on the basis. that when Schubert re-entered Australia in 1979 he did so0 as an immigrant. If that be right, s.16(1)(c)(ii) had the effect that he became upon entry a prohibited immigrant because the temporary entry permit he held did not bear on it an endorsement that' the issuing officer recognised him to be a person who had been convicted of a crime and sentenced to imprisonment for more than 1 year. A similar result would flow from the application of s.16(1)(b) if it be assumed that the issue of a visa to him was procured by the false representation that he had no criminal conviction. But essential to any application of s.16 to his entry in 1975 was his characterisation as an "immigrant". The concept of "immigrant" as it appeared in the Imnigration Restriction Act 1901, the predecessor to the Migration Act 1958, was discussed by the High Court in Potter v Minahan (1908) 7 CLR 277. At 299 Barton J. said:- 29. "Immigration has various kindred meanings. They ail imply that the country which the immigrant seeks to enter is not his home, by any criterion, natural or artificial." "O'Connor J. at 301 said:- "To describe as an "immigrant" a person who is coming back to the country which is his home is a contradiction in terms." He then went on to discuss the legal concept of domicil which he concluded had no relation to the question which country isa person's home in fact. Nevertheless he opined that the principles which the courts follow in determining what country is a person's actual home for the purposes of domicil might be applied in considering to the land he is leaving and to he the relation in which he stands the land he is entering for the purpose of determining whether is an immigrant:- "Having once established that a country is a man's home in the sense that I have explained, absence, no matter how prolonged, will render it none the less his home if there be always present to his mind the intention to return." Isaacs J. at 308 formulated his test this way:- "The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people. 30. Nationality and domicil are not the tests; they are evidentiary facts of more or less weight in the circumstances, but they are not the ultimate or decisive consideration." In relation to domicil he said:- "Domicil may be actual domicil, in which case though itself immaterial as a test, the circumstances which constitute it may also prove the only important and ultimate fact, namely, that the person claiming entry has still his real home in Australia, and is therefore one of its people. He may have been absent for a month or ten years - that is inconclusive. A month's absence in some circumstances may be enough to demonstrate the entire severance of his relations with Australia as his home; ten years may be overcome by other circumstances." And further:- "There is not, in my opinion, any proper test but this practical one, viz., whether the whole of the facts show that at the moment of entry the person desiring to be admitted is fairly to be considered as one of the people of the Commonwealth, and whether, notwithstanding any personal absence from Australia, he can justly and in substance claim to regard this country as a place of habitation or general residence which he had never abandoned." In the present case the departmental minute in the assessment section at para. 38 said:- ",..in any case his right of residence in Australia was lost because of the length of his residence in another country." 31. In my opinion the reasoning there followed discloses an error of law insofar as it applies an erroneously over simplified test to determine that Mr Schubert could not in effect, call Australia home and was therefore an immigrant upon his re-entry in 1979 and 1982. The question whether Australia was his home when he re-entered the country is a question of mixed fact and law. On the evidence and applying in particular the approach adopted by Isaacs J. in Potter v Minaham (supra), I would conclude that the evidence before the delegate did not, on a proper consideration, exclude the possibility that Schubert could have been regarded as a constituent member of the Australian community. So much was conceded up to 1975 by counsel for the respondent. His continuance in Papua New Guinea for the 4 years until 1979 does not of itself indicate that Australia was not his home. The reasons for his continuance were no doubt related to his employment there and the business that he and his wife carried on. Part of the period is accounted for by his trial and imprisonment. 32. The fact that he was only permitted temporary entry into Australia in 1979 and again in 1982 is a reflection of the fact that he did not, on either of those occasions, formally assert a right of residence. He came to Australia in each case with a visitor's visa. I have already observed however that in 1979 the issue of a visa appeared to have no statutory significance per se, and, contrary to the submission put by counsel for the respondent, did not determine his status. It must nevertheless be accepted that his application in each case was prima facie inconsistent with the resident status now asserted. However it may be explained by a misunderstanding on Schubert's part of his then position. It may be that the officer whom he approached when endeavouring to secure a re-entry in 1979 assumed that he was not a permanent entrant. On the evidence available to the Court it is not possible to draw a firm conclusion one way or the other although I would be inclined to the view that there is no unequivocal evidence of an abandonment of Australia as his home. Suffice it to say that a decision based upon the simplistic proposition that he ceased to be a resident of Australia by remaining in Papua New Guinea after it became independent in 1975, is a decision based upon an error of law. 33. It renders suspect the conclusion that when he entered Australia in 1979 he did so as a prohibited immigrant pursuant to 8.16 of the Act as it then. stood. For if by virtue of his character as an Australian resident and what was said in Potter v Minahan (supra), he was not an immigrant upon that re-entry, he could not have been a prohibited immigrant. In my opinion his case requires reconsideration. If his alleged status as a prohibited immigrant upon re-entry to Australia in 1979 and 1982 is to be weighed against him then there should be a proper inquiry into the question whether he was returning to what could still be regarded as his home. The evidence before me is insufficient to enable a firm conclusion to be drawn one way or the other on that question. I will therefore set aside the deportation order and remit it to the respondent for reconsideration according to law. I certify that this and the preceding thirty two (32) pages are a true copy of the Reasons for Judgment of his Honour Mr Justice French. Date: age Meg 178 7 34, Counsel: -for the Applicant: Miss C. Simpson instructed by Dupree & Associates -for the Respondent: Mr G. Hosking instructed by Australian Government Solicitor Date of Hearing: 12 May 1987 Date of Judgment: 29 May 1987