A Malaysian man who has lived, worked and paid tax in Australia for more than 43 years has been refused an “absorbed person visa” in a decision the Federal Court acknowledged was unfair.
Nagayah Mariappan came to Australia in 1981, aged 20, settling on the Sunshine Coast then Sydney.
When he recently discovered his uncertain visa status, Mr Mariappan applied for a declaration that he held an “absorbed person visa” within the meaning of Section 34 of the Migration Act 1958 (Cth).
In a judgment delivered last Tuesday, Justice O’Callaghan said the visa decision rested on whether Mr Mariappan had “ceased to be an immigrant” by 2 April 1984 within the meaning of s 34(2)(b) of the Act.
He admitted the result was unfair but that he was bound to follow R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168, which was authority for the proposition that a “prohibited immigrant” cannot be absorbed into the community, and therefore, cannot have “ceased to be an immigrant”.
He described how over more than four decades, Mr Mariappan did not leave Australia, worked continuously, paid income tax including the Medicare levy, accumulated almost half a million dollars in superannuation, was a member of various community clubs, and committed no criminal offences.
The applicant had also adopted an Australian nickname, and a new substantive name of Thomas Selveraj, ceasing the use of his birth name, he said.
“This court has previously observed, in applying the ratio in Forbes, that the result may be seen to work an unfairness,” Justice O’Callaghan said.
“In this case, I was told by counsel that the problem only came to light when some (unspecified) need for Mr Mariappan to ‘regularise’ his status arose a little time ago.”
Justice O’Callaghan said Mr Mariappan currently held a Bridging Visa E entitling him to remain in Australia, but not work.
The visa was granted on 16 August 2024 and would expire on 15 November 2024, when Mr Mariappan could apply for a new bridging visa.
“Mr Mariappan has led an apparently blameless life here, he has paid his taxes and the like, and he has not once left the shores of this country since his arrival as a twenty-year-old man, more than 43 years ago,” Justice O’Callaghan said.
“He has family here, a superannuation fund, and the Minister (for Immigration, Citizenship and Multicultural Affairs) accepts that he has treated Australia as his home since his arrival.
“So although the result is undoubtedly unfair to Mr Mariappan, as I have explained, and as his counsel at the hearing recognised, I am bound to follow the ratio in Forbes and to dismiss the proceeding.”
Mr Mariappan was ordered to pay the Minister’s court costs.
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