Aaron Joe Thomas Graham(Plaintiff) v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Gageler,Keane,Nettle,Gordon JJ.,Edelman J.
• Judgment Date: 06 September 2017
• Neutral Citation: [2017] HCA 33
• Docket Number: M97/2016 & P58/2016
• Court: High Court
• Date: 06 September 2017

[2017] HCA 33

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon AND Edelman JJ

M97/2016 & P58/2016

Aaron Joe Thomas Graham

Plaintiff

and

Minister for Immigration and Border Protection

Defendant

Mehaka Lee Te Puia

Applicant

and

Minister for Immigration and Border Protection

Respondent

Representation

B W Walker SC with J M Forsaith for the plaintiff in M97/2016 and the applicant in P58/2016 (instructed by Malkoun & Co Lawyers)

S P Donaghue QC, Solicitor-General of the Commonwealth with C L Lenehan and B K Lim for the defendant in M97/2016 and the respondent in P58/2016, and for the Attorney-General of the Commonwealth, intervening in both matters (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales with S J Free for the Attorney-General for the State of New South Wales, intervening in M97/2016 (instructed by Crown Solicitor (NSW))

P J Dunning QC, Solicitor-General of the State of Queensland with F J Nagorcka for the Attorney-General of the State of Queensland, intervening in both matters (instructed by Crown Solicitor (Qld))

M E O'Farrell SC, Solicitor-General of the State of Tasmania with S K Kay for the Attorney-General of the State of Tasmania, intervening in both matters (instructed by Office of the Solicitor-General of Tasmania)

R M Niall QC, Solicitor-General for the State of Victoria with K E Foley for the Attorney-General for the State of Victoria, intervening in both matters (instructed by Victorian Government Solicitor)

C D Bleby SC, Solicitor-General for the State of South Australia with A D Doecke for the Attorney-General for the State of South Australia, intervening in both matters (instructed by Crown Solicitor's Office (SA))

Migration Act 1958 (Cth), ss 476A, 501, 501A, 501B, 501C, 503A, 503B.

Constitutional law (Cth) — Legislative power of Commonwealth — Constitution, s 75(v) — Where s 503A of Migration Act 1958 (Cth) prevents Minister for Immigration and Border Protection from being required to divulge or communicate certain information to courts — Whether s 503A requires courts to exercise judicial power in manner inconsistent with essential function of courts to find facts relevant to determination of rights in issue — Whether ss 501(3) and 503A(2) inconsistent with s 75(v) of Constitution — Whether s 503A(2)(c) denies High Court and Federal Court ability to enforce legislated limits of power — Whether s 503A(2)(c) curtails capacity of court to discern and declare whether legal limits of power conferred on Minister observed.

Migration — Jurisdictional error — Power of Minister to cancel visa on character grounds under s 501(3) of Migration Act 1958 (Cth) — Where decisions to cancel visas took into account information purportedly protected from disclosure under s 503A — Where Minister's understanding of s 503A erroneous — Where error was as to whether Minister's decision would be shielded from review by court in so far as based on information protected from disclosure under s 503A — Whether decisions invalid as consequence of error.

Words and phrases — ‘authorised migration officer’, ‘character test’, ‘fact-finding’, ‘gazetted agency’, ‘judicial power’, ‘national interest’, ‘protected from disclosure’, ‘protected information’, ‘public interest immunity’, ‘purported exercise of a power’, ‘substantial criminal record’.

Constitution, ss 75(v), 77(i), 77(iii).

ORDER

Matter No M97/2016

The questions stated by the parties in the special case and referred for consideration by the Full Court be answered as follows:

Question 1

Are either or both of s 501(3) and s 503A(2) of the [Migration Act 1958 (Cth)] invalid, in whole or in part, on the ground that they:

• a. require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or

• b. so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?

Answer

Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.

Question 2

In circumstances where the Minister found that the Plaintiff did not pass the character test by virtue of s 501(6)(b) of the [Migration Act 1958 (Cth)] because the Minister reasonably suspected that:

• a. the Plaintiff has been or is a member of ‘the Rebels Outlaw Motorcycle Gang’; and

• b. that organisation has been or is involved in criminal conduct;

could the Minister, exercising power under s 501(3) of the [Migration Act], be satisfied that cancellation of the Plaintiff's visa was in the ‘national interest’ without making findings as to:

• c. the Plaintiff's knowledge of, opinion of, support for or participation in the suspected criminal conduct of the Rebels Outlaw Motorcycle Gang; and/or

• d. how cancellation of the Plaintiff's visa would ‘disrupt, disable and dismantle the criminal activities of Outlaw Motorcycle Gangs’?

Answer

Unnecessary to answer.

Question 3

Was the decision of the Minister of 9 June 2016 to cancel the Plaintiff's Special Category (Class TY) (Subclass 444) visa invalid by reason that:

• a. the answer to Question 1 is ‘Yes’; or

• b. the Minister acted on a wrong construction of s 503A(2); or

• c. the Minister failed to make the finding or findings referred to in [Question 2]?

Answer

The decision of the Minister to cancel the Plaintiff's visa was invalid by reason that the Minister acted on a wrong construction of s 503A(2).

Question 4

What, if any, relief should be granted to the Plaintiff?

Answer

There should be directed to the Minister a writ of certiorari quashing the decision of the Minister and a writ of prohibition preventing action on that decision.

Question 5

Who should pay the costs of this special case?

Answer

The Minister should pay the costs of the special case and of the proceeding.

Matter No P58/2016

The questions stated by the parties in the special case and referred for consideration by the Full Court be answered as follows:

Question 1

Are either or both of s 501(3) and s 503A(2) of the [Migration Act 1958 (Cth)] invalid, in whole or in part, on the ground that they:

• a. require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or

• b. so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?

Answer

Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.

Question 2

In circumstances where the Minister found that the Plaintiff did not pass the character test by virtue of s 501(6)(b) of the [Migration Act 1958 (Cth)] because the Minister reasonably suspected that:

• a. the Plaintiff has been or is a member of a ‘group or organisation’; and

• b. that group or organisation has been or is involved in criminal conduct;

could the Minister, exercising power under s 501(3) of the [Migration Act], be satisfied that cancellation of the person's visa was in the ‘national interest’ without making findings as to:

• c. the Plaintiff's knowledge of, opinion of, support for or participation in the suspected criminal conduct of the group or organisation; and/or

• d. how cancellation of the Plaintiff's visa would ‘disrupt and disable such groups’?

Answer

Unnecessary to answer.

Question 3

Was the decision of the Minister of 27 October 2015 to cancel the Plaintiff's Special Category (Class TY) (Subclass 444) visa invalid by reason that:

• a. the answer to Question 1 is ‘Yes’; or

• b. the Minister acted on a wrong construction of s 503A(2); or

• c. the Minister failed to make the finding or findings referred to in [Question 2]?

Answer

The decision of the Minister to cancel the Plaintiff's visa was invalid by reason that the Minister acted on a wrong construction of s 503A(2).

Question 4

What, if any, relief should be granted to the Plaintiff?

Answer

There should be directed to the Minister a writ of certiorari quashing the decision of the Minister and a writ of prohibition preventing action on that decision.

Question 5

Who should pay the costs of this special case?

Answer

The Minister should pay the costs of the special case and of the proceeding.

1 Kiefel CJ, Bell, Gageler, Keane, Nettle AND Gordon JJ. Aaron Graham (‘the plaintiff’) is a citizen of New Zealand who has resided in Australia since December 1976. On 9 June 2016 he received a letter informing him that the Minister for Immigration and Border Protection (‘the Minister’) had decided to cancel the visa which had been granted to him (a Class TY Subclass 444 Special Category (Temporary) visa). The Minister gave as his reasons for doing so that he was satisfied as to the conditions for cancellation provided in s 501(3) of the Migration...