KIEFEL CJ, BELL, KEANE AND EDELMAN JJ. The plaintiff, Mr John Falzon, is a national of Malta who has lived in Australia for 61 years. He arrived in Australia with his family at the age of three. He did not at any time obtain Australian citizenship. Until 10 March 2016 he held an Absorbed Person Visa and a Class BF Transitional (Permanent) Visa. His legal status as the holder of these visas was as a lawful non-citizen.
In 2008 the plaintiff was convicted of trafficking a large commercial quantity of cannabis and he was sentenced to 11 years' imprisonment with a non-parole period of eight years. He had previous convictions for drug-related and other offences. He was in custody in respect of the 2008 conviction when his Absorbed Person Visa was cancelled by a delegate of the Minister acting under s 501(3A) of the Migration Act 1958 (Cth) ("the Cancellation Decision"). The cancellation of this visa has the effect that the Minister is taken to have decided to cancel the plaintiff's other visa. At the conclusion of the non-parole period, four days after the Cancellation Decision, the plaintiff was taken into immigration detention, where he remains.
Section 501(3A) provides that:
"The Minister must cancel a visa that has been granted to a person if:
the Minister is satisfied that the person does not pass the character test because of the operation of:
paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
paragraph (6)(e) (sexually based offences involving a child); and
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."
Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record, as defined by s 501(7). Section 501(7)(a), (b) and (c), to which s 501(3A)(a)(i) refers, provide that a person has a substantial criminal record if the person has been sentenced to death, to imprisonment for life, or to a term of imprisonment of 12 months or more. Section 501(12) defines "imprisonment" to include "any form of punitive detention in a facility or institution". "Sentence" is there defined to include "any form of determination of the punishment for an offence".
By s 501(6)(e), a person also does not pass the character test if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child, or found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without conviction.
The Minister is obliged to invite the person whose visa is cancelled to make representations about the revocation of the original decision to cancel. The manner and form of those representations are regulated by reg 2.52 of the Migration Regulations 1994 (Cth). Section 501CA(4) of the Migration Act provides that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. A decision not to exercise the power conferred by s 501CA(4) is not the subject of review under Pt 5 or Pt 7 of the Migration Act.
On 15 March 2016 the plaintiff sought revocation of the Cancellation Decision. On 10 January 2017 the Assistant Minister for Immigration and Border Protection ("the Assistant Minister") decided not to revoke the Cancellation Decision. The Assistant Minister was not satisfied that the plaintiff passed the character test given his substantial criminal record. The Assistant Minister then considered whether there was another reason why the Cancellation Decision should be revoked. The Assistant Minister acknowledged that the plaintiff has strong family ties to Australia and that his removal would cause substantial emotional, psychological and practical hardship to his family. The plaintiff has two sisters and four brothers, four adult children and 10 grandchildren in Australia as well as nieces, nephews and other minor family members. The Assistant Minister accepted that after a lengthy absence from Malta the plaintiff may suffer some social isolation and emotional hardship. The Assistant Minister nevertheless concluded that the plaintiff represents an unacceptable risk of harm to the Australian community and its protection outweighs the interests of the plaintiff's family and other considerations. The Assistant Minister decided not to revoke the decision to cancel the plaintiff's Absorbed Person Visa.
The plaintiff contends that s 501(3A) of the Migration Act purports to confer the judicial power of the Commonwealth on the Minister and thereby infringes Ch III of the Constitution. Central to the plaintiff's argument is that, in its legal operation and practical effect, s 501(3A) further punishes him for the offences he has committed and that is its purpose. The plaintiff seeks orders quashing the Cancellation Decision and the decision not to revoke that decision, an order of mandamus requiring his removal from detention and a declaration that s 501(3A) is invalid.
The statutory scheme
Section 501(3A) forms part of a statutory scheme within the Migration Act which advances the object of regulating the presence in Australia of non-citizens, in the national interest, and the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Act.
The retention of a valid visa is essential to a non-citizen who wishes to remain in Australia. The status of a lawful non-citizen is accorded to a non-citizen in the migration zone who holds a visa that is in effect. Any non‑citizen who is not a lawful non-citizen is an unlawful non-citizen. The effect of the cancellation of a visa is to render a person an unlawful non-citizen.
Provisions relating to the grounds for, and processes governing, the cancellation of visas are contained in Pt 9 of the Migration Act. Section 501, of which s 501(3A) forms part, provides for the refusal or cancellation of visas on character grounds. Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(2) provides that the Minister may cancel a visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. Section 501(3A), which is set out above, obliges the Minister to cancel a visa if the conditions there stated exist.
A person whose visa is cancelled and who becomes an unlawful non-citizen is liable to immigration detention. Section 189(1) provides that an officer who reasonably suspects that a person is an unlawful non-citizen must detain the person. Section 196 provides for the duration of that detention. Section 196(1)(a), (b) and (c) provide generally that a person detained under s 189 must be kept in immigration detention until he or she is removed from Australia, deported or granted a visa. Section 196(4) provides, subject to s 196(1)(a), (b) and (c), that if the person is detained as a result of the cancellation of his or her visa under s 501, the detention is to continue unless a court determines that the detention is unlawful or that the person detained is not an unlawful non-citizen. Section 196(5) provides that sub-s (4) applies whether or not there is a real likelihood of the person detained being removed under s 198 or s 199 in the reasonably foreseeable future and whether or not the decision relating to the person's visa is unlawful.
The plaintiff makes no challenge to the scheme of the Migration Act referred to above, nor does he challenge the validity of s 189 or s 196. A challenge of the latter kind would encounter the difficulty that, in Al-Kateb v Godwin and in Re Woolley; Ex parte Applicants M276/2003, this Court held, applying the principles stated in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs ("Lim"), that ss 189 and 196 authorise and require the detention of a non-citizen for the purpose of his or her removal from Australia and do not infringe the separation of the judicial power of the Commonwealth under Ch III. It is to be inferred from the plaintiff's argument, to which reference will later be made, that at least for some part of his immigration detention he was not detained under s 189; but rather he was detained under and for the purposes of s 501(3A).
The plaintiff's case
Chapter III - exclusively judicial functions
The plaintiff's case involves a series of propositions which are said to lead to a conclusion that s 501(3A) infringes Ch III and is therefore invalid. The first proposition advanced by the plaintiff is uncontroversial. It is that "the power to punish guilt for an offence against a law of the Commonwealth is exclusive to the Ch III judiciary".
In Lim, this Court confirmed that the power to adjudge and to punish guilt for an offence against a law of the Commonwealth is exclusive to the Ch III judiciary under the Commonwealth Constitution. Chapter III therefore prevents the enactment of any law purporting to vest any part of that function in the Commonwealth Executive Government. The plaintiff seeks to clarify the statement of principle in Lim in one respect. He submits that the exclusive power is to "adjudge guilt of, or determine punishment for, breach of the law". On this view, it is sufficient for invalidity, by reference to Ch III, if the statutory provision punishes a person for an offence. This does not appear to be disputed by the defendant.
One form of punishment is involuntary detention. In Lim it was said that it would be beyond the legislative power of the Parliament to invest the Executive with arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. That is because the involuntary detention of a citizen in custody by the State is penal or punitive in character and under our system of government exists only as an incident of the exclusively judicial function of adjudging or punishing criminal guilt.
The plaintiff accepts that not all laws authorising or requiring detention will infringe Ch III. In Lim it was held that the legislative power conferred by s 51(xix) of the Constitution encompasses the conferral on the Executive of authority to detain an alien for the purposes of expulsion or deportation. Such an authority constitutes an incident of the executive power of deportation or expulsion. This limited authority to detain an alien in custody can be conferred upon the Executive without infringing Ch III because the authority to detain is neither punitive in nature nor part of the judicial power of the Commonwealth. When conferred on the Executive it takes its character from the executive power to exclude or deport.
"All the circumstances"
The plaintiff's second proposition is that "whether a law purports to confer power to punish guilt for an offence against a law of the Commonwealth is to be assessed by reference to all the circumstances".
Clearly, whether a law has the character of one conferring a power to punish is a question of construction. The plaintiff accepts that, in accordance with ordinary principles of statutory construction, an important issue will be the purpose of the law. Indeed, in addressing a Ch III challenge it is necessary first to identify the purpose of detention.
In Re Woolley, McHugh J said that "[t]he terms of the law, the surrounding circumstances, the mischief at which the law is aimed and sometimes the parliamentary debates preceding its enactment will indicate the purpose or purposes of the law". Of course an enquiry into whether the purpose of a law is to punish guilt presupposes that the law provides a power to detain. That is a distinct question with respect to s 501(3A), which does not, in terms, authorise or require the detention of a person whose visa has been cancelled.
The plaintiff submits that a law may infringe the separation of powers even though it does not, in terms, authorise or require the extra-judicial detention of a person. He submits that the legal and practical operation of the law, not just its terms, is relevant to its constitutional character or purpose. This submission is later developed in the plaintiff's argument in an attempt to show that s 501(3A) did in fact require his detention, at least for the period during which the question whether the Cancellation Decision was to be revoked was under consideration.
The defendant accepts that constitutional analysis proceeds from an appreciation of the legal and practical consequences of the challenged law, but says that s 501(3A) cannot sensibly be said to authorise detention in its legal and practical operation.
Executive detention is prima facie penal or punitive
The plaintiff's third proposition is that the default position is that non-judicial detention of a person is penal or punitive and therefore involves an exercise of the judicial power of the Commonwealth. The plaintiff's submission recognises that there may be detention by the Executive which is not penal or punitive and does not involve an exercise of judicial power, as Lim holds. On the plaintiff's argument the only way in which a law by which a person is detained by the Executive may escape characterisation as penal or punitive is to justify it by reference to a non-punitive purpose. In that regard, it is said that it is relevant to ask whether the law is proportionate to a non-punitive end.
The plaintiff points to decisions of this Court in which it has been said that Lim establishes a constitutional principle in the nature of a prohibition against detention of a person "without just cause" and that any form of detention is penal or punitive "unless justified as otherwise". It is doubtless correct to observe that the detention of a person by the Executive without more is likely to permit an inference to be drawn that, for some reason, the legislature wishes to punish the person to be detained. That means that the legislature must provide a reason consonant with a non-punitive purpose if the detention is to be justified. In Lim, the purpose of the detention was to support and facilitate the exercise of the executive power to remove non-citizens from Australia.
Contrary to the plaintiff's submissions, these decisions do not establish that there is a constitutionally guaranteed freedom from executive detention. They do not support the notion, for which the plaintiff contends by analogy with cases such as McCloy v New South Wales, that any restriction on such a freedom must be justified by showing that the legislative restriction is proportionate.
In the joint judgment in Lim, the issue was raised whether two of the statutory provisions there in question, which required a designated person to be detained and kept in custody, were valid by reference to Ch III. The issue was stated to be whether the detention so authorised and required is "reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered". If the detention is not limited to those purposes, their Honours said, the authority conferred on the Executive "cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates."
In Kruger v The Commonwealth, Gummow J, referring to this passage in Lim, said that the question whether a power to detain persons and take them into custody is to be characterised as punitive in nature, so as to attract the operation of Ch III, depends upon whether that detention and custody "are reasonably capable of being seen as necessary for a legitimate non-punitive objective".
The plaintiff relies upon these and similar statements in other cases in aid of a submission that what is here involved is the application of an aspect of proportionality testing. It seems, however, that the question posed by Lim is quite different from that which arises in proportionality testing.
The starting point for the enquiry referred to in Lim is that the power to remove or deport aliens from a country is executive in nature and it is non-punitive. The question which then arises with respect to a statutory power given to the Executive to detain an alien in custody is whether it is given in order to facilitate or effect the removal of that person, which is the subject of executive power. The enquiry is as to whether it is "necessary" to that purpose. If it is, it may be considered to be an incident of the executive power and will not be an exercise of judicial power. If the power goes further than to achieve that limited purpose it may be otherwise. In such circumstance, it may be inferred that the law has a purpose of its own, a purpose to effect punishment.
The test of "reasonable necessity" in proportionality testing, on the other hand, asks whether a legislative measure which restricts a constitutionally guaranteed freedom is reasonably necessary to achieve the valid purpose of the statute in question. The enquiry may involve asking whether there are other equally practicable means to achieve the purpose. If there are no such alternative means, the legislative restriction cannot be justified.
The two enquiries are different because they arise in different constitutional contexts. Proportionality analysis is applied to constitutionally guaranteed freedoms. Such freedoms are not absolute. Legislation may restrict those freedoms to an extent without being invalid. In that context, the question is how to determine the limits of that legislative power. Proportionality analysis is used to resolve part of that question. The test of reasonable necessity in proportionality analysis asks whether the legislative measure is necessary at all. Whether a legislative power of detention is necessary in the Ch III sense is an enquiry as to the true purpose of the law authorising detention, it is not an enquiry as to whether that law is necessary to the achievement of a relevant legislative purpose.
Chapter III contains an absolute prohibition on laws which involve the exercise of the judicial power of the Commonwealth. There is no question about the extent to which a law may vest exclusively judicial functions in the Executive. We therefore agree with what McHugh J said in Re Woolley, that "[a] law that confers judicial power on a person or body that is not authorised by or otherwise infringes Ch III cannot be saved by asserting that its operation is proportionate to an object that is compatible with Ch III". Questions of proportionality cannot arise under Ch III.
It may nevertheless be accepted that a legislative power to detain must be justified, in the sense that it must be shown to be directed to a purpose other than to punish. The plaintiff submits that the need for justification is just as strong in relation to a non-citizen, or alien, as it is to an Australian citizen. This is because the protective principle stated in Lim applies just as much to aliens as it does to citizens.
The plaintiff also submits that there is a distinction to be drawn between his circumstance and that of other aliens. His situation differs from that of an alien "who presents uninvited and unheralded at the border with no right to enter". He relies on what was said by Gummow J in Fardon v Attorney-General (Qld), that "aliens are not outlaws; many will have a statutory right or title to remain in Australia for a determinate or indeterminate period and at least for that period they have the protection afforded by the Constitution and the laws of Australia".
These references are intended to highlight the plaintiff's status as an absorbed person, or, more correctly stated, as the holder of an Absorbed Person Visa. But that visa did not alter the plaintiff's status as an alien and the visa was at all times liable to cancellation.
Section 34 of the Migration Act came into effect on 1 September 1994. It relevantly provides that a non-citizen in the migration zone who was in Australia before 2 April 1984 and had ceased to be an immigrant is taken to have been granted an Absorbed Person Visa on 1 September 1994. The purpose of the provision was to overcome the unintended effect of earlier amendments to the Migration Act which had caused some non-citizens to become prohibited non-citizens. Persons who had been absorbed into the Australian community prior to 2 April 1984 were not to be rendered prohibited non-citizens even if their visa status was irregular.
In Pochi v Macphee the plaintiff argued that his absorption into the Australian community meant that he was no longer an alien. The Court considered this argument to be "impossible to maintain". As Gibbs CJ explained, naturalisation can be achieved only by Act of Parliament. A person's nationality is not changed by length of residence or an intention permanently to remain in a country of which he or she is not a national.
Consistently with this view, the Migration Legislation Amendment Act 1994 (Cth) sought to shift the constitutional basis of the relevant provisions of the Migration Act from the immigration power in s 51(xxvii) to the aliens power in s 51(xix). In the Explanatory Memorandum to the Bill for those amendments it was stated that "[a]n alien only ceases to be an alien by becoming an Australian citizen".
The joint judgment in Lim did not suggest that the Constitution, and laws made under it, offer the same protection to an alien as they do to a citizen. The joint judgment pointed out that, whilst an alien present in this country enjoys the protection of our law, his or her status, rights and immunities under the law differ from those of an Australian citizen in a number of important respects. Relevantly, the most important difference lies in the vulnerability, arising under the common law and provisions of the Constitution, of an alien to exclusion or deportation. The effect is significantly to diminish the protection which Ch III provides a citizen against detention otherwise than pursuant to judicial power. The sovereign power to make laws providing for the expulsion and deportation of aliens extends to authorising the Executive to restrain them in custody to the extent necessary to make their deportation effective.
The plaintiff understates the importance of his status as an alien and the scheme of the Migration Act as directed to him as a person having that status.
Section 501(3A) purports to confer judicial power on the Minister
The plaintiff's fourth, and central, proposition is that s 501(3A) purports to invest the judicial power of the Commonwealth in the Minister and his delegates. In support of this proposition, the plaintiff points to what he contends are features of judicial power in s 501(3A) and he submits that the extrinsic materials confirm that the purpose of his detention is punishment.
The principal feature of judicial power which the plaintiff identifies is the conclusiveness, in the sense of finality, of a cancellation decision. It is reinforced by the fact that merits review is not available, no interlocutory release is possible, the decision may be made on the basis of information which is protected from publication and the decision to revoke is wholly discretionary.
It may be accepted that, unless a decision is made to revoke an otherwise valid cancellation decision, it has consequences for the detention and removal of the non-citizen and is "final" in that sense. The same consequences attend the exercise of the other powers under s 501. The plaintiff does not suggest that ss 501(1) and 501(2) infringe Ch III or that they are punitive in the relevant sense.
The plaintiff seeks to distinguish s 501(3A) from ss 501(1) and 501(2) because s 501(3A) is mandatory in its terms. If the conditions for its exercise are present, the Minister is obliged to cancel the visa. The matters which are taken into account in the exercise of the discretion provided in the other provisions are not addressed where a person's visa is cancelled under s 501(3A) until consideration is given to revocation of the cancellation decision.
The defendant correctly points out that it does not follow from the premise that a discretionary determination involves no exercise of judicial power that a legislative determination which mandates that certain offending (or certain levels of offending) results in cancellation necessarily involves the exercise of judicial power. In other words, a permissive/mandatory dichotomy is not useful to mark a power as punitive in nature or purpose. In any event, there is nothing to prevent Parliament from legislating by reference to a class of persons, rather than on a basis which requires a case-by-case approach. Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features - offending and imprisonment - are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
The plaintiff relies upon the operation of s 501(3A) as being based upon a primary and characteristic factum that the person has committed an offence or offences, and the further factum that, at the time the power is exercised, the person is in criminal detention, as showing that s 501(3A) is concerned with punishment for and by reference to criminal offending additional to that imposed by a court. Moreover, before the power is exercised, the Minister must reach a positive state of satisfaction in relation to the prior offending.
The exercise of a power of cancellation of a visa by reference to the fact of previous criminal offending does not involve the imposition of a punishment for an offence and does not involve an exercise of judicial power. It has long been recognised that the deportation of aliens does not constitute punishment. The cancellation of a visa as a step necessary to achieve the removal of a person from Australia should be viewed in the same light. In Ex parte Walsh and Johnson; In re Yates, Isaacs J drew a distinction between punishment for a crime and deportation as a political precaution carried out by the Executive. In O'Keefe v Calwell, Latham CJ referred to the deportation of a convicted immigrant as a measure of protection of the community and not as punishment for any offence.
The power to cancel a visa by reference to a person's character, informed by their prior offending, is not inherently judicial in character. It operates on the status of the person deriving from their conviction. By selecting the objective facts of conviction and imprisonment, Parliament does not seek to impose an additional punishment.
In the Explanatory Memorandum to the Bill which introduced s 501(3A) it was said that "[t]he intention of this amendment is that a decision to cancel a person's visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued". In the course of the Second Reading Speech the then Minister said that s 501(3A) was calculated to ensure that "noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved".
It may be accepted that these extrinsic materials show an awareness on the part of the Parliament about the operation of s 501(3A) in the statutory scheme and that one of its purposes is to keep the person out of the community until he or she is removed from Australia. Such a purpose is consistent with those of the other cancellation powers in s 501. The extrinsic materials do not reveal any purpose to ensure that a person is detained in order to punish them.
The observation in O'Keefe v Calwell, referred to above, provides part of the answer to the plaintiff's contention that s 501(3A) does not involve the pursuit of a protective purpose. The plaintiff submits that the Minister is neither obliged nor permitted to have regard to the protection of the Australian community or any other protective considerations when deciding to cancel a visa and that these matters do not arise for consideration until a decision as to whether to revoke the cancellation decision under s 501(3A) is made.
The fact that the Minister is not obliged to consider the need to protect the community when determining whether to cancel a visa in the circumstances provided by s 501(3A) is not determinative of that provision's purpose. The defendant submits that, consistently with s 501, of which it forms part, its purpose is to exclude from the Australian community, by means of visa cancellation, a category of aliens which the Parliament has determined should not be part of the community due to their record of criminal offending. The criteria of which the Minister must be satisfied are those upon which a sovereign State may properly decide to exclude non-citizens in the interest of protecting the peace, order and good government of the Commonwealth. That submission should be accepted.
None of the plaintiff's arguments which have been dealt with to this point address the question whether s 501(3A) actually authorises or requires the plaintiff's detention. They proceed upon an assumption that it does. On its face s 501(3A) is simply a provision which mandates the cancellation of a visa if the conditions stated are present.
The plaintiff submits that s 501(3A) may nevertheless be seen as concerned with punishment because it exposes a person who qualifies for cancellation to detention. It will also be recalled that the plaintiff contends that, regardless of its terms, the legal operation and effect of the provision extend his punishment beyond what has been ordered by a court.
In the latter respect, the plaintiff argues that s 501(3A) has the effect that a person is detained for a period after the conclusion of his or her criminal detention whilst consideration is given to whether to revoke a cancellation decision. On this argument there is a period, or periods, after a cancellation decision when a person is not being detained for the purpose of removal under s 189, but is detained for the purpose of the revocation process. The minimum period for detention for the latter purpose is the period between the cancellation decision and the date by which the person the subject of the visa cancellation must apply for revocation under s 501CA, namely 28 days. If the person applies for revocation the period extends to the date of the decision or revocation, in the plaintiff's case 10 months.
These submissions fail to take account of the statutory scheme and the effect of a cancellation decision. A cancellation decision has the immediate effect that the person's status is changed from that of a lawful non-citizen to an unlawful non-citizen. Section 501(3A) merely provides the basis for the change in status. It does not authorise detention. It is that new status that exposes the person to detention under s 189. The person is liable to removal from Australia and to detention for that purpose from the time that a cancellation decision is made. The possibility that a cancellation decision might be revoked, so that that decision may be taken not to have been made, does not alter the fact that the person retains the status of an unlawful non-citizen for the whole of the period in question, from the time of the cancellation decision to the making of the revocation decision.
Where a person seeks revocation, his or her detention for the purpose of removal will be prolonged by his or her act in applying for reconsideration of the decision to cancel his or her visa. Section 501CA provides a process by which it may be decided whether a cancellation decision under s 501(3A) should be revoked, but neither it nor s 501(3A) authorises or requires detention for the purpose of that process being undertaken. Section 196 expressly deals with the duration of immigration detention arising in these circumstances. It will be recalled that s 196(4) provides that the detention of a person who is detained as a result of the cancellation of his or her visa is to continue unless a court finally determines either that the detention is unlawful or that the person detained is not an unlawful non-citizen.
The plaintiff submits that, "loosely speaking", a cancellation decision under s 501(3A) may have the effect of "converting" criminal detention into immigration detention. He refers to the possibility that the two detentions might operate concurrently. The circumstance that he envisages is where a non-citizen was sentenced to some years of imprisonment, but his or her visa is cancelled during the first week of that term.
Criminal detention cannot be "converted" into immigration detention. A person is imprisoned by order of the court which authorises his or her detention by the State following conviction for an offence against the laws of the State. A person so detained cannot be said to be detained by an officer acting under s 189 of the Migration Act.
The possibility that, in the circumstance to which the plaintiff refers, a person might be a prisoner serving a term of imprisonment for an offence and an unlawful non-citizen liable to be detained and removed from Australia as soon as reasonably practicable points to a possible tension between the provisions of Commonwealth, State and Territory laws and the Migration Act.
The Migration Act contains provisions intended to address that problem. The provisions of Pt 2, Div 4 permit a non-citizen to stay in Australia for the purposes of the administration of justice, which is defined to include punishment, by way of imprisonment of a person, for the commission of an offence. The focus of the Division is on maintaining the presence in Australia of persons who would not otherwise be permitted to enter or remain here.
It is not necessary to detail each of the provisions of Pt 2, Div 4. It is sufficient to observe that they involve the grant by the Commonwealth Attorney-General or an official of a State of a criminal justice certificate which has the effect that, during its currency, the person is not to be removed or deported from Australia and the issue of a warrant by a court to stay the removal or deportation of a non-citizen. If a criminal justice certificate or a criminal stay warrant is in force the Minister may consider the grant of a criminal justice visa. The possibility of the concurrent operation of the Migration Act with criminal detention does not arise in the plaintiff's case, since it is acknowledged that he was taken into immigration detention at the conclusion of his non-parole period.
Conclusion and orders
Section 501(3A) did not authorise or require the detention of the plaintiff. It required that a visa granted to him as a non-citizen be cancelled on account of his criminal history and his imprisonment. The change in his legal status to that of an unlawful non-citizen had the effect that he was liable to removal from Australia and to detention to facilitate that removal. That is the scheme of the Migration Act.
The plaintiff's application should be dismissed with costs.