Falzon v Minister for Immigration and Border Protection

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.