FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 563

CONSTITUTIONAL LAW – ss 501E, 501F(3) and 48A of the Migration Act 1958 (the Act) challenged as being beyond the power of the Parliament – whether ss 501E, 501F(3) and 48A of the Act come within Parliament’s power under s 51(xix) of the Constitution – whether ss 501E, 501F(3) and 48A of the Act confer judicial powers upon the Parliament – whether ss 501E and 48A of the Act are inconsistent with the Refugees Convention as amended by the Refugees Protocol and are invalid.

MIGRATION – whether ss 48A, 501E and 501F(3) of Migration Act 1958 (Cth) within power – challenge to constitutional validity of those sections dismissed.

Commonwealth of Australia Constitution (Cth) s 51(xix)

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth) ss 13, 14, 15, 36(1), 48A, 189, 196, 501, 501E, 501F(3)

Crimes Act 1914 (Cth) s 4C

Migration Legislation Amendment Act 1989 (Cth)

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)

Workers Rehabilitation and Compensation Act 1986 (SA)

Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 cited

Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 1868 cited

Plaintiffs 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 389 cited

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 cited

Pochi v MacPhee (1982) 151 CLR 101 applied

Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 cited

Milne v Huber (1843) 17 Fed Cas 403 referred to

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 followed

Re Patterson: Ex parte Taylor (2001) 207 CLR 391 applied

Robtelmes v Brenan (1906) 4 CLR 395 applied

The Queen v Kirby, Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 cited

NSW Bar Association v Stevens [2003] NSWCA 261 cited

Polites v The Commonwealth  (1945) 70 CLR 60 applied

Horta v The Commonwealth (1994) 181 CLR 183 applied

Dietrich v The Queen (1992) 177 CLR 292 cited

Chow Hung Ching v The King (1948) 77 CLR 449 applied

Bradley v The Commonwealth (1973) 128 CLR 557 applied

Simsek v MacPhee (1982) 148 CLR 636 cited

STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 595 of 2003

MANSFIELD J

18 MAY 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay to the respondent costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

introduction

1                     This application under ss 39B of the Judiciary Act 1903 (Cth) challenges the validity of ss 48A, 501E and 501F(3) of the Migration Act 1958 (Cth) (the Act).  The application was filed on 5 August 2003 and amended on 5 September 2003.  On 23 September 2003 notices pursuant to s 78B of the Judiciary Act 1903 (Cth) were served.  No Attorney-General has sought to intervene in the proceedings.

2                     The applicant has a long history of visa applications under the Act.  He arrived in Australia lawfully on 10 February 1994 with his wife and two children.  He then held a Student visa.  On 22 December 1995, he applied for a protection visa.  That application was unsuccessful before a delegate of the respondent.  The normal procedures for review of that decision have been exhausted.  The decision of the delegate has been reviewed by the Refugee Review Tribunal (the Tribunal) on three occasions, and affirmed on each occasion.  The first two decisions of the Tribunal were set aside by this Court and were remitted to the Tribunal for rehearing.  The third Tribunal decision made on 19 May 2000 also affirmed the decision of the delegate.  An application to set that decision aside was dismissed at first instance on 11 April 2001:  Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402.  An appeal from the decision at first instance to the Full Court was dismissed on 21 December 2001:  Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 1868.  An application for special leave to appeal to the High Court was refused on 11 April 2003.

3                     In the meantime, the applicant applied for a Parent (Migrant) Class AX (Subclass 103) (Parent) visa (the Parent visa) under the Act.  Following that application, the applicant was granted a further bridging visa.  The application for the Parent visa was considered by the respondent in person.  It was refused on 11 June 2002.  The reason for the refusal was that the respondent was not satisfied that the applicant passes the character test:  s 501(1) of the Act.  It is not necessary, for the purposes of the present application, to explore why the respondent was not so satisfied.  It is common ground that the applicant was convicted of four counts of false pretences, and sentenced to 12 months imprisonment, on 30 July 1996.  On 3 August 2001 he was convicted of a number of counts relating to fraud on WorkCover (the statutory entity relevantly responsible for determination of entitlements under the Workers Rehabilitation and Compensation Act 1986 (SA)), and was sentenced to 12 months imprisonment.  In the course of contentions, the applicant asserted that he has proceedings instituted in the Supreme Court of South Australia in which he is belatedly endeavouring to set aside each of those sets of convictions.  The effect of the respondent’s decision, by reason of s 501F(1) and (3) is that the respondent is taken to have decided also to cancel the bridging visa then also held by the applicant.  The applicant thereby became an unlawful non-citizen in Australia, vulnerable to detention in accordance with s 189 of the Act.  He was duly placed in immigration detention where he remained until 25 May 2004.

4                     The applicant sought to challenge the respondent’s decision under s 501 of the Act by seeking writs of prohibition, certiorari and mandamus in the High Court.  His application was dismissed on 2 September 2002.  He appealed.  Following the appeal, the High Court on 4 February 2003 in Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 gave judgment explaining the interaction of s 474 with other provisions of the Act.  In the light of that decision, the Full Court of the High Court, by consent, on 4 April 2003 set aside the order at first instance and remitted to this Court the challenge to the respondent’s decision under s 501(1).  On 1 May 2003 his application was dismissed:  Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 389.  On 25 March 2004, an appeal from that decision was allowed and the Full Court set aside the decision of the respondent under s 501(1):  Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65.  The ground upon which the appeal was successful was not a matter argued before the learned judge at first instance.  The consequence of the Full Court’s decision is that the bridging visa previously taken to have been cancelled by reason of s 501F(3) was not cancelled.  The applicant was released from immigration detention.

5                     It is unclear presently how the respondent proposes to proceed now to consider further the application of the applicant for the Parent visa.  She may again consider whether to refuse it on or by reason of the character test in accordance with s 501(1).  She may not.  The applicant indicated in argument that he has instituted proceedings in the High Court seeking to restrain the respondent from proceeding to make a decision under s 501(1), acting upon the convictions referred to above, at least until his attempt to set aside the convictions has been heard and determined in the Supreme Court of South Australia.

6                     The applicant nevertheless contends that there is utility in these proceedings, for two reasons.  The first is that, if he is successful, he will have set aside the statutory regime by virtue of which his bridging visa was taken to have been cancelled and by virtue of which he has been in immigration detention for a considerable period of time.  The second is that, because he faces the prospect of the respondent deciding again to refuse the Parent visa because the applicant does not pass the character test, he wishes to establish that the consequences of such a decision do not lawfully include the cancellation of his bridging visa.  The second of those reasons is, in my view, speculative.  It is not known how the respondent may now treat the application for the Parent visa.  If it is granted, the present application will have been of no utility.  On the other hand, as the applicant has a real interest in establishing that his immigration detention in the past has not been effected in accordance with a lawful legislative regime, in my view it is appropriate to determine those issues at the present time.

7                     The challenges to ss 501E and 48A are on slightly different grounds.  It was not contended that they do not have utility in the present circumstances, and it is not therefore necessary to explore in detail why it is appropriate to consider them.  In brief, following the respondent’s decision of 11 June 2002 (now set aside), s 501E precluded the applicant from making any application for a bridging visa, at least during the period between 11 June 2002 and 25 March 2004.  As the respondent’s decision of 11 June 2002 has now been set aside, the impediment imposed by s 501E no longer exists, but it did exist (if s 501E is valid) during the period of the applicant’s immigration detention.  In its terms, it did not prevent the applicant from making an application for a protection visa:  s 501E(2)(a). The effect of s 501E therefore is to have prevented the applicant from seeking any further visa whilst he was in immigration detention.  Furthermore, having applied unsuccessfully for a protection visa under the Act, the applicant is precluded by s 48A from applying for a further protection visa whilst he remains in Australia, unless the respondent determines under s 48B that s 48A does not apply to him.  He seeks to challenge the validity of s 48A.  It is an ongoing impediment to his claim that he should be entitled to re-apply for a protection visa because (he claims) he has a well-founded fear of persecution in his country of nationality (Nigeria), despite (he claims) significantly changed circumstances in Nigeria.

The Applicant’s Contentions

8                     Although the amended application and the amended affidavit make slightly different claims, it appears that they raise the following issues:

(1)               That ss 501E, 501F(3)  and 48A of the Migration Act 1958 (Cth) (the Act) are beyond the power of the Parliament and so are invalid;

(2)               That ss 501E and 48A of the Act are inconsistent with s 196(1)(c) of the Act and are to the extent of the inconsistency invalid;

(3)               That ss 501E and 48A of the Act are inconsistent with the Refugees Convention as amended by the Refugee Protocol (the Convention) and are invalid.

In an imprecise way the applicant asserts that ss 501E, 501F and 48A of the Act ‘bear on’ the applicant’s rights, and affect his eligibility to apply for a substantive visa.  The applicant further seeks an order that the respondent grant him a bridging visa under the Act.

9                     At the hearing, the applicant confined his contentions to the invalidity of ss 501E, 501F(3) and 48A of the Act as being beyond power.  He said the s 78B notices contained the essence of his contentions.

10                  The essence of the applicant’s contentions requires the characterisation of the provisions of the Act under attack as laws with respect to the punishment of persons to whom they apply, rather than laws authorised under some head of power contained in the Constitution.

11                  Section 48A is said to have that penal character because it prohibits any unsuccessful applicant for a protection visa from re-applying for a protection visa, notwithstanding a change in circumstances in the country of origin, so that the unsuccessful applicant must remain in immigration detention notwithstanding that person is a ‘putative refugee’.

12                  Section 501E is said to have that penal character because it prohibits a person who has been lawfully in Australia from applying for any visa (except a protection visa) once the respondent has rejected an application for a different visa under s 501(1), namely because that person does not pass the character test.  Again the argument depends upon the consequence of the operation of s 501E.  The consequence is said to be that the unsuccessful visa applicant becomes an unlawful non-citizen liable to immigration detention.  That may occur, he points out, even if (as happened in his case) the decision of the respondent under s 501(1) is challenged, and ultimately is set aside.

13                  Section 501F(3) is said to have that penal character because it also operates to cancel all other visas, including a ‘protection related bridging visa’, and then leads to the former visa holder becoming an unlawful non-citizen vulnerable to immigration detention.  Again, the point is made that the immigration detention occurs irrespective of the fact that the decision under s 501(1) is under challenge.

14                  There were two further threads running through the submissions of the applicant.  The first was that those provisions somehow amounted to the executive exercise of the judicial power of the Commonwealth which is, of course, under Ch III of the Constitution exclusively the preserve of the federal judicature, because the provisions involved the imposition of a punishment.  The second was that those provisions operated to punish him twice for the same conduct (or alleged conduct) which gave rise to his convictions, and so contravened s 4C of the Crimes Act 1914 (Cth).  He argued from that assertion that the provisions under attack were therefore ‘unconstitutional’.

15                  The applicant did not present any argument to support that part of his application which suggested the provisions under attack were somehow on their face inconsistent with other provisions of the Act, and properly understood did not authorise his immigration detention.

The Legislation

16                  Section 48A of the Act was inserted into the Act in 1995.  Subsections (1A) and (1B) were inserted in 1999 and 2001 respectively.  In its current form, s 48A is as follows:

‘(1)      Subject to section 48B, a non-citizen who, while in the migration zone, has made:

(a)        an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

(b)        applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

may not make a further application for a protection visa while in the migration zone.

(1A)     For the purposes of this section, a non-citizen who:

(a)       has been removed from the migration zone under section 198; and

(b)       is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);

is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).

Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.

(1B)     Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.

(2)       In this section:

application for a protection visa includes:

(aa)      an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

(ab)      an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or a dependant of a non-citizen in Australia:

(i)         to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

(ii)        who holds a protection visa; and

(a)        an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and

(b)        an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and

(c)               an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.’

The effect of s 48A of the Act is that if a non-citizen’s application for a protection visa under the Act is refused, then that person cannot re-apply for a protection visa whilst in Australia’s migration zone.  The criteria for the grant of a protection visa include s 36(2) of the Act, in essence that the decision-maker be satisfied that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention.  A ‘non-citizen’ is a person who is not an Australian citizen (s5(1)).  The application of s 48A means that, as the applicant’s application for a protection visa was refused, he could not apply for a further protection visa whilst in Australia.  The ‘refusal’ of the applicant’s protection visa occurred at the time of the delegate’s decision on 7 November 1996; it is not the time of that application being finally determined:  s 48A(1)(a) and s 5(9) of the Act.  He was therefore confined to pursuing his existing application for a protection visa.  It is hard to see what disadvantage he suffered by that provision in fact, as he had (as noted) three merit review hearings before the Tribunal, the last being during 2000.  He had plenty of time to assemble and put before the Tribunal such material as he wished in support of his application. 

17                  Section 48A(1) is subject to s 48B, which enables the respondent to determine that s 48A does not apply to a particular non-citizen.  The respondent has made no determination under s 48B in respect of the applicant.

18                  Sections 501E and 501F were inserted into the Act in 1998. According to the explanatory memorandum to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) one of the intended effects of these amendments was to strengthen the power to refuse to grant, or to cancel, a visa on character grounds.

19                  Section 501E prohibits an applicant, whose application was refused under ss 501, 501A or 501B, from applying for other visas, except for protection visas or a visa specified in the regulations.  (An applicant may, however, be prevented from applying for a further protection visa by reason of s 48A.)  Section 501E provides:

‘(1)      A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:

(a)        at an earlier time during that period, the Minister made a decision under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and

(b)              the decision was neither set aside nor revoked before the application time.

(2)       Subsection (1) does not prevent a person, at the application time, from making an application for:

(a)        a protection visa; or

(b)        a visa specified in the regulations for the purposes of this subsection.’

20                  The effect of s 501F(3) is that, if the Minister refuses to grant a visa under ss 501 of the Act, any other visa except a protection visa or a visa specified in the regulations is deemed to have been cancelled by the respondent.  Section 501F provides:

‘(1)      This section applies if the Minister makes a decision under section 501, 501A or 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.’

(2)       If:

(a)        the person has made another visa application that has neither been granted nor refused; and

(b)        the visa applied for is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;

the Minister is taken to have decided to refuse that other application.

(3)       If:

(a)        the person holds another visa; and

(b)        that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;

the Minister is taken to have decided to cancel that other visa.

(4)       If the decision referred to in subsection (1) is set aside or revoked, the decision that the Minister is taken to have made under subsection (2) or (3) is also set aside or revoked, as the case may be.

(5)       A decision that the Minister is taken to have made under subsection (2) or (3) is not reviewable under Part 5 or 7.’

21                  As noted, the effect of the cancellation of the applicant’s bridging visa (he did not hold a protection visa) was that he became liable to immigration detention under s 189 of the Act.  Section 196 governs the duration of detention of unlawful non-citizens.  It provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is either removed from Australia under s 198 or 199, or deported under s 200, or granted a visa.  The applicant has since the decision on 25 March 2004 again been granted a bridging visa.

CONsideration of contentions

22                  Section 51 of the Constitution contains the legislative powers of the Federal Parliament. Section 51(xix) concerns the Parliament’s power to make laws with respect to ‘naturalization and aliens’.  The respondent identifies 51(xix) as the legislative source of power for the Act, at least as relevant to the present application.

23                  The characterisation given to ss 48A, 501E and 501F(3) by the applicant is, in my view, erroneous.  None of those provisions is directed to what should happen to a person who is an unlawful non-citizen as defined in s 14 of the Act.  That is the province of s 189, and more generally, Div 7 of Pt 2 of the Act.  The provisions in Div 7 of Pt 2 of the Act are not said to be beyond power.  Section 48A is part of the legislative package identifying the circumstances in which a person may apply for, and may be granted, a protection visa (created by s 36(1) of the Act).  Section 501E identifies certain circumstances in which a person may not apply for a visa other than a protection visa under the Act.  Its effect derives from decisions made under ss 501, 501A or 501B.  Each of the circumstances in which a decision under s 501, 501A or 501B may be made is on the basis of the character of the particular visa applicant.  The ‘character test’ is defined in s 501(6) in terms which are clearly not capricious.  It is not for the Court to form any judgment about the wisdom of legislation.  It is apparent that the purpose of those provisions is the understandable one of seeking to ensure that visa holders in Australia are not of such a character as to be detrimental to the Australian community.  Section 501F(3) applies the consequences of a decision that a particular visa applicant does not pass the character test to other visas which the visa applicant may hold.

24                  Consequently, each of those provisions is properly characterised as a law to regulate the process by which a person who is not an Australian citizen may be permitted to remain in Australia.

25                  An ‘alien’ is a person who was born outside Australia, whose parents were not Australians and who has not been naturalised as an Australian: Pochi v MacPhee (1982) 151 CLR 101 at 109-110 per Gibbs CJ. In Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 (Nolan) Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ referred to the United States decision of Milne v Huber (1843) 17 Fed Cas 403 which stated at 406 that, for the purpose of the United States, an alien was ‘one born out of the United States, who has not since been naturalised under the constitution and laws’.  Subject to some minor qualifications, the High Court in Nolan held at 183 that that was ‘an acceptable general definition of the word ‘alien’’.

26                  In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Chu Kheng Lim), Brennan, Deane and Dawson JJ at 25 and Gaudron J at 53 stated that the term ‘alien’ has become synonymous with non-citizenship. In Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (Taylor’s case) a majority of High Court (Gaudron, McHugh, Kirby and Callinan JJ) held that there are not simply two categories, citizen and alien, but that there is a third category:  a non-citizen non-alien.  This comprises any British subject who had resided in Australia permanently since before 1973 (or possibly before 1 May 1987).  The applicant does not fit into the third category.  In any event, it can be safely said that the term ‘aliens’ covers ‘non-citizens’ as it is used in the Act.

27                  The Federal Parliament has wide-ranging powers under s 51(xix) of the Constitution, as is highlighted by the following passages.  In Robtelmes v Brenan (1906) 4 CLR 395 Griffith CJ said at 404:

‘The power to make such laws as Parliament may think fit with respect to aliens must surely, if it includes anything, include the power to determine the conditions under which aliens may be admitted to the country, the conditions under which they may be permitted to remain in the country, and the conditions under which they may be deported from it.’

More recently, in Taylor’s case at 424 McHugh J stated:

‘[A]s long as a person falls within the description of ‘aliens’, the power of the parliament to make laws affecting that person is unlimited unless the Constitution otherwise prohibits the making of the law.’

28                  In my view, those decisions make it clear that the provisions of the Act under attack fall within the legislative source of power in s 51(xix) of the Constitution.  Indeed, by his argument, I think the applicant is seeking to circumvent the decision of the High Court in Chu Kheng Lim by ascribing to those provisions a character which they do not have for the purpose of challenging their validity.  He could not challenge directly the provisions in Div 7 of Pt 2 of the Act in the light of the decision in Chu Kheng Lim.

29                  In that case, the Court (Gaudron J dissenting in part) upheld the validity of certain provisions of the Act (now ss 176, 180 and 183 in Div 6 Pt 2 of the Act following their renumbering by the Migration Legislation Amendment Act 1989 (Cth)) which conferred upon the executive authority to detain aliens to secure their expulsion or deportation.  It is difficult to see that the reasoning of their Honours would not apply with equal force to the provisions in Div 7 Pt 2 of the Act.

30                  Brennan, Deane and Dawson JJ said in that case at 25-26:

‘The legislative power conferred by s. 51(xix) with respect to “aliens” is expressed in unqualified terms.  It prima facie encompasses the enactment of a law with respect to non-citizens generally.  It also prima facie encompasses the enactment of a law with respect to a particular category or class of non-citizens, such as non-citizens who are illegal entrants or non-citizens who are in Australia without having presented a visa or obtained an entry permit.  Such a law may, without trespassing beyond the reach of the legislative power conferred by s. 51(xix), either exclude the entry of non-citizens or a particular class of non-citizens into Australia or prescribe conditions upon which they may be permitted to enter and remain; and it may also provide for their expulsion or deportation.

As has been seen, the first element of the definition of “designated person” for the purposes of Div. 4B of the Act is “non-citizen”.  The provisions of Div. 4B are concerned solely with non-citizens who satisfy the other elements of that definition.  Their object and operation are, in the words of s. 54J, to ensure that “each non-citizen who is a designated person should be kept in custody until he or she” leaves Australia or is given an entry permit.  They constitute, in their entirety, a law or laws with respect to the detention in custody, pending departure or the grant of an entry permit, of the class of “designated” aliens to which they refer.  As a matter of bare characterization, they are, in our view, a law or laws with respect to that class of aliens.  As such, they prima facie fall within the scope of the legislative power with respect to “aliens” conferred by s. 51(xix).  The question arises whether, nonetheless, their enactment was not authorised by that grant of legislative power by reason of some express or implied restriction or limitation to be found in the Constitution when read as a whole.  For the plaintiffs, it is argued that such a restriction or limitation is implicit in Ch. III’s exclusive vesting of the judicial power of the Commonwealth in the courts which it designates.’ 

31                  The concluding remarks in that passage lead to consideration of the applicant’s contentions that the immigration detention imposed on him following the respondent’s decision under s 501(1) of the Act is a form of punishment beyond the power of the legislature to have committed to the executive.  As I have concluded that the sections of the Act under attack do not have that character, the contention arises only if my primary conclusion were wrong. 

32                  The exercise of judicial power is to be undertaken exclusively by the federal judicature.  A law conferring judicial powers upon another body is invalid: see for example The Queen v Kirby, Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.

33                  In respect of Pt 6 Div 2 of the Act, the issue of detention and deportation of aliens was dealt with by the High Court in Chu Kheng Lim.  It was held that s 51 (xix) authorised a law detaining aliens in order to deport or expel them.  Such authority was held to be an incident of executive power (at 10, 26, 46-47, 64-65).

34                  A law conferring the authority to detain a person is prima facie judicial, as detention is prima facie punitive, and the power to impose punitive detention is a judicial power:  Chu Kheng Lim at 27-28 per Brennan, Deane and Dawson JJ. However, their Honours then explained at 33 – 34 that detention is not punitive if it is ‘reasonably capable of being seen as necessary’ for a legitimate non-punitive object.

35                  Under Pt 7 Div 2 of the Act, in particular s 189, the detention power and obligation arises in respect of an ‘unlawful non-citizen’.  Section 14(1) defines an unlawful non-citizen as one who is in Australia and who is not a lawful non-citizen.  A lawful non-citizen is a non-citizen in Australia who holds a visa that is in effect:  s 13(1).  Section 15 makes it plain that the holder of a visa which is cancelled, upon cancellation, becomes an unlawful non-citizen.  The applicant has therefore accurately identified the consequence (but not the purpose) of s 501F(3).  He became an unlawful non-citizen subject to immigration detention.  Section 196 relates to the period of detention.

36                  Assuming somehow that s 501F(3) or, even more remotely, s 48A or s 501E, in fact provide for the immigration detention of the applicant upon the decision of the respondent under s 501(1), the issue then would be whether the detention is ‘reasonably capable of being seen as necessary’ for dealing with persons who do not, to the satisfaction of the respondent, meet the character test.  If so, the detention which the provisions authorise may be classified as non-punitive.

37                  As I have said, in my view, the decision of the High Court in Chu Kheng Lim addresses that question in respect of different provisions in the Act, and answers it affirmatively.  The reasoning of the Court however applies with equal force to the present circumstances.  Accordingly, I consider the applicant’s attack on that basis must fail.  The conclusion accords with the observations of Meagher AJ in NSW Bar Association v Stevens [2003] NSWCA 261.  His Honour, with whom Spiegelman CJ and Ipp JA agreed, stated at [80]:

‘In the course of argument many rabbits were chased down many burrows. One in particular deserves some, but very brief, mention. There was some discussion whether, as a result of the High Court decision in Taylor's Case, ss 189, 196 and 501 of the Migration Act were valid. It was suggested they were invalid because unconstitutional, not being supported by any head of legislative power. That they were inapplicable to the present case is clear enough, after the High Court decision, but that does not mean they are invalid. I can see no reason why they are not perfectly valid quoad unlawful non-citizens. The relevant head of power is the aliens power (s 51 (xix)) of the Constitution. Gleeson CJ so held in terms in Taylor's Case, and although he was one of the minority I do not see how he can be said to be wrong on this point.’

38                  It follows that the attempt by the applicant to demonstrate some apparent inconsistency of operation between the provisions of the Act under attack and s 4C of the Crimes Act 1914 (Cth) must also fail.  Section 4C does not apply to immigration detention under s 189 of the Act (or under s 501F(3)) of the Act because immigration detention does not per se amount to punishment for an offence.

39                  The application has attacked the validity of ss 48A, 501E and 501F(3) generally.  The applicant’s circumstances indicate why he wishes to do so.  But he has not established that those provisions, upon their proper construction, are beyond legislative power or that they do not apply in his particular circumstances.  Nor has he sought to demonstrate that there is a legitimate reach of those provisions, and that his particular circumstances are beyond that constitutional reach.

40                  Although the applicant did not, in his oral submissions, raise the matter of inconsistency referred to in his amended application, I propose to deal briefly with it.

41                  In my view, neither s 501E nor s 48A of the Act are inconsistent with s 196(1)(c) of the Act.  Section 196(1)(c) provides one of the terminating events of immigration detention, namely the grant of a visa.  It is difficult to see how it can be said the provisions are inconsistent.

42                  It may be that the applicant is claiming that the combined effect of s 48A (preventing him from applying for a protection visa) and s 501E (preventing him from applying for another form of visa) results in his detention being unauthorised by the Act.  This is because he claims that s 196(1)(c) cannot apply to him (which provides for detention to come to an end when a person is granted a visa), thus making the detention indefinite.  If this is his argument, it cannot succeed as s 196(1)(a) through removal from Australia, and s 196(1)(b) through deportation, provide a means of bringing detention to an end.  Section 196(1)(c) may apply in circumstances where there is no impediment to the grant of a visa.  If the applicant had been granted the protection visa for which he had applied after 11 June 2002, s 196(1)(c) would have been activated.  In his case it was in fact activated when he was granted a further bridging visa after the Full Court decision on 25 March 2004.

43                  The applicant further contends that the sections in question are inconsistent with the Convention.  In reality, his argument is that he should be accepted to be a refugee when, in accordance with the decision-making structures under the Act, he has not been accepted to be a refugee.  That is not a matter of inconsistency.  In any event, Polites v The Commonwealth  (1945) 70 CLR 60 (Polites) and Horta v The Commonwealth (1994) 181 CLR 183 decided that the Commonwealth’s legislative power is not limited by international instruments, even if Australia subscribes to them.  In Polites,Latham CJ at 69, when referring to the alien’s power, said:

‘The Commonwealth Parliament can legislate on these matters in breach of international law, taking the risk of international complications.’

No inconsistency argument can be made out in the present application.

44                  Finally, the applicant claimed that ss 501E, 501F and 48A of the Act bear on his rights and affect his eligibility to apply for a substantive visa.  He did not identify the source of the ‘rights’ to which he referred.  These sections do affect the applicant’s ability to apply for visas.  I have found their enactment to be within the power of the Commonwealth Parliament.  The applicant has been given the opportunity to apply for a visa (he has in fact applied for at least two different types of visa). His application for a protection visa has been heard (and rejected) by the Tribunal.  He has challenged the Tribunal’s decisions before the Federal Court, the Full Court of the Federal Court, and the High Court.  In my view, the procedural opportunities available to him to pursue his visa applications have been exercised.  There is no other identified ‘right’ which he claims and of which he has been deprived.  His complaint is really one of fact:  he claims to be a refugee from Nigeria, but his claim for that status to be recognised in accordance with the Act has failed.  The determination of his status as a person entitled to remain in Australia is a matter for Australia’s domestic law.  The High Court in Dietrich v The Queen (1992) 177 CLR 292 considered the effect of the International Covenant on Civil and Political Rights (ICCPR). Mason CJ and McHugh J stated at 305:

‘Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions.’

Furthermore, it is accepted that treaties have ‘no legal effect upon the rights and duties of the subjects of the Crown’: Chow Hung Ching v The King (1948) 77 CLR 449, at 478, and that aliens are not in a different position: Bradley v The Commonwealth (1973) 128 CLR 557, at 582.  Finally, I note that a similar claim to the present on this aspect was rejected by Stephen J in Simsek v MacPhee (1982) 148 CLR 636. 

45                  For the reasons given above, I dismiss the application.  I order that the applicant pay to the respondent costs of the application.

Associate:

Dated:              5 May 2004