Markisic & Anor, An application by

An application was made by Markisic and another for leave to appeal to the High Court of Australia against a decision of the Full Court of the Federal Court of Australia. The applicants sought to challenge the validity of certain provisions of the *Migration Act 1958* (Cth) that purported to confer on the Minister for Immigration and Multicultural Affairs the power to refuse to grant a visa, or to cancel a visa, on the grounds of character. The applicants, who were non-citizens, had been refused visas or had their visas cancelled on character grounds.

The central legal issue before the High Court was whether the impugned provisions of the *Migration Act* were constitutionally valid, specifically in light of Chapter III of the Constitution, which vests the judicial power of the Commonwealth in the courts. The applicants contended that the power to refuse or cancel a visa on character grounds, as conferred by the legislation, involved the exercise of judicial power, and that vesting such a power in the Minister, who is an executive officer, was an unconstitutional delegation of judicial power.

Heydon J, in considering the application, analysed the nature of the power conferred by the *Migration Act*. His Honour referred to established principles concerning the separation of powers under the Australian Constitution, particularly the prohibition against the exercise of judicial power by the executive. The court examined whether the Minister's function of assessing character and making a decision to refuse or cancel a visa constituted a determination of legal rights and obligations in a manner akin to a judicial proceeding. His Honour concluded that the power to refuse or cancel a visa on character grounds, as exercised by the Minister, did not involve the exercise of judicial power, but rather an administrative power to assess whether a non-citizen met the criteria for entry or continued presence in Australia. The court found that the legislative provisions were a valid exercise of the Parliament's power to make laws with respect to immigration.