R v Snedden; Ex parte Ng Chong Sun

High Court of Australia|1969-07-01|Before: Taylor J, Windeyer JJ

High Court of Australia Taylor J. Barwick C.J. McTiernan, Kitto, Menzies and Windeyer JJ. R v Snedden; Ex parte Ng Chong Sun [1969] HCA 20

ORDER Order absolute. Respondent to pay the costs of the prosecutor. Appeal allowed with costs. Order of Mr. Justice Taylor set aside and in lieu thereof order that the order nisi for habeas corpus be discharged with costs.

May 23 Taylor J. delivered the following written judgment: -

The prosecutor is of Chinese nationality and appears to have been either fifteen or sixteen years of age when, as a student, he entered Australia from Hong Kong on 10th August 1959. He was then equipped with a valid authority to enter the Commonwealth and, upon entering, a further entry permit was issued to him which authorized him to remain for a period of thirty days. Thereafter, on 22nd September 1959, a further temporary entry permit was issued to him which authorized him to remain in Australia until 10th August 1962. Later, on 9th October 1962, a further temporary permit authorizing him to remain until 10th August 1963 was issued to him.

No further permit was issued to him until 1968 but in the mean-time the prosecutor made applications for naturalization and for permission to reside permanently in Australia. In connexion with these applications he attended, on occasions, upon authorized officers of the Department of Immigration in Sydney and Brisbane, but his applications have been unsuccessful. However, on 3rd April 1968, in response to a letter of 28th March 1968, he called at the Commonwealth Migration Office in Sydney to see Mr. Kelly, a Commonwealth migration officer. There, apparently for a second time, he gave a good deal of information about himself and substantially filled in and signed what is called a "Family Composition Form". When he left he took with him a note in Mr. Kelly's handwriting of further information which was required. This was returned by mail with the required information a few days later and this document was also signed by the prosecutor. The next occasion upon which the prosecutor saw Kelly was on 12th July 1968, when a further temporary entry permit valid for one month only was issued to him. Kelly had telephoned the prosecutor at his place of employment at Penrith on the previous day when he told him that he would like him to call. When asked why he wanted to see the prosecutor Kelly said he wanted to see him about the issue of an entry permit. It is, I think, probable that he also said, as the prosecutor alleges, that he had an entry permit for the latter which was valid for one month and that the prosecutor objected and said that he wanted permanent residence. However the prosecutor said that he would come to see Kelly on the following day.

There is some dispute between the prosecutor and Kelly concerning what happened at the interview on the following day but I accept the version given by Kelly as substantially accurate. The substantial matter in dispute is whether at this interview, which lasted only a matter of minutes, the prosecutor with full knowledge of its character and contents signed a form (M.2) headed "Application for a further entry permit pursuant to section 7 (2)". There is, in my view, no doubt that he did on this occasion sign such a form and this form contained a formal request that he be granted a further entry permit for one month from 12th July, 1968. I do not accept the suggestion made by counsel for the prosecutor that the latter's signature may have been obtained to a blank M.2 form on 3rd April 1968, by Kelly for use on some future occasion or the prosecutor's evidence that the only document signed by him on 12th July 1968 was what he thought was a receipt for the further entry permit. In my view the evidence is clear that the only document signed by the prosecutor on 3rd April 1968 was the family composition form which he, himself, substantially filled in and that the only other document signed by him about that time was that by which further particulars were given and which was returned to the department by post. As far as the evidence of the prosecutor regarding the document which he signed on 12th July 1968 is concerned, it is apparent that no receipt was given for the further entry permit and it was not at that time the practice to obtain such receipts. Whether the prosecutor's recollection of what occurred is faulty or whether in his undoubted desire to remain in Australia he has consciously or unconsciously coloured his evidence concerning events which he thinks may prejudice this application I am unable to say; it is sufficient, however, to express the view that I prefer Mr. Kelly's evidence where they are in conflict.

Before coming to the events of 12th July 1968, it is desirable to refer to the relevant provisions of ss. 6 and 7 of the Migration Act. By sub-s. (1) of s. 6 an immigrant who enters Australia without a current valid entry permit becomes, upon entry, a prohibited immigrant. But an officer may at the request or with the consent of the immigrant grant an entry permit (sub-s. (2)) and it may be granted after he has entered Australia (sub-s. (5)). An entry permit that is intended to operate as a temporary entry permit is required to be expressed to authorize the person to whom it relates to remain in Australia for a specified period only (sub-s. (6)). By sub-s. (3) of s. 7 it is provided that upon the expiration or cancellation of a temporary entry permit, a person who is the holder of the permit becomes a prohibited immigrant unless a further entry permit applicable to him comes into force upon that expiration or cancellation. A further entry permit may, at the request of the holder, be granted to the holder either during the currency of an earlier entry permit or after its expiration or cancellation. Finally by sub-s. (4) of s. 7 a person who has become a prohibited immigrant by virtue of the last preceding sub-section ceases to be a prohibited immigrant at the expiration of a period of five years from the time at which he became a prohibited immigrant unless, at the expiration of that period, a deportation order in relation to him is in force. This sub-section is expressed to operate notwithstanding s. 10 of the Act which provides that a person who has become a prohibited immigrant ceases to be a prohibited immigrant if and when an entry permit or further entry permit is granted to him, and not otherwise. With these provisions in mind it is possible to say that the prosecutor was a prohibited immigrant (a) between 10th September 1959 and 22nd September 1959; (b) between 10th August 1962 and 9th October 1962; and (c) for a period of four years and eleven months between 10th August 1963 and 12th July 1968.

I make specific mention of these periods because of a submission on behalf of the prosecutor to which I shall later refer. However, putting this submission aside for the moment it was clear enough in July 1968 that if no further steps were taken by the Department the prosecutor would, during the following month, cease to be a prohibited immigrant and cease to be subject to s. 7 of the Act. It was with this in mind that Mr. Kelly, on 10th July 1968, sought instructions by teleprinter message from the Department in Canberra as to what action, if any, should be taken concerning him. Specifically he sought instructions concerning one Lui Chi Hin (No. 2) and the applicant (No. 3) asking "Do you require action of (on) Nos. 2 and3 - only one month before both pass outside scope of Act". He received a reply on the same day - "These men should be given further temporary entry permits valid for one month. Please advise details when issued". With these instructions in mind Kelly telephoned the prosecutor on 11th July 1968 and asked him to come and see him and this the prosecutor did the next day. In cross examination Kelly said that he did not regard the instructions which he had received as "do or die" instructions by which I understand him to mean that they did not require him to produce the desired result by any means whether fair or otherwise. Nevertheless, it was the wish of the Department that a further temporary entry permit valid for one month should be issued in order that upon its expiry the prosecutor would remain within the scope of s. 7 (5) and, indeed, for a further period of five years. Kelly, I have no doubt, was anxious to produce the desired result and, accordingly, he prepared an application form for a temporary entry permit for one month and substantially prepared a temporary entry permit itself in anticipation of the prosecutor's attendance. According to Kelly when the prosecutor arrived he presented the application to the prosecutor and said "This is an application for an entry permit for one month. Will you sign it?" The prosecutor asked why he could not have longer and Kelly said that he was not able to give him a longer period. To the prosecutor's inquiry "Can't I stay in Australia?" Kelly said "I am only able to issue a permit for one month". The interview was of short duration and, no doubt, this is merely a skeleton account of what was said. But however this may be there is not the slightest doubt that the prosecutor was at all times desirous of staying permanently in Australia and that Kelly was aware of this. Equally there is no doubt that the notion of a further entry permit for one month originated with the Department and not with the prosecutor. Also the purpose of the issue of the permit at this stage clearly appears though I doubt if it was at all clear to the prosecutor at the time for Kelly did not think it necessary that its effect should be explained to him. But even if this had been done it was, I think, unlikely that the prosecutor would have refused to sign the application; he had asked for permission to remain permanently, it was his hope that such permission would be granted and it was unlikely that he would risk offending the Department by refusing to sign a document to which obviously it was anxious to obtain his signature. All this must have been known to Mr. Kelly and when I asked myself whether in these circumstances it may fairly and properly be said that the temporary entry permit issued that day was granted at the request of the prosecutor I am satisfied that there must be a negative answer even though the application, in terms, purports to make the necessary request. At all times including the occasion of the interview the prosecutor consistently expressed his desire to stay in Australia permanently yet at Kelly's request he signed the application. Kelly, of course, knew that it was not the wish of the prosecutor to obtain an entry permit valid for a month only but, on the contrary, to obtain one enabling him to remain permanently. It is, of course, suggested that if the applicant had refused to sign the application he might have been required by Kelly to leave Australia within a specified time or that a deportation order might have been made before 12th August 1968. But there is no suggestion that Kelly intended to take steps under s. 7 (5) of the Act nor was there any suggestion that a deportation order was in contemplation or would be made in the immediate future. Rather, Kelly's instructions were to forestall the consequences that would have ensued in the ordinary course of events on 12th August 1968. It may be that the instructions given to Kelly were given in the belief that, although the 1959 Act made a request by the person concerned a condition precedent to the granting of a further temporary entry permit, this made little difference to the practice which had prevailed under the earlier legislation (as to which see Koon Wing Lau v. Calwell [1] ). At all events I am satisfied on the whole of the evidence that there was no real request by the prosecutor to found the issue of the temporary entry permit on 12th July 1968. This being so the prosecutor ceased to be a prohibited immigrant on 12th August 1968 and the deportation order was made without authority.

This is enough to dispose of the case but a number of other matters were discussed during the hearing of the case. The first of these is concerned with the circumstances in which the temporary entry permit was granted on the last-mentioned date. The case proceeded on the assumption - which I think is sound - that authority to grant permits from time to time to immigrants is vested in "officers" as defined by the Act. That is to say, there is by statute reposed in each officer a discretionary authority. The point is then made that Kelly issued a temporary entry permit for one month simply because his instructions from Canberra were to that effect and that its issue did not result from the exercise of any discretion on his part. It seems clear upon the evidence that this was so but I can see no reason why, where a power is vested in each officer of a Department, its exercise may not, as was the case here, properly be the product of joint action by two or more officers.

The further submission was made that the issue of the temporary entry permit was an abuse of the authority conferred by s. 6. It was said that the authority is one to be exercised for the benefit of the immigrant concerned and that where, as it was asserted was the case here, it was exercised for the benefit of the Department it was not validly exercised. I think it is sufficient answer to this submission to say that the authority will be properly exercised whenever a request by an immigrant is made for a further temporary entry permit and any examination of the Department's motives in granting such a permit will be irrelevant.

A further submission was made which arises out of the language of s. 7 (3) and (4) of the Act and the argument, first of all, asserts that a person becomes a prohibited immigrant under the earlier sub-section unless a further entry permit applicable to him comes into force upon the expiration of a permit granted at some earlier time. Then, the argument proceeds, if he becomes a prohibited immigrant in this manner, it is nothing to the point to say that upon the issue of a further temporary entry permit after the expiration of the earlier one he ceases thereupon, by virtue of s. 10, to be a prohibited immigrant. The condition for the operation of s. 7 (4) is expressed, it is said, merely by the words - "a person who has become a prohibited immigrant by virtue of the last preceding sub-section" and it was said that the prosecutor, having become a prohibited immigrant on 10th August 1962, was outside the scope of the Act in and after July 1968. I point out that he had become a prohibited immigrant for a short period as early as September 1959 so that if this argument be accepted he was outside the scope of s. 7 in September 1965. But the result of accepting the argument would be anomalous in the extreme, one result being produced where there is a gap between successive temporary entry permits and another where there is not. But there is sounder ground for rejecting the argument for sub-s. (4) deals with a person who has become a prohibited immigrant and provides that he shall cease to be a prohibited immigrant at the expiration of a period of five years from the time when he became a prohibited immigrant. Clearly enough the sub-section contemplates a continuous period of five years as a prohibited immigrant and I would reject the prosecutor's submission on this point.

In relation to the next matter which was discussed it is necessary to mention that in 1963 the prosecutor contracted a marriage with one, Joan Ann Bell, and thereafter he went to the Immigration Department and informed an officer that he was married and made application for permanent residence in Australia. A further application was made for permanent residence at a later stage and in April 1968 he admitted to Kelly that the marriage was merely one of convenience, that he had paid £1,000 to the other party to the marriage to induce her to marry him and that they had never lived together. Counsel for the prosecutor sought to elicit evidence that it was because of the circumstances in which this marriage was contracted or because of other events associated with the marriage that the Minister made the deportation order in December 1968. This being so it was asserted that the deportation order was, as counsel put it, penal or punitive and, therefore, unlawful; in the circumstances, it was said, the Minister should have acted, if he wished to act at all, under s. 14. I must confess that I find great difficulty in understanding this submission and I rejected questions asked for the purpose of eliciting evidence to establish the reason why the deportation order was made. That order was made under s. 18 and, on the assumption that the prosecutor had become a prohibited immigrant by virtue of s. 7, there is no doubt that the Minister had authority to make the order and, in my view, the evidence sought to be adduced was irrelevant.

Finally, a formal submission was made that the relevant provisions of s. 7 are beyond the powers of the Commonwealth Parliament. No argument was advanced in support of this submission and I content myself by saying that I am unable to see any grounds to justify the submission.

This is an appeal from an order making absolute an order nisi for the issue of a writ of habeas corpus directed to the Minister of State for Immigration in respect of an immigrant, by name Ng Chong Sun.

The respondent Ng Chong Sun, of Chinese nationality, entered Australia from Hong Kong under an entry permit on 10th August 1959. He came here to be a student. Temporary entry permits were issued to him authorizing him to remain in Australia until 10th August 1963. Between the expiry on 10th August 1963 of the last of these permits and 12th July 1968 he did not hold any entry permit under the Migration Act 1958 (the Act). By virtue of s. 7 (4) of the Act if no further action had been taken in connexion with his presence in Australia, on 10th August 1968 he would have ceased to be a prohibited immigrant within the meaning of the Act: and, amongst other things, no order of deportation could have been made against him by the Minister pursuant to s. 18 of the Act. However, about 10th July 1968, Mr. F. J. Kelly, a clerk in the employ of the Department of Immigration who was familiar with the history of the respondent as a migrant in Australia, asked one of his superiors in Canberra whether he should take any action against the respondent. He was told, in substance, that he could issue a temporary entry permit to the respondent for the space of one month. Mr. Kelly then communicated with the respondent and asked him to call at the Sydney office of the Department of Immigration. Meantime, Mr. Kelly prepared an application for a temporary entry permit using for this purpose a departmental form in which he inserted in his own handwriting the relevant particulars, the application as thus filled in being as follows:

I, Cedric Ng Chong Sun being a person to whom a temporary entry permit was granted on the 9th October day of 1963 (sic, 1962) hereby request that I be granted a further entry permit for a period of one month, commencing on the 12th day of July, 1968.

I arrived at the Port of Sydney from the Port of Hong Kong in the vessel Changsha on the 10th day of August, 1959.

My address in Australia will be 99 Bestic St. Brighton-le-Sands.

Mr. Kelly also filled in portion of an entry permit in anticipation of the signature by the respondent of the application for a further temporary entry permit, Mr. Kelly intending to complete the operative portions of that permit after the application form had been signed. The respondent signed the form and Mr. Kelly thereafter completed the entry permit. He handed the entry permit to the respondent who took it away. Subsequently, on 7th August 1968, the respondent signed another application for a further entry permit to cover the period commencing on 7th August 1968. This application did not result in the issue of any further entry permit and on 24th December 1968 the Minister signed a deportation order pursuant to s. 18 of the Act, on the footing no doubt that the respondent was a prohibited immigrant by virtue of the provisions of s. 7 (3) of the Act. Thereafter an order nisi for the issue of a writ of habeas corpus was made on 15th April 1969.

Upon the hearing of the application to make this order absolute the respondent gave evidence and claimed that the document he had signed on 12th July was only a receipt for an entry permit, that he had not requested the issue of a further entry permit and he sought to explain the existence of the application for a further entry permit bearing his signature by saying he had signed a document in blank in April 1968 when he had called at the office of the Department. The suggestion was that this blank form obtained for some other purpose had subsequently been filled in to become the application for a further entry permit now produced. Mr. Kelly of the Department of Immigration also gave evidence. His account of the occasion was that he had told the respondent that he (Kelly) could only give him a further entry permit for a period of one month; he proffered to the respondent the application therefor, and asked him if he would sign it: he had told the respondent quite clearly what it was. The respondent signed it. It is clear enough that the respondent was not satisfied with so short a permit and that he wanted to be granted permanent residence in Australia. The Justice who heard the application preferred the evidence of Mr. Kelly to that of the respondent and in his reasons for judgment he said this [1] :

According to Kelly when the prosecutor arrived he presented the application to the prosecutor and said "This is an application for an entry permit for one month. Will you sign it?" The prosecutor asked why he could not have longer and Kelly said he was not able to give him a longer period. To the prosecutor's inquiry "Can't I stay in Australia?" Kelly said "I am only able to issue a permit for one month." The interview was of short duration and, no doubt, this is merely a skeleton account of what was said. But however this may be there is not the slightest doubt that the prosecutor was at all times desirous of staying permanently in Australia and that Kelly was aware of this. Equally there is no doubt that the notion of a further entry permit for one month originated with the Department and not with the prosecutor. Also the purpose of the issue of the permit at this stage clearly appears though I doubt if it was at all clear to the prosecutor at the time for Kelly did not think it necessary that its effect should be explained to him, but even if this had been done it was, I think, unlikely that the prosecutor would have refused to sign the application; he had asked for permission to remain permanently, it was his hope that such permission would be granted and it was unlikely that he would risk offending the Department by refusing to sign a document to which obviously it was anxious to obtain his signature. 1. Ante, pp. 417-418.

It seems to me that bearing in mind the evidence which the learned Justice accepted it must be taken as the fact that the respondent signed the written request for the issue to him of a further entry permit on 12th July 1968, aware of the nature and content of the document he was signing, and that he signed it voluntarily and knowingly without any pressure or improper conduct of any kind on the part of the departmental officer. He had signed similar documents on several occasions in the past and had received and carried temporary entry permits. Also he had learned sufficient of the law touching migrants in this country to know that if he married an Australian girl he would be entitled to permanent residence here for he had gone through a ceremony of marriage with an Australian girl as a matter of convenience paying $2,000 to the person who had organized the marriage for him.

After the passage in his judgment which I have so far quoted, the learned Justice proceeded [1] :

All this must have been known to Mr. Kelly and when I ask myself whether in these circumstances it may fairly and properly be said that the temporary entry permit issued that day was granted at the request of the prosecutor I am satisfied that there must be a negative answer even though the application, in terms, purports to make the necessary request. At all times including the occasion of the interview the prosecutor consistently expressed his desire to stay in Australia permanently, yet at Kelly's request he signed the application. 1. Ante, p. 418.

The appellant submits that this conclusion of the learned Justice is wrong and that having found at least impliedly that the document containing the request for the issue of the further temporary permit had been voluntarily and knowingly signed by the respondent there was no room for any conclusion that the entry permit thereupon issued by Mr. Kelly had not been issued conformably to s. 7 (2) of the Act which so far as is relevant is as follows:

7 (2) At any time after the expiration of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder

Upon such an entry permit being granted, s. 10 of the Act provides that:

A person who has become a prohibited immigrant ceased to be a prohibited immigrant if and when an entry permit or further entry permit is granted to him

The respondent on the other hand submits, as I understand his counsel, that it is not enough in order to provide the occasion for the issue of a further temporary permit to establish that the person to whom it is issued has voluntarily and knowingly signed a written application requesting its issue. What needs to be established, according to the respondent's counsel and established by the Crown, is that the person signing the document really wanted that permit. Counsel conceded that there was no legal ground upon which the duly signed written request for the issue of a further temporary permit could be set aside or ignored, but he said that the circumstance that the respondent wanted permanent residence and not temporary residence in Australia and had made that desire known to the departmental officer warranted the conclusion that, notwithstanding the document and its contents, there was no relevant request. But, in my opinion, the submission stems from confusion. In the first place, the question is not what the respondent wanted but for what did he ask: and, secondly, there is no necessary antithesis or inconsistency between wanting or desiring permanent residence and requesting the issue of a further temporary permit.

On 12th July the respondent was anxious to remain permanently in this country and no doubt the departmental officer knew it. But whether the respondent understood it or not, there was left one month of the five years spoken of in s. 7 (4) during which the Minister might order his deportation. It is true enough that there was no suggestion in the evidence that as on 12th July the Minister was considering such a course: but in any case such evidence would have been irrelevant. A refusal to have applied for a further entry permit would have been likely to have stimulated action towards the making of an order of deportation within the time still available to the Minister. On the other hand possession of the temporary entry permit precluded that action during the currency of the permit and no doubt carried in the mind of the respondent some hope for at least a further entry permit or permits.

In my opinion, the proper conclusion from the material established in the case bearing in mind that the primary judge has preferred the evidence of the departmental officer to that of the prosecutor is that the respondent did request the issue of a further entry permit for one month from 12th July 1968. He had been the holder of a temporary entry permit aforetime and thus all the relevant provisions of s. 7 (2) were satisfied. When the temporary entry permit, issued on 12th July 1968, expired on 12th August 1968, the respondent became a prohibited immigrant by force of s. 7 (3). The way was thus open for ministerial action under s. 18.

The respondent, however, also submitted that as a matter of law he had ceased to be a prohibited immigrant within the meaning of the Act on 10th September 1964. In this connexion the respondent's counsel points out that the first temporary entry permit, which was granted to the respondent on 10th August 1959, expired on 10th September 1959. The next entry permit did not operate until 22nd September 1959. Counsel says that upon that expiry, s. 7 (3) of the Act operated and the respondent became a prohibited immigrant. He further says that the period of five years spoken of in s. 7 (4) of the Act therefore began to run and that nothing that occurred thereafter prevented it continuing to run. In this connexion he points to the opening words of s. 7 (4) which are: "Notwithstanding section ten of this Act " Section 10 provides that:

A person who has become a prohibited immigrant ceases to be a prohibited immigrant if and when an entry permit or further entry permit is granted to him, and not otherwise. Counsel submits that the effect of these opening words of s. 7 is to prevent s. 10 having any relevant operation and that therefore the matter so far as the respondent and his circumstances are concerned should be decided as if s. 7 (4) stood alone. This involves the consequence that a person who is granted a further temporary permit after the expiration of a temporary entry permit is nonetheless a prohibited immigrant within the meaning of the Act during the currency of the further entry permit. Counsel says that this is the intention of the legislation because he says he discovers in it a scheme under which only an unbroken succession of entry permits can avoid an immigrant becoming a prohibited immigrant. Once there is a temporal gap however slight between the expiry of any temporary entry permit and the commencement of another the period of five years of s. 7 (4) remorselessly runs on from the expiry of the first entry permit with which the commencement of a further entry permit does not precisely coincide. But the more the submission is examined the less substance it has. The migrant at the point of entry needs an entry permit: s. 6 (1). If he is to remain in the country as distinct from merely entering it, the entry permit must itself nominate the time during which the person to whom it is issued is authorized to remain in Australia or there must be a temporary entry permit granted as well as an entry permit. Further entry permits may be granted either during the currency of a temporary entry permit or after the expiry of such permit. If the further temporary entry permit is granted during the currency of a temporary entry permit then the new permit will not operate until the expiry of the existing entry permit: see s. 7 (2). When a temporary entry permit expires or is cancelled the person who was the holder of the permit becomes a prohibited immigrant unless a further entry permit comes into force on that expiration or cancellation. This sub-section clearly applies to the case of a person whose last current temporary entry permit commenced after an interval of time from the expiry of an earlier temporary entry permit granted to him as well as to the case of a person who has had only one temporary entry permit and to the case of a person whose successive temporary entry permits have had corresponding dates of expiry and of commencement. Section 10 is primarily designed to prevent a consequence which the respondent suggests occurs when there is no concurrence between the date of the expiry or cancellation of a temporary entry permit and the date of the commencement of a further temporary entry permit. It assumes that a further temporary entry permit has not been in force at the time of the expiry or cancellation of a temporary entry permit. It regularizes the position of the immigrant who obtains a further entry permit after the lapse of some time from the expiry or cancellation of an earlier temporary entry permit by terminating his status as a prohibited immigrant. But it performs another function, by providing that only the grant of a further temporary entry permit will prevent an immigrant from remaining a prohibited immigrant after the expiry or cancellation of a temporary entry permit. This is the function which the words "and not otherwise" in the section perform. However, s. 7 (4) in providing that where a period of five years elapses from the time a person becomes a prohibited immigrant by reason of the provisions of s. 7 (3) he shall cease to be a prohibited immigrant indicates another instance in which a person may cease to be a prohibited immigrant. Consequently, the words: "Notwithstanding section ten of this Act" which open s. 7 (4) are plainly directed only to the last three words of s. 10. They perform the function of allowing the additional occasion for the termination of the status of a prohibited immigrant.

Section 7 (4) speaks of a period of five years from the time at which the person became a prohibited immigrant. The section, in my opinion, is speaking of a continuous period of five years and it means that at all times during those five years he should have been a prohibited immigrant.

In the case of the respondent there was no continuous period of five years prior to 12th July 1968 during which he was a prohibited immigrant.

Upon the grant of the further temporary entry permit on 12th July 1968, the respondent ceased to be a prohibited immigrant and the period which had been running in connexion with s. 7 (4) since 10th August 1963 terminated. Upon the expiry of the temporary entry permit granted on 12th July the respondent became once more a prohibited immigrant and the time spoken of in s. 7 (4) began again to run.

The further entry permit issued to the respondent on 12th July 1968 was validly issued at his request and the submission of the respondent that upon 24th December 1968 he was not a prohibited immigrant within the meaning of the Act is unacceptable.

I am of the same opinion as the Chief Justice and agree with his Honour's reasons.

The appellant, the Minister for Immigration, appeals against an order making absolute an order nisi for habeas corpus obtained by the respondent as prosecutor to obtain his release from the custody into which he was taken after the appellant had made an order for his deportation as a prohibited immigrant. The deportation order was made on 24th December 1968 and the critical question is whether the respondent was a prohibited immigrant on that date so as to be subject to the deportation power conferred by the Migration Act, s. 18. He was if, but only if, a temporary entry permit for one month, which had been granted to him on 12th July 1968 by one Francis James Kelly, an officer in the Department of Immigration, was granted "at the request of" the respondent. If the grant was made without a request it was ineffective and, as will appear hereafter, the respondent would not have been a prohibited immigrant on 24th December. Prima facie the permit was granted at the respondent's request because, before it was granted, he had, on 12th July 1968, signed the following document:

application for a further entry permit pursuant to section 7 (2).

I arrived at the Port of Sydney from the Port of Hong Kong in the vessel Changsha on the 10th day of August, 1959.

My address in Australia will be 99 Bestic St. Brighton-le-Sands.

It was found, however, that notwithstanding the respondent's signature to this document "there was no real request by the prosecutor to found the issue of the temporary entry permit on 12th July 1968". It is that finding which the appellant challenges.

The respondent, who was born in China on 20th December 1943, entered Australia on 10th August 1959, having permission to enter Australia temporarily as a student. Temporary entry permits were issued to him (1) on 10th August 1959 for thirty days, (2) on 22nd September 1959 permitting him to remain in Australia until 10th August 1962, and (3) on 9th October 1962 permitting him to remain in Australia until 10th August 1963. He remained in Australia without an entry permit after 10th August 1963 and so became a prohibited immigrant. Had nothing else happened apart from the effluxion of time, he would, on 10th August 1968, have ceased to be a prohibited immigrant in accordance with the provisions of s. 7 (4) of the Migration Act 1958-1966 Cth. In that event he would not have been a prohibited immigrant when the deportation order was made and the Minister could not have made an effective deportation order under s. 18 of the Act.

It was in these circumstances that Mr. Kelly, on 10th July 1968, sought instructions from his Department in Canberra about what, if any, action should be taken with respect to the respondent. The instructions he received were to the effect that he should grant the respondent a further temporary entry permit valid for a month. Upon receipt of these instructions Mr. Kelly invited the respondent to call and see him and, in the expectation that he would do so, filled in a form of application for a temporary permit for a month, and when the respondent called, Mr. Kelly proffered him the document telling him "This is an application for an entry permit for one month" and asking him "Will you sign it?". Taylor J.'s statement of what happened then is as follows [1] :

The prosecutor asked why he could not have longer and Kelly said that he was not able to give him a longer period. To the prosecutor's inquiry "Can't I stay in Australia?" Kelly said "I am only able to issue a permit for one month". The interview was of short duration and, no doubt, this is merely a skeleton account of what was said. But however this may be there is not the slightest doubt that the prosecutor was at all times desirous of staying permanently in Australia and that Kelly was aware of this. Equally there is no doubt that the notion of a further entry permit for one month originated with the Department and not with the prosecutor. Also the purpose of the issue of the permit at this stage clearly appears though I doubt if it was at all clear to the prosecutor at the time for Kelly did not think it necessary that its effect should be explained to him, but even if this had been done it was, I think, unlikely that the prosecutor would have refused to sign the application; he had asked for permission to remain permanently, it was his hope that such permission would be granted and it was unlikely that he would risk offending the Department by refusing to sign a document to which obviously it was anxious to obtain his signature. 1. Ante, p. 418.

We think the foregoing findings of his Honour do not warrant the conclusion that the application form signed by the respondent was not a request by him for an entry permit for one month. It is no doubt true that the respondent wanted permission to remain in Australia permanently, but what he asked for, and asked for knowingly, was the entry permit which was, in fact, granted, notwithstanding the probability that he asked for what he had been told he could have in the hope that by doing so he would eventually get what he wanted.

The respondent's case, which failed to convince Taylor J., was that he had not signed a filled-in application for a permit at all; that he had signed such an application in blank earlier in April, but that all he had signed on 12th July was a receipt. His Honour, accepting the evidence of Mr. Kelly, found in effect that the respondent had signed the completed application after he had been told what it was. His mind, therefore, went with his signature, notwithstanding that he wanted more than he was requesting. He knew if he were to request what he wanted that his request would be refused; accordingly he requested the proffered unsustaining half loaf. It is perhaps worth noticing that later correspondence reveals quite clearly that the respondent knew that what he had been granted was a temporary entry permit for a month.

There is another argument on behalf of the respondent to be considered. The respondent, as his Honour found, was a prohibited immigrant (a) between 10th September 1959 and 22nd September 1959, (b) between 10th August 1962 and 9th October 1962, and (c) for a period of four years and eleven months between 10th August 1963 and 12th July 1968.

It was argued for the respondent that he had ceased to be a prohibited immigrant by virtue of s. 7 (4) of the Act on 10th September 1964, because he first became a prohibited immigrant on 10th September 1959. We cannot accept this argument. As we read s. 7 of the Act, a person who had become a prohibited immigrant may, nevertheless, be granted a further entry permit. If this happens he ceases to be a prohibited immigrant and it is only upon his becoming a prohibited immigrant again, upon the expiry of the last entry permit granted to him, that the period of five years mentioned in s. 7 (4) begins to run. In other words, the five years must be a period during which the person was continuously a prohibited immigrant. As we have already indicated, that period for the respondent would have begun on 10th August 1963 and would, if nothing else had happened, have expired upon 10th August 1968.

For the foregoing reasons we consider that the appeal should be allowed and the order nisi discharged.

I agree that this appeal be allowed. The judgment of the Chief Justice and that of my brothers Kitto and Menzies demonstrate, it seems to me, that this is the correct conclusion on the facts and the law, and I have nothing to add to what they have said.

At a glance

Court

Decision date

Before

Source

Judgment (54 paragraphs)

Parties