R v Forbes; ex parte Kwok Kwan Lee

[1971] HCA 14

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Windeyer, Owen and Gibbs JJ.

THE QUEEN v. FORBES; Ex parte KWOK KWAN LEE

(1971) 124 CLR 168

5 May 1971

Constitutional Law (Cth)—Immigration and Aliens

Constitutional Law (Cth)—Legislative powers of the Parliament—Immigration and emigration—Extent—To what persons applicable—Temporary entry permit—Immigrant—Whether entrant remains immigrant notwithstanding absorption into Australian community—The Constitution (63 &64 Vict. c. 12), s. 51 (xxvii.)—Migration Act 1958-1966 (Cth), ss. 5, 6, 7, 10, 18, 20.* Immigration and Aliens—Temporary entry permit—Immigrant—Prohibited immigrant—Whether entrant remains immigrant notwithstanding absorption into Australian community—Power of deportation—Whether to be exercised within reasonable time of expiry of temporary permit—Whether person ceases to be immigrant at expiration of five years of becoming prohibited immigrant—Whether deportation order revoked by subsequent order—Migration Act 1958-1966 (Cth), ss. 5, 6, 7, 10, 18, 20.*

Decisions

May 5. The following written reasons for judgment were delivered : -
BARWICK C.J. The applicant who had been arrested on 22nd January 1971 under an order for his deportation made by the Minister for Immigration pursuant to s. 18 of the Migration Act 1958-1966 (Cth) (the Act) applied to the Supreme Court of New South Wales for a writ of habeas corpus and obtained an order nisi from a judge in chambers. Upon an application to make absolute that order a question as to the constitutional validity of some provisions of the Act arose whereupon the matter was removed into this Court by the operation of s. 40A of the Judiciary Act 1903- 1969 (Cth). Upon the matter coming on to be heard in this Court leave was given to both the applicant and the respondent Minister to file further affidavits. These were read subject to objection as to the relevance of their contents. (at p170)

2. The applicant entered Australia upon a temporary entry permit authorizing him to stay in Australia for a period of three months. Further temporary entry permits were applied for and accepted by him, the last of such permits expiring on 26th June 1962. No further entry permit was given to him though he made application in 1964 for a permit to stay in Australia indefinitely. This application was not granted. (at p171)

3. On 2nd January 1964 the Minister for Immigration made an order for his deportation (s. 18 of the Act). The applicant who had stated, as he now says, falsely, in his application for his first temporary entry permit that he had a wife and children in Hong Kong, married an Australian woman on 28th April 1964. He informed the Department of Immigration of this fact whereupon it was decided to take no action under the order for his deportation for a period of one year when there should be a further examination of his situation. In October 1965 the applicant and his Australian wife separated. In March 1966 the Department of Immigration commenced a further examination into the applicant's circumstances. It would appear that though the applicant remained in communication with the Department of Immigration up till the time he and his wife separated, from that time onwards until his subsequent arrest he had no communication with the Department nor was the Department aware of his whereabouts. (at p171)

4. On 24th June 1966 the Minister for Immigration made another order for his deportation on the same terms and upon the same recitals as the former order. The affidavits filed on his behalf detail the places at which he has lived and worked and the extent to which he has involved himself in the life of the Australian community since he arrived in Australia and particularly since June 1962. (at p171)

5. The submissions made in support of the application for the writ of habeas corpus are, first that the applicant had ceased to be an immigrant (a) at the date of the making of the order for his deportation in 1964 (b) alternatively, at the date of the making of the order for his deportation in 1966 and (c) in the further alternative at the date of his arrest in 1971 ; second that the order for his deportation made in 1964 was invalid because it was made more than a reasonable time after the expiry date of the last temporary entry permit which he held, namely 26th June 1962 or alternatively that the said order was superseded and revoked by the making of the order for his deportation in 1966. Third that the deportation order made in 1966 was invalid because not made within a reasonable time of the expiry of the last temporary entry permit which he held : fourth, that ss. 10, 18 and 20 in so far as they would apply to the applicant at a time when he had ceased to be an immigrant so as to make him a prohibited immigrant at the time of the making of the order for his deportation in 1964 or at any subsequent time were invalid as being beyond the legislative power of the Commonwealth under s. 51 (xxvii.). Fifth, that s. 10 in so far as it contained the words "and not otherwise" is invalid as being beyond the said legislative power. (at p172)

6. The basic submission of the applicant is that the Commonwealth Parliament has no power under s. 51 (xxvii.) to pass a law which would authorise the deportation of a person who is not an immigrant and that a person who has been absorbed into the Australian community, or as it was said, as an alternative expression of the same concept, has achieved a "settlement" in Australia, is not an immigrant though he came into this country as a person who at the time of his entry was not part of the Australian community. The applicant therefore says that once he became, as he claims to have become, a member of the Australian community he ceased to be both an immigrant and a prohibited immigrant. (at p172)

7. In support of these submissions the applicant's counsel relied chiefly upon expressions found in the reasons for judgment given by Rich, Dixon and Williams JJ. in Koon Wing Lau v. Calwell (1949) 80 CLR 533 . (at p172)

8. The applicant's submissions in my opinion ought not to be accepted. In my opinion, they are clearly erroneous. There can be no doubt that the Parliament has power under s. 51 (xxvii.) to say who, if not being a member of the Australian community at the time of entry, shall enter Australia either for a temporary stay or for permanent residence and to fix the terms upon which such person may enter and may remain in Australia : Ah Sheung v. Lindberg (1906) VLR 323 ; Chia Gee v. Martin (1905) 3 CLR 649 ; Potter v. Minahan (1908) 7 CLR 277 ; R. v. Macfarlane ; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518 . It was said in O'Keefe v. Calwell (1949) 77 CLR 261, at 277 that immigration as a concept involves two elements (a) entry into the country and (b) absorption into the community of the country. Parliament clearly has authority to legislate with respect to both elements and laws which control those elements can be made under s. 51 (xxvii.). It can say who may enter and it can say on what terms if at all a person so entering may become a member of the Australian community. In the Act Parliament has exercised these powers. It is there provided quite unequivocally that a person who is not already a member of the Australian community may not enter Australia except in pursuance of an entry permit. See definition of "immigrant" s. 5 (1) ss. 5 (2), 6 (2). If he has no permit and enters Australia he is a prohibited immigrant. It scarce needs saying that a prohibited immigrant may not by any means become a member of the Australian community whilst he is a prohibited immigrant. By the very description he is not a person having any title to remain in the country. Once a prohibited immigrant, he remains both an immigrant and a prohibited immigrant subject to ss. 7 and 10. (at p173)

9. The Act provides for three types of entry permit. Firstly, an entry permit for a temporary stay. In that case the permit must nominate the duration of the stay. See definition "temporary entry permit" s. 5 (1) and s. 6 (6). Secondly, an entry permit to enter and remain, s. 6 (3) ; that is a permit given to a person who is permitted to enter and to stay indefinitely. Thirdly there is a permit to remain in Australia. See s. 6 (3). Such a permit is appropriate where a person has been given a temporary entry permit and there has been a subsequent decision made before or after the expiry of such a permit that that person may remain indefinitely. See ss. 10 and 6 (2) and (3). Clearly a person who has sought and obtained a temporary entry permit cannot during its duration became a member of the Australian community. He remains of necessity an immigrant in fact under the terms of the entry permit bound to remove himself and liable to be removed. A person whose entry permit has expired becomes at the moment of its expiry a prohibited immigrant. He may not cease to be a prohibited immigrant unless at his request a further permit, whether a further temporary entry permit or a permit to remain, is granted or five years elapse from that expiry without the making of an order for his deportation. (at p173)

10. The Parliament by the Act has thus ensured that no immigrant shall obtain a title to become a member of the Australian community without the concurrence of the Australian people expressed through the grant by its Executive Government of an entry permit to remain or by a lapse of five years from the expiry of a temporary entry permit without Executive action. I so express my conclusion because in my opinion a person whose temporary entry permit has expired and who does not obtain a permit to remain may not become a member of the Australian community during the five years which must elapse before he ceases to be a prohibited immigrant pursuant to the provisions of s. 7 (4). Thereafter a question will remain whether he has subsequently become a member of the community and has ceased to be an immigrant. He does not in my opinion automatically cease to be an immigrant upon the expiry of those five years. He merely ceases to be liable to deportation as a prohibited immigrant who has become such by reason of the lapse of an entry permit. The Act thus nominates at the point of entry of a person not entitled to enter Australia through the terms of an entry permit and the provisions of Pt II of the Act not only the conditions upon which the entry may take place but whether or not, and when the immigrant, can begin to become a member of the Australian community. In my opinion the provisions which ensure this, including s. 10, are valid. (at p174)

11. It is worthwhile in this connexion to contrast the provisions of the Act with those of the Immigration Act 1903-1951 (the former Act). Under the provisions of the former Act a person not falling within any of the paragraphs of s. 3 (1) other than par. (a) might enter Australia at a place where an officer was stationed and not be a prohibited immigrant until he had failed to pass a dictation test lawfully administered to him by an officer pursuant to s. 5 (2) of the Act, unless of course meantime he fell within other sections of the Act such as s. 5 (1). Further he might receive at his request a certificate of exemption issued under s. 4 (1) which might be extended from time to time at his request express or implied during the currency whereof he would not be a prohibited immigrant : see O'Keefe v. Calwell (1949) 77 CLR 261 . (at p174)

12. However, the certificate of exemption did not operate as does a temporary entry permit, to prevent an immigrant losing that status in fact. Consequently under the former Act a question could arise whether a person who entered Australia as an immigrant but was not a prohibited immigrant had become a member of the Australian community. The facts in O'Keefe v. Calwell (1) illustrate the possibilities. But as I have indicated it is otherwise under the Act. Consequently, many of the statements to be found in reasons for judgment given in cases decided by this Court under the provisions of the former Act have little, if any, relevance to situations which arise under this Act. (at p174)

13. In my opinion, the applicant having entered under a succession of temporary entry permits which expired without being replaced by another permit was as from the date of the expiry of the last permit a prohibited immigrant and remained so throughout. In my opinion, it was impossible in law for the applicant to have become a member of the Australian community. As I have said s. 10 in my opinion, is wholly valid and secured, along with s. 7 (4) that except by means of a permit or through the lapse of five years from the date of the expiry of the entry permit without an order for deportation being made the applicant could not cease to be a prohibited immigrant. The applicant submitted that the Minister could only make an order for his deportation within a reasonable time of the expiry of a temporary entry permit. He said that the period of two years between that expiry and the date of the Minister's order was beyond such a reasonable time and it was thus invalid. But in my opinion there is no unexpressed condition to which ss. 18 and 20 are subject. As I have indicated both ss. 18 and 20, in my opinion, are valid in the terms in which they were enacted. The discussion in Koon Wing Lau v. Calwell (1949) 80 CLR 533 as to the power of a Minister to declare a person a prohibited immigrant under the former Act being restricted to a reasonable time after the expiry of a certificate of exemption has in my opinion no relevance to the power of the Minister under s. 18. There was no point of time at which the applicant could begin to become a member of this community and thus cease to be an immigrant subject to the power derived from s. 51 (xxvii.). Consequently, in my opinion, the submission that the deportation orders were invalid because not made within a reasonable time is without substance and must be rejected. Further, in my opinion, the order made in 1964 was not revoked by the subsequent order. I see no incongruity in both orders being extant and operative at the same time. Each was in the same terms and contained the same recitals. (at p175)

14. In my opinion for these reasons the order nisi should be discharged. (at p175)

McTIERNAN J. I agree with the reasons of the Chief Justice. (at p175)

WINDEYER J. At the end of the hearing of this case the Court discharged the order nisi. I concurred in that decision for reasons that accord with those the Chief Justice has now expressed in his judgment that I have had the benefit of reading. (at p175)

2. I said in what I wrote in De Braic's Case (1971) 124 CLR 162, at p 166 that the definition of "immigrant" in the Migration Act 1958 is factitious, in that it includes not only persons who are immigrants properly so called but also other persons who have entered, or who seek to enter, Australia from abroad. However the provisions of the Act relating to such persons are, I have no doubt, laws with respect to immigration and thus within constitutional power. The question under the Act is not, as I see it, whether a person coming to Australia from abroad has settled himself in Australia as part of the Australian community. It is whether, under the terms on which he was permitted to enter Australia, he could lawfully have done so. (at p176)

OWEN J. I agree with the reasons given by the Chief Justice for discharging the rule nisi. (at p176)

GIBBS J. I have had the advantage of reading the reasons prepared by the Chief Justice. I am in agreement with them and have nothing to add. (at p176)

Orders

Rule nisi for habeas corpus discharged.