KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
JOHN FALZON PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND BORDER PROTECTION DEFENDANT
Falzon v Minister for Immigration and Border Protection
[2018] HCA 2
7 February 2018
S31/2017
ORDER
Application dismissed with costs.
Representation
S B Lloyd SC with D P Hume for the plaintiff (instructed by Zali Burrows Lawyers)
A M Mitchelmore with C J Tran for the defendant and for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Falzon v Minister for Immigration and Border Protection
Constitutional law (Cth) – Judicial power – Ch III – Where plaintiff holder of Absorbed Person Visa and Class BF Transitional (Permanent) Visa – Where plaintiff convicted of trafficking large commercial quantity of cannabis and sentenced to 11 years' imprisonment – Where s 501(3A) of Migration Act1958 (Cth) requires Minister for Immigration and Border Protection to cancel visa where visa holder has substantial criminal record and is serving sentence of imprisonment on full-time basis – Where plaintiff's visas cancelled under s 501(3A) – Where plaintiff held in immigration detention pending deportation – Whether s 501(3A) authorises or requires detention – Whether purpose of s 501(3A) is to punish – Whether s 501(3A) confers judicial power on Minister – Whether s 501(3A) invalid as contrary to Ch III of Constitution. Words and phrases – "aliens", "character test", "immigration detention", "judicial power", "protection of society", "punishment", "punitive purpose", "substantial criminal record", "unlawful non-citizen".
Constitution, Ch III, s 51(xix). Migration Act1958 (Cth), ss 34, 189, 196, 198, 501, 501CA.
KIEFEL CJ, BELL, KEANE AND EDELMAN JJ. The plaintiff, Mr John Falzon, is a national of Malta who has lived in Australia for 61 years. He arrived in Australia with his family at the age of three. He did not at any time obtain Australian citizenship. Until 10 March 2016 he held an Absorbed Person Visa[1] and a Class BF Transitional (Permanent) Visa. His legal status as the holder of these visas was as a lawful non-citizen[2].
In 2008 the plaintiff was convicted of trafficking a large commercial quantity of cannabis and he was sentenced to 11 years' imprisonment with a non-parole period of eight years. He had previous convictions for drug-related and other offences. He was in custody in respect of the 2008 conviction when his Absorbed Person Visa was cancelled by a delegate of the Minister acting under s 501(3A) of the Migration Act 1958 (Cth) ("the Cancellation Decision"). The cancellation of this visa has the effect that the Minister is taken to have decided to cancel the plaintiff's other visa[3]. At the conclusion of the non-parole period, four days after the Cancellation Decision, the plaintiff was taken into immigration detention, where he remains.
[3]
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
Case
[2018] HCA 2
Decision Date
CaseChat Overview and Summary
The plaintiff, Mr Falzon, a national of Malta, challenged the cancellation of his visas under s 501(3A) of the *Migration Act 1958* (Cth). Mr Falzon held an Absorbed Person visa and a Class BF Transitional (Permanent) Visa. He had been convicted of trafficking a large commercial quantity of cannabis and sentenced to 11 years' imprisonment. His visas were cancelled by a delegate of the Minister for Immigration and Border Protection shortly before his release from criminal custody, and he was subsequently taken into immigration detention. The High Court of Australia considered the validity of s 501(3A) and its application to Mr Falzon.
The central legal issue before the High Court was whether s 501(3A) of the *Migration Act* was invalid as being contrary to Chapter III of the Australian Constitution. Specifically, the plaintiff contended that the provision conferred judicial power on the Minister, arguing that its exercise either resulted in detention for a punitive purpose, contrary to established constitutional principles, or that the nature of the criteria for its application lent it a judicial character. The court was required to determine whether the mandatory visa cancellation provision, triggered by a substantial criminal record and imprisonment, encroached upon the exclusive domain of the judicial power of the Commonwealth.
The High Court reasoned that s 501(3A) did not authorise or require the detention of the plaintiff. Instead, it mandated the cancellation of his visa due to his criminal history and imprisonment. The court held that the consequence of this cancellation was that Mr Falzon became an unlawful non-citizen, rendering him liable for removal from Australia and detention to facilitate that removal, which is consistent with the overall scheme of the *Migration Act*. The court found that the provision did not confer judicial power on the Minister, as its function was administrative and regulatory, not adjudicative.
The application was dismissed with costs.
Orders
Orders of the court
Application dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, KEANE AND EDELMAN JJ
GAGELER AND GORDON JJ
NETTLE J
It is not necessary to detail each of the provisions of Pt 2, Div 4. It is sufficient to observe that they involve the grant by the Commonwealth Attorney-General or an official of a State of a criminal justice certificate[50] which has the effect that, during its currency, the person is not to be removed or deported from Australia[51] and the issue of a warrant by a court to stay the removal or deportation of a non-citizen[52]. If a criminal justice certificate or a criminal stay warrant is in force the Minister may consider the grant of a criminal justice visa[53]. The possibility of the concurrent operation of the Migration Act with criminal detention does not arise in the plaintiff's case, since it is acknowledged that he was taken into immigration detention at the conclusion of his non-parole period.[50]Migration Act 1958 (Cth), ss 147 and 148.[51]Migration Act 1958 (Cth), s 150.[52]Migration Act 1958 (Cth), s 151.[53]Migration Act 1958 (Cth), s 159(1).Conclusion and orders Section 501(3A) did not authorise or require the detention of the plaintiff. It required that a visa granted to him as a non-citizen be cancelled on account of his criminal history and his imprisonment. The change in his legal status to that of an unlawful non-citizen had the effect that he was liable to removal from Australia and to detention to facilitate that removal. That is the scheme of the Migration Act. The plaintiff's application should be dismissed with costs. The plaintiff, Mr Falzon, is a national of Malta who arrived in Australia on 29 February 1956. Between 1 September 1994 and 10 March 2016, the plaintiff held an Absorbed Person visa. On 26 June 2008, the plaintiff was convicted of one count of trafficking a large commercial quantity of cannabis. He was sentenced to 11 years' imprisonment with a non‑parole period of eight years. On 10 March 2016, shortly before the plaintiff was due to be released from criminal custody, a delegate of the defendant – the Minister for Immigration and Border Protection ("the Minister") – cancelled the plaintiff's visa under s 501(3A) of the Migration Act 1958 (Cth) ("the Act"). Upon being released from criminal custody on 14 March 2016, the plaintiff was taken into immigration detention, where he has since remained. On 15 March 2016, the plaintiff sought to have the delegate's decision to cancel his visa revoked under s 501CA(4) of the Act. On 10 January 2017, the Assistant Minister decided not to revoke the delegate's decision. Section 501(3A) of the Act requires the Minister to cancel a non-citizen's visa if the Minister is satisfied that the non-citizen has a "substantial criminal record" and is serving a full-time custodial sentence. The plaintiff contended that s 501(3A) purports to confer the judicial power of the Commonwealth on the Minister, contrary to Ch III of the Constitution. That contention was put in two broad ways: first, an exercise of s 501(3A) "results in" or "causes" detention for a punitive purpose contrary to the limitations identified in Chu Kheng Lim v Minister for Immigration[54]; and second, the power conferred by s 501(3A) took on a judicial character because of, among other things, the nature of the criteria which enlivened the duty to exercise it.[54](1992) 176 CLR 1 at 32-33; [1992] HCA 64.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, KEANE AND EDELMAN JJ,
GAGELER AND GORDON JJ,
NETTLE J