O'Keefe v Calwell [1949] HCA 6

High Court of Australia Latham C.J. Rich, Dixon, McTiernan, Williams and Webb JJ. O'Keefe v Calwell [1949] HCA 6

ORDER Judgment for the plaintiff: Injunction restraining the defendant Minister, his officers, servants and agents from taking any action to deport the plaintiff from the Commonwealth pursuant to the notice in writing of 10th February 1949 given to the plaintiff by A. H. Priest, Commonwealth Migration Officer. Defendants to pay plaintiff's costs of action, including reserved costs.

Cur. adv. vult.

The following written judgments were delivered:—

March 18 Latham C.J.

The plaintiff Annie Maas O'Keefe moved for an interlocutory injunction to restrain the defendants from deporting her from the Commonwealth. It was agreed between the parties that the motion for an injunction should be treated as the trial of the action, and the action was referred to the Full Court under the Judiciary Act 1903-1947, s. 18, to be argued before the Full Court.

The plaintiff was born at Monado, Celebes, on 17th December 1908 and was a Dutch subject. With her then husband and family of seven children she escaped from the Japanese Forces in the islands and the whole family was brought to Australia by the Australian corvette H.M.A.S. Warrnambool on 18th September 1942. She was registered as an alien under the National Security (Aliens Control) Regulations on 28th October 1942. The Dutch Government took charge of the family and provided for their care and maintenance. A child was born in Australia to the plaintiff and her husband on 27th August 1943. Her husband, after receiving special training in Australia, rendered service with the intelligence section of the Dutch Army and was killed in the crash of a Dutch transport plane in September 1944. The plaintiff received a widow's allowance from the Dutch Government. On 16th January 1947 the plaintiff applied for a certificate of exemption under the Immigration Act 1901-1940. The certificate of exemption which was issued to her was expressed to be in force for a period of three months from 10th January 1947. It was extended to 12th June 1947 and ultimately to 31st December 1948. When the extension was granted in June 1947 the plaintiff was informed that the extension had been granted on the understanding that she would leave the Commonwealth before 31st December 1947. The extension to 31st December 1948 was accompanied by a statement that the extension must be regarded as final and that it was expected that arrangements for the plaintiff's departure from Australia would be effected before November 1948. On 14th June 1947 the plaintiff married John William O'Keefe, a British subject. She thereby became a British subject: see Nationality Act 1920-1946, s. 18. Some correspondence took place with the Department of Immigration with respect to the effect of her marriage upon her right to remain in the Commonwealth, and her husband was informed by the Department on 19th June 1947 that the marriage between him and the plaintiff would not confer any right on the plaintiff to remain in Australia as a permanent resident.