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 the charges for which he was ultimately convicted the fact that he had been convicted in England of an offence. He claimed that this circumstance had led him to plead guilty to those charges because as he said there would be great prejudice against him in the minds of any jury because of the newspaper disclosure of this prior conviction. His application for a writ of habeas corpus was refused by a Judge of the Supreme Court of South Australia. He then made a further application to the Chief Justice of that Court on 6th November 1970 for the issue of such a writ. The Chief Justice upon this application made an order pursuant to the Rules of the Supreme Court of South Australia that the application for the writ of habeas be made by notice of motion to a Full Court. During the hearing of that application to the Full Court the applicant challenged the validity of the Migration Act in so far as it purported to include within its operation a person who entered Australia for a temporary stay only, the applicant submitting that such a person could not be an immigrant within the constitutional power of the Commonwealth. The matter was thereupon removed into this Court pursuant to s. 40A of the Judiciary Act 1903-1969 (Cth). (at p164)

5. The applicant has supplemented by written submissions the record of the proceedings in the Supreme Court which was duly transmitted to this Court. Written submissions were also made on behalf of the Minister for Immigration and further submissions by the applicant in reply to the submissions made on behalf of the Minister. The whole of the papers including all the material which was before the Supreme Court of South Australia, the record of argument there, the judgment of the Supreme Court and the written submissions have been considered by a bench of this Court consisting of McTiernan, Menzies, Windeyer, Owen JJ. and myself. (at p164)

6. I am of opinion there is no substance whatever in the submissions by the applicant that Commonwealth Parliament has no legislative power to enact s. 5 of the Migration Act in so far as it includes in the definition of the word "immigrant" wherever found in the Act a person who has entered Australia for a temporary stay only. In my opinion the legislative power with respect to immigration and emigration is clearly ample enough to authorize Parliament to control the entry of persons into Australia whether for temporary or for permanent residence here. Further that power extends to enable Parliament to make provisions such as s. 13 of the Migration Act under which a Minister may order the deportation of a person who has entered Australia for a temporary stay only and who has been convicted in Australia of an offence. Indeed the power extends much further and would authorize the arbitrary exclusion of a person who has entered a country as a visitor or as it is put in the definition for a temporary stay only. See R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518 ; Reg. v. Green; Ex parte Cheung Cheuk To (1965) 113 CLR 506 . Consequently I hold the relevant sections of the Migration Act to be valid and that the Minister's order of deportation is valid and the applicant lawfully in custody pending deportation. (at p165)

7. Section 40A operates to remove the whole matter which was before the Supreme Court of South Australia into this Court. It has therefore been necessary for this Court to consider all the material furnished to it in order to determine whether the applicant has shown any grounds for the issue of a writ of habeas corpus apart from the constitutional grounds which he set out. In my opinion the applicant has shown no ground whatever which would call for the issue of a writ of habeas corpus. In particular the fact that he is a litigant in the Supreme Court of South Australia is not a circumstance which entitles him to such a writ. This is so in my opinion whether or not it is certain that having been deported from this country he would be permitted to re-enter for a temporary stay to enable him to conclude that litigation. (at p165)

8. Accordingly in my opinion the application for habeas corpus should be dismissed. (at p165)

McTIERNAN J. I concur in the judgment of the Chief Justice. (at p165)

MENZIES J. On the 6th September 1968 the applicant, who is not an Australian, although he is a British subject, entered Australia as a visitor under a temporary entry permit granted under the Migration Act 1958-1966 (Cth). He has since remained in Australia as a visitor. His entry was authorized by legislation under s. 51 (xxvii.) of the Constitution ; had his entry been refused it would have been refused by virtue of the same legislation. (at p165)

2. He, being an immigrant as defined in s. 4 of the Act, became liable for deportation under s. 13 (a) when in 1969 he was convicted in South Australia of offences punishable by imprisonment for one year or longer. An order under s. 13 for his deportation has been made and he is in custody pending deportation. (at p165)

3. He sought habeas corpus from the Supreme Court of South Australia and, having raised in that Court the question of the validity of the legislation authorizing his deportation, the matter is now before this Court ; Judiciary Act 1903-1969 (Cth) s. 40A. (at p165)

4. I have had the advantage of reading the judgment of the Chief Justice, and I agree with it. There is, in my opinion, no doubt that a person who seeks to enter, or, who does enter Australia, as a visitor, is within the scope of the legislative power of the Parliament to make laws with respect to immigration. (at p166)

5. The application should therefore be refused. (at p166)

WINDEYER J. I consider that this application should be dismissed. I think it is altogether misconceived. (at p166)

2. The applicant, by written submissions put before us, contends that s. 5 of the Migration Act 1958-1966 (Cth) is beyond constitutional power, because it defines the term "immigrant" for the purposes of the Act as including a person entering Australia for a temporary stay only. This, it was said, was a misuse of language. But the definition is only a convenient literary device to give a special denotation to the word "immigrant" where it appears in various provisions of the Act. The relevant constitutional power is a power to make laws for the peace, order and good government of the Commonwealth with respect to immigration not with respect to immigrants. If in their operation the provisions of the statute are laws with respect to immigration, it matters not that, for the purposes of the statute, an artificial meaning is given to the word "immigrant". (at p166)

3. I do not question that the word "immigration" in the Constitution connotes the entry into Australia of persons coming for the purpose of settling here. I realize that in other contexts the verb "to immigrate" has been used to mean simply moving from one placed of settled residence to another within the same country. But in the Constitution immigration means immigration to Australia from places abroad. A person who comes from another country to settle here, if permitted by our law to do so, is thus an immigrant in the ordinary sense of the word. It has been said that to qualify for that description he must intend to make his permanent home in this country. There are weighty statements to that effect. But, notwithstanding them, I am not satisfied that to be an immigrant, within the ordinary sense of that word, a newcomer must have relinquished all hope or expectation of ever returning to live or die in his native land. However, it is unnecessary to come to any conclusion upon the meaning of the word "immigrant" or "migrant" in ordinary parlance. The only question is whether, when the word is used with the special extended denotation that the statute gives it, the relevant provisions of the statute are not laws with respect to immigration. (at p166)

4. The constitutional power over immigration will sustain laws regulating the entry into Australia and remaining in Australia of persons who are immigrants in the proper sense of that word, that is persons who come for the purpose of settling. The power also sustains laws by which persons coming from abroad are precluded from becoming immigrants in that sense - that is to say are not permitted to settle here. The expression "prohibited immigrant" then means a person who is prohibited from becoming an immigrant in the sense of being allowed to settle here. Such a prohibition is within the power to make laws with respect to immigration. A law which permits a person coming from abroad to enter the country for a period only upon conditions and which enables deportation if the terms of the permit be not obeyed is, I do not doubt, a law with respect to immigration. And also in some cases an absolute prohibition of entry into this country for any purpose and for any time at all can I consider be a law with respect to immigration. (at p167)

5. Whether or not the applicant should later be permitted to return temporarily to this country to conduct a civil action is not a matter for the Court. A prohibited immigrant cannot escape the consequences of his status and remain in Australia by commencing an action in an Australian court. (at p167)

OWEN J. I agree with the Chief Justice. (at p167)

Orders

Application for order nisi for writ of habeas corpus refused.