Common(wealth) Knowledge #116: High Court, Green Cards and Due Process

Lessons for the US government on due process from Australia.

On 12 March, El Salvadorian national Kilmar Abrego Garcia was ‘mistakenly’ arrested by Immigration and Customs Enforcement agents in an ‘administrative error’ and deported to his home country without trial.

Garcia had been residing in the US on the US equivalent of a ‘protection visa’ because of the risk of persecution if he was returned to his home country.

When Judge Xinis of the US District Court for the District of Maryland ruled against the deportation, the White House announced that federal courts did not have jurisdiction in El Salvador, despite the ruling being against the actions of the US government.

His arrest and deportation without a trial will give rise to a case under the Fifth and Fourteenth Amendments of the United States Constitution, which grant individuals the right to have their case heard first.

Australian ‘procedural fairness,’ rooted in the common law and implicit in Chapter III of the Australian Constitution, is similar to the ‘due process’ of the Fifth and Fourteenth Amendments.

All individuals, regardless of citizenship, have a general right to have their claim or case heard. Common law fair process binds decision-makers in most immigration decisions, while the Fifth Amendment grants due process to all persons.

The current definition of procedural fairness, in this context, was laid down by Justice Mason in FAI Insurances Ltd v Winneke (1982):

“A statutory authority having power to affect the rights of a person is bound to hear him before exercising the power. It extends to the exercise of a power which affects an interest or a privilege or which deprives a person of a ‘legitimate expectation’ in circumstances where it would not be fair to deprive him of that expectation without a hearing.”

A decision-maker (authority) given a power by legislation (statute) which determines if a person can reside in Australia (right, interest or privilege) must let him state his case (fairness), unless the law says otherwise.

Generally, this means there must be a ‘prima facie case.’ This is a case with enough evidence or merit ‘at first glance’ to be worth hearing. It is a lower threshold but excludes baseless claims.

Most times when legislation grants the “Minister” a power, the Minister delegates that power to a staff member or ‘officer’ in their department. This is both necessary and practical. It's also why this series usually uses the collective term ‘executive decision-maker.’

But some powers are ‘non-delegable powers’ that must be exercised by the Minister personally. 

Either the legislation will explicitly say that, or, as here, it is inferred from the nature of the power, either because of its importance or because a Minister, as a democratically elected member of government, has the power to make decisions in matters of public interest or concern.

These are ‘non-compellable powers.’ Courts cannot force the Minister to exercise this power, because only the Minister is elected by the public.

But that also means that officers can’t ‘compel’ consideration either by ‘screening’ cases. To quote Davis v Minister for Immigration (2023), there is a “statutory zone of exclusion” that prevents officers from only referring cases to the Minister that they believe are ‘extraordinary’ enough for the Minister to consider.

The conclusion reached by the High Court, ruling 6-1, in Minister for Immigration v MZAPC (2025) on 5 March was that the Federal Court can intervene to prevent officers from deporting an applicant with a prima facie case, but cannot affect what the Minister does from there.

On 2 April, in CZA19 v Commonwealth (2025), the High Court unanimously maintained its position that the words ‘as soon as reasonably practicable’ are needed in section 198(6) to ensure that immigration detention is lawful.

Since at least Chu Kheng Lim v Minister for Immigration (1992), the position has been that non-judicial detention, including immigration detention, must have a ‘legitimate and non-punitive purpose’ and ‘reasonably capable being seen as necessary’ to be lawful. ‘National security interests’ are one such exception.

The High Court maintained that processing unlawful non-citizens is presumed to meet the first requirement (absent anything to the contrary, making it prima facie lawful). ‘As soon as reasonably practicable’ is required to avoid the NZYQ v Minister for Immigration (2023) scenario of indefinite detention, which is unlawful.

The combined result is that an applicant with a prima facie case cannot be deported until their application is processed, but reasonable detention during that process is lawful.

Meanwhile, the US government continues to attempt to deport lawful non-citizen residents, despite the stronger due process protections in place.

In contrast, the US government continues to refuse to respect that due process. On 8 March, Mahmoud Khalil, who holds a permanent resident Green Card visa, was arrested over pro-Palestine protests at Columbia University.

Judge Ferman, another federal judge, ordered the equivalent of an interlocutory injunction to prevent Khalil’s deportation after a case was filed against the government for violating the Fifth Amendment and First Amendment freedom of speech.

US law has a similar ‘national security’ exception, which the Trump administration is seeking to rely on by deeming him to be “aligned to Hamas.” However, no charges have been laid, and the deportation attempt continues before the full case has been resolved.

Another US court issued an injunction to prevent the deportation Columbia University student Yunseo Chung. She has brought a similar First and Fifith Amendments case against the US government for attempting to revoke her green card over a pro-Palestine protest.

Whether or not the national security exceptions for deportation hold up in those two cases, the due process claim over the arrests remains, and that exception does not apply to Garcia’s case.

Secretary of State Marco Rubio, in response to these cases, has stated that there is no right to citizenship or a visa. 

This is consistent with the Australian position. But the Australian position, seen in MZAPC, is also that if a person at risk of deportation has a prima facie case, they at least have a right to have that case heard first.

Given the recent string of High Court cases testing immigration detention and visa decisions, the US government should seriously consider reflecting on some Australian lessons.