FEDERAL COURT OF AUSTRALIA

Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, as fixed by the Registrar if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, as fixed by the Registrar if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    These two appeals concern decisions by delegates of the Minister for Home Affairs, whose relevant successor in ministerial office is the first respondent (Minister), not to exercise the discretion conferred by s 501CA(4) of the Migration Act 1958 (Cth) (Act) to reinstate visas that had been cancelled by the operation of s 501(3A). In each case, the second respondent, the Administrative Appeals Tribunal (AAT) affirmed the delegate’s decision, and a judge of this Court dismissed the appellant’s application for judicial review of the AAT’s decision.

2    Also in each case, the appellant arrived in Australia as a very young child but never obtained Australian citizenship.

3    Mr Hopkins, the appellant in proceeding NSD1717/2019, was born in the United Kingdom on 24 February 1967, and arrived in Australia on 15 August 1967. He is a citizen of the United Kingdom. On 22 March 2013, Mr Hopkins’ Class BF Transitional (Permanent) visa was cancelled under s 501(3A) as a result of the Minister’s delegate’s satisfaction that he failed the character test. That failure was the result of satisfaction that he had a substantial criminal record, having been sentenced to serve a term of imprisonment of more than 12 months.

4    Mr Ferreira, the appellant in proceeding NSD1718/2019, was born in Portugal on 29 December 1972, and arrived in Australia on December 1974. He is a citizen of Portugal. On 8 August 2017, Mr Ferreira’s Class BF Transitional (Permanent) visa was cancelled under s 501(3A), also as a result of the Minister’s delegate’s satisfaction that he failed the character test. Once again, that failure was the result of satisfaction that he had a substantial criminal record, having been sentenced to serve a term of imprisonment of more than 12 months.

5    Each appellant now faces the prospect of being deported to his country of nationality.

6    The appellants each submit that the relevant primary judge erred in failing to find that he is not a “person” within the meaning of s 501CA of the Act. More specifically, the contention on the appeals is that, in each case, the primary judge erred by failing to hold that the AAT had made a jurisdictional error by applying s 501CA to the appellant when he was not a “person” within the meaning of that provision.

7    The appellants submit that each of them “attracts Art 12(4) of the International Covenant of Civil and Political Rights (ICCPR), or a corresponding right at common law, and under the principle of legality the term person in s 501CA of the Act should be read down to protect the right”. Art 12(4) provides: “No one shall be arbitrarily deprived of the right to enter his own country”. The appellants’ notices of appeal particularise their contention as follows:

a.    The Applicant attracted Art 12(4) … and, purely as a matter of international human rights law, the refusal to revoke the cancellation of the Applicant’s visa was contrary to that Article (Nystrom v Australia, Communication No. 1557/2007, U.N. Doc. CCPR/C/102/D/1557/2007 (2011) [Nystrom]; Jama Warsame v. Canada, Communication No. 1959/2010, U.N. Doc. CCPR/C/102/D/1959/2010 (2011));

b.    Art 12(4) of the ICCPR, solely as a provision of international human rights law, attracted the approach to statutory interpretation known as the principle of legality: Director of Public Prosecutions v Kaba [2014] VSC 52; (2014) 44 VR 526 at [181];

c.    In the alternative, Art 12(4) of the ICCPR should be the basis for an expansion of the common law right of a citizen to exit, enter and reside in Australia to encompass an alien for whom Australian is “his own country” within the meaning of Art 12(4) of the ICCPR: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42, with the common law right then attracting the principle of legality;

d.    Under the principle of legality, the reference in s 501CA of the Act to a “person” ought not extend to a person who attracts Art 12(4) of the ICCPR, whether as a matter of international human rights law alone or as part of an amplified common law right, because there is not “irresistible clearness” under the Act of an intention to embrace such a person in violation of their right: Potter v Minahan (1908) 7 CLR 277 at 305;

e.    In holding otherwise, Steve v Minister for Immigration and Border Protection [2018] FCA 311 [Steve] and Azar v Minister for Immigration and Border Protection [2018] FCA 1175 [Azar]; 261 FCR 1 were wrongly decided.

8    In the Courts below, the appellants conceded that the earlier decisions in Steve and Azar, cited in the passage quoted from the notices of appeal, were against them and were not clearly wrong. Accordingly, the primary judges did not give the appellants’ contention detailed consideration. Steve and Azar were judgments given in the Court’s original jurisdiction by Bromwich J and Perry J respectively.

9    The appellants further submit that neither of them is a “person” within the meaning of s 501(3A) of the Act and they were not validly the subject of mandatory cancellation. In the absence of a challenge to the mandatory cancellation decisions, their appeals would arguably lack utility because, if they succeeded, they would each still be left without a visa. The appellants recently commenced proceedings in the Federal Circuit Court of Australia seeking an extension of time within which to challenge the mandatory cancellations of their visas. The argument in those proceedings against the validity of the mandatory cancellation is materially identical to the contention put on the appeals, that is, the term “person” in s 501(3A) of the Act should be read down to exclude a person who attracts Art 12(4) of the ICCPR or the amplified common law right. Accordingly, after the granting of the requisite extension of time, those proceedings were transferred to this Court and heard in conjunction with the appeals. The effect of the transfer was to confer jurisdiction on the Court to hear them: s 476A(1)(a) of the Act.

Construction of s 501(3A) and S 501CA of the Act

10    Section 501(3A) of the Act relevantly provides:

(3A)    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 (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c);

…

(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.

11    Section 501CA relevantly provides:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

   (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

12    The appellants accept that the term “person” in s 501CA(4) of the Act has the same meaning as in s 501(3A) of the Act.

13    Each appellant accepts that he had the criminal record required by s 501(3A)(a)(i) of the Act on the basis of s 501(7)(c) of the Act, which refers to a term of imprisonment of (or an addition of concurrent terms equalling) 12 months or more.

Reasoning in Steve and Azar

14    In Steve, at [55] and following, Bromwich J considered whether a construction of s 501CA(4) which excluded the applicant from the scope of the term “person” accorded with the legislature’s intention not to interfere with the applicant’s asserted right to enter and reside in Australia, based on Art 12(4).

15    After rejecting an argument that the common law should be expanded to recognise a fundamental right of the applicant to enter and remain in Australia, his Honour considered an argument that the right enshrined in Art 12(4) should be treated as a “fundamental right, immunity or freedom” for the purposes of the principle of legality. His Honour noted that the principle requires that, in the absence of clear and unmistakable language, legislation will not be construed to derogate from, or interfere with, fundamental common law rights and freedoms: see Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437; Lacey [2011] HCA 10; 242 CLR 573 at [43]-[44]; Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 at [51] and [522] (Momcilovic).

16    Bromwich J referred to the conclusion of Bell J in Director of Public Prosecutions v Kaba [2014] VSC 52; (2014) 44 VR 526 (Kaba), that the rights and freedoms recognised in the ICCPR were to be treated as “fundamental rights and freedoms” for the purposes of the principle of legality and thereby the interpretation of s 59(1)(a) of the Road Safety Act 1986 (Vic). In particular, at [181], Bell J stated:

Applying these principles, treating the rights and freedoms in the ICCPR as fundamental rights and freedoms for the purposes of the principle of legality would, I think, be a natural and appropriate step to take. It would reflect the close relationship between common law rights and freedoms and those recognised in the ICCPR. It would be consistent with the widespread acceptance of the ICCPR in the Australian legal system. It would fit well into the constitutional relationship between parliament and the judiciary. It would not represent backdoor importation of an unincorporated convention into Australian law. It would bring a greater measure of certainty to the identification of the rights covered by the principle without limiting those already covered or inhibiting the capacity of the common law to develop in this regard. In relation to the issue of limitation of rights, it would fit with the way in which, under the existing principle, legislation is read down (where appropriate) so as to be compatible with human rights.

17    After considering the particular question of statutory construction in Kaba, Bromwich J concluded (at [64]):

The applicant’s reliance on the reasoning in Kaba cannot take him very far. Even assuming for present purposes that the principle of legality is capable of being engaged by analogous reasoning to the present situation, it simply cannot be accepted that there is any constructional choice open to this Court to conclude that the applicant is not a “person” within the meaning s 501CA(4). Parliament’s intention by reference to “person” in s 501CA(4) of the Migration Act is manifestly clear as being without any implied limitation of the kind suggested. That is, putting to one side the other terms of s 501CA, the word “person” of itself admits of no ambiguity in encompassing all natural persons, including the applicant. It may be further observed that the visa cancellation and revocation process in the Migration Act is clearly intended to apply to non-citizens such as the applicant who may have permanent or long term visas, and may thereby have longstanding ties to Australia.

18    The language of “constructional choice” reflects the following reasoning of French CJ in Momcilovic at [43]:

The principle of legality … is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law… The principle of legality… does not constrain legislative power. Nevertheless, the principle is a powerful one. It protects, within constitutional limits, commonly accepted "rights" and "freedoms". .. It has … been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations.

19    In Azar, Perry J rejected an argument that the applicant was not a “person” within the meaning of s 501CA(4) on the basis that s 501(3A) and, consequently, s 501CA(4) must be must be read in accordance with the principle of legality to include relevantly the right guaranteed by Art 12(4) or an equivalent (new) right at common law developed in line with Art 12(4).

20    Her Honour’s reasons may be summarised as follows:

(1)    There is no scope to read s 501(3A) down so as to “carve out” from the duty to cancel a visa, “person[s]” holding a visa for whom Australia is their “own country” where (or on the assumption that) cancellation would thereby be arbitrary. The principle of legality cannot “shield” a right, freedom, immunity or principle “from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature”: Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [313]. The presumption may operate only where such constructional choices are open, as French CJ explained in Momcilovic at [43]. It follows that the applicant’s construction of subs 501CA(4) must also fail.

(2)    While the word “person” in s 501(3A) is not defined, it takes its meaning from the context in which it appears: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]. Section 501(3A) is a provision concerned with the cancellation of a visa granted to the person who, under the scheme of the Act, can only be a non-citizen. As such, s 501(3A) forms part of the central mechanism for implementing the object of the Act under subs 4(1), namely, “... to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Section 4(2) further provides:

To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3)    When regard is had to the text, structure and purpose of the Act, there is no scope for implying a limitation upon the breadth of the duty to cancel a visa under s 501(3A) so as to “carve out” a sub-category of non-citizens whose ties with Australia are sufficiently close as to engage Art 12(4). The duty under s 501(3A) to cancel a “visa that has been granted to a person” where the criteria are met, is expressed in clear and unequivocal terms. As only a non-citizen can hold a visa under the scheme of the Act, the reference to a “person” in the section can only be to any non-citizen who holds a visa. This construction not only gives effect to the ordinary meaning of the provision; it accords with the object of the Act to “regulate” the entry and presence of (all) non-citizens in Australia, recognising that the power to cancel a visa is an essential corollary to the power to grant a visa.

(4)    The applicant’s construction would significantly restrict the extent to which visas could regulate the entry into, and presence in, Australia of a limited class of non-citizens and thereby undermine the mechanism chosen by the Parliament to advance the object of the Act in s 4(1) with respect to those non-citizens.

(5)    The applicant’s argument proceeded on the assumption that, if his construction were correct, the principle of legality must equally confine other powers to cancel a visa expressed in similarly general terms, such as ss 501(2) and 501(3). He also accepted that his construction may affect the capacity of the Minister to cancel a visa on the ground that the holder has breached the conditions of the visa and may mean that the Minister has a duty to grant a visa to a person to whom Art 12(4) applies. The applicant’s construction of ss 501(3A) and 501CA(4) cannot be reconciled with the comprehensive, bifurcated system established by the Act to regulate the entry into, and presence of, non-citizens in Australia. It would imply a new set of rules which Parliament has not seen fit to enact requiring, in general, that a sub-class of non-citizens with sufficiently longstanding residence and close personal ties to Australia have a right to remain and, therefore, a right to a visa. This construction would create a “middle ground” between non-citizens and citizens by converting what the Act describes as “permission” to enter and remain, into a virtually irrevocable entitlement in the case of non-citizens falling within Art 12(4).

Appellants’ argument

21    The appellants identify three successive steps in their argument, namely:

(1)    Each of them attracts Art 12(4) of the ICCPR as a matter of international law;

(2)    Art 12(4) of the ICCPR, as a provision of international law concerning fundamental rights or as leading to an amplified common law right, attracts the principle of legality;

(3)    Under the principle of legality, the term “person” in s 501CA should be read down so as to exclude a person attracting Art 12(4) of the ICCPR or the amplified common law right.

22    As to the first proposition, in Steve (at [44]), Bromwich J accepted, for the purposes of determining the case before him, that Australia may be regarded as the applicant’s “own country” within the meaning of Art 12(4) and, at [49], did not reach a concluded view as to whether non-revocation of the cancellation of the applicant’s visa necessarily involved arbitrary interference with his rights under Art 12(4). In Azar, Perry J took at similar approach (at [31]). It is possible to resolve the present appeals and applications on the basis of a like assumption although we have made some additional observations about its aptness.

23    As to the second and third propositions, as noted above, in Steve, Bromwich J concluded that, even assuming that the principle of legality was capable of being engaged, it could not be accepted that there was any constructional choice open to permit a conclusion that the applicant was not a “person” within the meaning s 501CA(4).

24    Similarly in Azar, Perry J concluded (at [32]) that the constructional argument failed “[e]ven accepting the applicant’s arguments as to the width of the principle of legality and construction of Art 12(4)”. At [44], her Honour decided that the principle of legality had no relevant operation in the absence of any relevant constructional choice.

Consideration

25    For the reasons given by Perry J and Bromwich J, and as explained below, the appellants’ argument fails and it is unnecessary to address its separate integers in detail.

26    The task of statutory construction must begin and end with consideration of the text read in context: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503; at [39]; Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22].

27    In these cases, the issue of construction focuses upon the meaning to be attributed to the word “person” in ss 501 and 501CA respectively.

28    The Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) does contain (s 2C) a definition of “person” for the purposes of Commonwealth Acts. That definition embraces a body corporate and a body politic as well as an individual. Its application is subject to a contrary intention in a particular Act: s 2(2), Acts Interpretation Act. Given the subject matter, scope and purpose of the Migration Act, “person”, as used in that Act, must, necessarily, only mean an individual or, put another way, a natural person. The notion that a body corporate or a body politic might have a visa much less travel internationally to Australia at all, is so distinctly odd as to make unnecessary further elaboration as to why the Act manifests a contrary intention superfluous.

29    Subject then to the qualification that “person” is being used in one of its accepted senses only, which is to refer to a natural person, it is an ordinary English word and the Court ought not construe the term “in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning”: Masson v Parsons [2019] HCA 21; (2019) 93 ALJR 848 at [26].

30    The meaning of “person” in ss 501(3A) and 501CA(4) must be read to include all natural persons for the reasons given in Steve and Azar. As the Minister submitted, there is no relevant ambiguity in the text of either provision. The class of persons to whom a visa to travel to and enter Australia or to remain in Australia may be issued is limited to “non-citizens”: s 29 of the Act. A “non-citizen” is defined to mean a person who is not an Australian citizen: s 5 of the Act. In relation to non-citizens, the Act distinguishes between lawful non-citizens and unlawful non-citizens: ss 13 and 14. As is apparent from s 13(1) of the Act, the distinguishing feature is the holding of a visa which is in effect. Subject to satisfaction that a person meets the applicable criteria and to presently immaterial conditions, upon the receipt of a valid application, the Minister is obliged to grant that person a visa and, if not so satisfied not to grant that person a visa: s 65(1) of the Act. In turn, the cancellation power in s 501(3A) and the power in s 501CA(4) to revoke cancellation each unambiguously apply on the face of the text of these provisions to all persons who hold a visa or, as the case may be, held a visa until its cancellation. There is no area of “constructional choice” in ss 501(3A) and 501CA(4) to which the principle of legality could operate to produce a different outcome. To construe “person” as offering any such choice would be completely antithetical to the generality of application of the visa scheme in the Act to “non-citizens”, as defined.

31    As Perry J observed at [37] and [38] of her Honour’s reasons for judgment, the correct reasoning is analogous to that applied in Re Woolley; ex parte applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1 where Gleeson CJ concluded (at [10] and [11]):

10    Just as it is impossible to interpret s 189 and s 196 as applying only to persons over the age of eighteen years, so also it is impossible to read them down in some manner requiring individual assessment of particular unlawful non-citizens, so that in some cases detention would be mandatory, and in others discretionary... To do so would directly contradict the clear legislative intention.

11    If the scheme of the legislation, expressed in unambiguous language, were to be considered inconsistent with Australia's international obligations under the Convention on the Rights of the Child, that would not justify a refusal by the Court to give effect to the legislation. Of course, if the statutory language were ambiguous, and if it were possible to give it a fair interpretation consistent with those obligations, different considerations would apply. But that is not the case.

See also McHugh J at [46] and Kirby J at [196].

32    The Minister did not deny the scope of operation of a separate statutory presumption to the effect that a statute should, so far as the language permits, be construed so that it operates in conformity with Australia's obligations under international law: Plaintiff M70/2001 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [247]; SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 at [59]. However, as the Minister submitted, that presumption is of no assistance in this case because, for the reasons stated, the language of ss 501 and 501CA do not permit the construction for which the appellants contend. Notably, the appellants did not rely upon this separate statutory presumption as a foundation for the construction of “person” which they promoted.

33    The Minister identified the following additional difficulties with the appellants’ construction of ss 501(3A) and 501CA(4):

(1)    The appellants’ construction depends on the term “person” being understood to mean “a person other than a person whose ‘own country’ for the purposes of Art 12(4) of the ICCPR is Australia”. These words to be inserted are so specific, and so much at variance from the words in fact used, that it cannot be concluded that the words were inadvertently overlooked in the drafting of the provision. Nor, as explained by Perry J, are the words necessary to achieve the apparent purpose of the Act: Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [38]-[40].

(2)    The appellants’ proposed construction sits uncomfortably when read in the context of the Act as a whole. A fundamental principle of statutory construction is that, ordinarily, consistent meaning should be given to a particular term wherever it appears in a suite of statutory provisions: Tabcorp Holdings Limited v Victoria [2016] HCA 4; (2016) 90 ALJR 376 at [65], citing Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 at 618; Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645 at 660 [32]; Selig v Wealthsure Pty Ltd [2015] HCA 18; (2015) 89 ALJR 572 at 578 [29]; 320 ALR 47 at 55. The appellants’ contention would have the term “person” mean one thing for the purposes of s 501CA (and possibly s 501(3A)), but something else where the term is used elsewhere in the Act. Specifically, the appellants each accept that he is a non-citizen to whom a visa could be granted. The appellants’ submissions, therefore, assume in each case that, incongruously, each of them is a “person” for the purposes of ss 5, 29 and 65 of the Act, and for the purpose of applying for a visa (s 45 of the Act) but not a person for the purposes of either ss 501 or 501CA.

(3)    Numerous authorities have established that the visa cancellation power in s 501 of the Act can be used in respect of non-citizens who have significant personal attachment to Australia, including because of their presence in Australia since childhood: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28 (Shaw); Cayzer v Minister for Immigration and Border Protection [2016] FCAFC 176; (2016) 249 FCR 250 at [7]- [12]; Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [197]-[203]. The decision in Shaw pre-dates the introduction of s 501CA, which was introduced by Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Parliament may be presumed to have been aware of the scope of the power to cancel a visa, including the fact that it extends to visa holders with longstanding connections to Australia.

34    To these factors should be added the following, which emerged during the course of oral argument. Section 34 of the Act establishes a category of permanent visa known as an “absorbed person visa”. Subject to qualifications which it is not necessary to specify, a person who on 2 April 1984 was in Australia and, before that date, had ceased to be an immigrant is taken by that section to have been granted an absorbed person visa on 1 September 1994. To construe s 34 so as to exclude from “person” a class of individuals to whom Art 12(4) would be applicable would be subversive of the very purpose of this section. The dates specified in s 34 of the Act are not happenstance but reflect when there occurred a recasting of Australian migration law and a related reliance for legislative competence from s 51(xxvii) (immigration and emigration) to s 51(xix) (naturalisation and aliens) of the Constitution. As Gageler J recently observed in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3, at [139] (Love):

The Migration Act 1958 (Cth) has since 1984 relied on s 51(xix) of the Constitution. As amended since 1994, it has required all persons who are not Australian citizens to hold valid visas in order to enter and remain in Australia.

Earlier in time but to like effect are these observations about the Act (termed “the Principal Act in the passage quoted) made by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (Minister v Nystrom), at [10]:

They stem from the tortuous legislative history, and in particular the intersection in the Principal Act of two separate but related sets of amendments. The first shifted the constitutional foundation of the Principal Act from s 51(xxvii) of the Constitution (immigration and emigration) to s 51(xix) (naturalisation and aliens), and commenced with the Migration Amendment Act 1983 (Cth) (the 1983 Amendment Act). The second set of amendments was a suite of legislation between 1992 and 1994 which saw the evolution of the Principal Act from a permit-based system to one entirely visa-based.

Mr Nystrom was a Swedish citizen who had come to Australia when 27 days old but who had never taken up Australian citizenship, even though he had thereafter resided in Australia into adulthood. As an adult, he had been convicted and sentenced in respect of offences committed in Australia which rendered him amenable to cancellation of his visa(s) and consequential deportation.

35    The correctness of these observations about the constitutional foundation for the Act in Love and Minister v Nystrom as a general statement is not affected by the outcome in Love.

36    In Love, the High Court, albeit by a bare majority, concluded that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70 (Mabo No 2)) are not within the reach of the “aliens”: power conferred by s 51(xix) of the Constitution. Neither of the appellants has ever asserted that he is an Aboriginal Australian. Nor have either ever asserted that the Act is otherwise beyond the legislative competence of the Commonwealth Parliament in any application to them. To the contrary, it was expressly conceded by them that each of ss 501 and 501CA of the Act was an enactment within the legislative competence of the Commonwealth Parliament.

37    A sequel to Minister v Nystrom was that Mr Nystrom was deported from Australia. Shortly thereafter, he made a complaint concerning this to the United Nations Human Rights Committee (UNHRC), alleging a contravention by Australia of Art 12(4) of the ICCPR. In 2011, the UNHRC, by majority, upheld that complaint in a communication issued by the committee: Nystrom v Australia, Communication No 1557/2007 (Nystrom v Australia). In Nystrom v Australia, the majority of the committee expressed these views as to the meaning of Art 12(4) of the ICCPR (at 7.4, references omitted):

… the Committee recalls its General Comment No 27 on freedom of movement where it has considered that the scope of “his own country” is broader than the concept “country of his nationality”. It is not limited to nationality in a formal sense, that is nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. In this regard, it finds that there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality. The words “his own country” invite consideration of such matters as long standing residence, close personal and family ties and intentions to remain, as well as to the absence of such ties elsewhere.

38    The appellants did not submit that the “special ties to or claims”, to adopt the UNHRC description of the complainant in Nystrom v Australia in the passage just quoted, in relation to Australia were to be equated with those of the Australian aboriginals considered in Love. Nor did they submit that the word “alien” in s 51(xix) of the Constitution was incapable of extending to a non-citizen who had such “special ties to or claims” in relation to Australia. Rather, relying upon observations by Brennan J (Mason CJ and McHugh J agreeing) in Mabo No 2, at 42 as to “the powerful influence of the Covenant and the international standards it imports” in relation to the common law, they submitted that we should conclude that the common law of Australia should be extended so as to confer upon the appellants a right at common law to enter and to remain in Australia akin to that of a citizen of Australia.

39    For reasons already given, even assuming that there were such a right, resort to the principle of legality in relation to the construction of the Act is of no assistance to the appellants because its language is unambiguous. But there is a more fundamental reason why the appellants’ submission that the common law of should be extended in this way should be rejected.

40    The common law cannot be developed inconsistently with the Constitution: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. In Love, at [15] to [18] Kiefel CJ offered the following summary of cases in the High Court concerning alienage over the past four decades:

15    In the past four decades there have been a number of challenges to the provisions of the Citizenship Act, and its predecessors, and the Migration Act concerning the status of a non-citizen or alien. In each of those cases the non-citizen sought to identify a characteristic pertaining to them which placed them outside the reach of the statute. But as was said by Gummow, Hayne and Heydon JJ in Singh v The Commonwealth, the status of alien is not defined by pointing to what is said to take a person outside the reach of Parliament's prescription, rather it depends upon what it is that gives the person that status.

16    The preamble to the Citizenship Act identifies an important feature of the relationship between citizen and State. It is the loyalty owed by a citizen to the State. The decision in Singh highlights the importance of loyalty, or allegiance, to the question of alienage. But it has also been held to be within the power of the Parliament to treat as an alien a stateless person who owes no such allegiance to the State. It may be sufficient that the person has the characteristics of being born in Australia but to foreign nationals, when the statute requires that one or both of the parents be Australian citizens or permanent residents of Australia.

17    There have been a number of cases in which it has been argued, unsuccessfully, that a person's strong connection to Australia and its community takes a non-citizen out of the operation of the statute. In Pochi, the plaintiff was an alien immigrant who had not been naturalised. Like the plaintiffs, he was facing deportation after being convicted of a serious offence. He argued that his long residency in Australia and absorption into the Australian community took him outside the statutory meaning of “alien”. In Shaw v Minister for Immigration and Multicultural Affairs, the plaintiff pointed to his connection with Australia gained through his personal history. In Singh and in Koroitamana v The Commonwealth, the plaintiffs sought to rely on the fact that they were born in Australia. But birth in Australia will not exclude a person from the reach of statutory-mandated alienage. That status now applies even to a British subject who has not been naturalised. A long connection with Australia and its community will not deprive a person of that status.

18    In Nolan v Minister for Immigration and Ethnic Affairs it was observed that, as a matter of etymology, “alien” means belonging to another place. This is not a reference to a person’s feelings of connection, however strong. It is not a reference to perceptions, to how a person might be understood by others to have a connection to a country. Rather it describes a person’s lack of formal legal relationship with the community or body politic of the country with which they contend to have a connection. In the United States the meaning attributed to “alien” has been said to be “one born out of the United States, who has not since been naturalized under the constitution and laws”.

[Footnote references omitted]

41    The Chief Justice was in the minority in Love. In light of Love, we are bound to hold that the term “alien” does not extend to a class of non-citizen Australian aboriginals. Even though members of that class may lack any formal legal relationship with Australia as a body politic, they are not, as so the majority in Love held, “alien”.

42    Subject to this qualification, regard to Pochi v McPhee (1982) 101 CLR 101 (Pochi), Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 (Nolan), Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, Shaw, Singh v The Commonwealth (2004) 222 CLR 322, and Koroitamana v The Commonwealth (2006) 227 CLR 31 discloses that the summary offered by Kiefel CJ is accurate. Further, the qualification arising from Love is presently immaterial.

43    To develop the common law in the way for which the appellants contend, influenced by Art 12(4) of the ICCPR as construed by the majority of the UNHRC in Nystrom v Australia, would be at variance with the Constitution which, by s 51(xix) gives legislative competence to the Commonwealth Parliament to make laws with respect to “naturalization and aliens”. It would yield a result that, at common law, a non-Aboriginal person for whom Australia was “his own country” could enter, reside in and remain in Australia even though that person did not have any formal legal relationship with the Australian body politic. Yet the cases summarised by Keifel CJ establish beyond question that such a person does fall within the constitutional term “alien” in s 51(xix) and that it within the legislative competence of the Commonwealth Parliament to make laws with respect to them. Such valid laws include, as is conceded by the appellants, s 501 and s 501CA of the Act.

44    At the time of Federation, as Gibbs CJ identified in Pochi at 107-108, the position at common law was as stated by Blackstone in his Commentaries, 8th ed., vol. I, p. 366, as follows:

“Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.”

At common law, at the time of Federation, a British subject born in the United Kingdom such as Mr Hopkins would not have been regarded as an alien. In contrast, a person born in Portugal such as Mr Ferreira would have been regarded as an alien at common law. However, in the period well in excess of a century which has passed since Federation, major geo-political changes have seen the disappearance of the British Empire, a redefining of the relationship between the United Kingdom and Australia and, related to that, of the role of the Monarch as Head of State of those two now wholly independent nations. It has also seen the introduction by the United Kingdom and Australia, in the exercise of valid legislative power, of the status of citizen. In relation to British subjects, the impact of these changes in relation to the concept of alienage in the Constitution has been controversial, as Nolan, its reversal in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 and its restoration in Shaw attest. Such is the impact of these changes and of the supplanting by valid legislation of what was once the position at common law that the extension of the common law in the way for which the appellants contend would not be appropriate to the judicial function either in respect of British subjects or otherwise.

45    Thus, even were there a “constructional choice” admitting of the application of the principle of legality, and there is not, there is no common law right preferentially to choose.

46    For completeness, we observe that the influence of Art 12(4) of the ICCPR for which the appellants contend would in any event necessarily mean that the common law right asserted would include an element of arbitrary deprivation. For the content of this they relied on Kaba where, at [154], referring to his Honour’s earlier judgement in P J B v Melbourne Health & Anor (Patrick’s case) [2011] VSC 327 at [85] Bell J opined that, “Interference can be arbitrary although it is lawful.” Assuming, without deciding, that the common law development for which the appellants contend would have such an element serves only to underscore why the common law should not develop in that way. It would make the deportation of a person for whom Australia was his “own home” unlawful at common law even though the enabling, anterior administrative decisions under a validly enacted statute were not attended with unreasonableness in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Singh v Minister for Immigration and Border Protection (2016) 240 FCR 1.

Conclusion

47    The appeals fail and must be dismissed. Costs should follow the event.

48    For like reasons, the applications have no prospect of success. They must be dismissed. Again, costs should follow the event.

Associate:

Dated:    6 March 2020