Ivusic v The Queen

[1973] HCA 45

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan and Walsh JJ.

IVUSIC v. THE QUEEN

(1973) 127 CLR 348

17 October 1973

High Court—Immigration and aliens

High Court—Practice—Appeal as of right—Judgment affecting status of applicant under laws relating to aliens—Discharge of order nisi for habeas corpus—Refusal of declaration of invalidity of deportation order—Whether affecting status of alien—Migration Act 1958-1966 (Cth), s. 13; Australian Capital Territory Supreme Court Act, 1933 (Cth), s. 51 (1) (c). Immigration and aliens—Liability to deportation—"Immigrant convicted in Australia of an offence"—Whether "immigrant" restricted to person who is not an alien—Migration Act 1958-1966 (Cth), s. 13*.

Decisions

October 17.
BARWICK C.J. The Supreme Court of the Australian Capital Territory refused to grant an application for a writ of habeas corpus sought by the applicant who is now before the Court. (at p349)

2. The Supreme Court rejected an argument that an order for the deporation of the applicant made by a Minister administering the Migration Act 1958-1966 was invalid for any of the several reasons put forward by the applicant (1973) 20 FLR 412 (at p350)

3. An appeal as of right was lodged by the applicant both against the refusal of the writ and to make certain declarations to which I shall refer. Upon the competence of the appeal being questioned by this Court it was submitted that the matter fell within s. 51 (1) (c) of the Australian Capital Territory Supreme Court Act, 1933 (as amended) ; that is to say, that the judgment against which it is sought to appeal "affects the status of the applicant under laws relating to aliens". That judgment, as pointed out in argument, was no more than the dismissal of a rule or order nisi for habeas corpus and the refusal to make certain declarations. The status of the applicant was quite unaffected by that judgment. Before the order dismissing the application was made the applicant was both an alien and an immigrant. After the making of the order he was still an alien and an immigrant. Quite clearly, in my opinion, assuming without deciding that the Migration Act is in any relevant respect a law relating to aliens within the meaning of s. 51 of the Australian Capital Territory Supreme Court Act, the intended appeal cannot be brought within s. 51. Accordingly, in my opinion, the appeal is incompetent and should be dismissed. (at p350)

4. The applicant, however, also seeks leave to appeal against the dismissal of the application for a writ of habeas corpus and the refusal to make certain declarations. I should mention that, as well as applying for the issue of that writ, the applicant by summons in the Supreme Court sought declarations that he was not liable to deportation and that orders and declarations of the present Minister for Migration were nullities. (at p350)

5. The Supreme Court refused to make any of these declarations but there is no point, in my opinion, in treating the fate of the summons or of the attempted appeal from its dismissal or the application for special leave to appeal against the refusal to make the declarations as in any respect requiring separate treatment from the attempted appeal and application for special leave to appeal from the dismissal of the application for the writ of habeas corpus. Indeed, in my opinion, the suit was quite unnecessary, the matters it sought to raise being all comprehended in the arguments in support of the application for the writ of habeas corpus. (at p350)

6. The order for deportation was made under s. 13 of the Migration Act. The applicant, if he were an immigrant within the meaning of s. 13, a matter to which I will later refer, had been convicted in Australia of an offence punishable by imprisonment for one year or longer, an offence which was committed by him within five years of his entry into Australia. In fact, he was not only convicted of such an offence, namely, assault and robbery in company, but had been sentenced to imprisonment for a period of eighteen months. As he was admittedly an alien within the meaning of s. 12 of the Migration Act, he was thus liable to be deported under s. 12 as well as under s. 13 if, being an immigrant within its meaning, he fell within that section. There was therefore ample warrant for the making of the order of deportation, in fact made in May 1972, if the applicant was an immigrant within the meaning of s. 13 - under that section and, in any case, under s. 12. It was under that order of deportation made in May 1972 that the applicant was and still is held pending his removal from Australia. (at p351)

7. The grounds upon which it is said that this order and the directions of the present Minister for its enforcement are invalid are: (1) that natural justice was denied to the applicant and extraneous considerations entertained in connexion with the making of the order and with the giving of the directions ; (2) that the Migration Act, in giving the Minister power to order and effect deportation confers part of the judicial power of the Commonwealth on the Minister contrary to the Constitution ; (3) that because the applicant was and is an alien he is not and was not an immigrant within the meaning of s. 13 : it is said that in that section "immigrant" means an "immigrant who is not an alien" ; (4) that the present Minister revoked the order of deportation and made no other order for deportation or, as the fifth ground says, attempted to make an order under s. 14 of the provisions of the Migration Act. (at p351)

8. In my opinion, there is no substance in any of these submissions. The Supreme Court concluded that assuming it to be required, and without deciding that it was, natural justice was not denied to the applicant but, on the contrary, it was afforded him ; that, if a relevant matter, no extraneous considerations were entertained ; that upon its proper construction s. 13 applied to an immigrant who is also an alien ; that the order for deportation was authorized by that section ; that there had been no revocation of the order for deportation made in May ; and that the Minister had not sought or intended to make an order under s. 14. The submission as to conferring judicial power on the Minister is so plainly misconceived as to call for no refutation. (at p351)

9. In the result, I am of opinion that there is no such doubt as to the correctness of the order of the Supreme Court in refusing the declarations and in dismissing the application for a writ of habeas corpus as to warrant the grant of special leave. Further, I see no reason to doubt the correctness of the specific conclusions of the Supreme Court which I have listed. Accordingly, in my opinion, the application for special leave should be refused. (at p352)

McTIERNAN J. I agree. (at p352)

WALSH J. I agree. (at p352)

Orders

Appeal dismissed as incompetent and application for special leave, both in respect of the summons for the declarations and in respect of the refusal of the writ of habeas corpus, refused.