Falzon v Minister for Immigration and Border Protection [2018] HCA 2: Immigration Detention and Constitutional Validity

Wednesday 7 February 2018 @ 12.17 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research | Immigration

On 7 February 2018 the High Court unanimously dismissed an appeal with costs in the case: Falzon v Minister for Immigration and Border Protection [2018] 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.

Legislative Background: Section 501(3A) of the Migration Act 1958 (Cth)

Section 501(3A) of the Act stipulates:

"The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory."


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.

High Court Decision

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:

“These submissions fail to take account of the statutory scheme and the effect of a cancellation decision.  A cancellation decision has the immediate effect that the person's status is changed from that of a lawful non-citizen to an unlawful non-citizen.  Section 501(3A) merely provides the basis for the change in status.  It does not authorise detention.  It is that new status that exposes the person to detention under s 189.  The person is liable to removal from Australia and to detention for that purpose from the time that a cancellation decision is made.  The possibility that a cancellation decision might be revoked, so that that decision may be taken not to have been made , does not alter the fact that the person retains the status of an unlawful non-citizen for the whole of the period in question, from the time of the cancellation decision to the making of the revocation decision.” [56]

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:

“What s 501(3A) does is to require the cancellation of a visa in certain circumstances.  It confers a power, which the Minister has a duty to exercise, to determine whether a non-citizen can enter, or remain in, Australia.  That power is administrative in character.  It forms no part of the judicial power of the Commonwealth.  In particular, the exercise of that power does not trespass on the exclusively judicial function of determining or punishing criminal guilt.” [88]

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Falzon v Minister for Immigration and Border Protection [2018] HCA 2.

Migration Act 1958 (Cth), available on TimeBase's LawOne service.

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