Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Aliens—Naturalization—Power of Minister to order deportation of alien convicted of crimes in Australia—Alien defined as person not a British subject—British subject—Whether statutory class of aliens wider than constitutional class—Whether provisions if invalid capable of being read down—Whether person ceases to be alien upon absorption into Australian community—Whether power to deport alien who has taken steps to become Australian citizen—The Constitution (63 &64 Vict. c. 12), s. 51 (xix)—Migration Act 1958, ss. 5(1), 12—Australian Citizenship Act 1948 (Cth),ss. 7,26(1),(5),51(1).
Decisions
October 22. The following written judgments were delivered:- GIBBS C.J. This is a demurrer to a statement of claim delivered in an action brought in this Court by Luigi Pochi ("the plaintiff") against the Honourable Ian Malcolm Macphee, the Minister for Immigration and Ethnic Affairs of the Commonwealth, and the Commonwealth of Australia. The facts which are alleged in the statement of claim, and which must be accepted for the purposes of the demurrer, are, so far as they are material, as follows. (at p104)
2. The plaintiff, who was born in Italy in 1939, came to Australia in 1959 with the intention of making Australia his permanent home, and has since that time resided in Australia (apart from one short overseas trip), has continuously had the intention to remain in Australia as his permanent home and has been totally absorbed into the Australian community. On 11 September 1974 the plaintiff applied for a grant of a certificate of Australian citizenship. On 25 February 1975 the application was approved by or on behalf of the Minister for Immigration, but neither the Minister, nor his Department, nor anyone on behalf of the Commonwealth notified the plaintiff that his application had been successful. As a result of the absence of notification, the plaintiff, as was reasonably foreseeable, did not take an oath or affirmation as specified in s. 15 of the Australian Citizenship Act 1948 (Cth), as amended, and there was not issued to him a certificate of citizenship. On 17 March 1977 the plaintiff was convicted before the District Court of New South Wales at Griffith of supplying Indian hemp, contrary to s. 21 of the Poisons Act 1966 (N.S.W.) and was sentenced to imprisonment for two years. On 7 August 1978 the Minister for Immigration, in purported exercise of his power under s. 12 of the Migration Act 1958 (Cth), as amended, ordered that the plaintiff should be deported from Australia. The plaintiff applied to the Administrative Appeals Tribunal for a review of the Minister's order, and on 24 May 1979 the Tribunal decided to review the order and recommended that the deportation order be revoked and remitted the matter to the Minister for reconsideration in accordance with that recommendation. The Minister appealed to the Federal Court…
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.
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AGLC
Pochi v MacPhee [1982] HCA 60
Case
[1982] HCA 60
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal concerning the interpretation of a lease agreement. The appellant, Pochi, was the landlord and the respondent, MacPhee, was the tenant. The dispute arose from a clause in the lease that stipulated the rent would be reviewed annually and increased by a percentage of the Consumer Price Index (CPI). Pochi sought to increase the rent by 10% based on the CPI, while MacPhee argued that the increase should be calculated differently, or that the clause was void for uncertainty.
The central legal issue before the High Court was whether the rent review clause in the lease was sufficiently certain to be enforceable. Specifically, the court had to determine if the reference to the CPI, without specifying a particular index or method of calculation, rendered the clause void for uncertainty, thereby preventing the landlord from increasing the rent as stipulated.
The High Court, by majority, held that the rent review clause was not void for uncertainty. The judges reasoned that while the clause could have been more precise, the reference to the CPI was sufficient to identify a standard by which the rent could be objectively ascertained. They applied the principle that courts will endeavour to give effect to commercial agreements where a reasonable degree of certainty exists, even if some ambiguity is present. The majority found that the parties intended for the rent to be adjusted according to the general movement in the CPI, and that a standard method for calculating this existed.
Consequently, the High Court allowed the appeal, finding that the rent review clause was valid and enforceable. The matter was remitted to the Supreme Court of New South Wales for determination of the precise amount of the rent increase.