GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
RE SENATOR THE HONOURABLE KAY CHRISTINE LESLEY PATTERSON RESPONDENT
EX PARTE: GRAHAM ERNEST TAYLOR PROSECUTOR
Re Patterson; Ex parte Taylor [2001] HCA 51 Date of Order: 7 December 2000 Date of Publication of Reasons: 6 September 2001 S165/2000
ORDER
1. Order absolute for a writ of certiorari to quash the decision of the respondent made on 30 June 2000 to cancel the visa of the prosecutor.
2. Order absolute for a writ of prohibition prohibiting the respondent from further proceeding on the decision made by the respondent on 30 June 2000 to cancel the visa of the prosecutor.
3. Respondent to pay the prosecutor's costs.
Representation:
D M J Bennett QC, Solicitor-General of the Commonwealth with S J Gageler SC and R P L Lancaster for the respondent (instructed by Australian Government Solicitor)
P Le G Brereton SC with D P M Ash for the prosecutor (instructed by Teakle Ormsby Conn)
Intervener:
D R Williams QC, Attorney-General of the Commonwealth with D M J Bennett QC, Solicitor-General of the Commonwealth with S J Gageler SC and R P L Lancaster intervening on behalf of the Commonwealth (instructed by Australian Government Solicitor).
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re Patterson; Ex parte Taylor
Constitutional Law (Cth) – Naturalisation and aliens – Meaning of "aliens" in s 51(xix) – Law empowering cancellation of visa of "non-citizen" – Whether such a law, applied to a British subject who has lived in Australia for over 33 years, is a law with respect to naturalisation and aliens.
Constitutional Law (Cth) – External affairs power – Whether s 51 (xxix) supports application of s 501(3) of Migration Act 1958 (Cth) to the prosecutor, a British subject who has lived in Australia for over 33 years.
Constitutional Law (Cth) – Meaning of "Minister" in s 64 of the Constitution – Whether Parliamentary Secretary constituted the "Minister" for the purpose of s 64 – Whether Parliamentary Secretary constituted "the Minister personally" for the purpose of s 501(4) of the Migration Act 1958 (Cth).
Immigration – Jurisdictional error – Power of Minister to cancel a visa on character grounds under s 501(3) of Migration Act1958 (Cth) – Prosecutor had been sentenced to a term of imprisonment of 12 months or more and accordingly had a "substantial criminal record" – Substantial criminal record grounds for failure of character test – Prosecutor could not possibly pass the character test – Respondent invited prosecutor to make representations to her to have the decision revoked under s 501C(4) of Migration Act 1958 (Cth) – Only ground for revocation was that prosecutor passed the character test – Whether invitation to make representations evinced misunderstanding of nature of decision – Whether misunderstanding amounted to a constructive failure of jurisdiction.
Immigration – Jurisdictional error – Power of Minister to cancel a visa on character…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Re Patterson; ex parte Taylor [2001] HCA 51
Case
[2001] HCA 51
Decision Date
CaseChat Overview and Summary
The case of *Re Patterson; ex parte Taylor* concerned a challenge brought by Mr Taylor against a decision by a Parliamentary Secretary to cancel his visa. Mr Taylor, a British subject, had resided in Australia for over 33 years, having arrived as a child. He had been convicted of an offence for which he received a sentence of imprisonment of 12 months or more, meaning he had a "substantial criminal record" and therefore failed the character test under section 501(3) of the *Migration Act 1958* (Cth). The High Court of Australia was required to determine the validity of section 501(3) as applied to Mr Taylor, and whether the decision to cancel his visa constituted jurisdictional error.
The legal issues before the Court included whether section 501(3) of the *Migration Act* was a valid law with respect to "naturalisation and aliens" under section 51(xix) of the Constitution when applied to a long-term resident who was not an Australian citizen. The Court also considered whether the external affairs power, section 51(xxix) of the Constitution, could support the application of section 501(3) to Mr Taylor. Further questions arose regarding the interpretation of "Minister" in section 64 of the Constitution and "the Minister personally" in section 501(4) of the *Migration Act*, specifically whether a Parliamentary Secretary could fulfil these roles. Finally, the Court had to determine if the Parliamentary Secretary's invitation to Mr Taylor to make representations for revocation of the visa cancellation evinced a misunderstanding of the decision-making process, thereby constituting a constructive failure of jurisdiction.
The High Court reasoned that for section 501(3) to be validly applied to Mr Taylor, he must have been an "alien" for the purposes of section 51(xix) of the Constitution. The Court adopted the definition of an alien as a person who is not a member of the community constituting the body politic of the nation state. Given Mr Taylor's long-term residence, integration into Australian society, and lack of allegiance to any foreign power, the Court concluded that he was not an alien in the constitutional sense. Consequently, section 501(3) could not be supported by the aliens power in its application to him. Furthermore, the Court found that the invitation to make representations for revocation under section 501C(4) was flawed because the only ground for revocation was passing the character test, which Mr Taylor could not do. This misunderstanding of the revocation process amounted to a jurisdictional error.
The High Court made orders absolute for writs of certiorari and prohibition to quash the decision to cancel Mr Taylor's visa and to prohibit further proceedings on that decision. The respondent was ordered to pay Mr Taylor's costs.
Orders
Orders of the court
1. Order absolute for a writ of certiorari to quash the decision of the respondent made on 30 June 2000 to cancel the visa of the prosecutor.
2. Order absolute for a writ of prohibition prohibiting the respondent from further proceeding on the decision made by the respondent on 30 June 2000 to cancel the visa of the prosecutor.
3. Respondent to pay the prosecutor's costs.
Background
Background to the litigation
The issues which arise in this matter are:1.whether s 501(3) of the Act is valid in its application to the prosecutor;2.whether, as a matter of statutory construction, the Parliamentary Secretary is "the Minister personally" for the purposes of s 501(4) of the Act;3.if the Parliamentary Secretary is "the Minister personally", whether she has been validly appointed as one of the Queen's Ministers of State for the Commonwealth;4.whether the decision of the Parliamentary Secretary involved jurisdictional error attracting relief by way of prohibition under s 75(v) of the Constitution.The facts At this stage it is necessary to note that Mr Taylor was convicted of an offence in respect of which he was sentenced to a minimum term of imprisonment of three and a half years. Thus, he did not pass and cannot pass the character test in s 501(3) of the Act. Otherwise, to the extent that it is necessary to refer to the facts, which are set out in other judgments, the facts relevant to each issue will be referred to separately in relation to each of those issues.Validity of s 501(3) of the Act in its application to Mr Taylor Mr Taylor was born in the United Kingdom and, as already noted, came to Australia as a child on his father's passport in 1966. He was then a young child. He has resided in Australia ever since. He was educated here and has made his home here. He has been on the electoral roll since attaining the age of 18. He has never applied for a passport and has not taken out Australian citizenship. It was conceded on behalf of the Parliamentary Secretary that, when she made her decision cancelling his visa, Mr Taylor was completely absorbed into the Australian community. Indeed, the Parliamentary Secretary must be taken to have conceded that he was completely absorbed into the community prior to April 1984, that being one of the requirements for an absorbed person visa[17].[17]See fn 13. Because it was accepted by both sides that Mr Taylor had been absorbed into the Australian community, the matter was argued on the assumption that s 501(3) of the Act cannot be supported in its application to him by reference to the legislative power of the Commonwealth with respect to "immigration and emigration"[18]. That is an assumption that requires further examination, and to which it will be necessary to return. Given that assumption, the matter was argued on the basis that s 501(3) of the Act is valid in its application to Mr Taylor only if, at the time of the decision to cancel his visa, he was an alien for the purposes of s 51(xix) of the Constitution.[18]Constitution, s 51(xxvii). As I pointed out in Nolan v Minister for Immigration and Ethnic Affairs, an alien is "a person who is not a member of the community which constitutes the body politic of the nation state from whose perspective the question of alien status is to be determined."[19] That is not the same as asking whether the person is "under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power", that being the question posed by s 44(i) of the Constitution with respect to the qualification necessary to be a member of the Commonwealth Parliament.[19](1988) 165 CLR 178 at 189.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GAUDRON J
HUGH J
It is also necessary to refer to s 501C which provides as follows:"Refusal or cancellation of visa - revocation of decision under subsection 501(3) or 501A(3) (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to: (a) refuse to grant a visa to a person; or (b)cancel a visa that has been granted to a person. (2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a)would be the reason, or a part of the reason, for making the original decision; and (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3)As soon as practicable after making the original decision, the Minister must: (a)give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10)) - invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the person satisfies the Minister that the person passes the character test (as defined by section 501). (5)The power under subsection (4) may only be exercised by the Minister personally.(6)If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).(7)Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and (b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.(8) If the Minister makes a decision (the subsequent decision) to revoke, or not to revoke, the original decision, the Minister must cause notice of the making of the subsequent decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the subsequent decision was made.(9)If the person does not make representations in accordance with the invitation, the Minister must cause notice of that fact to be laid before each House of the Parliament within 15 sitting days of that House after the last day on which the representations could have been made.(10)The regulations may provide that, for the purposes of this section: (a) a person; or (b)a person included in a specified class of persons; is not entitled to make representations about revocation of an original decision unless the person is a detainee.(11)A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7."