Shaw v Minister for Immigration and Multicultural Affairs

This case concerned an application by Mr Shaw, who entered Australia in 1974 as a two-year-old British subject and was granted a permanent entry permit. The Minister for Immigration and Multicultural Affairs had cancelled Mr Shaw's visa. The matter came before the High Court of Australia by way of a Case Stated, with the applicant contending that the Minister's actions were not supported by valid federal law.

The central legal issue before the High Court was whether section 501(2) of the *Migration Act 1958* (Cth) was within the legislative powers of the Commonwealth Parliament, specifically in its application to Mr Shaw. The applicant argued that the power to cancel his visa was not a valid exercise of the Parliament's powers under section 51(xix) of the Constitution (naturalisation and aliens) or section 51(xxvii) (immigration and emigration). He further contended that, as a British subject who had resided in Australia since 1974, he could not be classified as an "alien" for constitutional purposes, nor was he still subject to the immigration power, having been absorbed into the Australian community.

The Court determined that Mr Shaw had been absorbed into the Australian community and was therefore beyond the reach of the immigration power. While acknowledging that serious criminal behaviour could be inconsistent with absorption, the Court found that Mr Shaw's criminal history, which began when he was a child, did not negate his absorption into the community, particularly given his long residence prior to his first conviction. Furthermore, the Court held that Mr Shaw could not be considered an "alien" for the purposes of section 51(xix) of the Constitution. At the time of his arrival and for a significant period thereafter, British subjects were not treated as aliens, and the Court found that any retrospective alteration of this status lacked constitutional warrant. The Court also rejected the applicability of the external affairs power, stating it concerned matters external to Australia and had no bearing on the right of a long-term resident to remain in the country.

The High Court answered the question reserved in the Case Stated in the affirmative, finding that section 501(2) of the *Migration Act 1958* (Cth) was within the legislative powers of the Commonwealth to the extent that it authorised the respondent to cancel the applicant's visa on 17 July 2001. The costs of the proceeding in the Full Court were ordered to be costs in the matter.