Nguyen, Ex parte- Re East

The applicants, Nguyen and others, sought leave to appeal to the High Court of Australia against a decision of the Full Federal Court. The dispute concerned the validity of certain provisions of the *Migration Act 1958* (Cth) and regulations made under it, which purported to confer non-compellable, non-revocable, and non-assignable rights to certain persons to remain in Australia. The applicants, who were asylum seekers, argued that these provisions were invalid as they contravened constitutional limitations on the legislative power of the Commonwealth, specifically concerning the executive power and the separation of powers.

The central legal issue before the High Court was whether the impugned provisions of the *Migration Act* and its subordinate legislation were constitutionally valid. This required the Court to consider whether the Parliament had the legislative power to create rights that were non-compellable, non-revocable, and non-assignable, and whether such provisions impermissibly encroached upon the executive power of the Commonwealth, which is vested in the Governor-General by Chapter II of the Constitution. The Court also had to determine if these provisions were consistent with the implied constitutional doctrine of the separation of powers, particularly concerning the conferral of rights that could not be exercised by the executive government.

The High Court, by majority, held that the provisions were invalid. The majority reasoned that the legislative power of the Commonwealth Parliament is not unlimited and is constrained by the Constitution, including the separation of powers doctrine. They found that the conferral of rights that were non-compellable, non-revocable, and non-assignable, and which could not be exercised by the executive government, amounted to an impermissible intrusion into the executive power of the Commonwealth. The Court distinguished between the legislative power to create rights and the executive power to administer the law and grant immigration status, concluding that Parliament could not legislate to create rights that effectively bypassed or usurped the executive's constitutional role.

The High Court granted leave to appeal and allowed the appeal, declaring the impugned provisions of the *Migration Act* and the relevant regulations to be invalid.