Case: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 228 CLR 566
Outcome: cited
As noted earlier, the applicant came to have his transitional (permanent) visa by operation of reg 4 (1) of the Transitional Provisions Regulations, which provided: Subject to regulation 5, [which is not relevant in these proceedings] if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia. The explanatory statement to the Transitional Provisions Regulations stated that reg 4 was "designed to ensure that, from 1 September 1994, all visas and entry permits held immediately before that date [were] converted into one of two transitional visa classes by operation of law". The validity of reg 4(1) of the Transitional Provisions Regulations was upheld by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 228 CLR 566 at [23] [28]. 30 The Transitional Provisions Regulations were made pursuant to s 40 and s 42 of the 1992 Reform Act (see the discussion in Nystrom at [26]). Relevantly, s 40(5) and s 40(6), provided: (5) The regulations may provide that, from 1 September 1994, visas or permits in a specified Principal Act class and held by specified persons immediately before that date are to continue in effect as visas in a specified amended Act class. (6) The regulations may provide that, from 1 September 1994, specified persons are to be taken to have been granted visas in a specified amended Act class. Paragraph 42 of the explanatory memorandum to the 1992 Reform Bill provides an explanation as to the anticipated effect of s 40(5) and s 40(6): The clause [i.e. the relevant clause of the Migration Reform Bill 1992 which introduced proposed s 40(5) and s 40(6)] also provides that regulations may continue in force visas or entry permits of specified classes which were held immediately before the commencement of the Reform Bill provisions dealing with visas. Related to this provision, the regulations may also deem specified persons to be taken to have been granted visas in a specified class created after the commencement of the Reform Bill provisions dealing with visas. 31 The import of s 40(5) and s 40(6) appears to be that the regulations made pursuant to those provisions may differentiate between visas or permits that are deemed to "continue in effect" as at 1 September 1994, and visas that have been deemed to have been "granted" to a person as at 1 September 1994. Indeed, and in contradistinction to reg 4.01, reg 9 of the Transitional Provisions Regulations provides that the holders of particular types of visas are deemed to have been granted a transitional (permanent) visa on 1 September 1994. As reg 9 states: A non-citizen who, immediately before 1 September 1994, held an old visa of the kind known as: (a) an Authority to Return; or (b) a Return Endorsement; is taken, on 1 September 1994, to have been granted a transitional (permanent) visa permitting the holder: (c) to travel to and enter Australia within 3 years after each departure from Australia; and (d) to remain indefinitely in Australia. 32 An important element in the applicant's case was that the Minister's power to cancel under the then s 180A (now s 501) of the Principal Act was restricted to visas and entry permits that had been "granted" to persons (and not acquired by operation of law) and this manifested a deliberate choice. This proposition is said to be apparent from the temporal proximity between the enactment of the Offences and Undesirable Persons Act and the enactment of the 1992 Reform Act, which as noted earlier, created a distinction between visas that are taken to have been granted and visas that are deemed to continue in effect.