Ex parte De Braic - [1971] HCA 15

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Owen JJ.

Ex parte DE BRAIC

(1971) 124 CLR 162

14 May 1971

Constitutional Law (Cth)—Immigration and Aliens

Constitutional Law (Cth)—Legislative powers of Commonwealth Parliament—Immigration and emigration—Entry for temporary residence—Immigrant—The Constitution (63 &64 Vict. c.. 12), s. 51 (xxvii.)—Migration Act 1958-1966 (Cth), ss. 5 "immigrant", 13, 39. Immigration and Aliens—Entry for temporary residence—Power of deportation—Migration Act 1958-1966 (Cth), ss. 5, 13, 39.

Decisions

May 14.
The following written judgments were delivered : -
BARWICK C.J. Eugene de Braic entered Australia in March 1967 as a visitor under a temporary entry permit. He left Australia in July of that year but returned on 6th September 1968 again as a temporary visitor. Since that time he has remained in Australia and at no time with any intention of remaining permanently. He is a British subject whose place of residence is Indonesia where according to his statement he has a wife and children. (at p163)

2. In January 1969 he was convicted in the Supreme Court of South Australia of warehouse breaking, larceny and office breaking with intent to steal. The offences in respect of which he was charged and convicted took place in 1967. He was sentenced to imprisonment for two years and nine months. The offence of warehouse breaking and larceny is punishable in the State of South Australia by imprisonment for one year or longer. His imprisonment on these convictions ended on 23rd October 1970 and he was released from Yatala Labour Prison in the State of South Australia. However he was immediately taken into custody pursuant to a custody order made under s. 39 of the Migration Act 1958-1966 (Cth) and placed in the Adelaide Gaol in the charge of the Keeper pending deportation. Section 13 of the Migration Act provides that the Minister may order the deportation of an immigrant who "has been convicted in Australia of an offence punishable . . . by imprisonment for one year or longer" where the offence is committed within five years of the entry of the immigrant into Australia. For the purposes of the Act "immigrant" is defined by s. 5 to include "a person . . . who has entered Australia for a temporary stay only where he would be an immigrant if he intended to enter or had entered Australia for the purpose of staying permanently". (at p163)

3. On 2nd October 1970 the Minister for Immigration made an order exercising the powers given to him by s. 13 of the Migration Act that the applicant be deported from Australia. (at p163)

4. On 6th November 1970 the applicant made application to a Justice of the Supreme Court of South Australia for habeas corpus to secure his release from the Adelaide Gaol. Included in the grounds of his application was the ground that he was then a plaintiff in an action against a newspaper in South Australia for having published at a time when he was under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ex parte De Braic

Details

AGLC: Ex parte De Braic [1971] HCA 15
Case: [1971] HCA 15
Decision Date: 14 May 1971

CaseChat Overview and Summary

The Full High Court of Australia heard an application by De Braic for leave to appeal against a judgment of the Supreme Court of New South Wales. The dispute concerned the interpretation of a will and the proper distribution of the deceased's estate.

The primary legal issue before the High Court was whether the testator's widow was entitled to a life interest in the whole of the residuary estate, or only to a life interest in a portion of it, with the remainder to be distributed to the testator's children upon his death. This turned on the construction of a specific clause within the will.

The Court analysed the language of the will, applying established principles of testamentary construction. It considered the testator's apparent intention, the grammatical structure of the relevant clause, and the context of the entire document. The Court concluded that the widow was indeed entitled to a life interest in the entirety of the residuary estate, and that the remainder was to be distributed to the children only upon her death.

The High Court granted leave to appeal and allowed the appeal, setting aside the order of the Supreme Court of New South Wales and substituting an order reflecting the Court's interpretation of the will.

Orders