R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14

High Court of Australia Barwick C.J. McTiernan, Windeyer, Owen and Gibbs JJ. R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14

ORDER Rule nisi for habeas corpus discharged.

The following written reasons for judgment were delivered:—

May 5 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.

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.

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.