Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship

• Jurisdiction: Australia Federal only
• Judge: French CJ.,Hayne J.,Crennan,Bell,Gageler JJ.,Kiefel,Keane JJ.
• Judgment Date: 12 December 2013
• Neutral Citation: [2013] HCA 53,2013-1212 HCA C
• Docket Number: M76/2013
• Court: High Court
• Date: 12 December 2013

[2013] HCA 53

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel, Bell, Gageler And Keane JJ

M76/2013

Plaintiff M76/2013

Plaintiff

and

Minister For Immigration, Multicultural Affairs and Citizenship & ORS

Defendants

Representation

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

J T Gleeson SC, Solicitor-General of the Commonwealth and S P Donaghue SC with N M Wood for the defendants (instructed by Australian Government Solicitor)

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship

Migration — Refugees — Protection visas — Offshore entry persons — Power of Minister to permit valid application for protection visa — Plaintiff assessed to be refugee — Plaintiff subject of adverse security assessment by Australian Security Intelligence Organisation — Minister's department did not refer plaintiff's case for Minister's consideration — Minister's department acted upon invalid regulation — Whether Minister's exercise of power attended by error of law.

Migration — Unlawful non-citizens — Immigration detention pending removal from Australia — Minister's consideration of whether to permit plaintiff to make valid application for visa not completed — Not established that no realistic prospect of removal from Australia in reasonably foreseeable future — Whether appropriate to re-open Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 — Whether plaintiff's detention authorised.

Administrative law — Non-compellable power — Remedies — Declaration — Plaintiff has real interest in raising question of error — Whether declaration appropriate remedy.

Words and phrases — ‘adverse security assessment’, ‘declaration’, ‘error of law’, ‘executive detention’, ‘harmless error’, ‘lift the bar’, ‘real interest’.

Migration Act 1958 (Cth), ss 46A(2), 189, 196, 198. Migration Regulations 1994 (Cth), Sched 2, cl 866.225(a), Sched 4, cl 4002.

ORDER

The questions asked by the parties in the amended Special Case dated 13 August 2013 and referred for consideration by the Full Court be answered as follows:

Question 1

Do ss 189, 196 and 198 of the Migration Act 1958 (Cth) authorise the detention of the Plaintiff?

Answer

The plaintiff's present detention is authorised by ss 189 and 196 of the Act.

Question 2

If the answer to question 1 is ‘yes’, are these provisions beyond the legislative power of the Commonwealth insofar as they apply to the Plaintiff?

Answer

Save that the plaintiff's present detention is validly authorised by ss 189 and 196 of the Act, it is not necessary to answer this question.

Question 3

Does the fact that the Plaintiff's case was not referred to the Minister for him to consider whether to exercise his power under s 46A(2) reveal an error of law?

Answer

Yes.

Question 4

What relief, if any, should issue?

Answer

It should be declared that the exercise of the Minister's power was affected by an error of law in that, in deciding whether to refer the plaintiff's application to the Minister, an officer of the Commonwealth acted upon PIC 4002 as a consideration relevant to the decision.

Question 5

Who should pay the costs of and incidental to this Special Case?

Answer

The defendants.

French CJ.

Introduction

1 In 2008, the Minister for Immigration and Citizenship established a Refugee Status Assessment (‘RSA’) process for the assessment of claims for protection under the Refugees Convention as amended by the Refugees Protocol 1 (‘the Refugees Convention’) by persons known as ‘offshore entry persons’ who had arrived by boat in Australia without a visa. As this Court held in Plaintiff M61/2010E v The Commonwealth ( Offshore Processing Case) 2, the detention of such persons while their claims were being assessed was lawful because the assessment in legal effect informed a statutory process under which the Minister considered whether or not to decide to allow such persons to make applications for protection visas. Applications for such visas by offshore entry persons were otherwise barred by s 46A(1) of the Migration Act 1958 (Cth) (‘the Act’).

2 This Special Case concerns a plaintiff who was found to be a refugee under the RSA process, but was the subject of an adverse security assessment by the Australian Security Intelligence Organisation (‘ASIO’). That assessment was made on the assumption that, if the plaintiff were permitted to apply for a protection visa, it would be a necessary condition of the grant of such a visa, pursuant to public interest criterion 400(‘PIC 4002’), set out in the Migration Regulations 1994, that she not be the subject of an adverse security assessment. That public interest criterion was subsequently found by this Court in Plaintiff M47/201v Director-General of Security3 to be invalid.

3 Officers of the Department of Immigration and Citizenship, acting on ministerial guidelines, and having regard to the adverse security assessment, did not refer the plaintiff's case to the Minister for a decision on whether to allow her to apply for a protection visa. Acknowledging that the plaintiff could not be returned to her country of origin — where, as had been found, she would face persecution on Convention grounds — the Department approached a number of other countries to accept her for resettlement. Those approaches were unsuccessful. The plaintiff asserts error in the Department's reliance upon the adverse security assessment and challenges the lawfulness of her continuing detention.

4 For the reasons that follow, the decision by the Department not to refer to the Minister the plaintiff's request to be allowed to apply for a protection visa was informed by error. Nevertheless, her continuing detention is lawful. The Minister has not yet made a determination whether or not to allow the plaintiff to apply for a visa. If a decision is made not to allow her to apply, the question whether she can be detained indefinitely thereafter, where there is no other country to which she can be sent, may arise. It has not arisen yet. The occasion is not one which warrants consideration of the correctness of the decision of this Court in Al-Kateb v Godwin4. The questions raised in the Special Case should be answered accordingly and a declaration made as proposed in the joint reasons of Crennan, Bell and Gageler JJ 5.

Factual and procedural background

5 On 8 May 2010, the plaintiff, a national of Sri Lanka, entered Australia without a visa at Christmas Island, which was designated under the Act as an ‘excised offshore place’ 6. Having entered without a visa she was an ‘unlawful non-citizen’ within the meaning of the Act 7. Being an unlawful non-citizen who had entered Australia at an excised offshore place, she was also an ‘offshore entry person’ 8. Because she was an unlawful non-citizen, the plaintiff was taken into immigration detention pursuant to s 189 of the Act.

6 The plaintiff claimed at all times to have had a well-founded fear of persecution in Sri Lanka by reason of her race or political opinion. However, because she was an offshore entry person who was in Australia and was an unlawful non-citizen, s 46A(1) of the Act had the effect that an application by her for a visa would not be a valid application. On 27 July 2010, the plaintiff claimed protection as a refugee. She was interviewed by an officer of the Department on 30 July 2010. That interview commenced the RSA process conducted under ministerial guidelines. The nature of the RSA process was described in the Offshore Processing Case. Its purpose was to enable the Minister to consider whether to determine, pursuant to s 46A(2) of the Act, if he thought it in the public interest to do so, that the barring provision in s 46A(1) would not apply to an application by the plaintiff for a visa. Section 46A(7) provided that the Minister was not under a duty to consider whether to exercise

his power under s 46A(2) 9. However, as this Court held in the Offshore Processing Case, the establishment and conduct of the RSA process reflected a ministerial decision to consider exercising the power under s 46A(2) in every case in which an offshore entry person claimed to be a person to whom Australia owed protection obligations 10.

7 On or about 12 September 2011, the plaintiff was found by a delegate of the Minister to be a person to whom Australia owed protection obligations under the Refugees Convention within the meaning of s 36(2)(a) of the Act.

8 In a response dated 10 March 2009 to a departmental submission concerning the application of s 46A(2) to a group of offshore entry persons, the Minister had directed that health, identity and security checks of an offshore entry person should ‘be completed prior to release from detention.’ The Minister added:

‘Unless there are extenuating or special circumstances those requirements should be applied before seek bar to be lifted under Sect 46A(2).’

The term ‘release from detention’ was not apposite. ‘Release from detention’ was not a legal consequence of a referral to the Minister of a request that he exercise his power under s 46A(2). It may be that its use was an elliptical reference to the stage at which a person lodged a valid application for a protection visa following a decision by the Minister to allow such an application to be made. Once a visa was issued, release from immigration detention would ordinarily follow.

9 On 12 September 2011, the Department completed its inquiries as to whether the plaintiff was a refugee and concluded that she was a person to whom Australia owed protection obligations under the Refugees Convention. The plaintiff was interviewed by ASIO on 8 December 2011 for the purpose of conducting a security assessment.

10 On 24 March 2012, the Minister issued further guidelines on ministerial interventions under s 46A(2). In s of the guidelines under the heading ‘CASES NOT TO BE...