R v Snedden; Ex parte Ng Chong Sun [1969] HCA 20

High Court of Australia Taylor J. Barwick C.J. McTiernan, Kitto, Menzies and Windeyer JJ. R v Snedden; Ex parte Ng Chong Sun [1969] HCA 20

ORDER Order absolute. Respondent to pay the costs of the prosecutor. Appeal allowed with costs. Order of Mr. Justice Taylor set aside and in lieu thereof order that the order nisi for habeas corpus be discharged with costs.

Cur. adv. vult.

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.

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.