Wong Man On v Commonwealth [1952] HCA 27

High Court of Australia Fullagar J. Wong Man On v Commonwealth [1952] HCA 27

ORDER Action dismissed with costs.

Cur. adv. vult.

The following written judgment was delivered by:—

June 6 Fullagar J.

This is an action brought against the Commonwealth of Australia, the Honourable Harold Edward Holt (who is the Minister of State administering the War-time Refugees Removal Act 1949) and Bertie Clyde Wall (who is an officer of the Minister's Department). By his statement of claim as amended the plaintiff claims an injunction to restrain a threatened trespass to the person, alleging that the defendants threaten and intend to cause him to be deported from Australia to New Guinea. The defendants in effect admit the intention and the threat to cause the plaintiff to be deported, but rely for justification on the War-time Refugees Removal Act and an order made by the Minister thereunder.

Section 4 (1) of the War-time Refugees Removal Act provides, so far as material, that the "Act shall apply to every person—(a) who entered Australia during the period of hostilities and is an alien". The Act is also made to apply to certain other classes of persons, and certain classes of persons are expressly excluded from it, but it was mutually admitted that the plaintiff was not within any of the other classes included or within any of the classes expressly excluded. Section 4 (2) provides that the Minister may, by writing under his hand, certify that a person named in the certificate is a person of one of the classes specified in sub-s. (1), and any such certificate is to be prima-facie evidence of the fact so certified. Section 5 provides that the Minister may, at any time within twelve months of the commencement of the Act, make an order for the deportation of any person to whom the Act applies, and that that person shall be deported in accordance with the Act.