Federal Court (Full Court). When the language of a statute is ambiguous, Parliament is presumed to have intended the statute to conform to Australia's obligations under international law and not to interfere with fundamental common law rights and freedoms. Art 12(4) of ICCPR provides: “No one shall be arbitrarily deprived of the right to enter his own country”. Is the term "person" in ss 501(3A) & 501CA(4) ambiguous, with the result that those provisions should be interpreted as not applying to non-aboriginal non-citizens with longstanding ties to Australia, in light of Art 12(4)? Is there a common law right for such individuals to enter and remain in Australia? If not, should the common law be extended to that effect, influenced by Art 12(4)?
The questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Is the term "person" in ss 501(3A) & 501CA(4) of the Migration Act 1958 (Cth) ambiguous, with the result that those provisions should be interpreted as not applying to non-aboriginal non-citizens with longstanding ties to Australia, it light of Art 12(4) of the ICCPR?
Question 2: Is there a common law right for non-aboriginal non-citizens with longstanding ties to Australia to enter and remain in Australia?
Question 3: If the answer to Question 2 is "no", should the common law be extended to that effect, influenced by Art 12(4) of the ICCPR?
The FCA answered those questions as follows: