Plaintiff M47-2012 v Director General of Security

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ.,Gummow J.,Hayne J.,Heydon J.,Crennan J.,Kiefel J.,Bell J.
• Judgment Date: 05 October 2012
• Neutral Citation: 2012-1005 HCA B,[2012] HCA 46
• Docket Number: M47/2012
• Date: 05 October 2012

Plaintiff M47/2012

Plaintiff

and

Director General of Security & Ors

Defendants

[2012] HCA 46

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

M47/2012

HIGH COURT OF AUSTRALIA

Plaintiff M47/2012 v Director General of Security

Citizenship and migration — Migration — Refugees — Protection visas — Inconsistency between Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) — Plaintiff found to be a refugee but refused protection visa due to adverse security assessment by Australian Security Intelligence Organisation — Clause 866.225(a) of Sched 2 to Regulations prescribes public interest criterion 4002 as criterion for grant of protection visa — Public interest criterion 4002 requires that applicant not be assessed by Australian Security Intelligence Organisation to be risk to security — Whether prescription of public interest criterion 4002 as criterion for grant of protection visa beyond power conferred by s 31(3) of Act.

Administrative law — Procedural fairness — ASIO interviewed plaintiff — ASIO issued adverse security assessment in relation to plaintiff — Plaintiff therefore did not meet requirements for protection visa — Whether ASIO denied plaintiff procedural fairness.

Citizenship and migration — Mandatory detention — Plaintiff held in detention as unlawful non-citizen — No third country currently available to receive plaintiff — Whether ss 189 and 196 of Act authorise plaintiff's detention.

Words and phrases — ‘character test’, ‘decision … relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2)’, ‘inconsistent’, ‘protection obligations’, ‘security’.

Australian Security Intelligence Organisation Act 1979 (Cth), ss 4, 37.

Migration Act 1958 (Cth), ss 31(3), 36(2), 65, 189, 196, 500, 501, 504(1).

Migration Regulations 1994 (Cth), Sched 2, cl 866.225(a), Sched 4, item 4002.

Representation

R M Niall SC with C L Lenehan, K L Walker and M P Costello for the plaintiff (instructed by Allens Lawyers)

S P Donaghue SC with C J Horan, F I Gordon and N M Wood for the defendants (instructed by Australian Government Solicitor)

Interveners

J G Renwick SC with K M Richardson intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))

J K Kirk SC with S J Free and A E Munro intervening on behalf of Plaintiff S138/2012 (instructed by King & Wood Mallesons)

D S Mortimer SC with A D Pound and K E Foley intervening on behalf of the Australian Human Rights Commission (instructed by Australian Human Rights Commission)

ORDER

Question 2A of the Further Amended Special Case dated 20 June 2012 should be amended and the questions stated in the Special Case (as so amended) should be answered as follows:

Question 1

In furnishing the 2012 assessment, did the First Defendant fail to comply with the requirements of procedural fairness?

Answer

No.

Question 2

Does s 198 of the Migration Act 1958 (Cth) authorise the removal of the Plaintiff, being a non-citizen:

2.1 to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

2.2 whom ASIO has assessed poses a direct or indirect risk to security; to a country where he does not have a well-founded fear of persecution for the purposes of Article 1A of the Refugees Convention as amended by the Refugees Protocol?

Answer

It is not necessary to answer this question.

Question 2A

If the plaintiff's application for a protection visa is refused by reason of the plaintiff's failure to satisfy public interest criterion 4002 within the meaning of clause 866.225 of Schedule 2 of the Migration Regulations 1994, is that clause to that extent ultra vires the power conferred by section 31(3) of the Migration Act 1958 (Cth) and invalid?

Answer

The prescription of public interest criterion 4002 as a criterion for the grant of a protection visa is beyond the power conferred by s 31(3) of the Act and is invalid.

Question 3

Do ss 189 and 196 of the Migration Act 1958 (Cth) authorise the Plaintiff's detention?

Answer

The plaintiff is validly detained for the purposes of the determination of his application for a protection visa.

Question 4

Who should pay the costs of the special case?

Answer

The defendants.

French CJ.

Introduction

1 This case concerns a regulation made under the Migration Act 1958 (Cth) (‘the Migration Act’). The regulation requires that the Minister for Immigration and Citizenship (‘the Minister’) refuse to grant a refugee a protection visa if the Australian Security Intelligence Organisation (‘ASIO’) assesses the refugee to be directly or indirectly a risk to security. The merits of such an assessment cannot be challenged. The plaintiff, who applied for a protection visa, was refused a visa pursuant to the regulation. He challenges the validity of the regulation, the fairness of the assessment process, and the lawfulness of his continuing detention under the Migration Act.

2 The Minister is given power under the Migration Act to refuse to grant a refugee a visa on grounds related to security which are recognised by the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (‘the Convention’). In such a case the Minister's decision can be reviewed on its merits unless, in the national interest, the Minister issues a certificate declaring the refugee to be an excluded person. In that event the Minister has to exercise the power personally and lay the certificate before the Houses of Parliament.

3 Critical to the disposition of this case is the question whether the regulation, which effectively vests in ASIO the power to refuse a visa on security grounds, is consistent with the scheme of the Migration Act, including the responsibility it imposes on the Minister and the Minister's officers, the system of merits review which it establishes and the personal responsibility and accountability of the Minister for decisions precluding review. As appears from the following reasons, the answer to that question is no. The regulation is invalid. The plaintiff is entitled to have his application for a protection visa considered according to law. In the meantime he can lawfully be detained pursuant to s 196 of the Migration Act.

Factual and procedural background

4 At about 11.10pm on 29 December 2009 the plaintiff, a national of Sri Lanka, entered the Australian territory of Christmas Island on a special purpose visa. The visa expired at midnight. It has not been renewed nor has any other visa been granted. Since midnight on 29 December 2009, therefore, the plaintiff has been an unlawful non-citizen within the meaning of s 1of the Migration Act and has been held in immigration detention pursuant to ss 189 and 196 of that Act.

5 The plaintiff applied for a protection visa under s 36 of the Migration Act. A delegate of the Minister concluded that the plaintiff had a well-founded fear of persecution on the basis of his race and political opinion if he were to be returned to Sri Lanka. As a former member of the Liberation Tigers of Tamil Eelam (‘LTTE’) he was at risk of being targeted by the Sri Lankan Government and/or paramilitary groups in Sri Lanka. As a person who had refused to rejoin the LTTE he was at risk of persecution from Tamil separatist groups. The delegate also found, and it is common ground in these proceedings, that should the plaintiff be returned to Sri Lanka there is a real chance that he would be subject to abduction, torture or death. The plaintiff was therefore a refugee within the meaning of the Convention. On 18 February 2011, in spite of finding the plaintiff to be a refugee, the delegate refused the application for the grant of a protection visa. The reason for that refusal was that on 11 December 2009, ASIO had issued to the Department of Immigration and Citizenship (‘the Department’) an assessment of the plaintiff under s 37 of the Australian Security Intelligence Organisation Act 1979 (Cth) (‘the ASIO Act’). The assessment stated that:

‘ASIO assesses [the plaintiff] … from the Oceanic Viking caseload to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.’

Because of that assessment the plaintiff did not meet public interest criterion 4002 set out in the Migration Regulations 1994 (‘the Regulations’) for the grant of a protection visa. That criterion requires that an applicant for a protection visa is not assessed by ASIO to be directly or indirectly a risk to security. The Refugee Review Tribunal (‘the RRT’), unable to look behind the security assessment 1, affirmed the delegate's decision not to grant the plaintiff a protection visa.

6 The plaintiff was interviewed by officers of ASIO on or about 4 November 2011 so that they could make a new security assessment. That interview was audio recorded and a transcript of it was before the Court. On or about 9 May 2012, ASIO furnished the Department with a new security assessment (‘the 2012 assessment’) that the plaintiff was directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act. The 2012 assessment superseded the assessment made in 2009. As a result of the 2012 assessment the plaintiff continues to be unable to satisfy public interest criterion 4002.

7 The Australian Government does not intend to remove the plaintiff to Sri Lanka. There is presently no other country to which he can be sent. Steps taken by the Minister and by the Federal Government to find a country to which the plaintiff can be removed pursuant to s 198 of the Migration Act have been

unsuccessful. On the basis of what appears in the Special Case it is unlikely that a country will be found willing to accept the plaintiff within the foreseeable future.

8 The...