Opinion Number. 1796

Subject

IMMIGRATIONWHETHER HOLDER OF A LANDING PERMIT MAY BE PREVENTED FROM LANDING IN AUSTRALIA: DURATION OF A LANDING PERMIT: POWER TO CANCEL A LANDING PERMIT: WHETHER DICTATION TEST MAY BE GIVEN TO HOLDER OF A LANDING PERMIT

Key Legislation

ACTS INTERPRETATION ACT 1901 s 33(3): IMMIGRATION ACT 1901 s 3: IMMIGRATION REGULATIONS reg 5

Date
Client
The Secretary, Department of Immigration

I refer to your memoranda dated 20th and 21st March, 1947, in regard to the action that may be taken under the Immigration Act 1901–1940 to prevent the abovenamed1 landing in the Commonwealth.

(2)  The facts are set out in your memorandum although it is understood that further information discloses that he is described as an Austrian in his passport and not as a German national.

(3)  The questions of law appear to be—

Whether the landing permit issued in respect of Lerch may be cancelled by the Minister before Lerch does land in Australia.

Whether a person who holds a landing permit may nevertheless be subjected to a dictation test under paragraph (a) of section 3.

Dictation Test before landing

(4)  Under paragraph (a) of section 3 of the Immigration Act a person who fails to pass the dictation test is a prohibited immigrant. Paragraph (a), and each of the other paragraphs in section 3, are in my view independent grounds of disqualification. There is nothing in the section which would prevent the dictation test being applied to Lerch although he is the holder of a landing permit. Indeed, regulation 5(3) itself of the Immigration Regulations, under which the landing permit is issued, expressly states that the permission to enter the Commonwealth is ‘subject to the Act’ and the Regulations and conditions specified in the permit.

(5)  It is noticed that Form 9 has already been served on the Master of the vessel to prevent Lerch from landing. This step was probably premature and the form should, I suggest, be again served on the Master in the event of Lerch failing to pass the test.

Cancellation of Landing Permit

(6)  Under section 3(ge) of the Immigration Act the immigration into the Commonwealth of any alien is prohibited if the alien, on demand by an Officer, fails to satisfy the officer—

(a)  That he is the holder of a landing permit, issued by or on behalf of the Minister, authorizing the admission of the holder into Australia, and that he is able to comply with the conditions specified therein; or

(b)  That his admission into Australia has otherwise been authorized by or on behalf of the Minister.

(7)  The issue of landing permits is regulated by regulation 5 of the Immigration Regulations. This regulation reads as follows:

5. (1)  Any officer thereto authorized in writing by the Minister may issue a landing permit to any person whose landing in the Commonwealth has been authorized by or on behalf of the Minister.

(2)  A landing permit shall remain in force for such period, not exceeding three years, as is specified therein, and may be extended from time to time.

(3)  During the currency of a landing permit the holder thereof may, on production of the permit, and subject to the Act and these Regulations and the conditions specified in the permit, be permitted to enter the Commonwealth.

(8)  Statutory authority for the cancellation in certain circumstances of an instrument such as a landing permit is to be found in section 33(3) of the Acts Interpretation Act 1901–1941. This sub-section reads:

(3)  Where an Act confers a power to make, grant, or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

(9)  There does not appear to be any contrary intention in the Act, but the wording of sub-regulation (2) of regulation 5 is so positive as to the duration of a permit that I think it may be read as expressing a ‘contrary intention’ within the meaning of the Acts Interpretation Act. The existence of a power to cancel the permit is therefore to some extent doubtful. In view of my answer to the first question however, this point may have no practical importance in the present matter. But for future cases it may be as well to make the Regulations quite explicit on this point.

[Vol. 37, p. 370]

1 The original opinion heading refers to Mr Egon Karl Lerch.