HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJMatter No M97/2016
AARON JOE THOMAS GRAHAM PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND BORDER
PROTECTION DEFENDANTMatter No P58/2016
MEHAKA LEE TE PUIA APPLICANT
AND
MINISTER FOR IMMIGRATION AND BORDER
PROTECTION RESPONDENTGraham v Minister for Immigration and Border Protection
Te Puia v Minister for Immigration and Border Protection[2017] HCA 33
6 September 2017
M97/2016 & P58/2016
ORDER
Matter No M97/2016
The questions stated by the parties in the special case and referred for consideration by the Full Court be answered as follows:
Question 1
Are either or both of s 501(3) and s 503A(2) of the [Migration Act 1958 (Cth)] invalid, in whole or in part, on the ground that they:
a.require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or
b.so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?
Answer
Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.
Question 2
In circumstances where the Minister found that the Plaintiff did not pass the character test by virtue of s 501(6)(b) of the [Migration Act 1958 (Cth)] because the Minister reasonably suspected that:
a.the Plaintiff has been or is a member of "the Rebels Outlaw Motorcycle Gang"; and
b.that organisation has been or is involved in criminal conduct;
could the Minister, exercising power under s 501(3) of the [Migration Act], be satisfied that cancellation of the Plaintiff's visa was in the "national interest" without making findings as to:
c.the Plaintiff's knowledge of, opinion of, support for or participation in the suspected criminal conduct of the Rebels Outlaw Motorcycle Gang; and/or
d.how cancellation of the Plaintiff's visa would "disrupt, disable and dismantle the criminal activities of Outlaw Motorcycle Gangs"?
Answer
Unnecessary to answer.
Question 3
Was the decision of the Minister of 9 June 2016 to cancel the Plaintiff's Special Category (Class TY) (Subclass 444) visa invalid by reason that:
a.the answer to Question 1 is "Yes"; or
b.the Minister acted on a wrong construction of s 503A(2); or
c.the Minister failed to make the finding or findings referred to in [Question 2]?
Answer
The decision of the Minister to cancel the Plaintiff's visa was invalid by reason that the Minister acted on a wrong construction of s 503A(2).
Question 4
What, if any, relief should be…
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- AGLC
- Graham v Minister for Immigration and Border Protection [2017] HCA 33
- Case
- [2017] HCA 33
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court included whether sections 501(3) and 503A(2) of the *Migration Act* were invalid on the grounds that they required federal courts to exercise judicial power in a manner inconsistent with the essential character of a court, or that they unduly limited the ability of affected persons to seek relief under section 75(v) of the Constitution. Additionally, the Court considered whether the Minister's decision to cancel the plaintiff's visa was invalid due to an erroneous construction of section 503A(2) or a failure to make necessary findings regarding the "national interest" in the context of visa cancellation.
The Court determined that section 501(3) of the *Migration Act* was not invalid. However, section 503A(2) was found to be invalid to the extent that it would prevent the Minister from being required to divulge or communicate information to the High Court when exercising jurisdiction under section 75(v), or to the Federal Court when exercising jurisdiction under section 476A of the *Migration Act*, where that information was relevant to a review of the Minister's purported exercise of power under sections 501, 501A, 501B, or 501C. The Court also found that the Minister's decision to cancel the plaintiff's visa was invalid because the Minister had acted on a wrong construction of section 503A(2). Consequently, the Court ordered that a writ of certiorari quash the Minister's decision and a writ of prohibition prevent action on that decision, with the Minister to pay the costs of the special case and the proceeding.
Orders
Orders of the court
Matter No M97/2016
The questions stated by the parties in the special case and referred for consideration by the Full Court be answered as follows:
Question 1
Are either or both of s 501(3) and s 503A(2) of the [Migration Act 1958 (Cth)] invalid, in whole or in part, on the ground that they:
a. require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or
b. so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?
Answer
Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.
Question 2
In circumstances where the Minister found that the Plaintiff did not pass the character test by virtue of s 501(6)(b) of the [Migration Act 1958 (Cth)] because the Minister reasonably suspected that:
a. the Plaintiff has been or is a member of "the Rebels Outlaw Motorcycle Gang"; and
b. that organisation has been or is involved in criminal conduct;
could the Minister, exercising power under s 501(3) of the [Migration Act], be satisfied that cancellation of the Plaintiff's visa was in the "national interest" without making findings as to:
c. the Plaintiff's knowledge of, opinion of, support for or participation in the suspected criminal conduct of the Rebels Outlaw Motorcycle Gang; and/or
d. how cancellation of the Plaintiff's visa would "disrupt, disable and dismantle the criminal activities of Outlaw Motorcycle Gangs"?
Answer
Unnecessary to answer.
Question 3
Was the decision of the Minister of 9 June 2016 to cancel the Plaintiff's Special Category (Class TY) (Subclass 444) visa invalid by reason that:
a. the answer to Question 1 is "Yes"; or
b. the Minister acted on a wrong construction of s 503A(2); or
c. the Minister failed to make the finding or findings referred to in [Question 2]?
Answer
The decision of the Minister to cancel the Plaintiff's visa was invalid by reason that the Minister acted on a wrong construction of s 503A(2).
Question 4
What, if any, relief should be granted to the Plaintiff?
Answer
There should be directed to the Minister a writ of certiorari quashing the decision of the Minister and a writ of prohibition preventing action on that decision.
Question 5
Who should pay the costs of this special case?
Answer
The Minister should pay the costs of the special case and of the proceeding.
Matter No P58/2016
The questions stated by the parties in the special case and referred for consideration by the Full Court be answered as follows:
Question 1
Are either or both of s 501(3) and s 503A(2) of the [Migration Act 1958 (Cth)] invalid, in whole or in part, on the ground that they:
a. require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or
b. so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?
Answer
Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.
Question 2
In circumstances where the Minister found that the Plaintiff did not pass the character test by virtue of s 501(6)(b) of the [Migration Act 1958 (Cth)] because the Minister reasonably suspected that:
a. the Plaintiff has been or is a member of a "group or organisation"; and
b. that group or organisation has been or is involved in criminal conduct;
could the Minister, exercising power under s 501(3) of the [Migration Act], be satisfied that cancellation of the person's visa was in the "national interest" without making findings as to:
c. the Plaintiff's knowledge of, opinion of, support for or participation in the suspected criminal conduct of the group or organisation; and/or
d. how cancellation of the Plaintiff's visa would "disrupt and disable such groups"?
Answer
Unnecessary to answer.
Question 3
Was the decision of the Minister of 27 October 2015 to cancel the Plaintiff's Special Category (Class TY) (Subclass 444) visa invalid by reason that:
a. the answer to Question 1 is "Yes"; or
b. the Minister acted on a wrong construction of s 503A(2); or
c. the Minister failed to make the finding or findings referred to in [Question 2]?
Answer
The decision of the Minister to cancel the Plaintiff's visa was invalid by reason that the Minister acted on a wrong construction of s 503A(2).
Question 4
What, if any, relief should be granted to the Plaintiff?
Answer
There should be directed to the Minister a writ of certiorari quashing the decision of the Minister and a writ of prohibition preventing action on that decision.
Question 5
Who should pay the costs of this special case?
Answer
The Minister should pay the costs of the special case and of the proceeding.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ, EDELMAN J
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