Re Patterson; ex parte Taylor

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.