Plaintiff M168/10 v The Commonwealth

• Jurisdiction: Australia Federal only
• Judge: Crennan J
• Judgment Date: 19 January 2011
• Neutral Citation: 2011-0119 HCA A,[2011] HCA 25
• Court: High Court
• Docket Number: Matter No M168/2010 Matter No M170/2010 Matter No M171/2010 Matter No M172/2010 Matter No M173/2010 Matter No M174/2010 Matter No M175/2010
• Date: 19 January 2011

[2011] HCA 25

HIGH COURT OF AUSTRALIA

Crennan J

Matter No M168/2010

Matter No M169/2010

Matter No M170/2010

Matter No M171/2010

Matter No M172/2010

Matter No M173/2010

Matter No M174/2010

Matter No M175/2010

Plaintiff M168/10, A Minor, By His Litigation Guardian Sister Brigid (Marie) Arthur

Plaintiff

and

The Commonwealth Of Australia & Anor

Defendants

Plaintiff M169/10, By His Litigation Guardian Sister Brigid (Marie) Arthur

Plaintiff

and

Minister For Immigration And Citizenship & Anor

Defendants

Plaintiff M170/10, A Minor, By His Litigation Guardian Sister Brigid (Marie) Arthur

Plaintiff

and

The Commonwealth Of Australia & Anor

Defendants

Plaintiff M171/10, By His Litigation Guardian Sister Brigid (Marie) Arthur

Plaintiff

and

Minister For Immigration And Citizenship & Anor

Defendants

Plaintiff M172/10, By His Litigation Guardian Sister Brigid (Marie) Arthur

Plaintiff

and

The Commonwealth Of Australia & Anor

Defendants

Plaintiff M173/10, By His Litigation Guardian Sister Brigid (Marie) Arthur

Plaintiff

and

Minister For Immigration And Citizenship & Anor

Defendants

Plaintiff M174/10, A Minor, By His Litigation Guardian Sister Brigid (Marie) Arthur

Plaintiff

and

The Commonwealth Of Australia & Anor

Defendants

Plaintiff M175/10, By His Litigation Guardian Sister Brigid (Marie) Arthur

Plaintiff

and

Minister For Immigration And Citizenship & Anor

Defendants

Representation

C J Horan with K E Foley for the plaintiffs in all matters (instructed by Victoria Legal Aid (Civil Law Section))

S P Donaghue with R J Sharp for the defendants in all matters (instructed by Australian Government Solicitor)

Migration Act 1958 (Cth), ss 189(1), 189(3).

Plaintiff M168/10 v The Commonwealth

Plaintiff M169/10 v Minister for Immigration and Citizenship

Plaintiff M170/10 v The Commonwealth

Plaintiff M171/10 v Minister for Immigration and Citizenship

Plaintiff M172/10 v The Commonwealth

Plaintiff M173/10 v Minister for Immigration and Citizenship

Plaintiff M174/10 v The Commonwealth

Plaintiff M175/10 v Minister for Immigration and Citizenship

Injunctions — Interlocutory injunctions — Migration — Detention under Migration Act 1958 (Cth) (‘Act’) — Plaintiffs arrived in Australian waters by boat and treated as unlawful non-citizens under Act — Plaintiffs detained on Christmas Island and transported to mainland to be placed in immigration detention — Plaintiffs sought interlocutory injunctions restraining detention or effecting release, claiming that detention on Christmas Island and subsequent detention on mainland unlawful — Whether prima facie case that continuing detention of plaintiffs on mainland unlawful.

Words and phrases — ‘prima facie case‘.

ORDER

In matters M168/2010, M170/2010, M172/2010 and M174/2010:

The application made by summons dated 23 December 2010 for an interlocutory injunction restraining the defendants or any officer, servant or agent of the defendants from detaining the plaintiff and/or for an order that the plaintiff be released from detention until the hearing and determination of these proceedings is dismissed.

The proceedings be stood out of the list to await the hearing and determination of related proceedings.

Liberty to apply.

In matters M169/2010, M171/2010, M173/2010 and M175/2010:

Pursuant to s 486A(2) of the Migration Act 1958 (Cth), the time within which an application may be made for a remedy in relation to the decision made on or about 16 February 2010 to detain the plaintiff on Christmas Island (‘the detention decision’) be extended to 17 December 2010.

To the extent that it is necessary to do so, pursuant to r 25.06.1 of the High Court Rules 2004, the time to apply for an order to show cause why a writ of certiorari should not issue to remove the detention decision for the purpose of its being quashed be enlarged to 17 December 2010.

The application made by summons dated 23 December 2010 for an interlocutory injunction restraining the defendants or any officer, servant or agent of the defendants from detaining the plaintiff and/or for an order that the plaintiff be released from detention until the hearing of these proceedings is dismissed.

On or before 18 February 2011, the defendants file and serve any evidence on which they propose to rely.

On or before 25 February 2011, the plaintiff file and serve:

• (a) any further evidence on which he proposes to rely; and

• (b) any proposed amendment to the application for relief.

Reserve liberty to apply, on the giving of two days' notice to opposite parties.

The directions hearing be adjourned to 9:30 am on 28 February 2011.

Costs reserved.

Crennan J. Orders are sought today in respect of four sets of proceedings concerning four plaintiffs, three of whom are minors and all of whom are of Afghan nationality. They are aged 16, 17, 17 and 18. The third plaintiff will turn 18 next Sunday. The plaintiffs have been treated as unlawful non-citizens within the meaning of s 14 of the Migration Act 1958 (Cth) (‘the Act’) and they are in immigration detention in the Melbourne Immigration Transit Accommodation pending the final determination of their applications for visas.

2 The plaintiffs all travelled to Australia from Afghanistan, through Indonesia, arriving in Australian waters by boat. At the time of arrival they were all unaccompanied minors. The plaintiffs are not citizens of Australia and they do not hold any visa. By decisions made on 11 February (in respect of the plaintiff in M173) and on 16 February 2010 (in respect of the plaintiffs in M169, M171 and M175) the plaintiffs were detained on Christmas Island (‘the Christmas Island detention decisions’).

3 In late March 2010 the plaintiffs were transported to the mainland and placed in immigration detention.

4 Each of the plaintiffs (by a litigation guardian) has brought two proceedings against the Minister and the Commonwealth of Australia. It is convenient to describe one set of proceedings. Proceeding M168 of 2010, commenced by writ and statement of claim, is an application in the original jurisdiction of the Court under s 75(iii) of the Constitution, being a matter in which the Commonwealth is a party. The plaintiff seeks declarations that the detention of the plaintiff on Christmas Island and on the mainland was and is unlawful and constitutes a false imprisonment, together with a declaration that by the continuing detention of the plaintiff the Minister is in breach of statutory duties as guardian under s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) (‘the Guardianship Act’). Damages are sought in respect of negligence, breach of guardianship duty and false imprisonment. An interlocutory mandatory injunction is sought, directed to the Minister, to release the plaintiff from detention into appropriate residential arrangements within the community.

5 Proceeding M169 of 2010 is an application for an order to show cause why a writ of certiorari should not issue within the original jurisdiction of the Court, under s 75(iii) and (v) of the Constitution, in which the plaintiff (who is the same person as the plaintiff in M168 of 2010) seeks certiorari and prohibition or injunctive relief in respect of the Christmas Island detention decision and habeas corpus or an order requiring release of the plaintiff from detention. A declaration is sought that the Christmas Island detention and the detention on the mainland are unlawful. The plaintiff also seeks a declaration in respect of an alleged failure by the Minister to take steps as permitted under either ss 195A or 197AB of the Act and a declaration that the Minister is in breach of his guardianship duties under s 6 of the Guardianship Act. An interlocutory injunction is sought restraining the defendants from detaining the plaintiff or, alternatively, ordering that the plaintiff be released from detention pending the determination of the proceedings or further order.

6 Proceedings M170 to M175 of 2010 are three sets of proceedings substantially identical to the set of proceedings M168 and M169 of 2010, which I have just described.

7 A summons dated 23 December 2010 and returnable today has been filed in each proceeding seeking:

• 1. An interlocutory injunction restraining the defendants or any officer, servant or agent of the defendants from detaining the plaintiff and/or an order that the plaintiff be released from detention until the hearing and determination of these proceedings or further order;

• 2. An enlargement of time pursuant to r 25.06.1 of the High Court Rules 2004 to apply for an order to show cause why a writ of certiorari should not issue to remove the Christmas Island detention decision for the purpose of its being quashed;

• 3. Directions for the further conduct of the proceedings.

Extensions of time

8 Rule 25.06.1 of the High Court Rules provides for a six months time limit in respect of an order to show cause why a writ of certiorari should not issue. Further, s 486A of the Act provides a time limit of 35 days for applications to the High Court seeking a remedy in respect of a migration decision.

9 Section 486A(2)(a) of the Act relevantly provides:

‘The High Court may, by order, extend that 35 day period as the High Court considers appropriate if:

• (a) an application for that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order …’

10 The applications for extensions of time are opposed. Reliance is placed by the defendants on both r 25.06.1 of the High Court Rules and s 486A(2)(a) of the Act, to which I have just referred. It is submitted that, absent exceptional circumstances, the extensions of time should not be granted 1. The defendants point out that the plaintiffs have engaged in other litigation during the period of delay. Further, the defendants...