Case: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370
Outcome: cited
Finally, it was recognised at the time of the 1992 legislation that there was a small number of "absorbed persons" who were lawfully in Australia as permanent residents despite not holding entry permits. In the Migration Legislation Amendment Act 1994 provision was made for a special class of permanent visa for such persons to be known as "absorbed person visas": see Migration Legislation Amendment Bill 1994, Explanatory Memorandum, paras 22-27. I would note in passing that, because of her departure from Australia in 1973, Mrs Manatiy rendered herself ineligible for such a visa: see the Migration Act 1958 , s 23 (now 34 ); although British subjects who entered Australia prior to 1958 and who remained here thereafter could qualify for that visa. Apparently Mrs Manatiy's mother holds such a visa. The point of present emphasis, though, is that the 1992 and 1994 legislation made possession of a valid visa the sole criterion for determining the lawful status of a non-citizen within Australia: see Crock, Immigration and Refugee Law in Australia , Federation Press 1998, 52; on absorbed persons visas see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370 at [12] - [22] . 25 The respondent Minister has objected to the applicant seeking relief in this Court in respect of a claim which was not made to the Tribunal and which was disavowed by her solicitor. It is further contended that even if the case now sought to be put had been presented to the Tribunal it could not have succeeded. Mrs Manatiy did not meet the requirements of subpara 823.212(4)(e) in any event. In these circumstances it is said, even accepting that a common mistake was made by the Tribunal and Mrs Manatiy in relation to the applicable definition of "entry permit", it would nonetheless be futile to remit the matter to the Tribunal. 26 Mr Ower for Mrs Manatiy in contrast has submitted that the case he now seeks to put concerning an entry permit clearly arose from the materials before the Tribunal and the mistake it shared with Mrs Manatiy's solicitor was the cause of its not dealing with it. 28 The simple and direct answer to the present application is that when Mrs Manatiy entered Australia in 1956 and while she remained in Australia until 1973, she did so in virtue of a legal regime which did not require her to have permission so to enter or to reside in Australia. As a British subject, proof of which was provided in her father's passport, she had a right to enter Australia. While British subjects seeking to enter Australia after the coming into force of the Migration Act were required to obtain an entry permit permitting them to enter and remain in Australia, Mrs Manatiy's continued presence in Australia from that time was unaffected by this legislative change. Her right to remain in Australia existed in virtue of the lawful rights she had when she entered Australia in 1956. It was not abrogated by the Act. Nor did the Act abrogate any permission she had to enter Australia. Her original entry was as of right, none of the prohibitions of s 3(1) of the Immigration Act having application to her. Until her departure in 1973 she belonged to a class of persons lawfully in Australia who stood outside the entry permit regime for so long as they continued to remain in Australia. It was only when the universal system of visas for non-citizens was instituted in the 1992-1994 reforms that the existence of this class itself required address: see Nystrom at [14]-[16]. The principal response, as I have noted, was to be found in the deeming provision of s 23 (now s 34) of the Migration Act which effected the grant (subject to limitations) of absorbed person visas. One of its applications was to members of the class I have noted above who satisfied the requirements of s 23: on s 34 see Nystrom at [18]-[22]. 29 Mrs Manatiy's entry into Australia in 1956 and her remaining in Australia until 1973 were not in virtue of any permission given by the Commonwealth under either the Immigration Act or the Migration Act . In consequence, she could never "cease to hold an entry permit ... before turning 18" for the purposes of subpara 832.212(4)(e). I accept the Minister's submission in this respect as also the submission that it would be futile to remit the matter to the Tribunal because of the Tribunal's mistake as to the proper meaning to be ascribed "entry permit" in that subpara. The actual result would remain the same. 30 In reaching this conclusion I have implicitly rejected the case put by the applicant. Though it has shifted somewhat in the course of written and oral submissions, it is premised on the agreed proposition that the preposition "or" in the operative (1989) definition of "entry permit", i.e. "permission to enter or remain in Australia" is to be read disjunctively. While I agree with this premise as far as it goes, it does not in my view capture the full scope and burden of the 1989 definition. Considered in the context of the entry permit system instituted in the 1958 Act, the definition had to accommodate itself to multiple possibilities. I simply instance (a) permissions to enter for a purpose but not to remain; (b) permissions to enter and to remain; and (c) permissions to remain, the non-citizen being already in Australia. To be added to these were those permissions which facilitated, as well, re-entry into Australia. A consequence of this, in my view, is that the preposition "or" in the 1989 definition on its proper construction is to be read as "and/or", i.e. conjunctively and disjunctively to accommodate the above possibilities. Thus a person who has permission to enter and to remain in Australia has an entry permit, not two such permits. I would note that such was made explicit in the original s 6(3) of the 1958 Act, as it is currently (in relation to visas) in the present s 29 of the Migration Act .