Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Federal Court of Australia considered an appeal by two appellants whose visas were cancelled under section 501(3A) of the Migration Act 1958 (Cth). The appellants argued that the cancellation decisions made by the Minister's delegates were invalid, claiming that the Administrative Appeals Tribunal (AAT) had erred in applying section 501CA to them. They contended that they were not "persons" within the meaning of the relevant provisions, and that their rights under Article 12(4) of the International Covenant of Civil and Political Rights should have been considered. The appellants also sought an extension of the common law to include a right to protection against arbitrary deprivation of their right to reside in Australia.

The central legal issue was whether the term "person" in sections 501(3A) and 501CA(4) of the Migration Act should be interpreted to include natural persons only, and whether the principle of legality should apply to read down this term in light of Article 12(4) of the ICCPR or an equivalent common law right. The Court needed to determine if the AAT had made a jurisdictional error by applying section 501CA to the appellants when they were not "persons" within the meaning of that provision. Additionally, the Court had to decide whether the common law should be extended to include a right against arbitrary deprivation.

The Court found that the term "person" in sections 501(3A) and 501CA(4) should be interpreted to mean natural persons only. It held that the Acts Interpretation Act 1901 (Cth) definition of "person" did not apply to the Migration Act, as the Act manifests a contrary intention. The Court concluded that there was no relevant ambiguity in the text of either provision and that the class of persons to whom a visa may be issued is limited to non-citizens. The principle of legality did not apply because there was no "constructional choice" in the relevant provisions. The Court also found that the common law should not be extended to include a right against arbitrary deprivation, as this would render lawful deportations unlawful at common law. Consequently, the appeals were dismissed, and the applications had no prospect of success.

ORDERS:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of and incidental to the appeal, as fixed by the Registrar if not agreed.