Migration, Refugees and Forced Migration

Transcription

1 LAWS5199 Contents Migration, Refugees and Forced Migration Weeks MIGRATION CONTROL AND THE LAW: THEORIES, HISTORY AND PRACTICE Control, Culture and Context: White Australia and the evolution of a multicultural policy Current issues in citizenship law THE EXTENT OF THE POWER TO CONTROL MIGRATION: THE CONSTITUTION AND NORMS OF INTERNATIONAL LAW The legislative powers conferred by section 51 of the Constitution Judicial trends in the interpretation of the immigration and aliens heads of power Other constitutional restrictions on the power to control migration: The Judicial Power The Executive power The significance of International Law IMMIGRATION AND THE REGULATORY REVOLUTION Discretion versus regulation. The Migration Act 1958 as amended The regulation of immigration advice Weeks COMMON ENTRY CRITERIA Border Control and Immigration Clearance: Of Risk Factors and Bona Fides Protecting the public interest: Health Concern Non-Citizens Protecting the public interest: Character and Conduct s Week FAMILY MIGRATION Categories of Family Migration The Right to Family Reunion at International Law Immigration and marriage: victims, villains and the control of sham marriages Preferential family migration: parents, children and other family Week BUSINESS AND SKILLS-BASED MIGRATION Gain or Pain? Selecting the Right Economic Migrant The General Skilled Migration Program: Skills Select and the Points Tests

2 6.3. The Employment Nomination Scheme and other methods for achieving labour transfers Business migration, Distinguished talent and investment visas Temporary Skills Transfers: the 457 visa scheme Employer Sanctions Weeks REFUGEES AND HUMANITARIAN MIGRATION Australia s experience of refugees and forced migration The planned intake: the humanitarian portion of the overseas immigration programme Asylum and the non-refoulement principle Who are refugees? The Convention and Protocol relating to the Status of Refugees: a survey of the Australian jurisprudence Exclusion and Cessation Complementary protection Temporary Protection Visas and Safe Haven Enterprise Visas Week UNLAWFUL STATUS AND THE ENFORCEMENT OF MIGRATION LAWS Options available to unlawful non-citizens Arrest and Detention Provisions - an overview Week THE ADMINISTRATIVE REVIEW OF DECISIONS ON THEIR MERITS The scope and function of administrative review An introduction to the review bodies The Inquisitorial experiment JUDICIAL REVIEW The concept of judicial review Attempts to constrain judicial review: The first Part 8 experiment Privative Clauses The scope for review under the new scheme Determining the role of the Courts in immigration control... Error! Bookmark not defined. 2

3 Weeks MIGRATION CONTROL AND THE LAW: THEORIES, HISTORY AND PRACTICE This course is an applied public law course, as it draws in administrative, constitutional and international law In Legend.com, current visas are in blue, and superseded visas are in black Exam - 1 st half Choose 3 out of 5 essay questions Spend 20 mins on each one - 2 nd half Long problem question Generally in two parts 1 st part concerns substantive migration law 2 nd part concerns review process Use administrative law material grounds of judicial review 1.1. Control, Culture and Context: White Australia and the evolution of a multicultural policy. Overview Immigration law has played a central role in defining what it is to be an Australian citizen The regulation of immigration became significant because of the decision not to provide expressly for an Australian citizenship in the Australian Constitution The omission meant that right of entry and tenure in the country came to be regarded as a benefit attaching to the observe of the status of immigrant Immigration law and the growth of nationhood Australia is unusual in that it was colonised in a deliberate fashion. It began with the transportation of convicts and continued with the importation of free settlers. Throughout the 1800s, a series of enactments were introduced by the different colonies to restrict migration The first attempt to restrict migrants of colour was the control of Asian migration in The Victorian Act to Make Provision for Certain Immigrants limited the number of Chinese passengers who could be brought in any one vessel to one for every 10 tonnes of registered tonnage At the end of the 19 th century, Queen Victoria was in power, and it was not certain who controlled immigration to Australia (Britain or the colonies) - Britain continued to send convicts to Australia 3

4 Immigration control was thus an important issue in the constitutional debates Behind the push for the federation of Australia was the desire to create a country that was white and free Queen Victoria was not in favour of this In 1901, there were many people of colour in Australia, and the founding fathers did not want to treat these peoples as Australians They decided not to include citizenship in the Constitution. Instead, they gave the newly formed Parliament the power to legislate with respect to nationality and alienage. The result was that citizenship in Australia became a matter of mere inference, derived from the text of the Constitution and the act of federating the Australian colonies in Different understanding of citizenship in the 1800s - people saw themselves as subjects of the Empire. - From 1 Jan 1901, all natural born and naturalised British subjects resident in Australia became members of a new political entity and thereafter were called Australians - But no new nationality was created - Constitution used terms such as subject of the Queen and people of the Commonwealth Australian citizenship as a legal term of art only emerged with the passage of the Nationality and Citizenship Act 1948 (later renamed the Australian Citizenship Act 1948) White Australia One of the first pieces of legislation passed after Federation was Pacific Islanders Removal Act (Act No 16) - The Act ensured the removal of Pacific Island labourers brought out to work the Queensland sugar cane fields before December 1906 Robtelmes v Brenan [1906] 4 CLR Case brought by one of the labourers from the cane fields. He contested his removal from the country under the Pacific Islanders Removal Act. Held (HCA): - Court looked to American case law - Decided that this man was an alien, and could only ever be an alien - The power to deport an alien is the inherent power of a sovereign government, and must be accepted as a quintessential aspect of the power invested in the new government of Australia. The Immigration Restriction Act (Act No 17) did not openly veto the admission of non- European aliens, but defined six classes of prohibited immigrants - Persons who failed the dictation test - Paupers - Idiots or insane persons 4

5 - Persons suffering from a loathsome or contagious disease - Certain criminals - Prostitutes The key to the restrictive function of the term immigrant, defined implicitly as a person entering Australia - Immigrants were the only persons who were susceptible to control at point of entry For immigrants from abroad, the most significant exclusionary device was the dictation test - Any immigrant found in the country within 1-3 years of entry could be asked to sit the test - The test was intended to exclude uneducated non-white migrants - The immigration official chose the language in which the test was administered Early citizenship cases: the role played by the judiciary in determining immigrant status The case law as a whole suggests as a judiciary that was highly supportive of government policies Cases such as Potter v Minahan and Donohoe v Wong Sau demonstrate that birth on Australian territory never guaranteed full membership of the Australian community, at least in the case of individuals born in Australia who subsequently left the territory *Potter v Minahan (1908) 7 CLR James Henry Kitchener Minahan was born in Australia to mixed parentage Chinese father, white mother. Parents were not married. - James father sent him to China at the age of 5, where he was raised by his grandparents. - James had kept birth certificate. - The grandparents and his father later died. Father s business partner contacted him to take over his father s business in Australia. - James attempted to re-enter Australia at age 29. Speaking no English, he was identified as an immigrant for the purpose of the Immigration Act and subjected to the dictation test, which he failed. - James sought a declaration that he should not be submitted to the test because he was not an immigrant. - Magistrate found in his favour; case went to HCA. - James gave evidence of his persecution in China because of his Eurasian features. Held: - Court looked at where he was domiciled. Because he was illegitimate, English law dictated that a person is domiciled where his mother lives. - Court held that domicile of origin had not been displaced by a domicile of choice in China - On this basis, the majority ruled that James was not an immigrant, but a member of the Australian community who was returning home when he sought to re-enter the country 5

6 - Higgins J: administration of the dictation test had involved an error of law - Isaacs J (dissenting): the ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent party of the community known as the Australian people. Nationality and domicile are not the tests; they are evidentiary facts of more or less weight in the circumstances, but they are not the ultimate or decisive considerations. *Donohue v Wong Sau (1925) 36 CLR Girl born in Australia to naturalised Chinese parents; raised in China - Chinese girl engaged to a Chines market gardener in NSW. Comes back to Australia but excluded on the basis that Australia was not her home. - Charged with being a prohibited immigrant on her failure to pass the dictation test Outcome: - HCA rejected the applicant on the basis that she was not a constituent part of the Australian community The dictation test R v Wilson; ex parte Kisch (1934) 52 CLR Mr Kisch was fluent in so many European languages that the immigration officer administered the test in Scottish Gaelic Outcome: - HCA pronounced the decision to deport the applicant unlawful on the basis that Scottish Gaelic was not a European language for the purpose of the legislation, but at best a rarely used dialect R v Davey, ex parte Freer ( CLR Mabel Freer born in Bombay to English Army family - At age 26, with 2 children and recently divorced, she fell in love with an Australian army officer - The pair planned to migrate to Australia and to marry upon the lieutenant obtaining his own divorce - Man s father-in-law lobbied army acquaintances, who in turn persuaded the immigration authorities that Ms Freer was an undesirable immigrant - Ms Freer was detained and required to submit to a dictation test in Italian - Ms Freer attempted to avoid the operation of the test by blocking her ears when the officer read the chosen passage Outcome: - Evatt J declined to rule either the administration of the test or its application to Ms Freer unlawful 6

7 The Migration Act 1958 abolished the dictation test and conferred on the Minister broad and apparently unfettered discretion with the admission, exclusion and deportation of non-citizens Exclusion of Australia s indigenous peoples Australia s indigenous peoples were grouped together with migrants and people of colour in their shared experience of exclusion and deprivation Even though Australian citizenship should have been a quintessential birthright (jus soli) The Commonwealth Franchise Act 1902 excluded from the vote any aboriginal native of Australia, Asia, Africa or the islands of the Pacific except New Zealand The Naturalisation Act 1903 (Cth) operated to exclude from naturalisation any aboriginal native of Australia, Asia, Africa or the islands of the Pacific except New Zealand Exclusion in the Constitution until amendment in 1967 of s 51(xxvi) which had excluded from the legislative power the aboriginal peoples of any State. Not counted in Federal censuses until after 1967 Against Chesterman and Galligan s 9 indicators, little doubt that they were treated as aliens in substance Exclusion of indigenous Australians persisted after the laws and policies relating to other persons of colour were relaxed Summary No formal concept of citizenship in legislation until 1948 Before that time, migration laws did the work of excluding unwanted people Everything turned on who was an was not a constituent member of the Australian community (Isaacs J in Potter v Minahan) 1.2. Current issues in citizenship law The Australian Citizenship Act 1948 and consequential amendments to other legislation saw the replacement of British subject with the term citizen Formal versus substantive citizenship Chesterman and Galligan suggest 9 rights that attach to Australian citizenship: 1. Vote 2. Speak freely 3. Choose one s religion 4. Move freely 5. Be equally protected before the law 6. Enjoy free basic health care 7. Receive a minimum wage 7

8 8. Receive a minimum level of social security 9. Receive a basic education Acquisition of citizenship The two traditional ways of acquiring nationality automatically involve place of birth (jus soli) and ancestry or descent (jus sanguinis) - Australian citizenship is no longer acquired simply by birth within the territory of the nation Australian citizenship can be acquired in one of two ways (see Australian Citizenship Act 2007): 1. By operation of law (automatically) 2. By applicant/grant Citizenship acquired by operation of law The 1948 legislation conferred citizenship on all persons born on Australian territory The rules on who acquires citizenship by birth were changed in 1986 following Kioa v West Kioa v West (1985) 159 CLR Tongan couple came to Australia because the Jason Kioa had fallen foul of the Tongan royal family. - Jason came as a student but did not pursue studies; went underground as an illegal immigrant. - Massive Tornado in Tonga, so couple had no reason to go back. - Jason arrested for being an illegal immigrant. - Couple had had another child since coming to Australia. Held: - Court found that Jason Kioa was an illegal immigrant but had not been afforded natural justice - Daughter a citizen because she was born in Australia Birth right citizenship is now reserved to persons born in Australia where at least one parent is an Australian citizen or a permanent resident at time of birth (Australian Citizenship Act 2007 s 11A) Children born in Australia who remain ordinarily resident in the country for 10 years can also become citizens by operation of law (s 12) This status is also given to adopted children (s 13); non-citizen children found abandoned in Australia (s 14); and persons who happen to reside in a territory that is incorporated into Australia (s 15). Australian Citizenship Act 2007 (Cth) Sec 11A Simplified outline 8

9 The most common way you become an Australian citizen under this Division is by being born in Australia and by having a parent who is an Australian citizen or a permanent resident at the time of your birth. There are some other, less common, ways of becoming an Australian citizen under this Division. These cover: - citizenship by being born in Australia and by being ordinarily resident in Australia for the next 10 years: see s 12; and - citizenship by adoption: see s 13; and - citizenship for abandoned children: see s 14; and - citizenship by incorporation of territory: see s 15. Sec 12 - Citizenship by birth (1) A person born in Australia is an Australian citizen if and only if: (a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or (b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born Sec 13 Citizenship by adoption A person is an Australian citizen if the person is: (a) adopted under a law in force in a State or Territory; and (b) adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly at least one of whom is an Australian citizen at that time; and (c) present in Australia as a permanent resident at that time. Sec 14 - Citizenship for abandoned children A person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved. Sec 15 - Citizenship by incorporation of Territory (1) A person is an Australian citizen if: (a) any territory becomes a part of Australia; and (b) the person is included in a class of persons specified in a determination under this section As the residents of Papua New Guinea discovered in the 1960s, persons who were deemed citizens of Australia can also lose that status if the territory is relinquished by Australia and given independence - See e.g. MIMIA v Walsh Citizenship by application children In most instances, persons born outside of Australia must make an application before they can be considered for Australian citizenship 9

10 1. Children registered at or after birth For children with one parent who is a citizen at time of birth, the application will usually involve a request to register a birth with the local Australian embassy or consulate If the parent(s) acquired their citizenship by descent (rather than automatically at birth), an additional requirement is imposed of 2 years residency in Australia. Doesn t operate as of right, because the Minister may refuse to confer status on grounds including failure to prove identity and national security (s 17) 2. Children adopted overseas By at least one Australian citizen in accordance with the Hague Convention on Inter-country Adoption arrangements. Again, these laws do not confer rights. Hague Convention aims to prevent the international sale of children If you go through the Hague Convention process and get an adoption compliance certificate, the adoption will be recognised under Australia and the child will be a citizen. If one of the adopting parties is an Australian citizen, you have to show that you did not travel for the purposes of adopting a child, and that you have stayed in that country for a considerable period of time. Citizenship Act also includes citizenship by conferral for people who have migrated to Australia and former Australian citizens who wish to resume their citizenship. - See outline of requirements in Australian Citizenship Act 2007, s 15A. Citizenship by conferral/grant Requirements: - Over 16 - A permanent resident - Pass the values test Applicants must have been lawfully present in Australia for four years immediately before applying for citizenship, including at least 12 months as a permanent resident immediately before applying. - Parliament wants to increase the permanent residency period to 4 years Concessions are available for persons who were required to live and work overseas for an Australian employer; persons who have served in the Australian armed forces; and persons who are the spouse, de facto spouse, widow, or widower of an Australian Citizen. 7 sub-categories or circumstances that can affect the conferral of citizenship: - Apart from the residency requirements, most applicants are required to complete a citizenship test, demonstrating knowledge of Australian history, culture and values. - Exceptions are made for persons with permanent physical or mental incapacity (s 21(3)); - Persons aged 60 or over or who have a hearing, speech or sight impairment (s 21(4)); - Minor children aged under 18 (s 21(5)). - Special rules apply also to persons born to a former Australian citizen (s 21(6)); - persons born in Papua (s 21(7)); and - stateless persons (s 21(8)). 10

11 Legislation confers no rights. The Minister retains a discretion to refuse citizenship to persons who have been convicted of offences or who are otherwise deemed to be of bad character or a threat to national security: see generally s 24. Citizenship by grant is also premised on applicants making a pledge of commitment to Australia See s 21(2) and (2A). Loss of citizenship Citizenship Act 2007 provides for the loss of citizenship in 4 situations: 1) Citizenship can renounce their allegiance 2) If a person acquired citizenship by conferral (but not be birth), the Minister may revoke the status under s 34 on several grounds. These include situation where a person has obtained either citizenship or permanent residence status through fraud committed either by themselves or by a third party. Citizenship can also be revoked where a person is found to have committed a serious crime before being granted citizenship. 3) Citizenship is lost where a citizen serves in the armed forces of a country at war with Australia (s 35). The latter sections are the provisions most likely to be altered in response to the heightened terror alerts in the country. 4) The children of a responsible parent who ceases to be an Australian citizen can have their citizenship revoked in certain circumstances: see s 36. If you lose citizenship, you can resume it if you meet the criteria above Amendments in 2015 There are 5 ways in which you can cease to be an Australian citizen: 1) You may renounce your Australian citizenship (see s 33); or 2) If you did not automatically become an Australian citizen, the Minister can revoke your citizenship in circumstances involving offences of fraud (see s 34); or i.e. if you obtained your visa and/or citizenship by fraud 3) If you did not automatically become an Australian citizen and the Minister exercised the power under ss 22A(1A) or 22B(1A), the Minister can revoke your citizenship in circumstances involving a failure to comply with special residence requirements (see s 34A); or 4) You engage in various kinds of conduct inconsistent with allegiance to Australia (see ss 33AA, 35 and 35A); or It has always been the case that people who fight for a state that has declared war on Australia have their citizenship revoked Now people who fight in foreign wars have their citizenship revoked If you engage in this conduct, you are deemed to have renounced your citizenship 11

12 5) If you are the child of a responsible parent who ceases to be an Australian citizen, the Minister can revoke your citizenship in some situations (see s 36). Issues raised by 2015 conduct amendments Can parliament legislate for the removal of citizenship without involving the courts? What heads of power can be invoked to support these provisions? What distinction is drawn between citizens and dual citizens? Why is this distinction made? New proposals Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 Status: - Introduced in the House of Representatives on 15 June Referred to the Senate Legal and Constitutional Affairs Legislation Committee; Report due 4 September Amends the Australian Citizenship Act 2007 and the Migration Act 1958 to make significant changes to the legal framework governing Australian citizenship, including (but not limited to) to: - Increasing the general residence requirement to require a conferral applicant to have been a permanent resident for at least four years; - Requiring most applicants to provide evidence of competent English language proficiency before they can make a valid application for citizenship (requiring competent reading, writing, listening and speaking); - Requiring applicants to sign an Australian Values Statement in order to make a valid application for citizenship and demonstrate their integration into the Australian community; - Allowing for the Minister to determine additional citizenship test eligibility criteria, including for applicants who previously failed the test or failed to comply with test rules; - Renaming the pledge of commitment the pledge of allegiance and extend the requirement to make the pledge of allegiance to a wider range of citizenship applicants; - Allowing for the provision of a bar on a person making an application for citizenship in certain circumstances; - Limiting the ability of children born in Australia to automatically acquire citizenship after 10 years of ordinary residence where they or their parents may have been an unlawful non-citizen or where that person was outside Australia without a visa permitting them to travel to, enter and remain in Australia at any time (not applicable to New Zealand citizens); - Making a number of changes to the requirements for applicants for citizenship by conferral aged under 18 residing outside Australia; - Barring access to merits review for unsuccessful citizenship applicants aged under 18 unless they are a permanent resident, or hold a permanent visa of a kind prescribed in an instrument; 12

13 - Broadening the character requirements, including to widen the kinds of criminal penalties that can be taken into account - Providing for a mandatory citizenship cancellation regime applicable to applicants yet to make the pledge of allegiance, where the Minister is satisfied that the person would now be subject to prohibitions on approval related to identity, national security or criminal offences; - Providing for a new discretionary citizenship cancellation regime applicable to persons yet to make the pledge of allegiance, including where the Minister is satisfied that: (1) the person would not now be approved as an Australian citizen because they would not meet the relevant requirements for being approved as an Australian citizen (including where the Minister is no longer satisfied that the applicant has displayed behaviour consistent with Australian values); or (2) the applicant fails to make the pledge within 12 months 2. THE EXTENT OF THE POWER TO CONTROL MIGRATION: THE CONSTITUTION AND NORMS OF INTERNATIONAL LAW In 1901, Federation came about because the colonies wanted a common mechanism to control immigration, among other things The failure to provide for an Australian citizenship in the Constitution has had a profound impact on the evolution of constitutional law in Australia It has placed migrants in a very vulnerable situation for 2 reasons: 1) The Constitution vests very express powers in the Australian Parliament to make laws that are either directed at migrants or that are relevant to issues of status or entitlement. Migrants have no text on which they can rely to countermand these powers. 2) The textual voids in the Constitution means that the courts are forced to rely heavily on the common law and the legal principles that have involved therein. Immigration cases have become a significant point of conflict between the courts and the 2 other branches of government in Australia 2.1. The legislative powers conferred by section 51 of the Constitution Sec 51: legislative powers s 51(vi): power to legislate with respect to defence s 51(xix): power to make laws with respect to naturalisation and aliens - Naturalisation = the process whereby an alien born individual attains the status and entitlements that attach to a non-alien (Gaudron J in Te and Dang) - This power was not used to support citizenship legislation because there was no concept of citizenship in the Constitution s 51(xxvii): power to legislate with respect to immigration and emigration - The Legislature relied on this power instead 13

14 - Covers all acts of entry into Australia by non-citizens, whether for permanent or temporary residence (see e.g. Potter v Minahan) - Covers the process of absorption into the community - Facilitates the imposition of conditions preventing such absorption s 51(xxix): power to legislate with respect to external affairs 2.2. Judicial trends in the interpretation of the immigration and aliens heads of power. Early rulings by the High Court favoured a broad reading of the powers conferred on the new legislation relevant to immigration control Two lines of cases: - If you come into the country as an immigrant, you will always be an immigrant, and subject to the immigration power - You could pass beyond the immigration power by being absorbed into the community Cases concerned individuals who were permanent residents of Australia but otherwise undesirable, e.g. because of criminal history or political affiliations - Before 1987, if you were a British or Irish national and had been a permanent resident in Australia for 5 years, you were beyond removal (see ss 12 and 13 Migration Act 1958) - After May 1987, restrictions tightened: all non-citizens became equally liable to deportation if convicted of serious crimes within 10 years of gaining permanent residence - In 1999, s 501 added to the Migration Act which gave the Immigration the Minister the power to cancel a person s visa if they fail the character test Today, it is accepted doctrine that it is for Parliament to dictate who is a citizen and who is not Legislative power cases Broad and narrow view of the immigration power (a purpose power) Move to the aliens power as a subject power Cases fall into 3 main groups: - Deportation of long term permanent residents: Shaw (see earlier case of Re Patterson; Ex parte Taylor) - Rights of persons born in Australian territory: Singh - Rights of PNG residents: Ame To these we can add Plaintiff M68 Re Patterson; Ex Parte Taylor (2001) 207 CLR Patterson had acquired immunity from deportation, but was subjected to the cancellation of his permanent visa on grounds that he was of bad character Held: 14

15 - The majority recognised the significance of the colonial ties in the special status conferred on British subjects - The applicant was not a citizen, but a constitutional non-alien who had a right to remain in Australia, such that he could not be removed. - Gaudron J: Patterson would only acquire the status of alien if some change had occurred to alter the relationship that pertained between himself and the body politic constituting the Australian community Special category of persons British subjects who are not constitutional aliens for purpose of s 51(xix). They can t be detained or deported. As a non-alien, can t be detained or deported. (As long as he remains physically in Australia. Presence creates bond.) - McHugh, Kirby and Callinan JJ: stressed the significance of Taylor s allegiance to the Queen; length and continuity of his residence - Gleeson CJ, Gummow and Hayne JJ, McHugh J: Minister exercised her discretion under the erroneous belief that the prosecutor would have an opportunity to make representations to her - Kirby J: s 501(3) was beyond power of the Parliament in its application to Patterson It does not apply to him as he is not an alien *Note: this case would not be decided in the same way today *Shaw v MIMA (2003) 218 CLR 28 Principle: - Australian law now views citizenship and alienage in strictly binomial terms: all persons who are not citizens are aliens - Jason Shaw, the applicant, was born in the UK to British parents in 1972; arrived in Australia with parents in At this time, the applicant and his parents were citizens of the UK and its colonies, and British subjects. They entered Australia on a permanent entry permit. After 1 September 1994, a permanent entry permit held by a non-citizen continued in effect as a permanent visa, permitting the person to remain indefinitely in Australia. However, the visa was held subject to the Immigration Minister s power of cancellation under Migration Act s 501(2). - Applicant had not left Australia since Not eligible to enrol to vote; had never applied for an Australian passport. Had not become an Australian citizen. - In July 2001, Immigration Minister purported to cancel the applicant s visa because he did not pass the character test (see Migration Act s 501(6)) Applicant had been convicted of a number of criminal offences (stealing, breaking and entering, unlawfully using a motor vehicle) - Applicant sought review of Minister s decision in FCA. Case then went to HCA for consideration. 15

16 - Applicant argued that he was not an alien when he entered in Australia and that nothing that occurred subsequently has placed him within the reach of the aliens power. - Applicant argued that, because the expression British subject could be applied to him, he was not an alien. Held: - Re Patterson; Ex Parte Taylor was an anomaly, particular to the facts of Mr Taylor and his relationship with Australia - The aliens power applies to all those persons who entered Australia after the commencement of the Citizenship Act on 26 January 1949, and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised. - The applicant entered Australia as an alien in the constitutional sense. He did not lose that status by reason of his subsequent personal history in Australia. He was an alien for the purposes of s 51(xix), notwithstanding that the expression British subject could be applied to him. - The text of the Constitution contemplates changes in the political and constitutional relationship between the UK and Australia. - The legislative power with respect to aliens is not subject to some implicit restriction that protects people who are not Australian citizens but who entered Australia as citizens of the UK. subject of the Queen, with its implicit reference to notions of sovereignty, at least by 1948 meant subjects of the monarch in right of Australia, not subjects of the monarch in right of the UK (at [20]) - The power of the Parliament of Australia conferred by the s 51(xix) supported the application of the Migration Act s 501(2), in authorising the Minister to cancel the applicant s visa McHugh J (dissenting): - Although the Act gave the Minister the power to deport a British citizen who has lived permanently in Australia since 1974 but who never became an Australian citizen, the Act was invalid in so far as it purported to apply to the applicant *Singh v Commonwealth (2005) 222 CLR Tania Singh born in Victoria in 1998; lived in Australia continuously thereafter - Her parents and brother were Indian asylum-seekers; came to Australian 10 months before Tania s birth - Family claimed refugee status; visa applications were rejected - Case went to HCA on the basis that her birth in Australia operated at law to deem her to have something akin to Australian citizenship status - Tania had not been here 10 years, so could not argue citizenship based on 10 years of permanent residence 16

17 - Tania argued that she could not be described at law as an alien for the purposes of s 51(xix). Tania was presented as a natural born Australian by virtue of her birth on Australian soil. - It was argued that Tania s birth in Australia meant that her primary allegiance was to the Queen of Australia. As notions of nationality in the Constitution imply allegiance to the Crown, Tania s birth in Australia and her continuing fidelity to the Australian Queen must mean that she had acquired the status of either citizen or non-alien for constitutional purposes. - Was also submitted that alienage in Australia had a fixed connotation for constitutional purposes that could not be altered by Parliament Held: - The term alien had no fixed meaning or legal import at the time of Federation in Gleeson CJ: at the time the Constitution was drafted, the notion was a constantly shifting concept, as demonstrated by the Convention debates leading to the drafting of the final documents. The only uniform principle emerging from the debates was a shared intention that the power to legislate with respect to membership of the new Australian community be as broad and unfettered as possible Accordingly, the Constitution provides no impediment to Parliament legislating so as to prevent or restrict the ability of persons born in Australia to acquire Australian citizenship - Gummow, Hayne and Heydon JJ: one attribute of alienage = the existence of allegiance to a foreign state or sovereign Tania Singh appeared to owe allegiance to India, and for this reason could be described as an alien despite her birth on Australian soil *Ame v Commonwealth (2005) 222 CLR P was born in Papua New Guinea in 1967 as an Australian citizen. The P never visited mainland Australia as a child. - He was stripped of his Australian citizenship in 1975 when PNG gained independence and the PNG Constitution was established - Counsel for the P argued that the Australian Constitution did not permit legislation revoking the most fundamental of citizenship rights: the right to entry and residence in mainland Australia - The statutory framework of the time provided that Australian citizenship would not be taken from PNG nationals who held entry permits allowing them to live and work in Australia Outcome: - HCA refrained from addressing the issue of whether it is permissible to legislate so as to limit the ability of citizens to enter and reside in Australia - Majority instead focused on the rights that had attached to Australian citizens who were resident in PNG before

18 - Ruled that this group were citizens in name only, because they never had a right to enter or remain in Australia without the issue of an Australian entry permit Although indigenous Papuans were Australian citizens before Independence Day, they were treated by Australian law, and regarded by the framers of the Papua New Guinea Constitution as not having, on that account alone, a right to permanent residence in Australia On Independence Day, the applicant became a citizen of PNG by virtue of the PNG Constitution - Court upheld the constitutionality of the regulations that had stripped the P of both Australian citizenship and any right he might otherwise have had to enter or remain in Australia - Kirby J: As it has been defined by this Court up to Nolan and since Shaw, the aliens power applied to the applicant. Indeed, it did so from his birth. It did so notwithstanding the provision to him of a nominal statutory status of citizen which, when examined, fell far short of constitutional nationality. No question therefore arises of depriving the applicant of a supposed status of non-alien for Australian constitutional purpose 2.3. Other constitutional restrictions on the power to control migration: The Judicial Power. Ch III The Judicial Power Key provisions: - s 71: The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be known as the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it vests federal jurisdiction. - s 75(v): In all matters: In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction. - s 76(i): The Parliament may make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament; - s 77(i): With respect to any of the matters mentioned in the last two sections the Parliament may make laws defining the jurisdiction of any federal court other than the High Court. Because of s 75(iii) and (v), there is a constitutionally guaranteed right to seek judicial review in the HCA of most federal administrative action The arrival of boat people in Nov 1989 led to the first attempt by the Australian Parliament to reign in the ability of the courts to review executive action relevant to immigration control - Part 8 of the Migration Act truncated the judicial review powers of the FCA by removing the court s ability to review migration decisions on the broad grounds of: Natural justice/procedural fairness 18

19 Relevancy Reasonableness Apprehended bias - Forced people to go to the HCA instead; they would have to wait many years in Australia before having their cases determined The judicial power cases Two kinds of cases: - The detention cases Chu Kheng Lim Introduces concept of administrative detention/three walled prison (see also Ruddock v Vadarlis) Detention of refugees not punitive because they are being detained for the purpose of protecting the national interest, and are free to return to their country of origin (see Chu Kheng Lim; Tampa) - The Privative clause cases Plaintiff S157/2002 Curial review of administrative action is probably the only area where the HCA has held firm in its interpretation of the judicial power conferred by Ch III The court has been less concerned to insist on control of actions associated traditionally with the exercise of judicial power: arrest and detention Detention *Chu Kheng Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1 - Chu Kheng Lim was one of the group of Cambodian nationals who came to Australia by boat in Nov 1989 without authorisation and sought protection as refugees. - Under the relevant laws and policies, he was deemed not to have entered the country and was taken into custody pending the determination of his claim. - After a series of administrative errors and other delays, he was still in detention without a final determination of his claims 2 years later. - He and his colleagues applied to the FCA for release on the ground that their continued detention was unlawful. - 2 days before the case was to be heard, the government rushed through parliament special amendments to the Migration Act. These had the effect of mandating the detention of the boat people ( designated persons ) for 273 days or until they either left the country or were granted an entry permit. s 54K(1): The expression designated person is defined to mean a non-citizen who: (a) has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 December 1992; and (b) has not presented a visa; and (c) is in Australia; and 19