Graham v Minister for Immigration and Border Protection: The High Court Asserts the Rule of Law

The decision handed down by the High Court last year in Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (‘Graham’)[1] is important not only to those seeking immigration outcomes in Australia but also to anyone that is subject to a decision by a Federal official or court.

The case concerned Graham and Te Puia, both of whom were New Zealand Citizens who had been convicted of criminal offences and were members of the Rebels Outlaw Motorcycle Gang. In relation to both individuals the Minister made a decision pursuant to s503(1) of the Migration Act 1958 (Cth)(“the Act”) not to exercise his discretion not to cancel the visas of the two individuals. Both of those decisions were made substantially on the basis of information that was prohibited from being divulged to the Court by virtue of s503A of the Act. The Minister’s position in the matter was that the Court should proceed to rule on the application for judicial review of the Minister’s decision without any access to the information prohibited from being divulged under s503A of the Act.

Importantly, the plurality of the Court found s503A constitutionally invalid on the basis of a constitutional implication that could have wide application. Drawing upon its previous decisions in Plaintiff S157/2002 v The Commonwealth[2] and Bodrudazza v Minister for Immigration and Multicultural Affairs[3] the plurality emphasised that a minimum provision of judicial review arises by implication from the investment of jurisdiction in the High Court by s75(v) of the Constitution. It then stated that the effect of this is make any law that purports to deprive the High Court of its jurisdiction pursuant to s75(v) to enforce laws enacted by Parliament unconstitutional (see [44]). The purpose of this implication was said by the Court to be to “secure the basic element of the rule of law”.

In the previous case of Bodruddaza a provision had imposed a blanket and inflexible time limit for making an application for relief under s75(v) in relation to a migration decision. It was found in that case that the provision imposing the time limit was unconstitutional because it would have the practical effect of depriving the Court of jurisdiction to enforce those provisions of the Act which defined the decision-making power.

The Court used similar reasoning in Graham. It held that the effect of s 503A in the circumstances was to shield the purported exercise of the Minister’s power from judicial scrutiny by preventing the Court from seeing information relevant to the purpose of reviewing the purported exercise of that power (see [53]). While the Court emphasised at [63] that the question of the validity of such a provision was always one of substance and degree, the Court held that the sweeping nature of s503A led to its complete invalidity.

The decision of the High Court in Graham appears to indicate that, whereas in the past implications into statutes and use of the principle of legality[4] have been the primary means by which the Court has asserted control over the conduct of migration decisions, the Court may now be more receptive to arguments of constitutional invalidity based on implications drawn from s75(v) of the Constitution. Provided that the reasoning in the case gains wide application in subsequent cases, this ‘constitutionalising’ of the control of migration decisions should make the Court’s control of such decisions more effective. As a result, it opens up avenues for those wishing to challenge migration or other administrative decisions that were not previously available.

[1] [2017] HCA 33.

[2] (2003) 211 CLR 476.

[3] (2007) 228 CLR 651.

[4] See, for example, Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618.

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