Ivusic v The Queen [1973] HCA 45

High Court of Australia Barwick C.J. McTiernan and Walsh JJ. Ivusic v The Queen [1973] HCA 45

ORDER Appeal dismissed as incompetent and application for special leave, both in respect of the summons for the declarations and in respect of the refusal of the writ of habeas corpus, refused. Oct. 17 Barwick C.J.

The Supreme Court of the Australian Capital Territory refused to grant an application for a writ of habeas corpus sought by the applicant who is now before the Court.

The Supreme Court rejected an argument that an order for the deporation of the applicant made by a Minister administering the Migration Act 1958-1966 was invalid for any of the several reasons put forward by the applicant [1] .

1. (1973) 20 F.L.R. 412.

An appeal as of right was lodged by the applicant both against the refusal of the writ and to make certain declarations to which I shall refer. Upon the competence of the appeal being questioned by this Court it was submitted that the matter fell within s. 51(1) (c) of the Australian Capital Territory Supreme Court Act, 1933 (as amended); that is to say, that the judgment against which it is sought to appeal "affects the status of the applicant under laws relating to aliens". That judgment, as pointed out in argument, was no more than the dismissal of a rule or order nisi for habeas corpus and the refusal to make certain declarations. The status of the applicant was quite unaffected by that judgment. Before the order dismissing the application was made the applicant was both an alien and an immigrant. After the making of the order he was still an alien and an immigrant. Quite clearly, in my opinion, assuming without deciding that the Migration Act is in any relevant respect a law relating to aliens within the meaning of s. 51 of the Australian Capital Territory Supreme Court Act, the intended appeal cannot be brought within s. 51. Accordingly, in my opinion, the appeal is incompetent and should be dismissed.