Re Minister for Immigration and Multicultural Affairs; ex parte Te

The case involved applications for constitutional writs concerning the validity of provisions of the *Migration Act 1958* (Cth) that authorised the cancellation of visas and deportation of non-citizens. The primary applicant, Dang, challenged the Minister's decision to cancel his visa under s 501(2) of the Act, arguing that the section, as applied to him, was not supported by the constitutional powers of the Parliament, specifically s 51(xix) or s 51(xxvii). A second applicant, Te, sought to quash a decision of the Administrative Appeals Tribunal affirming the Minister's order for his deportation under s 200 of the Act, contending that s 200 had no valid application to him as he was an "absorbed person" and not an "alien". The High Court of Australia, comprising Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, and Callinan JJ, considered these challenges.

The central legal issue before the Court was whether ss 200 and 501(2) of the *Migration Act 1958* (Cth), in their application to the respective applicants, were valid laws of the Commonwealth, particularly whether they were supported by the constitutional power to make laws with respect to "aliens" under s 51(xix) of the Constitution. This involved determining the meaning of "alien" in the context of the Constitution and whether individuals who had resided in Australia for extended periods, had familial ties to Australian citizens, and had engaged in criminal conduct, could still be considered aliens for the purposes of federal legislative power. The Court also considered, but ultimately found it unnecessary to definitively resolve, whether the immigration power under s 51(xxvii) supported the provisions, and the relevance of an individual's "absorption" into the Australian community to their status as an alien.

The Court reasoned that each of the applicants was an alien within the meaning of s 51(xix) of the Constitution. This conclusion was based on the established understanding of the constitutional power to legislate with respect to aliens, which was not diminished by the applicants' length of residence in Australia, their familial connections, or their status as permanent residents. The Court affirmed that the concept of "absorption" into the community did not preclude a person from being an alien for constitutional purposes. Consequently, the provisions of the *Migration Act* authorising the cancellation of visas and deportation were validly supported by the aliens power.

The applications were dismissed with costs. The question posed in the case stated regarding the applicant Dang was answered in the affirmative, confirming the validity of the Minister's decision to cancel his visa. The application for orders nisi made by the applicant Te was also dismissed.