MANDATORY CHARACTER CANCELLATION HERE TO STAY

If you have been following our blog posts, you will recall that we have previously written about the "mandatory cancellation power" introduced into the Migration Act in December 2014.  Specifically, section 501(3A) states that the Minister must cancel a person's visa if they fail the character test.

The High Court recently heard legal arguments to the effect that the introduction of s 501(3A) was unconstitutional because (among other arguments) it was punitive in nature and purported to confer judicial power on the Minister.  The case was brought by Mr Falzon, who was a 61 year old Maltese citizen who had lived in Australia since the age of 3.  His visa was mandatorily cancelled because he had been convicted of trafficking a large amount of cannabis and received a lengthy term of imprisonment as a result. 

If successful, Mr Falzon's High Court application would mean that hundreds of visas had been unlawfully cancelled over the last three years.  However, on 7 February 2018 the High Court delivered its judgement in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 and unanimously concluded that s 501(3A) was here to stay.

In reaching its decision, the High Court made the following observations:

➤ "the power to remove or deport [non-citizens] from a country is executive in nature and it is non-punitive"

➤ "deportation may be burdensome and severe for a non-citizen [...] but s 501(3A) [...] does not increase the punishment for the crime or crimes of which the non-citizen has been convicted or found guilty"

➤ "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"

➤ "as a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country"

➤ "whilst a [non-citizen] 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 [...] of a [non-citizen] to exclusion or deportation."

If your visa is cancelled under section 501(3A) we suggest that you contact us urgently to discuss.  There is no right of appeal but you can have the decision overturned, if you lodge a revocation application within 28 days.  Putt Legal specialises in "revocation submissions" to the National Character Consideration Centre.