Dhingra v Minister for Immigration & Multicultural Affairs [1999] FCA 1350

FEDERAL COURT OF AUSTRALIA

Dhingra v Minister for Immigration and Multicultural Affairs [1999] FCA 1350

MIGRATION - Migration Act 1958 (Cth) - applicant convicted in 1999 of offence under the s 83G of the Act as at 1993 – subsequent release on bail from imprisonment into immigration detention – immigration detention on the basis of being an unlawful non-citizen by the operation of s 243(2) of the current Act - amendments to the legislation and effect of such amendments – difference between and consequences of being deemed to be an illegal entrant and unlawful non-citizen - whether a person convicted of an offence under s 83G of the Act as at 1993 is thereby convicted of an offence for the purpose of s 243(2) of the Act in its current form.

STATUTORY INTERPRETATION – Migration Act 1958 (Cth) – competing constructions of consequences of conviction under provisions before and after amendments – circumstances where consequences of conviction are materially different in the statutory schemes - whether provisions before and after amendments confer discretionary or mandatory powers of detention and deportation. Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth)(current at 31 January 1994) ss 59, 60, 83G, 92 Migration Act 1958 (Cth) ss 189, 198, 243 Migration Reform Act 1992 (Cth) Migration Legislation Amendment Act 1994 (Cth)

SANJEEV DHINGRA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 987 of 1999 MOORE J 29 SEPTEMBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 987 of 1999

BETWEEN: SANJEEV DHINGRA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MOORE J

DATE OF ORDER: 29 SEPTEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The question: "Is a person convicted of an offence under s 83G of the Migration Act 1958 as at January 1993, thereby convicted of an offence for the purpose of s 243(2) of the Act as at July 1999?" be answered: No. 2. The question: "If the answer to question 1 is "yes", is such a person thereby an unlawful non-citizen for the purpose of the Act?" Unnecessary to answer. 3. The question: "Has the applicant been otherwise illegally detained?" Inappropriate to answer. 4. The proceeding be adjourned to a date to be fixed being a date after any further consideration of bail conditions by the Supreme Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.