Plaintiff M47/2018 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Keane,Nettle,Edelman JJ.,Bell,Gageler,Gordon JJ.
• Judgment Date: 12 June 2019
• Neutral Citation: [2019] HCA 17
• Docket Number: M47/2018
• Court: High Court
• Date: 12 June 2019

[2019] HCA 17

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

M47/2018

Plaintiff M47/2018

Plaintiff

and

Minister for Home Affairs & Anor

Defendants

Representation

R Merkel QC with L T Livingston, E M Nekvapil and C G Winnett for the plaintiff (instructed by Human Rights for All Pty Ltd)

S P Donaghue QC, Solicitor-General of the Commonwealth, with P D Herzfeld and Z C Heger for the defendants (instructed by Australian Government Solicitor)

Australian Human Rights Commission appearing as amicus curiae, limited to its written submissions

High Court Rules 2004 (Cth), r 27.08.5.

Migration Act 1958 (Cth), ss 189, 196, 198.

Immigration — Unlawful non-citizens — Detention pending removal from Australia — Where s 189 of Migration Act 1958 (Cth) requires unlawful non-citizen be detained — Where s 196 requires unlawful non-citizen detained under s 189 be kept in immigration detention — Where plaintiff an unlawful non-citizen — Where plaintiff arrived in migration zone using false passport and personal details — Where plaintiff kept in immigration detention since arrival in migration zone — Where plaintiff previously used false personal details — Where plaintiff's identity and nationality not known — Whether ss 189 and 196 authorise plaintiff's detention — Whether ss 189 and 196 constitutionally valid in application to plaintiff.

High Court — Original jurisdiction — Practice — Special case — Drawing of inferences — Where factual basis of questions of law depends on drawing inferences under r 27.08.5 of High Court Rules 2004 (Cth) — Where inferences concern likelihood of plaintiff's future removal from Australia — Where prospects of plaintiff's future removal depend on information provided by plaintiff and cooperation by plaintiff — Where plaintiff made false statements and failed to assist and cooperate — Where plaintiff gave inconsistent accounts of personal and family background — Where plaintiff seeks to take advantage of falsehoods and non-cooperation — Whether inferences can be drawn.

Words and phrases — “habeas corpus”, “identity”, “immigration detention”, “inferences”, “onus of proof”, “prospects of removal”, “real prospect”, “reasonably foreseeable”, “special case”, “unlawful non-citizen”.

ORDER

The questions stated in the special case for the opinion of the Full Court are answered as follows:

• 1. On their proper construction, do ss 189 and 196 of the Migration Act 1958 (Cth) authorise the present detention of the plaintiff?

  Answer: Does not arise.

• 2. If so, are those provisions beyond the legislative power of the Commonwealth insofar as they apply to the plaintiff?

  Answer: Does not arise.

• 3. What relief, if any, should issue to the plaintiff?

  Answer: None.

• 4. Who should pay the costs of and incidental to this special case?

  Answer: The plaintiff.

1 Kiefel CJ, Keane, Nettle And Edelman JJ. Section 189 of the Migration Act 1958 (Cth) (“the Act”) provides that an officer 1 who knows or reasonably suspects that a person in the migration zone 2 is an unlawful non-citizen 3 must detain the person. Section 196 of the Act requires that an unlawful non-citizen detained under s 189 be kept in immigration detention until he or she is removed from Australia under s 198 or s 199, deported under s 200, or granted a visa 4. Section 198(6) of the Act provides that an officer must remove an unlawful non-citizen “as soon as reasonably practicable” if the non-citizen is a detainee and an application for a visa has been refused and finally determined.

2 The plaintiff is an unlawful non-citizen. He has been in immigration detention since his arrival in the migration zone in 2010. He has exhausted his rights under Australian law to seek a visa authorising his entry into Australia. The defendants, the Minister for Home Affairs (“the Minister”) and the Commonwealth, rely on ss 189 and 196 of the Act as lawful authority to detain the plaintiff “for the purpose of removal from Australia as soon as that becomes reasonably practicable”.

The proceedings

3 The plaintiff commenced proceedings in the original jurisdiction of the Court seeking a declaration that his detention is unlawful on the ground that it is not authorised by ss 189 and 196 of the Act. He seeks the issue of a writ of habeas corpus, or mandamus, requiring his release from custody.

4 The plaintiff claimed that there is, in fact, no prospect that he will be removed from Australia to another country. Against that background, it was said on his behalf that his continued detention is not authorised by ss 189 and 196 for two reasons. First, it was said that as a matter of construction, the mandate in ss 189 and 196 to keep an unlawful non-citizen in custodial detention suspends when his or her removal is not practicable at all, or in the reasonably foreseeable future, so that those provisions no longer authorise the plaintiff's detention. Secondly, it was said that even if ss 189 and 196 cannot be read as operating in

that way, they are invalid in their application to the plaintiff because his continued detention is not sufficiently connected to a constitutionally permissible purpose of administrative detention, and so may be imposed only through the exercise of the judicial power of the Commonwealth by the courts designated by Ch III of the Constitution

5 In Al-Kateb v Godwin 5, it had been found as a matter of fact that, although the “possibility of removal in the future remained” 6, there was “no real likelihood or prospect of removal of the appellant in the reasonably foreseeable future” 7. This Court held, by majority (McHugh, Hayne, Callinan and Heydon JJ), that the authority conferred by ss 189 and 196 of the Act is not limited, either as a matter of the proper construction of those provisions 8, or as a matter of their constitutional validity 9, to cases where there is a prospect of the detainee being removed to another country within the reasonably foreseeable future.

6 The minority in Al-Kateb (Gleeson CJ, Gummow and Kirby JJ) concluded, on the basis of the finding of fact referred to above, that ss 189 and 196, properly construed, did not authorise the appellant's detention 10. Gleeson CJ did not consider the constitutional question. Gummow J held that the administrative detention of aliens and their segregation thereby from the Australian community for a purpose unconnected with the regulation of their entry, investigation, admission or deportation is not compatible with Ch III of the Constitution 11. His Honour also concluded that the continued viability of the

purpose of deportation or expulsion cannot be treated by the legislature as a matter purely for the opinion of the executive government 12. Kirby J agreed that indefinite detention at the will of the executive government, and according to its opinions, actions and judgments, is alien to Australia's constitutional arrangements 13. In the present case, the plaintiff submitted, among other things, that the view of the minority should now be adopted by the Court

7 Pursuant to r 27.08 of the High Court Rules 2004 (Cth), the parties agreed upon a special case, stating questions of law for the opinion of the Full Court and setting out the facts said to be necessary to enable the Full Court to decide those questions. At the end of oral argument, the questions were answered as follows:

• (1) On their proper construction, do ss 189 and 196 of the Act authorise the present detention of the plaintiff?

  Answer: Does not arise.

• (2) If so, are those provisions beyond the legislative power of the Commonwealth insofar as they apply to the plaintiff?

  Answer: Does not arise.

• (3) What relief, if any, should issue to the plaintiff?

  Answer: None.

• (4) Who should pay the costs of and incidental to this special case?

  Answer: The plaintiff.

8 At that time, the Court announced that it would publish its reasons at a later date. Our reasons now follow.

Controversial inferences of fact

9 The procedure by way of special case provided for by r 27.08 of the High Court Rules allows the Court to determine questions of law where the parties are able to agree upon the facts that are said to give rise to those questions. In the

present proceeding, the special case contains no agreement between the parties to the effect that there is currently no prospect that the plaintiff will be able to be removed from Australia in the reasonably foreseeable future

10 Rule 27.08.5 of the High Court Rules allows the Court to “draw from the facts stated and documents identified in the special case any inference, whether of fact or law, which might have been drawn from them if proved at a trial” 14. The plaintiff was thus able to argue that the facts in the special case gave rise to one or more inferences of fact of the kind which engaged the reasoning of the minority Justices of the Court in Al-Kateb. In particular, the plaintiff invited the Court to draw one or more of the following inferences from the facts stated, and documents identified, in the special case:

• (1) there is no real prospect or likelihood that the plaintiff will be removed from Australia potentially in his lifetime, or alternatively during his natural life;

• (2) there is no real prospect or likelihood that the plaintiff will be removed from Australia within the reasonably foreseeable future;

• (3) the plaintiff's removal from Australia is not practically attainable; and

• (4) the defendants are not presently able to effect the plaintiff's removal within a reasonable period.

11 The drawing of one or more of these inferences is of critical importance to the argument advanced by the plaintiff. As the defendants submitted, if none of these inferences is drawn, the correctness of Al-Kateb does not arise for decision because, even on the minority view in that case, ss 189 and 196 of the Act provide lawful authority for the plaintiff's detention.

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