Pochi v Macphee [1982] HCA 60

High Court of Australia Gibbs C.J. Mason, Murphy, Aickin and Wilson JJ. Pochi v Macphee [1982] HCA 60

ORDER Demurrer allowed. Action dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 22 Gibbs C.J.

This is a demurrer to a statement of claim delivered in an action brought in this Court by Luigi Pochi ("the plaintiff") against the Honourable Ian Malcolm Macphee, the Minister for Immigration and Ethnic Affairs of the Commonwealth, and the Commonwealth of Australia. The facts which are alleged in the statement of claim, and which must be accepted for the purposes of the demurrer, are, so far as they are material, as follows.

The plaintiff, who was born in Italy in 1939, came to Australia in 1959 with the intention of making Australia his permanent home, and has since that time resided in Australia (apart from one short overseas trip), has continuously had the intention to remain in Australia as his permanent home and has been totally absorbed into the Australian community. On 11 September 1974 the plaintiff applied for a grant of a certificate of Australian citizenship. On 25 February 1975 the application was approved by or on behalf of the Minister for Immigration, but neither the Minister, nor his Department, nor anyone on behalf of the Commonwealth notified the plaintiff that his application had been successful. As a result of the absence of notification, the plaintiff, as was reasonably foreseeable, did not take an oath or affirmation as specified in s. 15 of the Australian Citizenship Act 1948 Cth, as amended, and there was not issued to him a certificate of citizenship. On 17 March 1977 the plaintiff was convicted before the District Court of New South Wales at Griffith of supplying Indian hemp, contrary to s. 21 of the Poisons Act 1966 N.S.W. and was sentenced to imprisonment for two years. On 7 August 1978 the Minister for Immigration, in purported exercise of his power under s. 12 of the Migration Act 1958 Cth, as amended, ordered that the plaintiff should be deported from Australia. The plaintiff applied to the Administrative Appeals Tribunal for a review of the Minister's order, and on 24 May 1979 the Tribunal decided to review the order and recommended that the deportation order be revoked and remitted the matter to the Minister for reconsideration in accordance with that recommendation. The Minister appealed to the Federal Court of Australia against the decision but on 31 July 1980 the appeal was dismissed. On 24th Feburary 1982 Mr. Macphee informed the plaintiff that, notwithstanding the recommendation of the Tribunal, he had decided not to revoke the deportation order issued by his predecessor against the plaintiff. The plaintiff claims an injunction to restrain the defendants from deporting him and declarations that the defendants have no power to order his deportation under s. 12 of the Migration Act and that they are bound to give effect to the recommendation of the Administrative Appeals Tribunal that the deportation order be revoked.