Opinion Number. 1879



Key Legislation

IMMIGRATION ACT 1901 ss 3(gg), 4, 5: WAR-TIME REFUGEES REMOVAL ACT 1949 ss 3, 4, 5

The Secretary, Department of Immigration

The Secretary, Department of Immigration, has forwarded the following memorandum for advice:

X. arrived in Australia from Italy in July, 1936. He was convicted at Townsville in November, 1939, on a charge of demanding money with threats and making threats and sentenced to six months imprisonment on each charge. The letters written by him indicated that he was a member of the Black Hand Gang. The convictions brought X. within the scope of the deportation provisions of the Immigration Act and an order for his deportation was issued in January, 1940.

The order was executed and X. left Australia by the m.v. ‘Romolo’ in June, 1940. Following the outbreak of war the ‘Romolo’ was scuttled to avoid capture and X. was rescued and returned to Australia.

X. was placed in internment. On 20th July, 1944, the then Minister considered the question of his release for employment in the Civil Aliens Corps but decided that the man should be kept interned until such time as deportation was possible.

On the 15th August, 1944, however, X. was released for employment in the Aliens Corps. The Director-General of Security later advised that he had lost sight of the fact that X. was a deportee when consideration was being given to the question of his release. No action was then taken against X. under the Immigration Act owing to the absence of travel facilities to Italy.

Late in 1946 an opportunity presented itself for the return of this man to Italy. Section 3(gg) of the Immigration Act provides that any person who has been deported in pursuance of any Act and whose re-entry into the Commonwealth has not been authorised by the Minister is a prohibited immigrant. X. was therefore, on return to Australia, a prohibited immigrant.

The Minister authorised the issue of a certificate of exemption in favour of X. This certificate was later cancelled by a Ministerial order. X. was declared a prohibited immigrant in accordance with Section 4 of the Immigration Act 1901–1940 and served with notice in writing to leave the Commonwealth. He failed to abide by the notice and the Minister signed an order for his deportation under Section 4 of the Immigration Act 1901–1940 on 30th December 1946.

Immediately on being served with notice to leave the Commonwealth X. went into hiding and all efforts to effect his apprehension have to date proved fruitless.

Efforts are continuing to effect the apprehension of this man. Upon his recovery the question of the right of the Department to hold him in custody and effect his departure rests upon the validity of the order for deportation signed on 31st December, 1946.

Your advice is desired as to whether it is considered that X. on his return to Australia was a prohibited immigrant within the meaning of Section 3(gg) of the Immigration Act and whether action for his custody and departure may be taken under the order for deportation issued on 3rd December, 1946, under Section 4 of the Immigration Act 1901–1940.

It would be appreciated if you would give this matter early attention as X. may come under notice at any time.

(2)  For the reasons to be stated, I am of opinion that, though X. was a prohibited immigrant upon his return to Australia in 1940, action may not now be taken for his deportation under the order of 3rd December, 1946. On the facts stated, however, it would appear that action for his deportation could be taken either under the War-time Refugees Removal Act 1949 or under the Immigration Act, following a successful prosecution under section 5 of that Act.

(3)  Under section 3(gg) of the Immigration Act a person is a prohibited immigrant if he is a person ‘who has been deported in pursuance of any Act and whose re-entry into the Commonwealth has not been authorized by the Minister’.

(4)  If his re-entry was authorized by the Minister, then the provisions of section 3(gg) would not apply to X. There is nothing in the memorandum for advice to suggest that X. was expressly authorised to re-enter nor can it be implied that, in the circumstances of his return to Australia in 1940, the Minister tacitly authorized his re-entry.

(5)  If X. came within section 3(gg), it follows that he was a person ‘liable to be prohibited from remaining within the Commonwealth’ within the meaning of section 4 of the Act, and that the Minister could issue a certificate of exemption under that section authorizing him to remain in the Commonwealth without being subject to any of the provisions of the Act restricting entry into or stay in the Commonwealth. If such a certificate had been validly issued, then on its expiration, the Minister could, in accordance with the procedure laid down in section 4, have made a valid order for X.’s deportation.

(6)  An order for deportation was in fact made, but, in my view, not validly. X. did not apply for the certificate of exemption and it was not delivered to him or brought to his notice. Consequently the certificate was not ‘issued’ within the meaning of the Act (see Koon Wing Lau v. Calwell (1950) A.L.R. 97). Moreover, as held by the High Court in that case, section 4 of the Immigration Act 1949 did not on its true construction apply to such a certificate. Accordingly, the order for deportation based as it is simply on the expiration of the certificate, is not, in my view, valid, and could not be relied on in the event of X. being apprehended.

(7)  Although action under section 4 of the Immigration Act does not now appear to be practicable, other procedures are available to effect X.’s deportation. In the first place, action could be taken under the War-time Refugees Removal Act 1949. That Act applies, with certain exceptions not relevant here, to every person who entered Australia between 3rd September, 1939, and 2nd September, 1945, and is an alien, but who was not, at the time of his entry, domiciled in Australia (see sections 3 and 4). X. is an alien who entered Australia between those dates. He may have had a domicile of choice in Australia prior to his deportation in 1940, but that domicile would have been destroyed in deportation, and at the time of re-entry he could not have re-acquired a domicile of choice in Australia. He is, then, a person to whom the Act applies. Section 5 gives the Minister power, at any time within twelve months after the commencement of the Act (i.e. up to 12th July, 1950) to make an order for the deportation of such a person, and provides that that person shall be deported in accordance with the Act. Such an order could be made now for X.’s deportation, and it could be executed when he was apprehended, at any rate within such time as is reasonable in all the circumstances.

(8)  Another possible, though it would seem less satisfactory, procedure would be to rely on section 5 of the Immigration Act. That section provides that an immigrant who has evaded an officer and is thereafter found within the Commonwealth, may be required to pass the dictation test and shall, if he fails to do so, be deemed to be a prohibited immigrant offending against the Act. In a prosecution charging X. with that offence, the use of averments should remove most of the difficulties of proof, and, following conviction, X. could be deported pursuant to an order made by the Minister.

[Vol. 39, p. 94]