Commonwealth v Hornsby

The Commonwealth of Australia (the appellant) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales concerning the interpretation of a provision within the *Migration Act 1958* (Cth). The dispute centred on whether a person, Mr. Hornsby (the respondent), who had entered Australia without a valid visa, was a "prohibited immigrant" within the meaning of the Act, thereby rendering him liable for deportation.

The High Court was required to determine whether the respondent, having entered Australia without a visa, was a "prohibited immigrant" as defined by section 5(1)(a) of the *Migration Act 1958* (Cth) at the time of his entry. This involved considering the effect of the respondent's subsequent lawful entry into Australia on a valid temporary entry permit after his initial unlawful entry, and whether this subsequent lawful entry could retrospectively validate his initial unlawful presence or prevent him from being classified as a prohibited immigrant.

The Court reasoned that the definition of "prohibited immigrant" in section 5(1)(a) referred to a person who, at the time of entering or having entered Australia, was not a British subject and did not have a visa. The Court held that the respondent's initial entry without a visa rendered him a prohibited immigrant at that point. Subsequent lawful entry on a temporary permit did not cure or retrospectively validate the initial unlawful entry; rather, it created a new period of lawful presence. Therefore, the respondent remained a prohibited immigrant by virtue of his initial entry, notwithstanding his subsequent lawful status.

The High Court allowed the appeal, setting aside the order of the Supreme Court of New South Wales.