R v Green; Ex parte Cheung Cheuk To

When he reached Australia, the applicant apparently surrendered this document, and, on the same day, applied for a certificate of exemption under s. 4 (4) of the Immigration Act 1901-1949 Cth (the Immigration Act). Such a certificate was issued to him on 13th February 1958 with a currency of thirty-six months from 11th January 1958. This certificate had not been cancelled at the commencement of the Migration Act, its term not expiring till 11th January 1961. He did not apply for a further temporary entry permit under the Migration Act until 16th June 1961, but did so on that date. Upon this application, a temporary entry permit was granted to him on 25th July 1961 with currency until 11th January 1962.

On 27th February 1962 the applicant applied for a further temporary entry permit for an unspecified number of months to commence on the day of his application. Between this date and the end of November 1962, he corresponded with the Commonwealth Migration Officer for Victoria and interviewed an officer of the Department of Immigration in an endeavour to persuade the Department to grant him a further temporary entry permit for a relatively short period of time whilst he prepared himself to return to Hong Kong.

The applicant had not been successful in his studies at the Royal Melbourne Technical College, for which purpose he had been given temporary entry to Australia, having failed in both the years 1959 and 1960. After these failures he commenced a different course of study with the Marconi School of Wireless at which his attendance was reported to be unsatisfactory. Consequently, he was warned that the question of his remaining in Australia would be reviewed at the end of 1961 in the light of his examination results for that year. The applicant did not continue to attend the Marconi School of Wireless as a full time student but in September sat for a second class commercial operator's certificate of proficiency. He failed in that examination. He appeared to have little prospect of being more successful in the future, and the decision of the Department not to grant him a further temporary entry permit seems to have been based on his poor academic record and his apparent lack of prospects.

The applicant had married, early in January 1962, a Chinese born in Shanghai, and, by this union, he had a daughter. However, his wife left him and returned to Hong Kong, leaving the child with a married couple near Sydney, New South Wales.

Having been refused any further temporary entry permit, the applicant was required by the Department to leave Australia before 31st December 1962. He did not do so, and obtained employment with various employers, including for a time the Postmaster-General's Department. Nor did he maintain contact with the Department of Immigration or its officers, so that for a considerable period his whereabouts were unknown to the Department of Immigration. However, in the first quarter of 1965, he was located by officers of that Department. On 3rd April 1965 the Minister made an order under s. 18 of the Migration Act for his deportation. He was arrested on 13th April 1965, but the arresting officer failed to comply with the provisions of s. 39 of the Migration Act in that he did not forthwith upon the arrest inform the applicant of the reason therefor. The applicant was taken by the arresting officer to the Victorian office of the Department of Immigration where he was informed that an order for his deportation had been made on 3rd April 1965, and he was given a copy of that order. A "custody warrant" addressed to the respondent Green, designated by his office, was then signed by an officer of the Department of Immigration pursuant to powers given by s. 39 (6) of the Migration Act. The applicant was placed in the custody of the respondent Green under this warrant, and was in that custody at the time of the issue of the order nisi for habeas corpus. It might be observed that before he was placed in the custody of the respondent Green he had been informed of the nature and content of the order of deportation and had been afforded an opportunity, of which he availed himself, to communicate with his legal advisers.

The applicant makes three principal submissions in support of his application to make absolute this order nisi. First, he says that he was not at any relevant time the holder of an entry permit within the meaning of the Migration Act, and that therefore the foundation for making the deportation order under s. 18 was lacking. The basis of this argument is that at the date of the commencement of the Migration Act the applicant was not a person in respect of whom a certificate of exemption was in force under the Immigration Act so as to attract the operation of s. 4 (4) (a) of the Migration Act. The applicant says that the certificate of exemption in fact issued to him was not lawfully issued and was wholly inoperative because at the time of its issue he was not a prohibited immigrant or an immigrant who might be required to pass a dictation test: see s. 4 (1) of the Immigration Act. He seeks to make this proposition good by asserting that he entered Australia lawfully with the authority of the Minister for Immigration given to him otherwise than by way of a landing permit or a certificate of exemption. This authority, he says, was contained in the document issued to him in Hong Kong. He claims that this authority, which he says was not given under the Immigration Act or any power conferred by it, was effective to exempt him from the dictation test. It is conceded by the applicant's counsel that, if the applicant was an immigrant to whom the dictation test might properly have been administered at the date of the issue of the certificate of exemption, his first submission must fail.

It is quite clear from the terms of the document given to the applicant in Hong Kong that it was given by the Minister in connexion with the exercise of his powers under the Immigration Act and not otherwise. It is also clear that the document was not itself a certificate of exemption nor did it purport to exempt the applicant from the provisions of the Immigration Act. It is apparent that it was merely a means of informing both the Australian authorities in Hong Kong and the applicant that a certificate of exemption would be issued to him if he landed in Australia within the period during which the document purported to remain valid. The document appears to have its origin in the practical exigencies of the movement of persons into Australia for temporary residence. Its purpose, no doubt, was to enable a visa to be granted to the applicant as a prospective temporary immigrant and to enable him to land in Australia if he arrived within the period of its currency. But except that it would enable him to land, as distinct from remain, in Australia, it had no relevant legal effect.

In any case it is undeniable that neither the Crown nor a Minister has any power or authority except by means of s. 4 of the Immigration Act to exempt any person from the provisions of that Act.

In our opinion, on the applicant's arrival in Australia, he was an immigrant and liable to be required to pass the dictation test. There is no substance in the argument that the document he received in Hong Kong exempted him from having to pass this test if he was required by an officer to do so. Accordingly, the issue to him of the certificate of exemption, for which he applied on his arrival, was both lawful and effective. By the terms of the Migration Act, s. 4 (4), and the subsequent issue of the temporary entry permit to him, he was a prohibited immigrant within the meaning of s. 7 (3) and s. 18 of the Migration Act at the date of the expiry of this permit.

Second, the applicant says that ss. 6 (5), 6 (6) and s. 7 of the Migration Act, when read with the definition of immigrant in s. 5, are invalid: first, because they purport to authorize the grant of temporary entry permits, carrying the consequences of s. 7 (3), to people who have ceased to be immigrants because they have become absorbed into the Australian community; and, second, because they purport to authorize the grant of successive temporary entry permits over an indefinite period of time to persons who enter Australia under a temporary entry permit.

The first of these reasons is readily disposed of by reference to the precise terms in which "immigrant" is defined in s. 5. Contrary to the applicant's submission, it does not turn persons who are not immigrants into immigrants for the purposes of the Act; it does no more than include as immigrants those who enter or have entered Australia with the intention of staying only temporarily in the country.

The second reason was disposed of in the decisions of this Court in O'Keefe v. Calwell [1] and Koon Wing Lau v. Calwell [2] . The submission is based upon the fallacious view that the Commonwealth cannot impose such conditions upon entry into Australia for temporary residence as will prevent the immigrant becoming a member of the Australian community so long as he is in Australia under those conditions. In our opinion, the sections impugned by the applicant are constitutionally valid.

1. (1949) 77 C.L.R. 261. 2. (1949) 80 C.L.R. 533.

Third, the applicant says that his detention is unlawful because the arresting officers did not fulfil the terms of s. 39 (2). It is sufficient answer to this submission to say that, even if the arrest was unlawful for that reason, the detention under the custody warrant pending deportation under the order of deportation is not so connected with the illegality of the arrest as to make the custody unlawful. In our opinion, the applicant's third submission is untenable.

Before disposing of the matter, however, we desire to say something as to the procedure adopted in the Supreme Court in this case.

It appeared at an early stage of the hearing of this application in the Supreme Court of Victoria that the constitutional validity of a Commonwealth law referable to one of the paragraphs of s. 51 of the Constitution was challenged. At that moment a question as to the constitutional limits inter se arose; and at that moment the Supreme Court lost all jurisdiction to proceed any further with, or to decide any question in, the matter. It thereupon became the duty of the Supreme Court to proceed no further and of the appropriate officer of that Court forthwith to transmit the proceedings and documents filed of record in the matter to the Registry of this Court in Victoria.

In Lansell v. Lansell [1] Kitto J. called attention to the imperative provisions of s. 40A of the Judiciary Act 1903-1960 and to the purposes they are designed to achieve. We respectfully agree with and endorse what his Honour there said, and emphasize the fundamental importance of strict observance of the terms of s. 40A.

In this matter the Supreme Court, invited by counsel so to do, proceeded to consider submissions other than those as to constitutional validity, presumably to determine whether one of them could be accepted and the application for that reason granted. But once the inter se question arose, as clearly it did, the Supreme Court could neither grant nor dismiss the application on any ground; it was without any jurisdiction in the matter.

Whilst it may at some earlier time have been thought that a Supreme Court ought to proceed to dispose of as much of a matter as does not involve the decision of an inter se point before sending the cause to this Court, we are clearly of opinion that the proper view of s. 40A is that so soon as the inter se question arises, whether by pleading, by submission, or by the Court's own perception of it, the Supreme Court loses jurisdiction to hear the matter any further or to decide any point involved in it. Section 40A automatically, and without any order of the Supreme Court or of this Court, removes the matter to this Court.

We would like to add that upon the physical removal of the record into this Court, which should be done expeditiously, the matter will be listed for hearing without any need for it to be set down. A party who raises an inter se point in a Supreme Court must be prepared to argue it in this Court at what may prove, according to the state of this Court's business, to be short notice. The requisite number of copies of the record to enable this Court to hear the matter will therefore need to be prepared and lodged with the appropriate Registry of this Court with promptitude.

The Court is of opinion that the order nisi should be discharged with costs.