Graham v Minister for Immigration and Border Protection [2017] HCA 33

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

Matter No M97/2016

AARON JOE THOMAS GRAHAM PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION DEFENDANT

Matter No P58/2016

MEHAKA LEE TE PUIA APPLICANT

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION RESPONDENT

Graham v Minister for Immigration and Border Protection Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 6 September 2017 M97/2016 & P58/2016

ORDER

Matter No M97/2016

The questions stated by the parties in the special case and referred for consideration by the Full Court be answered as follows:

Question 1

Are either or both of s 501(3) and s 503A(2) of the [Migration Act 1958 (Cth)] invalid, in whole or in part, on the ground that they:

a. require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or

b. so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?

Answer

Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.

Question 2

In circumstances where the Minister found that the Plaintiff did not pass the character test by virtue of s 501(6)(b) of the [Migration Act 1958 (Cth)] because the Minister reasonably suspected that: