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

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

The word "person" in ss 501(3A) and 501CA(4) of the Migration Act 1958 (Cth), read in context, includes all natural persons who hold, or held until cancellation, a visa. There is no ambiguity or constructional choice permitting the principle of legality or the presumption of conformity with international law to read the provisions down to exclude non-citizens who claim Art 12(4) ICCPR protection. The proposed common law development recognising a right of such aliens to enter and remain in Australia would be inconsistent with the constitutional framework concerning aliens and was not available. Accordingly, the appeals and applications failed.

Jurisdiction
Australia
Judgment Date
06 March 2020
Procedural Posture
Migration Appeal Concerning Cancellation of Visas Under S 501(3 A) and Refusal to Revoke Cancellation Under S 501 Ca(4) of the Migration Act 1958 (cth) / Full Court Appeal From Decisions Dismissing Applications for Judicial Review of Administrative Appeals Tribunal Decisions; Transferred Applications Challenging Mandatory Cancellation Heard in Conjunction
Outcome
Appeals dismissed; transferred applications dismissed; costs to follow the event.
Legal Topics
['visa Cancellation' 'character Test' 'mandatory Cancellation' 'revocation of Cancellation' 'principle of Legality' 'article 12(4) of the Iccpr' 'aliens Power' 'jurisdictional Error']
['migration Law' 'administrative Law' 'statutory Interpretation' 'constitutional Law' 'human Rights'] ['visa Cancellation' 'character Test' 'mandatory Cancellation' 'revocation of Cancellation' 'principle of Legality' 'article 12(4) of the Iccpr' 'aliens Power' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Appeal Concerning Cancellation of Visas Under S 501(3 A) and Refusal to Revoke Cancellation Under S 501 Ca(4) of the Migration Act 1958 (cth) / Full Court Appeal From Decisions Dismissing Applications for Judicial Review of Administrative Appeals Tribunal Decisions; Transferred Applications Challenging Mandatory Cancellation Heard in Conjunction

Legal Issues

  1. 1 ['Whether the primary judges erred by failing to hold that the Administrative Appeals Tribunal made a jurisdictional error by applying s 501CA to the appellants when they were not a "person" within the meaning of that provision.' 'Whether "person" in ss 501(3A) and 501CA(4) of the Migration Act 1958 (Cth) should be read down under the principle of legality to exclude a person who attracts Art 12(4) of the ICCPR or an equivalent common law right.' 'Whether the common law should be extended to include a right of an alien for whom Australia is "his own country" to enter and remain in Australia.']

Ratio Decidendi

The word "person" in ss 501(3A) and 501CA(4) of the Migration Act 1958 (Cth), read in context, includes all natural persons who hold, or held until cancellation, a visa. There is no ambiguity or constructional choice permitting the principle of legality or the presumption of conformity with international law to read the provisions down to exclude non-citizens who claim Art 12(4) ICCPR protection. The proposed common law development recognising a right of such aliens to enter and remain in Australia would be inconsistent with the constitutional framework concerning aliens and was not available. Accordingly, the appeals and applications failed.

Court Disposition

Appeals dismissed; transferred applications dismissed; costs to follow the event.

Orders

  • ['NSD 1717 of 2019: The appeal be dismissed.' "NSD 1717 of 2019: The appellant pay the first respondent's costs of and incidental to the appeal, as fixed by the Registrar if not agreed." 'NSD 1718 of 2019: The appeal be dismissed.' "NSD 1718 of 2019: The appellant pay the first respondent's costs of and incidental...