Plaintiff S4/2014 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: French CJ,Hayne,Crennan,Kiefel,Keane JJ
• Judgment Date: 11 September 2014
• Neutral Citation: [2014] HCA 34
• Date: 11 September 2014
• Docket Number: S4/2014
• Court: High Court

[2014] HCA 34

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel and Keane JJ

S4/2014

Plaintiff S4/2014

Plaintiff

and

Minister for Immigration and Border Protection & Anor

Defendants

Representation

S B Lloyd SC with J B King for the plaintiff (instructed by Fragomen)

S P Donaghue QC with P D Herzfeld for the defendants (instructed by Australian Government Solicitor)

Migration Act 1958 (Cth), ss 46A, 91K, 195A. .

Plaintiff S4/2014 v Minister for Immigration and Border Protection

Migration — Refugees — Minister decided to consider whether to exercise power under s 46A(2) of Migration Act 1958 (Cth) to permit plaintiff to apply for protection visa — Plaintiff detained while Minister's department inquired into plaintiff's eligibility for protection visa — Minister's department determined plaintiff satisfied requirements for protection visa — Minister made no decision to permit or refuse to permit plaintiff to apply for protection visa — Minister exercised power under s 195A(2) to grant plaintiff temporary safe haven visa and temporary humanitarian concern visa — Temporary safe haven visa engaged bar imposed by s 91K on making valid application for protection visa — Whether grants of temporary safe haven visa and temporary humanitarian concern visa invalid — Whether decision to grant temporary safe haven visa severable from decision to grant temporary humanitarian concern visa — Whether Minister bound to permit valid application for protection visa — Whether Minister bound to determine how s 46A(2) power will be exercised.

ORDER

The questions asked by the parties in the special case dated 29 April 2014 and referred for consideration by the Full Court be answered as follows:

Question 1

Was the grant of the TSH visa [Subclass 449 Humanitarian Stay (Temporary) visa] to the plaintiff invalid?

Answer

Yes.

Question 2

If the answer to question 1 is ‘yes’, was the grant of the THC visa [Subclass 786 Temporary (Humanitarian Concern) visa] to the plaintiff invalid?

Answer

Yes.

Question 3

If the answer to question 2 is ‘yes’, is the Minister bound to determine that s 46A(1) of the Migration Act does not apply to an application by the plaintiff for a protection visa?

Answer

It is not appropriate to answer this question.

Question 4

If the answer to question 3 is ‘no’, is the Minister bound to determine whether s 46A(1) of the Migration Act does not apply to an application by the plaintiff for a protection visa?

Answer

It is not appropriate to answer this question.

Question 5

What, if any, relief sought in the plaintiff's further proposed statement of claim filed 8 April 2014 should be granted to the plaintiff?

Answer

Certiorari to quash the decision of the Minister dated 4 February 2014 to grant to the plaintiff a Subclass 449 Humanitarian Stay (Temporary) visa and a Subclass 786 Temporary (Humanitarian Concern) visa together with an order that the defendants pay the plaintiff's costs of the proceeding in this Court including the costs of the special case.

Question 6

Who should pay the costs of the proceeding?

Answer

The defendants.

French CJ, Hayne, Crennan, Kiefel and Keane JJ

The issue

1 The plaintiff had no visa permitting him to enter or remain in Australia. On arrival in Australia, at Christmas Island, the plaintiff was lawfully taken into immigration detention. His detention was authorised by, but subject to, the Migration Act 1958 (Cth) (‘the Act’). Section 46A(1) of the Act prevented him from making a valid application for any visa.

2 The Minister decided to consider whether to exercise his power under s 46A(2) of the Act to permit the plaintiff to apply for a protection visa. The Minister's department, following procedures the Minister had approved, inquired into whether the plaintiff would be eligible for a protection visa. The plaintiff remained in detention for more than two years while those inquiries were made.

3 The department determined that the plaintiff was ‘grant ready’. That is, the department determined that the plaintiff was a refugee 1 and satisfied relevant health and character requirements for the grant of a protection visa.

4 Although the plaintiff had been detained for more than two years while the Minister caused inquiries to be made about whether to permit the plaintiff to make a valid application for a protection visa, the Minister made no decision to permit or refuse to permit the making of a valid application. Instead, the Minister, acting of his own motion under s 195A(2) 2, granted the plaintiff two visas: a temporary safe haven visa 3 and a temporary humanitarian concern visa 4. The temporary safe haven visa was valid for seven days. It is, therefore,

convenient to refer to it as ‘the seven-day visa’. The other visa (‘the THC visa’) was valid for three years.

5 The seven-day visa was of a type which engages the provisions of subdiv AJ (ss 91H-91L) of Div 3 of Pt 2 of the Act. One of those provisions, s 91K, prevents the plaintiff making, so long as he remains in Australia, a valid application for any visa other than a temporary safe haven visa. It was not disputed that the Minister granted the seven-day visa for the purpose of engaging the prohibition on making a valid application for any visa other than another temporary safe haven visa.

6 Was the grant of either or both of the seven-day visa and the THC visa lawful? Was the Minister obliged to decide whether to permit the plaintiff to apply for a protection visa? Did s 195A(2) empower the Minister, without deciding whether to permit the plaintiff to apply for a protection visa, to grant the plaintiff a visa which precluded his making a valid application for a protection visa?

Conclusions

7 The grant of the seven-day visa was invalid. The Minister's decision to consider whether to exercise his power under s 46A(2) to permit the plaintiff to make a valid application for a protection visa prolonged the plaintiff's detention for so long as was necessary to make relevant inquiries and then make a decision under s 46A. So long as the Minister had not decided, under s 46A, whether to permit the plaintiff to make a valid application for a protection visa, s 195A did not empower the Minister to grant a visa which precluded the plaintiff making a valid application for a protection visa.

8 The decision to grant both the seven-day visa and the THC visa was a single decision which cannot be severed and treated as if there had been two separate decisions. Accordingly, the grant of the THC visa falls with the grant of the seven-day visa.

9 Counsel for the plaintiff accepted that the consequence of these conclusions was that the plaintiff would revert to the status of an unlawful non-citizen, liable to detention. Regardless of whether the plaintiff is detained again, the decision whether to exercise power under s 46A(2) must be made as soon as reasonably practicable.

Issues not reached

10 Some issues which were touched on in argument need not be decided. It is not necessary to decide whether the proceedings, as now framed, permit consideration of whether the Minister's grant of the seven-day visa was for a purpose other than one permitted by the Act. Nothing in these reasons should be understood as assuming or deciding that the grant of that visa was for a proper purpose. Nor should these reasons be understood as assuming or deciding that the decision which the Minister should now be required to make under s 46A is unconstrained either by the fact and circumstances of the plaintiff's prolonged detention or by the particular decisions which were then made about the matters to be the subject of inquiry and decision. What matters may now lawfully be taken into account by the Minister when deciding whether it is in the public interest to exercise the power given by s 46A(2) is an issue that has not been argued, and is not decided, in this matter.

11 To explain the conclusions that are reached it is desirable to say something further about the proceedings and the facts.

The proceedings

12 The plaintiff has brought proceedings against the Minister and the Commonwealth in the original jurisdiction of this Court challenging the grant of the disputed visas. The parties have agreed to state, in the form of a special case, some questions of law for the opinion of the Full Court.

13 The first two questions ask whether the grants of the seven-day visa and the THC visa were invalid. Two further questions are then asked about s 46A. The first of those further questions is predicated upon a decision that the grant of the THC visa was invalid. In effect, it asks whether, if the grant of the THC visa was invalid, the Minister is bound to determine that the plaintiff may make a valid application for a protection visa. The second question about s 46A is predicated upon the conclusions that the grant of the THC visa was invalid and that the Minister is not bound to decide that the plaintiff may make a valid application for a protection visa. In effect, it asks whether the Minister is bound to determine how the s 46A power will be exercised. Further questions are asked about relief and costs.

The facts

14 The plaintiff is stateless. In December 2011, he came to Australia by boat, first entering Australian territory at Christmas Island. He had no visa permitting him to enter or remain in Australia. On arrival at Christmas Island, the plaintiff became 5 an ‘unlawful non-citizen’ and what the Act then referred 6 to as an ‘offshore entry person’. Because he was an unlawful non-citizen and an offshore entry person, the plaintiff, while in Australia, could not make 7 a valid application for any visa unless the Minister determined, under s 46A(2) of the Act, that the prohibition does not apply to an application by the plaintiff for a visa of a specified class. The Minister's power under s 46A(2) may only be...