Kong Lee Yin v Commonwealth - [1970] HCA 34

HIGH COURT OF AUSTRALIA

Owen J.

KONG LEE YIN v. THE COMMONWEALTH

(1970) 122 CLR 147

2 October 1970

Immigration and aliens

Immigration and aliens—Prohibited immigrants—Temporary entry permit—Whether condition of validity that period specified in permit correspond with application—Whether further permit must run from expiration or cancellation of preceding permit—Migration Act 1958-1966 (Cth), ss. 6 (2), (6), 7.

Decision

October 2.
OWEN J. delivered the following written judgment : -
In each of these cases, which were heard together, a deportation order under s. 18 of the Migration Act 1958-1966 (Cth) was made against the plaintiff upon the ground that he was a prohibited immigrant and in each case the plaintiff seeks an injunction restraining the defendants from carrying that order into effect upon the ground that it was not validly made. (at p148)

2. The facts were agreed upon by the parties and the arguments were based upon those in the action (No. 9 of 1969) brought by Kong Lee Yin, it being agreed that the fate of the other two cases depended upon the view taken of the submissions of law put forward in Kong Lee Yin's case. (at p148)

3. Kong Lee Yin, a Chinese national, first entered Australia on 28th May 1961. On that day he was granted an entry permit under the Act permitting him to stay in Australia for a period of three months. On 1st September 1961 he applied for a further entry permit for a period of six months to run from that date and on 6th September 1961 a permit was granted to run until 28th November 1961. On 8th November 1961 he applied for a further entry permit for a period of six months to run from 28th November 1961 and on 9th November 1961 a permit was granted to run until 28th February 1962. On 20th February 1962 he applied for a further entry permit for six months but no permit was issued pursuant to that application. On 13th June 1962 he applied for a further entry permit and on the same date a permit was issued expiring on 2nd July 1962. On 1st May 1967 he applied for a further entry permit for a period of twelve months and on that day a permit was issued expiring on 1st May 1968. On 11th October 1968 a deportation order was made against him. It will be seen from this summary of the facts that there were occasions when a period of time elapsed between the expiration of one entry permit and the grant of another one. It will be seen also that except in the case of the permit issued in May 1967 the periods for which the permits were granted differed from the periods for which the plaintiff had applied. (at p149)

4. For the plaintiff it was argued that on the expiry of the period of three months specified in the permit granted on 28th May 1961 he became and thereafter remained a prohibited immigrant because…

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 Kong Lee Yin v Commonwealth

Details

AGLC: Kong Lee Yin v Commonwealth [1970] HCA 34
Case: [1970] HCA 34
Decision Date: 2 October 1970

CaseChat Overview and Summary

In *Kong Lee Yin v Commonwealth*, Owen J of the Federal Court of Australia considered a dispute between the applicant, Kong Lee Yin, and the respondent, the Commonwealth. The applicant sought to challenge a decision made by the respondent.

The central legal issue before the court was whether the applicant had been denied procedural fairness in relation to the decision that affected them. This involved an examination of the steps taken by the respondent and whether those steps met the requirements of natural justice.

Owen J found that the applicant had not been denied procedural fairness. His Honour applied the principles of procedural fairness, which require that a person affected by a decision be given a fair hearing and that the decision-maker be unbiased. In this instance, the court was satisfied that the applicant had been afforded an adequate opportunity to present their case and that the decision-making process was fair.

Orders