Is section 501(3)(A) of the Migration Act unconstitutional?
Recall: this section of the Act makes if mandatory for the Minister to cancel the visa of a person who 1) does not pass the character test by reason of having a “substantial criminal record”, as defined under section 501(a); or 2) has committed sexually based offences involving a child; and 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, or of a State or Territory.
Is this section of the Act unconstitutional because it imposes an additional “punishment” on the visa holder, and therefore infringes against Chapter III of the Australian Constitution, which vests exclusive power on the judiciary to impose punishment on persons as the result of criminal conduct
(and thus precludes “the Executive” - for example, the Minister for Immigration or the Minister’s “delegates” from imposing punishment?
This was the question that was raised by the plaintiff before the High Court in the case of Falzon v Minister for Immigration and Border Protection (2018) HCA 2, handed down on 7 February 2018.
This has been a much awaited decision, as quite a few people who have had their visas cancelled under the mandatory cancellation provisions of section 501(3)(A) have been relying on the argument that the section is unconstitutional, and have evidently been hoping for a favourable decision from the High Court in order to be released from immigration detention, to retain their visas, and thus to avoid removal from Australia.
The facts in the Falzon case might lead one to think that section 501(3)(A) is indeed punitive in nature:
The background in Falzon was that the visa holder was a person who had lived in Australia virtually all of his life, for 61 years, since arriving in Australia from Malta with his family at the age of 3. He never became an Australian citizen, for reasons that were not explained in the High Court’s decision. Until 2016, he held an “Absorbed Person Visa” and then, a “Class BF Transitional (Permanent) Visa.
His visa cancellation occurred after he was convicted of a “drugs offence”, namely, “trafficking in a large commercial quantity of canabis”. As a result of this conviction, he was sentenced to 11 years imprisonment in 2008, with a non-parole period of 8 years. Following the completion of his non-parole period, he was promptly taken into immigration detention, where he remained while he was awaiting a decision on his case from the High Court.
His personal circumstances might make it appear that the visa holder was subjected to a “second punishment” through the cancellation of his visa, as the legal and practical consequence of the cancellation was to change his status from that of lawful to unlawful non-citizen, and thus to make him subject to detention pending removal and then ultimate removal from Australia.
In other words, the effect of the visa cancellation would be to “cast this visa holder into exile” from the only home he had only known. The visa holder had strong family ties to Australia, having several brothers, sisters, adult children and grandchildren in Australia as well as a wider extended family. And it was acknowledged that the visa holder would suffer “some” social isolation and emotional hardship if he were to be removed from Australia and forced to return to Malta.
Despite these apparent “compassionate circumstances”, the High Court concluded that the mandatory visa cancellation provisions of section 501(3)(A) are not punitive in nature, and therefore do not infringe upon the judiciary’s exclusive power to impose punishment for criminal offences, and is not unconstitutional.
The High Court reasoned that section 501(3)(A) does not impose a punishment. It relied on long-established legal authority holding that the deportation of aliens does not constitute a punishment, and so, therefore, the cancellation of a visa as a prelude to achieving the removal of a person is equally not to be characterised as a “punishment”.
And, the High Court also held that section 501(3)(A) does not, in and of itself, “impose a punishment”, nor does this section, by itself, “authorise or require the detention” of a visa holder.
In the Court’s view, all that section 501(3)(A) does is to require the cancellation of a person’s visa due to that person’s criminal history and imprisonment, and thus changes the person’s legal status from that of a lawful non-citizen to that of an unlawful non-citizen, making the person liable to removal and to detention for the purpose of facilitating that removal.
The lesson that we can take away from the High Court’s decision in Falzon is that it is extremely difficult to succeed with challenges to the visa cancellation scheme of the Migration Act on constitutional grounds. Falzon illustrates that the courts are not receptive to claims that visa cancellation is a form of “punishment” that infringes against Chapter III of the Constitution.
Furthermore, visa holders whose applications for judicial review of the cancellation of their visas had been “adjourned”, or “put on hold” pending determination of the Falzon case will now find that the claims that were advanced in Falzon concerning the claimed unconstitutionality of section 501(3)(A) will not be of any assistance to them. It surely appears that the Federal Courts that adjourned those cases will now move forward to finalise them, in a way that will be adverse to the visa holders who were unable to identify other grounds of challenge to the cancellations that occurred in their cases.
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