Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

JASON SHAW APPLICANT

AND

MINISTER FOR IMMIGRATION AND RESPONDENT MULTICULTURAL AFFAIRS

Shaw v Minister for Immigration and Multicultural Affairs

[2003] HCA 72

9 December 2003

B99/2002

ORDER

1. Answer the question reserved in the Case Stated as follows:

Question

Was s 501(2) of the Migration Act 1958 (Cth) within the legislative powers of the Commonwealth to the extent that it authorised the respondent to cancel the applicant's visa on 17 July 2001?

Answer

Yes.

1. Costs of the proceeding in the Full Court to be the costs in the matter in the course of which the case was stated.

Representation:

S J Hamlyn-Harris for the applicant (instructed by South Brisbane Immigration & Community Legal Service Inc)

D M J Bennett QC, Solicitor-General of the Commonwealth with M N Allars and B D O'Donnell for the respondent (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Shaw v Minister for Immigration and Multicultural Affairs

Constitutional law (Cth) – Powers of the Parliament – Naturalisation and aliens – Applicant born in United Kingdom – Applicant entered Australia in 1974 – Applicant did not acquire Australian citizenship – Cancellation of applicant's visa by Minister – Whether power of cancellation validly extended to applicant – Whether applicant an "alien" for purposes of s 51(xix) of the Constitution – Whether applicant's statutory status as "British subject" at time of entry into Australia inconsistent with classification as "alien" – Whether applicant a "subject of the Queen" for purposes of s 117 of the Constitution.

Constitutional law (Cth) – Powers of the Parliament – Whether applicant subject to removal under power with respect to immigration – Whether applicant subject to removal under power with respect to external affairs – Whether implied nationhood power relevant.