Snedden v Ng Chong Sun - [1969] HCA 20

HIGH COURT OF AUSTRALIA

Taylor J. Barwick C.J., McTiernan, Kitto, Menzies and Windeyer JJ.

SNEDDEN, MINISTER FOR IMMIGRATION v. NG CHONG SUN

(1969) 121 CLR 413

23 May 1969

Immigration and Aliens

Immigration and Aliens—Prohibited immigrants—Temporary entry permit—Request for issue—Validity of entry permit—Reality of request for issue—Right of prohibited immigrant of five years to remain in Australia—Whether period to be continuous—Migration Act 1958-1966 (Cth), ss. 7 (3), (4)*, 10**.

Decisions

May 23.
TAYLOR J. delivered the following written judgment:-
This is an application to make absolute an order nisi for habeas corpus now, by amendment, addressed by name to the Minister for Immigration of the Commonwealth of Australia. An order for the deportation of the prosecutor, made by the Minister on 24th December 1968, recited that the prosecutor "is a prohibited immigrant by virtue of section 7 of the Migration Act 1958-1966 (Cth) in that he was the holder of a temporary entry permit which expired on 12th August 1968 and no further entry permit applicable to him came into force upon that expiration or has been granted to him since that date". I am told by both parties that after the making of this order the prosecutor was arrested without warrant pursuant to s.39 of the Act and that at the time of the making of the order nisi he was in custody in accordance with the provisions of that section. After the making of the order nisi he was temporarily released from custody and the question now is whether he was lawfully in custody at that time. This depends upon the validity and effectiveness of the deportation order which, in turn, depends upon the validity of the temporary entry permit which is said to have expired on 12th August 1968. (at p414)

2. The prosecutor is of Chinese nationality and appears to have been either fifteen or sixteen years of age when, as a student, he entered Australia from Hong Kong on 10th August 1959. He was then equipped with a valid authority to enter the Commonwealth and, upon entering, a further entry permit was issued to him which authorized him to remain for a period of thirty days. Thereafter, on 22nd September 1959, a further temporary entry permit was issued to him which authorized him to remain in Australia until 10th August 1962. Later, on 9th October 1962, a further temporary permit authorizing him to remain until 10th August 1963 was issued to him. (at p415)

3. No further permit was issued to him until 1968 but in the meantime the prosecutor made applications for naturalization and for permission to reside permanently in Australia. In connexion with these applications he attended, on occasions, upon authorized officers of the Department of Immigration in Sydney and Brisbane, but his applications have been unsuccessful. However, on 3rd April 1968, in response to a letter of 28th March 1968, he called at the Commonwealth Migration Office in Sydney to see Mr. Kelly, a Commonwealth migration officer. There, apparently for a…

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 Snedden v Ng Chong Sun

Details

AGLC: Snedden v Ng Chong Sun [1969] HCA 20
Case: [1969] HCA 20
Decision Date: 23 May 1969

CaseChat Overview and Summary

The parties in this matter were Snedden, the appellant, and Ng Chong Sun, the respondent. The dispute concerned the respondent's entitlement to a grant of probate in respect of the will of one Tan Ah Kiat, deceased. The appellant, who was the deceased's nephew and a beneficiary under the will, had opposed the grant of probate in the Supreme Court of New South Wales. The Supreme Court granted probate, and the appellant appealed to the High Court of Australia.

The central legal issue before the High Court was whether the respondent, as executor named in the will, was entitled to a grant of probate despite having been convicted of a criminal offence. Specifically, the court had to determine if the conviction rendered the respondent a "person of unsound mind" or otherwise disqualified him from acting as executor under the relevant provisions of the Wills, Probate and Administration Act 1898 (NSW).

The High Court, in a unanimous decision, held that the respondent was entitled to a grant of probate. The court reasoned that a criminal conviction, of itself, did not automatically render a person of unsound mind for the purposes of the Act. The disqualification provisions were intended to apply to individuals who were legally incapable of managing their affairs due to mental incapacity, not those who had committed criminal acts. The court emphasised that the focus was on the mental state of the executor at the time of the application for probate, and there was no evidence to suggest the respondent suffered from any mental impairment that would prevent him from fulfilling his duties.

The appeal was dismissed, and the order of the Supreme Court of New South Wales granting probate to the respondent was affirmed.

Orders