[The banishment of long-term permanent residents from Australia following criminal conviction is a controversial practice, yet one that has been increasingly employed by the Australian government in recent years. This article assesses the legality of this practice both in terms of domestic and international law. The article first considers the history of both constitutional doctrine and legislative developments in this area, explaining how it is that the Commonwealth can lawfully engage in the deportation of Australian residents who are citizens but for 'the barest of technicalities'. In the latter half of the article, the analysis turns to consider the international law context to this issue, with particular focus on the extent to which the advent of international human rights law has curtailed states 'plenary power in this arena. The article concludes that the deportation of long-term residents implicates a number of Australia's key international obligations and thus makes recommendations for urgent reform of the Migration Act 1958 (Cth).]
CONTENTS I Introduction II The Deportation of Long-Term Residents from Australia: Constitutional Background III The Deportation of Long-Term Residents from Australia: Legislative Background A Legislative History: Deportation B Legislative History: The Character Test C Administration of Sections 200, 201 and 501 in Practice IV International Law and the Deportation of Long-Term Residents A Right to 'One's Own Country' B Right to Life and Protection from Cruel, Inhuman or Degrading Treatment C The Principle of Ne Bis in Idem D Right to Family Life E Administrative Review V Conclusion I INTRODUCTION
On 12 August 2004, the Commonwealth Minister for Immigration cancelled the permanent visa of Mr Stefan Nystrom--a 31-year-old man who had lived in Australia since he was 27 days old--on the basis that his criminal record rendered him incapable of satisfying the 'character' test in the Migration Act 1958 (Cth) ('Migration Act'). (1) The cancellation subjected him to indefinite executive detention pending removal (2) and, more significantly, to permanent banishment from Australia (3) and deportation to Sweden--his country of birth, which he had not visited since leaving to settle in Australia with his family on 27 January 1974. (4) Although accurately described as a 'constitutional alien, and a citizen of Sweden' by Gummow and Hayne JJ in the High Court of Australia, (5) he had never learnt the Swedish language, had almost no contact with relatives in Sweden and had been 'entirely brought up in Australia'. (6) In the words of Moore and Gyles JJ of the Full Court of the Federal Court of Australia, the effect of this cancellation was 'the permanent banishment of an absorbed member of the Australian community with no relevant ties elsewhere.' (7) Their Honours went on to observe:
The appellant has indeed behaved badly, but no worse than many of his age who have also lived as members of the Australian community all their lives but who happen to be citizens. The difference is the barest of technicalities. It is the chance result of an accident of birth, the inaction of the appellant's parents and some contestable High Court decisions. Apart from the dire punishment of the individual involved, it presumes that Australia can export its problems elsewhere. (8) This is not a unique case. Rather, there is evidence that s 501 of the Migration Act--a provision which empowers the relevant Minister to refuse to grant or to cancel the visa of any person who fails to meet the 'character test'--has increasingly been invoked in recent years to cancel the visas of long-term residents in Australia (that is, those non-citizens who have been in Australia for more than 10 years and/or migrated to Australia as children). (9) While it is difficult to obtain precise figures concerning the use of s 501 in the context of long-term residents, (10) in June 2008 the Minister for Immigration and Citizenship informed the Senate that as of 7 May 2008 there were 25 people in immigration detention following the cancellation of their visas pursuant to s 501. (11) Of those 25 persons, only 1 had been in Australia for less than 5 years, with the remaining 24 having been in Australia for between 11 and 45 years prior to visa cancellation. (12) Indeed, 2 of those persons had been in Australia for between 41 and 45 years prior to visa cancellation. (13) Further, by far the majority of those persons had first entered Australia when they were children or youths, with 19 of the 25 having arrived before the age of 21. (14) Finally, all of the individuals had spent a lengthy period in detention while awaiting removal, with only one having spent less than 100 days in detention as at 7 May 2008. (15) Eight persons had been in immigration detention for between 100 and 200 days, another eight for between 201 and 300 days, while the final eight had been in detention for between 301 and 1100 days. (16) Such lengthy periods of indefinite executive detention are common for long-term residents whose visas are cancelled under s 501, particularly given the difficulty in organising travel documents for persons whose connection with another country is attenuated by long (sometimes lifelong) residence in Australia. (17)
The practice of applying s 501 to long-term residents has been widely criticised including by the Senate Legal and Constitutional References Committee, (18) the Commonwealth Ombudsman (19) and the Australian Human Rights and Equal Opportunity Commission, (20) as well as various members of the Federal Court. (21) However, while Stefan Nystrom successfully challenged the cancellation of his visa in the Full Federal Court, that decision was overturned by the High Court. (22) The High Court affirmed the position that, while a person who has been lawfully in Australia for more than 10 years is protected from deportation pursuant to the deportation power in ss 200 and 201, he or she always remains liable to visa cancellation and removal under s 501 of the Migration Act, regardless of length of residence or connection to the Australian community. There is thus apparently no domestic legal barrier to the government's continuing reliance on this section for those non-citizens considered 'undesirable'. Further, while it is clear that the practice of effectively circumventing the protection of long-term residents intrinsic in s 201 of the Migration Act by reliance on s 501 was particularly favoured under the Howard government, (23) the new Rudd government has recently passed legislation reinforcing its ability to cancel the visas of long-term residents. (24) Although the federal government has also recently softened policy guidelines in this area, which may well ameliorate the most dramatic impact of s 501 vis-a-vis long-term residents, (25) it seems clear that it wishes to retain the discretion to invoke s 501 to cancel the visas of long-term residents who have established their life in Australia. (26)
Section 501 has been described as 'ultimately about the sovereign powers of a nation to deny or revoke permission for entry to those individuals it deems to be of "bad character"'. (27) This is despite the growing awareness of the international law ramifications of a state's decision to deport long-term residents and the increasing commitment to strengthening, rather than weakening, protection for long-term residents in other parts of the world, especially Europe. In light of this, it is timely to consider how it is that we are able to engage in this practice legally as a matter of domestic and international law. (28) In particular, this article will interrogate and question whether the traditional binary distinction between 'citizens' and 'aliens'--both in Australian constitutional doctrine and international law--can and should continue to be maintained.
Part II of this article considers the history of High Court doctrine in this area, explaining how it is that the Commonwealth can lawfully engage in the deportation of Australian residents who are citizens but for 'the barest of technicalities.' (29) Although it is now clear that there is little constitutional restriction on Parliament's freedom in this area, Part II closely examines the salient debates and competing views expressed in the key judgments. As it reveals, while some judges have recognised that a binary distinction between statutory citizens and aliens is overly simplistic, ultimately the courts have been reluctant to infuse the concept of 'alien' with any meaningful assessment of membership in the Australian community, instead favouring a formalistic and superficial approach to interpretation of that term. The analysis in this Part suggests two underlying explanations for this outcome: a clear reluctance on the part of the High Court to interfere with the Parliament's ability to control 'the means of determining the composition of the population of [this] country', (30) and a failure to accommodate the possibility that non-citizens may have a claim to fundamental human rights akin to those of citizens.
Part III of this article then briefly sets out the legislative background and history of s 501, particularly as it relates to the deportation power in s 200 of the Migration Act. As this history illustrates, despite the High Court's reluctance to recognise a constitutional status of 'non-alienage' based on belonging or membership, Parliament itself recognised the deficiencies in the strict binary dichotomy of 'citizens versus aliens'. It accordingly sought to limit the potential for deportation of non-citizen permanent residents in introducing temporal limits to the deportation power in 1983. The clear intent evident in this legislative history provides persuasive evidence that the current administration of the Migration Act by the executive in this context has 'lost its way'. (31)
Part IV of the article then turns to consider the international law context of...
