Plaintiff S156/2013 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: Keane JJ,French CJ,Gageler
• Judgment Date: 18 June 2014
• Neutral Citation: [2014] HCA 22
• Docket Number: S156/2013
• Court: High Court
• Date: 18 June 2014

Plaintiff S156/2013

Plaintiff

and

Minister For Immigration And Border Protection & Anor

Defendants

[2014] HCA 22

French CJ, Crennan, Kiefel, Bell and Keane JJ

S156/2013

HIGH COURT OF AUSTRALIA

Plaintiff S156/2013 v Minister for Immigration and Border Protection

Constitutional law (Cth) — Legislative power of Commonwealth — Constitution, s 51(xix) — Aliens power — Section 198AB of Migration Act 1958 (Cth) provides that Minister may designate country as regional processing country — Section 198AD(2) provides that unauthorised maritime arrival (‘UMA’) must, as soon as reasonably practicable, be taken from Australia to regional processing country — Section 198AD(5) provides that, if there are two or more regional processing countries, Minister must, in writing, direct an officer to take UMA, or class of UMAs, to regional processing country specified in direction — Whether ss 198AB and 198AD laws with respect to aliens — Whether ss 198AB and 198AD valid.

Administrative law — Judicial review of administrative decisions — Where Minister designated country as regional processing country under power conferred by s 198AB of Migration Act 1958 (Cth) — Where only condition for exercise of power is that Minister thinks it is in national interest to do so — Whether Minister was obliged to, but did not, take into account other relevant considerations — Whether designation valid.

Administrative law — Judicial review of administrative decisions — Where Minister made direction under s 198AD(5) of Migration Act 1958 (Cth) — Whether direction uncertain or vague — Whether direction valid.

Words and phrases — ‘aliens power’, ‘national interest’, ‘proportionality’, ‘reasonably appropriate and adapted’, ‘relevant considerations’, ‘with respect to’.

Constitution, s 51(xix).

Migration Act 1958 (Cth), Pt 2, Div 8, subdiv B, ss 5(1), 5AA, 5E, 14, 36, 46A, 189, 198, 198AA, 198AB, 198AD, 198B, 474, 476, 476A, 476B, 494AA.

Judiciary Act 1903 (Cth), s 44(1).

Representation

M A Robinson SC with G J Williams and J Williams for the plaintiff (instructed by Adrian Joel & Co Solicitors)

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

ORDER

The questions reserved in the Stated Case dated 13 February 2014 be answered as follows:

1. Is s 198AB of the Migration Act 1958 (Cth) invalid on the ground that it is not supported by any head of power in s 51 of the Constitution?

Answer: No.

2. Is s 198AD of the Migration Act 1958 (Cth) invalid on the ground that it is not supported by any head of power in s 51 of the Constitution?

Answer: No.

3. Is the Minister's designation that PNG is a regional processing country made on 9 October 2012 under s 198AB of the Migration Act 1958 (Cth) invalid?

Answer: No.

4. Is the Minister's direction made on 29 July 2013 under s 198AD(5) of the Migration Act 1958 (Cth) invalid?

Answer: No.

5. Are these proceedings otherwise able to be remitted for determination in the Federal Court of Australia or the Federal Circuit Court of Australia?

Answer: The proceedings are otherwise able to be remitted for determination in the Federal Circuit Court of Australia.

6. Who should pay the costs of and incidental to this Stated Case?

Answer: The plaintiff.

1 French CJ, Hayne, Kiefel, Gageler and Keane JJ. The plaintiff is a citizen of the Islamic Republic of Iran and entered Australia's migration zone by sea at Christmas Island on 23 July 2013. Christmas Island is an ‘excised offshore place’ within the meaning of s 5(1) of the Migration Act 1958 (Cth). An officer of what is now the Department of Immigration and Border Protection 1 (‘the Department’) detained the plaintiff, pursuant to the power given by s 189(3) of the Migration Act with respect to unlawful non-citizens 2. The plaintiff's method of entry into Australia also qualified him as an ‘unauthorised maritime arrival’ (‘a UMA’) 3 for the purposes of the Migration Act.

2 The plaintiff claims that he is a member of a minority religious group and that he fears persecution in Iran. He claims to be a refugee within the meaning of the international convention relating to refugees (‘the Refugees Convention’) 4, to which Australia is a party.

3 The plaintiff did not make an application for a protection visa 5. As a UMA who is an unlawful non-citizen, he could not make a valid application for a visa 6 unless the first defendant, the Minister for Immigration and Border Protection (‘the Minister’), exercised his discretion under s 46A(2) of the Migration Act. The Minister did not consider lifting the bar created by s 46A(1) and no steps were taken to enable him to do so. The plaintiff made no request for such consideration.

4 Whilst on Christmas Island, the plaintiff was advised by an officer of the Department that he would be sent to Manus Island in the Independent State of Papua New Guinea (‘PNG’); that it would take a long time for any refugee claim

he might make to be processed; and that, even if he was found to be a refugee, he would never be resettled in Australia. The assessment of the plaintiff's claim to be a refugee was not undertaken while the plaintiff was in Australia and would not appear to have been undertaken by Australia subsequent to his removal. The Minister had designated PNG to be a ‘regional processing country’ before the plaintiff's arrival at Christmas Island. In consequence of that designation and a direction given by the Minister, both of which are provided for in subdiv B of Div 8 of Pt 2 of the Migration Act, the plaintiff was removed to an assessment centre at the PNG Naval Base on Manus Island (‘the Centre’).

5 Since his arrival on Manus Island, the plaintiff has resided at the Centre, where he is effectively detained. In the Stated Case for this Court, it is said that an officer of the PNG Immigration Department has the day-to-day management and control of the Centre and that Australia has appointed a co-ordinator to assist that officer, including by managing all Australian officials and service providers at the Centre.

6 The extent to which Australia participates in the continued detention of the plaintiff is not evident from these facts or the Administrative Arrangements between PNG and Australia to which they relate 7. In any event, the Stated Case does not raise questions as to who detains the plaintiff or the authority under which he is detained.

7 The questions which are reserved for the determination of this Court concern the constitutional validity of provisions of subdiv B of Div 8 of Pt 2 of the Migration Act for the designation by the Minister of a country as a regional processing country and for the Minister's direction as to the regional processing country to which persons such as the plaintiff are to be taken; and the validity of the decisions made by the Minister to designate PNG as a regional processing country and to direct the removal of classes of UMAs, to one of which the plaintiff belongs.

Migration Act provisions

8 Part 2 of the Migration Act is entitled ‘Control of arrival and presence of non-citizens’ and Div of that Part ‘Removal of unlawful non-citizens etc’. Subdivision A of Div is headed ‘Removal’ and subdiv B ‘Regional processing’.

9 Section 198(2) in subdiv A provides that an officer 8 must remove from Australia, as soon as reasonably practicable, an unlawful non-citizen who, inter alia, has not made a valid application for a visa (sub-s (2)(c)(i)). As has been mentioned, the plaintiff was unable to make such an application. Section 198AD in subdiv B applies to a UMA who is detained under s 189, as the plaintiff was. Section 198AD(2) provides that an officer must, as soon as reasonably practicable, take a UMA from Australia to a regional processing country.

10 The reason for subdiv B, and its provisions relating to the removal of persons to a regional processing country designated by the Minister, is stated in s 198AA:

‘This Subdivision is enacted because the Parliament considers that:

• (a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and

• (b) unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and

• (c) it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and

• (d) the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.’

Subdivision B was inserted into the Migration Act by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), with effect from 18 August 2012. The Revised Explanatory Memorandum to that Act 9 said that it was a legislative response to the decision of this Court in the Malaysian Declaration Case10, which was handed down on 31 August 2011. It was acknowledged by the defendants during the hearing of this matter that a consequence of the removal of persons to a regional processing country following upon the Minister's exercise of the power to designate that country could be that Australia does not meet its international obligations. That possibility and its consequences need not be gone into for the purposes of the Stated Case.

11 Section 198AB(1) provides that the Minister may, by legislative instrument, designate that a country is a regional processing country. The only express condition for the exercise of this power is that ‘the Minister thinks that it is in the national interest to designate the country to be a...