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 none of the subsequent permits was validly granted, with the rsult, it was said, that at the date when the deportation order was made, on 11th October 1968, he had ceased to be a prohibited immigrant (see s. 7 (4)). Two reasons were urged in support of this submission, one being that an entry permit cannot be validly granted unless the period for which it is granted corresponds with the period requested by the applicant for the permit, the other that the grant of a further entry permit cannot validly be made after the permit which preceded it has expired or been cancelled. (at p149)

5. Before dealing with these matters it is desirable to set out certain provisions of the Act. By s. 5 (1) "entry permit" means "a permit issued under section six of this Act" and "temporary entry permit" means "an entry permit referred to in sub-section (6) of section six". Section 6 (6) provides that -

"An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only. . . ."

It is only with temporary entry permits that the present cases are concerned. Section 7 (2) provides that -

"At any time while a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder and, where such a further entry permit is granted while a temporary entry permit is in force, the further entry permit shall come into force only upon the expiration or cancellation of the existing entry permit."

By s. 7 (3),

"Upon the expiration or cancellation of a temporary entry permit, the person who was the holder of the permit becomes a prohibited immigrant unless a further entry permit applicable to him comes into force upon that expiration or cancellation."

Section 10 is as follows :

"A person who has become a prohibited immigrant ceases to be a prohibited immigrant if and when an entry permit or further entry permit is granted to him, and not otherwise." (at p150)

6. As I have said, one of the contentions upon which counsel for the plaintiff relied was that for an entry permit to be validly granted the period specified in it during which the person to whom it relates may remain in Australia must correspond with the period requested by that person in his application for the permit, assuming that he has specified such a period. If I understood it correctly this argument was, in the first instance, based upon s. 6 (2) under which -

"An officer may, in accordance with this section and at the request or with the consent of an immigrant, grant to the immigrant an entry permit."

It was said that, while there is no obligation to grant an entry permit, if it is decided to grant one the permit must comply in all respects with the request made for it, but I can find nothing in s. 6 (2) or elsewhere in the Act to support that proposition. What an applicant applies for is an entry permit but the Act does not appear to require him to state the period for which he wishes it to run, although it may be wise for him to do so as a means of furthering his application and inducing the authorities to grant it. It was submitted that support for the proposition was to be found in a passage in the judgment of Barwick C.J. in Snedden v. Ng Chong Sun (1969) 121 CLR 413, at p 425 , in which his Honour said, "the question is not what the respondent wanted but for what did he ask . . .", the respondent in that case being a person to whom a temporary entry permit had been issued. But that remark was directed to an entirely different question, namely, whether the respondent had requested the grant of a further temporary entry permit or, as had been held by the learned judge of first instance, had he in reality not made a request for a temporary entry permit since his desire was to remain in Australia permanently and not for a limited period. In my opinion this submission fails. (at p150)

7. The second contention was that a further entry permit is not validly granted if it is expressed to run from a date later than the date of the expiration or cancellation of the permit which immediately preceded it but I am unable to accept this proposition. In support of it reliance was placed upon s. 7 (3), but the purpose of that subsection is to set out the consequences that flow from the expiration or cancellation of an entry permit unless a further permit comes into force upon that expiration or cancellation. Unless that occurs the holder of the expired or cancelled permit becomes a prohibited immigrant. But the subsection must be read with ss. 7 (2) and 10. Section 7 (2) plainly contemplates that a further temporary entry permit may be granted at any time after the expiration or cancellation of a preceding permit and, by virtue of s. 10, the person to whom that permit is granted ceases during its currency to be a prohibited immigrant. This was the view taken by the Court in Ng Chong Sun's Case (1969) 121 CLR 413 and, with respect, I agree with it. (at p151)

8. Having rejected the submissions of law made on behalf of the plaintiff, it is not disputed that the deportation order was validly made and that the action must be dismissed. In the other two cases the same result must follow since in each of them the case for the plaintiff depends upon the validity of the submissions of law put forward in Kong Lee Yin's case. Accordingly, all three actions are dismissed with costs. (at p151)

Orders

Action dismissed with costs.