On 7 February 2018 the High Court unanimously dismissed an appeal with costs in the case: Falzon v Minister for Immigration and Border Protection  HCA 2. The residing Judges found that Section 501(3A) of the Migration Act 1958 (Cth) ('the Act') did not authorise or require the detention of a non-citizen, and did not confer upon the Minister for Immigration and Border Protection (‘the defendant’) judicial power under Chapter III of the Constitution.
The plaintiff migrated to Australia at the age of three in 1956 and never became an Australian citizen. He held an ‘absorbed person visa’ from 1 September 1994 and a Class BF Transitional (Permanent) Visa, which was granted through the operation of Section 34 of the Act. In June 2008, the applicant pleaded guilty to a charge of trafficking a large commercial quantity of cannabis, and was sentenced to imprisonment for 11 years with a non-parole period of eight years.
On 10 March 2016, four days before the plaintiff’s non-parole period expired, a delegate of the defendant cancelled the applicant’s absorbed person visa. This cancellation was conferred on character grounds under Section 501(3A) of the Act, on the basis that the applicant had been sentenced to a term of imprisonment of 12 months or more. The applicant then applied for revocation of that decision, and on 10 January 2017 the Assistant Minister for Immigration and Border Protection decided not to revoke the decision.
The applicant then commenced proceedings in the High Court, seeking a revocation of the respondent’s decision to cancel the visa. On 11 April 2017 the applicant’s application was referred to the Full High Court for hearing.
Section 501(3A) of the Act stipulates:
The Plaintiff challenged the validity of section 501(3A) of the Act on the ground that its purpose was to confer the judicial power of the Commonwealth on the Minister, thereby infringing Chapter III of the Constitution. The principle that the plaintiff relied on was that, under separation of powers, the power to judge guilt or determine punishment for breach of the law is a power limited to the judiciary, as per Chapter III of the Constitution.
The High Court unanimously dismissed the plaintiff’s application, holding that section 501(3A) did not authorise or require the detention of the plaintiff, rather it required that the defendant cancel the plaintiff’s visa due to his imprisonment on character grounds. In coming to this conclusion, the High Court referred to the purpose of the statutory scheme, noting that the scheme in which section 501(3A) is a part, has the purpose of regulating the presence of non-citizens in the national interest. Chief Justice Kiefel, Justices Bell, Keane and Edelman said of the plaintiff's submissions:
The court held therefore that cancellation of a visa for that particular purpose did not involve a determination or punishment of criminal guilt, and did not involve the exercise of judicial power. Justices Gageler and Gordon said:
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Falzon v Minister for Immigration and Border Protection  HCA 2.
Migration Act 1958 (Cth), available on TimeBase's LawOne service.
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