Plaintiff M61/2010E v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Hayne,Heydon,Crennan,Kiefel,Bell JJ
• Judgment Date: 11 November 2010
• Neutral Citation: [2010] HCA 41,2010-1111 HCA C
• Docket Number: Matter No M61/2010
• Court: High Court
• Date: 11 November 2010

[2010] HCA 41

HIGH COURT OF AUSTRALIA

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

Matter No M61/2010

Matter No M69 OF 2010

Plaintiff M61/2010E

Plaintiff

and

Commonwealth Of Australia & Ors

Defendants

Plaintiff M69 OF 2010

Plaintiff

and

Commonwealth Of Australia & Ors

Defendants

Representation

D S Mortimer SC with R M Niall and K E Foley for the plaintiff in M61/2010 (instructed by Allens Arthur Robinson Lawyers)

S G E McLeish SC with L G De Ferrari and P D Herzfeld for the plaintiff in M69/2010 (instructed by Holding Redlich)

S J Gageler SC, Solicitor-General of the Commonwealth with S P Donaghue and D F O'Leary for the first and second defendants in both matters (instructed by Australian Government Solicitor)

S P Donaghue for the third and fourth defendants in both matters (instructed by Australian Government Solicitor)

Constitution, s 75(v).

Migration Act 1958 (Cth), ss 46A, 189(3), 193(1)(c), 195A, 196(1), 198(2), 198A.

Migration Amendment (Excision from Migration Zone) Act 2001 (Cth).

Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth).

Plaintiff M61/2010E v Commonwealth of Australia

Plaintiff M69 of 2010 v Commonwealth of Australia

Administrative law — Procedural fairness — Error of law — Refugees — Migration — Offshore processing — Plaintiffs were ‘offshore entry persons’ under Migration Act 1958 (Cth) (‘Migration Act’) — Plaintiffs detained under s 189(3) of Migration Act — Each claimed Australia owed him protection obligations under Refugees Convention as amended by Refugees Protocol — Each plaintiff precluded from making valid visa application unless Minister decided in public interest to allow: s 46A of Migration Act — Minister had power to grant visa in absence of valid application: s 195A of Migration Act — Each plaintiff subject to ‘Refugee Status Assessment’ by departmental officer and subsequent ‘Independent Merits Review’ by independent contractor — Each departmental officer and independent reviewer concluded plaintiff not a person to whom Australia had protection obligations — Powers under ss 46A and 195A ‘may only be exercised by the Minister personally’ — Minister not under duty to consider whether to exercise power under s 46A or s 195A — Whether continuing detention lawful because assessment and review were steps taken under and for purposes of Migration Act — Whether Minister had decided to consider exercising power under s 46A or s 195A of Migration Act in every case where an offshore entry person claimed to be owed protection obligations — Whether those who conducted assessment and review bound to afford procedural fairness to plaintiffs and act according to law — Whether each review procedurally fair and undertaken in accordance with law.

Constitutional law (Cth) — Validity of Commonwealth laws — Section 75(v) of Constitution — Whether s 46A of Migration Act invalid because consideration of exercise of power could not be enforced — Whether Minister's power arbitrary.

High Court — Original jurisdiction — Constitutional writs and orders — Minister not bound to consider exercising powers under s 46A or s 195A of Migration Act — Whether mandamus available — Whether certiorari would have practical utility — Whether declaration would produce foreseeable consequences for the parties.

Words and phrases — ‘Carltona principle’, ‘excised offshore place’, ‘Independent Merits Review’, ‘offshore entry person’, ‘Pacific Strategy’, ‘Refugee Status Assessment’, ‘unlawful non-citizen’.

ORDER

In each matter:

1. Declare that, in recommending to the second defendant that the plaintiff was not a person to whom Australia has protection obligations, the third defendant made an error of law, in that the third defendant did not treat the provisions of the Migration Act 1958 (Cth) and the decisions of Australian courts as binding, and, further, failed to observe the requirements of procedural fairness.

2. Application otherwise dismissed.

3. First and second defendants to pay the plaintiff's costs.

1 French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The plaintiff in each of these matters entered Australian territory by entering the Territory of Christmas Island. The Territory of Christmas Island is what the Migration Act 1958 (Cth) (‘the Migration Act’) calls an ‘excised offshore place’ 1. Neither plaintiff is an Australian citizen. Neither held a valid visa to enter Australia. On arriving at Christmas Island, each was detained under s 189(3) of the Migration Act 2.

2 Each plaintiff is a citizen of Sri Lanka. Each arrived at Christmas Island by boat. Each claims that he is a non-citizen in Australia to whom, in the words of s 36(2)(a) of the Migration Act, ‘Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’ 3. The Migration Act provides 4 that a person who, like each of the plaintiffs, became what the Act calls ‘an unlawful non-citizen’ by entering Australian territory at an excised offshore place, cannot make a valid application for a visa. Accordingly, although the plaintiffs claim to be non-citizens to whom Australia has protection obligations, they cannot validly apply for that class of visa known as protection visas. They therefore cannot engage those provisions of the Migration Act which would oblige the Minister to consider an application and, if satisfied that the criteria for granting the visa are met, grant the visa 5.

3 While the plaintiffs were detained, officers of the Department of Immigration and Citizenship made, in each case, what departmental documents refer to as a ‘Refugee Status Assessment’, or ‘RSA’, and concluded that neither plaintiff was a person to whom Australia had protection obligations. Each

plaintiff asked for the decision made by the relevant officer of the Department to be reviewed. What the Department calls an ‘Independent Merits Review’, or ‘IMR’, was undertaken by persons who were not officers of the Department, but had been engaged by a company with which the Department had contracted for the provision of such reviews. In each case, the reviewer concluded that the plaintiff was not a person to whom Australia had protection obligations.

4 The lawfulness of the plaintiffs' detention is not in issue in these proceedings. But the plaintiffs assigned a radically different basis for the conclusion that their detention was lawful from that given by the Commonwealth and the Minister. The plaintiffs submitted that their continuing detention, while inquiries were made about their claims to be refugees, was lawful because those steps were being taken under and for the purposes of the Migration Act. By contrast, the Commonwealth and the Minister submitted that the plaintiffs were detained while inquiries having no statutory foundation, whether in the Migration Act or otherwise, were conducted and that the detention was lawful because those inquiries might, but need not, lead to an exercise of powers under the Migration Act. The resolution of this issue is critical to the outcome of the litigation.

The proceedings

5 Each plaintiff instituted proceedings in the original jurisdiction of this Court, naming the Commonwealth, the Minister, and the person who conducted the review, as defendants. Plaintiff M61 joined as the fourth defendant the departmental officer who made the original assessment; Plaintiff M69 joined the Secretary of the Department as the fourth defendant. Each plaintiff alleged, among other things, that he was not afforded procedural fairness during the original assessment or the subsequent review. Each plaintiff alleged that the persons who undertook the assessment and the relevant review made errors of law by not treating themselves as bound to apply relevant provisions of the Migration Act and what this Court and other Australian courts have held about the way in which the criterion of being a person to whom Australia owes protection obligations must be understood and applied.

6 The plaintiff in the second matter, Plaintiff M69, further alleged that the provision of the Migration Act which precludes him from making a valid application for a protection visa (s 46A(1)), and the rest of the section of which that provision forms a part, are invalid.

7 Each plaintiff claims relief by way of injunction, certiorari and mandamus. Plaintiff M69 also claims relief by way of declaration. One of the declarations claimed by Plaintiff M69 is a declaration that s 46A of the Migration Act is invalid but these reasons will show that the challenge to the validity of s 46A should fail.

8 In considering whether other relief claimed by the plaintiffs should be granted, attention must focus on what was done in the Independent Merits Review. What was done in the Refugee Status Assessment was overtaken by that review. These reasons will show that, in conducting a review, the reviewer was bound to afford procedural fairness to the person whose claim was being reviewed, and was bound to act according to law by applying relevant provisions of the Migration Act and decided cases. These reasons will further show that, although certiorari and mandamus should not issue, a declaration should be made in each case that the person who conducted the Independent Merits Review made the error of law that has been identified and that the plaintiff was not afforded procedural fairness in the conduct of that review. There being no present threat to remove either plaintiff without a further RSA being undertaken, in which the law would be correctly applied and procedural fairness afforded, it is not now necessary to consider granting an injunction.

9 The most important of the steps that lead to these conclusions can be summarised as follows:

• (a) Because the Minister has decided to consider exercising power under either s 46A or s 195A of the Migration Act in every case where an offshore...