Case Summary, Commentary & Extract
Falzon v Minister for Immigration and Border Protection 
HCA 2 (7 February 2018)
A unanimous decision of the High Court holding that Section 501(3A) of the Migration Act (mandatory visa cancelation) did not confer the judicial power of the Commonwealth on the Minister and thus did not infringe Ch III of the Constitution. The Court further held that it was irrelevant to ask whether a law is ‘proportionate to a non-punitive end’ and that s 501(3A) is non-punitive.
Full decision at:
See below for a summary of the case including key elements of the decision followed by a detailed extract from the case.
Case Summary – Key elements from the decision
The plaintiff was convicted of a drug-related offence in 2008 and sentenced to imprisonment for 11 years with 8 years of non-parole. On 10 March 2016, while still in custody, his visa was cancelled under Section 501(3A) of the Migration Act (Act), rendering him an unlawful non-citizen under the Act. On 14 March 2016, at the end of the non-parole period, he was taken into immigration detention due to his status of an unlawful non-citizen. On 15 March 2016, the plaintiff sought revocation of the cancellation under s 501CA(4), but that was refused about 10 months later.
The plaintiff argued to the High Court that s 501(3A) imposed further punishment on him and that such was the purpose of that provision. He further argued that ‘it is relevant to ask whether the law is proportionate to a non-punitive end’ (see paragraph ).
At , Kiefel CJ, Bell, Keane And Edelman JJ held that ‘Chapter III contains an absolute prohibition on laws which involve the exercise of the judicial power of the Commonwealth’ and that questions ‘of proportionality cannot arise under Ch III’.
Their Honours went on to observe at  that the ‘cancellation of a visa as a step necessary to achieve the removal of a person from Australia [does not amount to punishment]’ and at  that, in any event, s 501(3A) ‘merely provides the basis for the change in status [from lawful to unlawful non-citizen]. It does not authorise detention. It is that new status that exposes the person to detention under s 189’.
Tension of laws
‘58. The plaintiff submits that … a cancellation decision under s 501(3A) may have the effect of “converting” criminal detention into immigration detention. He refers to the possibility that the two detentions might operate concurrently [resulting in a tension between Commonwealth and State laws]. The circumstance that he envisages is where a non-citizen was sentenced to some years of imprisonment, but his or her visa is cancelled during the first week of that term.
59. Criminal detention cannot be “converted” into immigration detention. A person is imprisoned by order of the court which authorises his or her detention by the State … A person so detained cannot be said to be detained … under s 189 …’
After mentioning at  that the ‘Migration Act contains provisions intended to address that [tension]’, Their Honours observed at  that the ‘Minister may consider the grant of a criminal justice visa. The possibility of the concurrent operation of the Migration Act with criminal detention does not arise in the plaintiff’s case, since it is acknowledged that he was taken into immigration detention at the conclusion of his non-parole period’.
Gageler and Gordon JJ and Nettle J provided separate, but relatively similar reasons.
Commentary from the author
♦ As s 501(3A) commenced operating about 15 months before the plaintiff’s visa cancellation, was not the Minister under a duty to have cancelled the visa much earlier?
♦ If it could be said, considering all the circumstances of a particular case, that the Minister should, but has not, cancelled a person’s visa under s 501(3A) within a reasonable period of time, and that by the end of that period the Minister has not granted that person a criminal justice visa, could it not be argued that there is a tension of laws from then onwards? If so, could it not be argued that the Commonwealth law would prevail by reason of s 109 of the Constitution? If so, could it not be argued that the Commonwealth, by omission, would have caused that person to be unlawfully detained from the point in time when it would have become reasonably practicable to remove him/her from Australia under s 198, had the Minister cancelled the visa within the abovementioned reasonable period of time? If so, would not that amount to false imprisonment? Could not Mandamus be sought to effect immigration detention and subsequent removal from Australia as soon as reasonably practicable?
♦ If the Minister is obliged to cancel a person’s visa under the above provision sooner or later and is not inclined to revoke that cancellation, would not Mandamus ordered at a relatively early stage of a very long imprisonment sentence imposed on that person benefit him/her in that he/she would be removed from Australia and thus would not serve most of that sentence? In that case, if the Minister granted that person a criminal justice visa as soon as proceedings seeking Mandamus were initiated, would that remedy still be available? Could removal be ordered by a court with reference to the fact that the Minister should have removed the person before the delayed grant of the criminal justice visa? If not, could not that late grant be seen as an impermissible attempt by the Executive to interfere with the Judiciary, given that court proceedings would have already been in progress?
♦ Could it be argued that the fact that the Minister took a long time, namely about 10 months, to decide not to revoke the cancellation in itself amounted to punishment?
Case Extract – Elements from the full decision
Court: High Court of Australia
Applicant: John Falzon
Defendant: Minister For Immigration and Border Protection
Justices: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon And Edelman JJ
Judgement for: the defendant
Kiefel CJ, Bell, Keane And Edelman JJ
‘1. The plaintiff … held an Absorbed Person Visa …
2. In 2008 the plaintiff was convicted [of a drug-related offence and] sentenced to 11 years’ imprisonment with a non-parole period of eight years … He was in custody in respect of the 2008 conviction when his [Visa] was cancelled … under s 501(3A) of the Migration Act [in March 2016] … At the conclusion of the non-parole period, four days after the Cancellation Decision, the plaintiff was taken into immigration detention …
3. Section 501(3A) provides that:
“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 …
(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.”
6. [Section 501CA(4) sets out the Minister’s discretion to revoke a cancellation].
8. The plaintiff contends that s 501(3A) of the Migration Act purports to confer the judicial power of the Commonwealth on the Minister and thereby infringes Ch III of the Constitution. Central to the plaintiff’s argument is that, in its legal operation and practical effect, s 501(3A) further punishes him for the offences he has committed and that is its purpose …
The plaintiff’s case
Executive detention is prima facie penal or punitive
23. The plaintiff’s third proposition is that the default position is that non-judicial detention of a person is penal or punitive and therefore involves an exercise of the judicial power of the Commonwealth … On the plaintiff’s argument the only way in which a law by which a person is detained by the Executive may escape characterisation as penal or punitive is to justify it by reference to a non-punitive purpose. In that regard, it is said that it is relevant to ask whether the law is proportionate to a non-punitive end.
32. Chapter III contains an absolute prohibition on laws which involve the exercise of the judicial power of the Commonwealth … Questions of proportionality cannot arise under Ch III.
39. … The sovereign power to make laws providing for the expulsion and deportation of aliens extends to authorising the Executive to restrain them in custody to the extent necessary to make their deportation effective.
Section 501(3A) purports to confer judicial power on the Minister
41. The plaintiff’s fourth, and central, proposition is that s 501(3A) purports to invest the judicial power of the Commonwealth in the Minister and his delegates …
42. The principal feature of judicial power which the plaintiff identifies is the conclusiveness, in the sense of finality, of a cancellation decision. It is reinforced by the fact that merits review is not available, no interlocutory release is possible, the decision may be made on the basis of information which is protected from publication and the decision to revoke is wholly discretionary.
43. It may be accepted that, unless a decision is made to revoke an otherwise valid cancellation decision, it has consequences for the detention and removal of the non-citizen and is “final” in that sense. The same consequences attend the exercise of the other powers under s 501. The plaintiff does not suggest that ss 501(1) and 501(2) infringe Ch III or that they are punitive in the relevant sense.
44. The plaintiff seeks to distinguish s 501(3A) from ss 501(1) and 501(2) because s 501(3A) is mandatory in its terms. If the conditions for its exercise are present, the Minister is obliged to cancel the visa. The matters which are taken into account in the exercise of the discretion provided in the other provisions are not addressed where a person’s visa is cancelled under s 501(3A) until consideration is given to revocation of the cancellation decision.
45. The defendant correctly points out that it does not follow from the premise that a discretionary determination involves no exercise of judicial power that a legislative determination which mandates that certain offending (or certain levels of offending) results in cancellation necessarily involves the exercise of judicial power … In any event, there is nothing to prevent Parliament from legislating by reference to a class of persons, rather than on a basis which requires a case-by-case approach [as is the case with Section 501(3A)].
46. The plaintiff relies upon the operation of s 501(3A) as being based upon a primary and characteristic factum that the person has committed an offence or offences, and the further factum that, at the time the power is exercised, the person is in criminal detention, as showing that s 501(3A) is concerned with punishment for and by reference to criminal offending additional to that imposed by a court. Moreover, before the power is exercised, the Minister must reach a positive state of satisfaction in relation to the prior offending.
47. The exercise of a power of cancellation of a visa by reference to the fact of previous criminal offending does not involve the imposition of a punishment for an offence and does not involve an exercise of judicial power. It has long been recognised that the deportation of aliens does not constitute punishment. The cancellation of a visa as a step necessary to achieve the removal of a person from Australia should be viewed in the same light …
51. … The plaintiff submits that the Minister is neither obliged nor permitted to have regard to the protection of the Australian community or any other protective considerations when deciding to cancel a visa and that these matters do not arise for consideration until a decision as to whether to revoke the cancellation decision under s 501(3A) is made.
52. The fact that the Minister is not obliged to consider the need to protect the community when determining whether to cancel a visa in the circumstances provided by s 501(3A) is not determinative of that provision’s purpose. The defendant [correctly] submits that, consistently with s 501, of which it forms part, its purpose is to exclude from the Australian community, by means of visa cancellation, a category of aliens which the Parliament has determined should not be part of the community due to their record of criminal offending. The criteria of which the Minister must be satisfied are those upon which a sovereign State may properly decide to exclude non-citizens in the interest of protecting the peace, order and good government of the Commonwealth …
53. None of the plaintiff’s arguments which have been dealt with to this point address the question whether s 501(3A) actually authorises or requires the plaintiff’s detention. They proceed upon an assumption that it does. On its face s 501(3A) is simply a provision which mandates the cancellation of a visa if the conditions stated are present.
54. The plaintiff submits that s 501(3A) may nevertheless be seen as concerned with punishment because it exposes a person who qualifies for cancellation to detention …
55. … [T]he plaintiff argues that s 501(3A) has the effect that a person is detained for a period after the conclusion of his or her criminal detention whilst consideration is given to whether to revoke a cancellation decision. On this argument there is a period, or periods, after a cancellation decision when a person is not being detained for the purpose of removal under s 189, but is detained for the purpose of the revocation process …
56. 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.
58. The plaintiff submits that, “loosely speaking”, a cancellation decision under s 501(3A) may have the effect of “converting” criminal detention into immigration detention. He refers to the possibility that the two detentions might operate concurrently. The circumstance that he envisages is where a non-citizen was sentenced to some years of imprisonment, but his or her visa is cancelled during the first week of that term.
59. Criminal detention cannot be “converted” into immigration detention. A person is imprisoned by order of the court which authorises his or her detention by the State following conviction for an offence against the laws of the State. A person so detained cannot be said to be detained by an officer acting under s 189 of the Migration Act.
60. The possibility that, in the circumstance to which the plaintiff refers, a person might be a prisoner serving a term of imprisonment for an offence and an unlawful non-citizen liable to be detained and removed from Australia as soon as reasonably practicable points to a possible tension between the provisions of Commonwealth, State and Territory laws and the Migration Act.
61. The Migration Act contains provisions intended to address that problem …
62. … If a criminal justice certificate or a criminal stay warrant is in force the Minister may consider the grant of a criminal justice visa. The possibility of the concurrent operation of the Migration Act with criminal detention does not arise in the plaintiff’s case, since it is acknowledged that he was taken into immigration detention at the conclusion of his non-parole period’.
Sergio Zanotti Stagliorio, Juris Doctor (The University of Sydney)
Registered Migration Agent (MARN 1461003)
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Published on 4 March 2018.