Opinion Number. 1891

Subject

IMMIGRATION FORM OF APPROVAL GRANTING PERMANENT RESIDENCE: GRANT, EXTENSION, EXPIRATION OR CANCELLATION OF CERTIFICATE OF EXEMPTION UNDER IMMIGRATION ACT 1901: ABSORPTION OF IMMIGRANT INTO AUSTRALIAN COMMUNITY: POWER TO ORDER DEPORTATION OF PERSON UPON EXPIRATION OR CANCELLATION OF CERTIFICATE OF EXEMPTION: MEANING OF ‘UPON’: MEANING OF ‘AFTER’: EFFECT OF DEPARTMENTAL FAILURE TO ACT AFTER EXPIRATION OF A CERTIFICATE OF EXEMPTION: DEPARTMENTAL PRACTICE WHERE CERTIFICATE OF EXEMPTION EXPIRES AND IMMIGRANT IS TO BE PERMITTED TO REMAIN IN AUSTRALIA

Key Legislation

ALIENS DEPORTATION ACT 1948: IMMIGRATION ACT 1901 ss 3, 4, 5(2), 8, 8A, 8AA, 8AB: NATIONALITY AND CITIZENSHIP ACT 1948 s 25(6)

Date
Client
The Secretary, Department of Immigration

I refer to your memorandum dated 27th June, 1949, seeking advice as to the form of approval granting permanent residence to persons admitted to Australia under exemption from the provisions of the Immigration Act 1901–1949.

(2)  An immigrant who is prohibited from entering the Commonwealth by section 3, or who may be required to pass the dictation test (s. 3(a), s. 5(2)) may be granted a certificate of exemption authorizing him to enter or remain in the Commonwealth, and such person is not, while the certificate is in force, subject to any of the provisions of the Act restricting entry into, or stay in the Commonwealth (s. 4(1)).

(3)  The certificate may be extended from time to time (s. 4(2)). While the original certificate, or an extension thereof, is in force, the immigrant is not subject to the provisions of the Act restricting entry into or stay in Australia, (s. 4(1)), but cannot become a member of the Australian community (O’Keefe v. Calwell, (1949) 77 C.L.R. 261, at p. 279).

(4)  Upon the expiration or cancellation of a certificate, the Minister may declare the person named in the certificate to be a prohibited immigrant, and that person may thereupon be deported from the Commonwealth in pursuance of an order of the Minister (s. 4(4)).

(5)  The word ‘upon’ must be interpreted as ‘after’ (Ex parte Lesiputty; Re Murphy, (1947) 47 S.R. (N.S.W.) 433 at p. 436; Koon Wing Lau v. Calwell, (1950) A.L.R. 97, at pp. 108, 115, 117, 128). Three Justices of the High Court, Rich, Dixon and Williams, JJ. in the latter case, thought that ‘after’ does not mean an indefinite time after, and the declaration must be made either immediately, or within a reasonable time after, the expiration or cancellation of the certificate, (Koon Wing Lau v. Calwell, supra, at pp. 115, 117, 128, sed contra at pp. 108–110). What is a reasonable time will depend on the facts, and it does not mean that by successfully evading the authorities for a long period of time, an immigrant can escape from the operation of sub-section (4). (Per Dixon J., in Koon Wing Lau v. Calwell, supra, at p. 117).

(6)  If the Minister fails to take action under sub-section (4) within a reasonable time after cancellation or expiration, the immigrant cannot be deported under section 4.

(7)  But section 4 is not the only provision dealing with the deportation of immigrants: it is an independent means of dealing with certain ones (those to whom a certificate is issued) and is unaffected by, and presumably does not affect, the other sections of the Act (Ex parte Lesiputty; Re Murphy, supra).

(8)  The effect of a certificate of exemption is to exempt the immigrant from the provisions of the Act as to entry into and stay in, Australia, while the certificate is in force (s. 4(1)) but it seems clear that, once the certificate ceases to be in force, the provisions of the Act as to entry and stay would operate, at least for a time.

(9)  One of the matters left undecided by the cases is whether, and, if so, at what stage, an immigrant becomes absorbed into the Australian community, and passes out of the reach of the immigration power.

(10)  If an immigrant can so pass out of the immigration power, time would commence to run, so to speak, in the case of an immigrant to whom a certificate of exemption had been granted, when that certificate expired, or, at any rate, at the expiration of a ‘reasonable’ time thereafter.

(11)  I am inclined to the view that an immigrant would not, by failure of the Minister to declare him a prohibited immigrant on the expiration of the certificate of exemption, be deemed to be absorbed before the 5 year period referred to in sections 5(2) and 8A had expired, and that an alien immigrant never passes out of the ambit of section 8. However, for purposes of this opinion, I have assumed that, if no action is taken against the immigrant by the Commonwealth within a reasonable time, i.e., he stays with the tacit consent of the Commonwealth, he may cease to be subject to the Act. This may be important in relation to the powers conferred not only by the sections mentioned above but also by sections 8AA and 8AB.

(12)  There is no statutory authority for, or requirement of, the issue of a letter of approval for permanent residence as suggested by you; there is a long-standing practice of your Department under which approvals of this kind are granted to persons as to whom there is no present objection to their remaining permanently in Australia. A reference to this practice is contained in section 25(6) of the Nationality and Citizenship Act 1948. It appears that the acquisition of Australian citizenship does not, of itself, remove an immigrant from the scope of the Act (Per Latham, C.J. in O’Keefe’s Case, supra, at p. 271).

(13)  If the Department were to do nothing on the expiration of a certificate of exemption, it may be, as stated above and it is assumed that, on the expiration of a ‘reasonable’ period, the immigrant concerned would cease to be liable to the provisions of the Act which are not applicable to citizens as a whole.

(14)  Accordingly, if the Department wishes to declare such immigrant, and deport him, it should do so as soon as possible after the expiration of the certificate.

(15)  Further, if it desires to keep him subject to an unconditional liability to be deported, the only safe course is to extend his certificate of exemption from time to time, but before it has expired, in each case. (See per Dixon J., in Koon Wing Lau’s Case, supra, at p. 117). It appears to me that control over persons, admitted to the Commonwealth under a certificate of exemption, would be best maintained by the extension of the certificate, for it appears that, whilst a valid exemption certificate is in force, the person named in the certificate cannot become absorbed in the Australian community (see per Latham, C.J., in O’Keefe’s Case, supra, at p. 276). There is no limitation in the Act on the period of time for which a certificate under section 4 may be granted.

(16)  On the other hand, if, on the expiration of a certificate of exemption, it is definitely decided by the Department not to declare the immigrant, but to permit him to remain, and become absorbed into the community, if he so wishes, no action by the Department is called for, but it would be a kindness to the immigrant to so inform him, in appropriate terms.

(17)  It seems to me that, whatever the true legal position may be, it would be inconsistent conduct on the part of the Department to inform an immigrant that he is free to reside in Australia indefinitely, and is no longer regarded as a temporary resident, and subsequently to endeavour to apply section 5(2) to him. At the same time, I think it is proper for the Department to regard the immigrant as still subject to sections 8, 8A, 8AA and 8AB (if he otherwise comes within these sections) and the Aliens Deportation Act 1948.

(18)  I suggest that, where, on the expiration of a certificate of exemption, the Department sees no objection to the immigrant remaining in Australia, with a view to absorption into the community, but desires to preserve the application of sections 8, 8A, 8AA and 8AB to him, it should write him a letter as follows:

I refer to your application for the removal of the limitation imposed under section 4 of the Immigration Act 1901–1949 on your stay in Australia.

You are informed that, upon the expiration of your current certificate of exemption under section 4 of the Act, it is not proposed to renew the certificate, or to take action under that section to have you declared by the Minister as a prohibited immigrant.

The result will thereupon be that, subject to the operation of the other provisions of the Act, the Aliens Deportation Act 1948, and any other law of the Commonwealth in force from time to time, you will be permitted to remain in Australia indefinitely.

For your information, I set out hereunder the provisions of sections 5(2), 8, 8A, 8AA and 8AB of the Immigration Act, and section 5 of the Aliens Deportation Act, which apply in your case, and which can affect your right to remain in Australia permanently.

You should retain this letter as evidence that your residence in the Commonwealth is no longer regarded as subject to a certificate of exemption.

(Set out applicable sections).

(19)  This letter may not strengthen your Department’s legal position, but, at least, I cannot see that it prejudices that position: at the same time, it satisfies the Department’s moral obligation to inform the immigrant of his future position.

(20)  You will note that I have included section 5(2) in the draft letter among the sections to which the immigrant is expressed to remain liable. This is in accordance with the view expressed in paragraph 11 above. At the same time, my view as to what your administrative practice ought to be is contained in paragraph 17.

[Vol. 39, p. 198]