Cheaib Cheaib v Minister for Immigration & Multicultural Affairs [1996] FCA 952

CATCHWORDS IMMIGRATION - application for order of review of a decision to cancel a visa under s 128 of the Migration Act 1958 (Cth) - preliminary threshold question to be determined separately - whether the Minister has the power to cancel applicant's visa under s 128 - meaning of "entered" under subs 128(b) - Minister entitled to invoke s 128 where applicant has "entered" Australia but is presently outside Australia or has not "entered" or "re-entered" Australia - powers to cancel a visa under s 128 are not to be "limited or otherwise affected by" cancellation powers under ss 109 or 116 - no basis for the reading down of s 128. STATUTORY INTERPRETATION - Acts Interpretations Act 1901 (Cth) - permissible to look to provisions of Explanatory Memorandum where sections of an Act are unclear - analysis of Statute by anomaly not appropriate. Migration Act 1958 (Cth) ss 5, 30(1), 109, 116, 117, 118, 128, 481 and 486 Australian Citizenship Act 1948 (Cth) s 5A Lee v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 142, distinguished Ge v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 523, distinguished Minister for Immigration and Ethnic Affairs v Keenan (1993) 47 FCR 244, distinguished CHEAIB CHEAIB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS No NG 732 of 1996 Tamberlin J Sydney 1 November 1996

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 732 of 1996 GENERAL DIVISION ) BETWEEN: CHEAIB CHEAIB Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 1 NOVEMBER 1996 REASONS FOR JUDGMENT TAMBERLIN J: The Question By Amended Application for an Order of Review, under ss481 and 486 of the Migration Act 1958 (Cth) as amended ("the Act"), the applicant seeks an order that; "The respondent did not have power to make a decision to cancel the applicant's visa under section 128 of the Migration Act because on 3 May 1996, the date of the purported decision, the applicant was not a person to whom paragraph 128(b) applied".

Section 128 of the Act provides: "Subdivision F - Other procedure for cancelling visas under Subdivision D outside Australia Cancellation of visas of people outside Australia 128. If: (a) the Minister is satisfied that: (i) there is a ground for cancelling a visa under section 116; and (ii)it is appropriate to cancel in accordance with this Subdivision; and (b) the non-citizen has not entered Australia; the Minister may, without notice to the holder of the visa, cancel the visa." Other relevant provisions of the Act are: "116.(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: ..... (d) if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or .... 117. (1) Subject to subsection (2), a visa was held by a non-citizen may be cancelled under section 116: (a) before the non-citizen enters Australia; or (b) when the non-citizen is in immigration clearance (see section 172); or (c) when the non-citizen leaves Australia; or

(d) while the non-citizen is in the migration zone. (2) A permanent visa cannot be cancelled under section 116 if the holder of the visa: (a) is in the migration zone; and (b) was immigration cleared on last entering Australia. 118. The powers to cancel a visa under: (a) section 109 (incorrect information); or (b) section 116 (general power to cancel); or (c) section 128 (when holder outside Australia); or (d) section 134 (cancellation of business visas); or (e) section 140 (consequential cancellation of other visas); or (f) section 501 (special power to refuse or cancel); are not limited, or otherwise affected, by each other. By s5 of the Act "entered" includes "re-entered". The question raised by the applicant is a threshold one. If successful it means that the Minister did not have power to cancel the applicant's visa. I have decided that it is appropriate to hear argument on this specific question as a preliminary discrete matter. In brief, the applicant's argument is that on a previous occasion he lawfully "entered" Australia within the meaning of subs128(b) and therefore the Minister could not conclude that subs128(b) had been satisfied as that provision was limited to circumstances where the visa holder had never entered Australia. Accordingly, the cancellation was without power. This argument raises a question as to the correct interpretation of subs128(b) and in particular as to the meaning and effect of the word "entered". Background The applicant is a Lebanese national. He was sponsored to come to Australia by his ex-wife, whom he has since divorced. They were married in Beirut on 26 January 1994 and the marriage was registered on 26 February 1994. They lived together in Lebanon for some time. The applicant's wife then came to Australia ahead of the applicant. On 27 November 1994 the applicant arrived in Australia pursuant to a permanent visa (subclass 100 - Spouse) which entitled him to enter and remain in Australia. The applicant and his wife lived together in Australia after his arrival. However, three months later on 28 February 1995, the applicant and his wife separated. On 13 March 1996 they were divorced. On 13 March 1996 the applicant departed for Lebanon apparently to attempt to sell his house in Lebanon so that he could obtain funds to open a business in Australia. He was unable to sell the property whilst in Lebanon. The applicant's visa was cancelled by the Minister's delegate on 3 May 1996 pursuant to s128 and s116(1)(d) of the Act, on the basis that the marriage to his former wife was contrived for the purpose of gaining residence in Australia. The applicant arrived at Sydney airport on 4 September 1996. He was refused immigration clearance and told that his visa had been cancelled and that he could not enter Australia. He has since been in detention at the Immigration Detention Centre at Villawood, New South Wales. Submissions for the Applicant The substance of the applicant's submissions can be summarised as follows: 1. On 6 September 1994 the applicant was granted a permanent visa which reads: "GRANTED 06SEP94. MUST NOT ARRIVE AFTER O6SEP98. MULTIPLE TRAVEL. HOLDERS(S) PERMITTED TO REMAIN IN AUSTRALIA INDEFINITELY." Under authority of this visa the applicant entered Australia on 27 November 1994 and commenced to settle here. 2. Neither s128 nor par116(1)(d) authorised the Minister to make the decision to cancel the applicant's visa because, as at 3 May 1996, the applicant did not come within the description of a person who "has not entered Australia" (s128(b)). 3. The expression "has not entered Australia" is unambiguous and is not synonymous with terms such as "is overseas" or, "not in Australia" or, "is not in a migration zone". If the legislature intended the section to bear these meanings it would have expressly said so. 4. Under the Migration Regulations (reg1.03) the applicant is an "Australian permanent resident" being a non-citizen who is usually resident in Australia and who holds a permanent visa. Also under s5A of the Australian Citizenship Act 1948 (Cth), he is a "permanent resident", that is to say a person who was "present in Australia" after 1 September 1994 and who held a permanent visa. These provisions, it is said, recognise the significant difference between a person who has been granted a visa to travel to Australia for permanent residence, but has not yet used it, and a person who has used such a visa and commenced to settle here as part of the Australian community. 5. Subsection 30(1) of the Act defines a permanent visa to mean one which permits the holder to remain indefinitely. This permission to reside indefinitely does not operate until first entry, with the result that the applicant's visa did not have full effect as a permanent visa until after first entry. This is said to be the determining event which distinguishes the status of non-residents from that of residents. 6. A person who has settled in Australia as a permanent resident may suffer cancellation of the visa in certain circumstances provided for in the Act. For example, s109 provides for cancellation of such a visa where "incorrect information" was given or false documents were produced. Section 116 provides for cancellation in these and other circumstances. Cancellation under either of these sections must be preceded by statutory due process in the form of a warning notice to the holder of the visa that cancellation is being considered and providing the holder with the opportunity to respond before cancellation. After cancellation there is a right of appeal to an independent tribunal on the merits. 7. Section 109 of the Act is the appropriate source of power for cancellation of a visa of an Australian permanent resident. Section 116 may also apply. Both these provisions allow for a warning notice and independent merits review. 8. In contrast, it is pointed out, the power to cancel in s128 is summary. That is to say without notice. Also under s128, in further contrast to ss109 and 116, there is no right of independent review of the merits of the Minister's decision. There is only a right to have the Minister consider whether the cancellation should be revoked. The Minister's decision is, of course, subject to general judicial review. 9. The applicant submits that there is an implied limitation in s128 to the effect that the Minister only has a summary power to cancel a visa if the visa has not yet been used by the holder to enter Australia. Once entry into Australia is obtained, under the permanent resident visa held by the applicant, the Minister ceases to have power to cancel under s128. If this were not so, there could be anomalies, whereby the Minister might, for example, summarily cancel the visa of a settled Australian permanent resident whenever he or she ventured out of Australia for even a very short period of time. 10. The applicant refers to statements by Einfeld J in Lee v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 142 at 149 and Sackville J in Ge v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 523 at 529 in relation to different parts and provisions of the Act, as it was enacted at earlier times, to support the argument that in some circumstances a person out of Australia can be properly described as a person who has entered Australia. 11. Alternatively, by way of further submission, it is said that even if s128 does confer power then, as matter of construction, it should be read down by reference to the principle stated in Minister for Immigration and Ethnic Affairs v Keenan (1993) 47 FCR 244, on the basis that a general power to cancel, which does not provide preliminary due process nor a merits review, should not apply where there is a more specific power, relevant to the applicant's circumstances, which provided for prior representations and subsequent independent review on the merits. Applicant's First Submission The decision of Einfeld J in Lee (supra) is distinguishable because it did not involve cancellation of a visa. It related to provisions in a legislative context quite different from the present case, at a time when the Act was in a substantially different form. The decision in Ge (supra) is also to be distinguished. As Sackville J acknowledged, in that case, each question of construction must depend on the particular statutory context in which the language appears. Ge was concerned with a provision that an entry permit could only be applied for and "granted after entry". In that case the applicant had previously entered Australia but was not allowed to re-enter. His Honour decided that his application for a special entry permit was made "after entry" because on a previous occasion there had been lawful entry into Australia and this was sufficient to satisfy the description "after entry". Again that case involved a very different matrix of statutory provisions from those enacted in ss116 through 140 of the Act relating to cancellation of visas. In addition, in neither of the above two cases was any reference made to any "Explanatory Memoranda" in relation to the provisions under examination. Present Case There are a number of difficulties with the applicant's first submission. The first difficulty is that the submission is grounded on particular considerations which apply to the class of visa in fact held by the applicant, namely a permanent visa. There is no basis, in the language, of s128, from which to draw inferences from the special features of a visa which permits the holder to remain in Australia indefinitely, as opposed to any other visa such as a tourist, visitor, student, or transit visa. The section in terms must be read so as to apply to every type of visa. The Act and Regulations provide for well over one hundred different types of visa ranging from "religious worker" to "working holiday" visas. See Butterworth's Migration Service, Vol 2 at 70,045-70,047. The focus of the applicant's submission is too narrow. The second difficulty is that the term "entered" is defined in s5 to include "re-entered". The effect of this, in my view, is that s128(b) should be read as: "the non-citizen has not entered or re-entered Australia." This reading makes literal sense. The Minister can cancel before entry or re-entry. The third difficulty is that par151 of the Explanatory Memorandum (although by no means a model of lucidity), strongly supports the submission that the section was intended to apply to non-citizens who have previously been in Australia but at the time of cancellation were outside Australia. The rationale for the absence of notice and the opportunity for preliminary submissions is expressed in par149 of the Explanatory Memorandum: ".. This Subdivision provides for cancellation of a visa without prior notice. It is intended to be used in circumstances where there is a risk that a visa holder would respond to a notice by travelling to Australia in the belief that it would be more difficult for the person's visa to be cancelled and the person removed." Paragraph 150 states that: "While there is no pre-cancellation notice, notification provisions will apply after the visa has been cancelled and there is an express power to revoke the cancellation if the former visa holder shows that the ground did not exist or there was a reason why the visa should not be cancelled." (Emphasis added)

Under s15AB of the Acts Interpretation Act 1901 (Cth) it is permissible to consider extrinsic material, in the interpretation of an Act, where a provision is ambiguous or obscure. In the present case, the diametrically opposed arguments of the parties about the meaning of the section indicate that the meaning is to some extent ambiguous or at least obscure. I therefore consider that it is permissible to look at the provisions of the Explanatory Memorandum. Although not transparently clear the Memorandum does support the construction contended for by the respondent. It is a document furnished to Parliament prior to enactment of the s128. The respondent referred to s118(c) which, when it mentions s128 also refers to the holder being "outside Australia". The respondent also directs attention to s119(1) which refers to "non-citizens outside Australia" in the context of s128. It is said that these oblique references support the conclusion that s128 is directed to circumstances where the holder is in fact "outside Australia" at the time of cancellation. Further reliance is placed on the heading to subdivision F, which includes s128, namely: "Other procedure for cancelling visas under Subdivision D outside Australia" While these references to "outside Australia", in the context of a reference to s128, are consistent with the respondent's submission, they do not preclude the interpretation advanced by the applicant because on the applicant's case, s128 can apply where the non-citizen is "outside Australia". For example, where the holder has never "entered" Australia under the visa. The interpretation urged by the applicant is not however in my view consistent with the language of the section when read in the light of the definition of "entered" in s5 of the Act. There is nothing in the context or otherwise to displace this application of the definition to s128(b). In relation to the arguments based on anomalies, the fact is that whichever interpretation of s128(b) is adopted, some anomalies will arise with respect to some specific visas, in some conceivable circumstances. However, analysis by anomaly is not appropriate in this case. Section 128 is not to be approached on the basis that the entitlement conferred by any one type or class of visa controls the interpretation of the section which applies to all visas each of which have their own special individual features. I am persuaded that the effect of the statutory definition of "entered" in the present case is to enable the Minister to invoke s128 in the circumstances where a non-citizen has either not entered or not re-entered Australia after being outside Australia. The Alternative Submission Minister for Immigration and Ethnic Affairs v Keenan (1993) 47 FCR 244, was a case concerning s55 of Act, as it then stood, whereby a non-citizen convicted in Australia of an offence could be deported by order of the Minister. The Minister also had power under s60 to deport an illegal entrant after considering certain prescribed matters and no other matters. The question arose because the potential deportee was not only a convicted criminal but was also an illegal entrant. The Court considered that there was no conflict between the sections because if a person were to be deported simply as an illegal entrant, the decision to deport could be taken under s60. On the other hand, where the criminal conviction was a material matter to be considered, the Full Court's view, was that the decision could and should be made under s55. By broad analogy, the applicant argues as a matter of interpretation, that in the present case s128 should be read down because of the procedural protections to the visa holder afforded under s116. These protections are specifically excluded where the cancellation is made under s128. However, s118(c) of the Act expressly provides that powers to cancel a visa under s128 are not "limited or otherwise affected by" cancellation powers under ss109 or 116. The word "affected" in ordinary usage would include "read down" or "limited by reference to".

Keenan's case (supra) is, of course, distinguishable from the present case which must be decided having regard to the structure and provisions of Subdivisions C through F inclusive of Division 3 of Part 2 of the Act which are concerned with visas for non-citizens. Finally, s128 expressly refers to s116 and then proceeds to confer a further power on the Minister which is not subject to the procedural provisions which affect s116. This is a conferral of an additional and independent power to cancel a visa without notice. It is subject to Ministerial review and revocation. The express reference to s116 in s128 is a further reason why it cannot be correct to say that the power in s128 is limited by the presence of s116 in the Act. In my view, s128 and the following provisions were designed to provide an independent general power for the Minister to cancel visas unconstrained by the presence of other cancellation powers provided under the Act, in circumstances where the visa holder is outside Australia at the time of cancellation. Subdivision F establishes a specific regulatory framework to implement this purpose and permits cancellation without prior notice. The subdivision provides its own procedural safeguards which are clearly narrower than those provided in other parts of the Act dealing with cancellation of visas.

Conclusion Accordingly, for the above reasons, my conclusion is that the applicant is a person who "has not entered Australia" within the meaning of s128(b) of the Act. I therefore consider that Ground 2 of the Amended Application for Order for Review has not been made out. I direct the parties to bring in Short Minutes to give effect to the above reasons and to deal with the further conduct of this matter and with costs. I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Tamberlin. Associate: Date: 1 November 1996 Solicitor for Applicant: r M Jones of Parish Patience Counsel for Respondent: Mr N Williams Solicitor for Respondent: Australian Government Solicitor Date of Hearing: 17 and 25 October 1996 Date Judgment Delivered: November 1996