Commonwealth of Australia v AJL20

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Gordon,Steward JJ.,Gleeson JJ.,Gageler,Keane,Edelman J.
• Judgment Date: 23 June 2021
• Neutral Citation: [2021] HCA 21
• Docket Number: C16/2020 & C17/2020
• Court: High Court

[2021] HCA 21

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ

C16/2020 & C17/2020

Commonwealth of Australia

Appellant

and

AJL20

Respondent

Representation

S P Donaghue QC, Solicitor-General of the Commonwealth, with G R Kennett SC, C J Tran and N A Wootton for the appellant and for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

J T Gleeson SC with N M Wood and J E Hartley for the respondent (instructed by Human Rights for All)

Constitution, s 51(xix), Ch III.

Migration Act 1958 (Cth), ss 4, 13, 14, 189, 196, 197C, 198.

Constitutional law (Cth) — Immigration — Tort — False imprisonment — Where respondent “unlawful non-citizen” detained by Executive under ss 189(1) and 196(1) of Migration Act 1958 (Cth) — Whether period of executive detention authorised and required by ss 189(1) and 196(1) ceases when removal of “unlawful non-citizen” from Australia should have occurred had Executive acted with all reasonable despatch in performance of s 198(6) duty to remove, or continues until actual event of removal or grant of visa — Whether Parliament's power to authorise and require detention until actual event of removal or grant of visa limited by implications of Ch III of Constitution — Whether non-performance by Executive of statutory duties erases legitimate non-punitive statutory purposes which those duties support.

Words and phrases — “aliens”, “deportation”, “duty to remove”, “exclusive vesting of the judicial power of the Commonwealth”, “executive detention”, “executive power”, “executive purpose”, “false imprisonment”, “habeas corpus”, “hedging duty”, “judicial power”, “lawful non-citizen”, “legitimate non-punitive purposes”, “ Lim principle”, “mandamus”, “non-refoulement”, “Parliamentary supremacy”, “reading down”, “removal”, “remove as soon as reasonably practicable”, “separation of powers”, “statutory duty”, “statutory purposes”, “terminating events”, “unlawful non-citizen”, “visa”.

ORDER

Matter No C16/2020

• 1. Appeal allowed.

• 2. Set aside the orders made by the Federal Court of Australia on 29 September 2020 and, in their place, it be ordered that the proceeding be dismissed with costs.

• 3. The respondent must pay the appellant's costs of the appeal to this Court.

Matter No C17/2020

• 1. Appeal allowed.

• 2. Set aside the orders made by the Federal Court of Australia on 11 September 2020 and, in their place, it be ordered that the application filed in the Federal Circuit Court of Australia on 12 May 2020 and transferred to the Federal Court of Australia on 27 May 2020 be dismissed with costs.

• 3. The respondent must pay the appellant's costs of the appeal to this Court.

1 Kiefel CJ, Gageler, Keane AND Steward JJ. The respondent is a Syrian citizen, who arrived in Australia in May 2005 as the holder of a child visa. On 2 October 2014, the then Minister for Immigration and Border Protection (“the Minister”) cancelled the respondent's child visa on character grounds under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). Having become an “unlawful non-citizen” in consequence of the cancellation of his visa, the respondent was detained on 8 October 2014, as required by s 189(1) of the Act.

2 The respondent remained in immigration detention until he was released from detention into the community pursuant to the order of the primary judge (Bromberg J) made on 11 September 2020 on the footing that the respondent's continuing detention was unlawful. His Honour held that, because the Executive had not removed the respondent from Australia “as soon as reasonably practicable” in accordance with s 198(6) of the Act, his detention was not for the purpose of removal from Australia and was therefore unlawful. The circumstance that the failure of duty on the part of the Executive was explicable by its desire to comply with Australia's non-refoulement obligations was, by virtue of s 197C, no justification for that failure 1.

3 In this Court, the Commonwealth contended that the respondent's detention under s 189(1) was lawful because it was authorised and, indeed, required by s 196(1) of the Act. The respondent argued to the contrary that s 196(1) does not authorise the Executive to detain an unlawful non-citizen where its officers have failed to remove the unlawful non-citizen from Australia as soon as reasonably practicable. The respondent contended that, as the primary judge held 2, this construction of the Act was compelled by the need to observe the constitutional limitations on the Commonwealth's legislative power to authorise detention by the Executive.

4 Almost two decades ago in NAES v Minister for Immigration and Multicultural and Indigenous Affairs 3, Beaumont J rejected an application for habeas corpus in circumstances materially the same as the present case. Beaumont J, following the construction of ss 196(1) and 198 adopted by French J (as his Honour then was) in

WAIS v Minister for Immigration and Multicultural and Indigenous Affairs 4, held that the operation of ss 189(1) and 196(1) in authorising the applicant's detention was not conditioned on the actual achievement of removal of the unlawful non-citizen as soon as reasonably practicable by the Executive. On that footing, an order mandating compliance by the Executive with the duty imposed by s 198 was, as Beaumont J explained, the appropriate remedy for non-compliance with s 198 of the Act. Such an order would give effect to the statutory scheme, whereas an order for the release of an unlawful non-citizen into the community would undermine it

5 The approach taken by Beaumont J was correct 18 years ago and remains correct today. There is no room for any doubt that the interpretation of ss 196(1) and 198 that his Honour adopted, and that was applied again more recently by the Full Court of the Federal Court (Robertson, Griffiths and Bromwich JJ) in ASP15 v The Commonwealth 5, faithfully reflects the intention of the Act. No constitutional imperative requires departure from it. The primary judge erred in thinking otherwise.

The proceedings

6 After the respondent was detained in October 2014, he made a number of applications for a protection visa. These applications were, however, refused on character grounds under s 501(1) of the Act. On 25 July 2019, following representations made on his behalf, the Minister refused to consider granting the respondent a visa under s 195A of the Act.

7 On 4 November 2019, the respondent commenced proceedings in the Federal Court of Australia seeking damages in respect of his alleged false imprisonment by the Commonwealth since 26 July 2019 (“the compensation proceeding”). On 12 May 2020, the respondent commenced a further proceeding in the Federal Circuit Court of Australia seeking what was described as “an order in the nature of a writ of habeas corpus” (“the specific relief proceeding”). The specific relief proceeding was transferred to the Federal Court on 27 May 2020.

8 In this Court, it was expressly conceded by the Commonwealth that, as the primary judge found, the respondent had not been removed from Australia “as soon as reasonably practicable” as required by s 198(6) of the Act. The primary judge's finding in this regard was, in part, based on the circumstance that officers of what

is now the Department of Home Affairs had formed the view that to remove the respondent to Syria would place Australia in breach of its international non-refoulement obligations 6. By reason of s 197C of the Act, that consideration was irrelevant to whether it was reasonably practicable that the respondent be removed from Australia. This circumstance aside, the primary judge's finding was also based on findings of fact that the Executive could and should have done more to expedite the respondent's removal from Australia1 7

9 Following the making of an order in the specific relief proceeding on 11 September 2020 that the respondent be released forthwith, on 29 September 2020 the primary judge made a declaration in the compensation proceeding that the respondent's detention since 26 July 2019 was unlawful. The damages recoverable by the respondent were to be assessed separately 8.

10 In each proceeding, the Commonwealth appealed to the Full Court of the Federal Court, contending that the primary judge erred in concluding that ss 189(1) and 196(1) of the Act did not authorise the respondent's detention. Upon the application of the Attorney-General of the Commonwealth, each appeal to the Full Court was removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth).

11 It is convenient now to set out the relevant provisions of the Act, and to note this Court's settled view of the constitutional validity and proper construction of these provisions and their predecessors in order to lay the ground for a consideration of the reasons of the primary judge and the arguments advanced by the respondent in their support.

The Act

12 Section 4(1) states that the object of the Act is to “regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. Section 4(2) states that, to “advance its object”, the Act “provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain”. Section 4(4) further states that, to “advance its object”, the Act “provides for the removal …

from Australia of non-citizens whose presence in Australia is not permitted by this Act”

13 Section 14 provides that an “unlawful non-citizen” is a non-citizen who is in the “migration zone” (in broad terms, Australia 9) and is not a “lawful non-citizen”. Section 13 provides that a “lawful non-citizen” is a non-citizen who is in the “migration zone” and holds an effective “visa”. A visa provides permission to enter or remain...