Migration Detention Processing found in Error by High Court in Plaintiff M76/2013

In Plaintiff M76/2013 v Minister For Immigration, Multicultural Affairs and Citizenship [2013] HCA 53 (delivered 12 December 2013) the High Court of Australia unanimously declared that an error of law had affected the exercise of power by the Minister for Immigration, Multicultural Affairs and Citizenship to determine whether to permit the plaintiff to make a valid application for a visa.

The error of law was that an officer of the Commonwealth, in deciding not to refer the plaintiff's case to the Minister, acted upon an incorrect view of the law by considering an invalid regulation to be relevant to the decision.

Background

The case related to the ongoing detention of a Sri Lankan refugee designated an "unauthorised maritime arrival" who arrived in Australia at Christmas Island by boat in 2010 without a visa.

Because the refugee was a Sri Lankan national of Tamil ethnic origin and had been a member of the Liberation Tigers of Tamil Eelam and because she arrived at Christmas Island without a visa the Migration Act 1958 (Cth) (the Act) prevented her from making a valid application for a visa unless the Minister exercised his power under the Act to permit her to apply for a visa.

The Minister however had declined to exercise his power to make an exception to the rule even though the Minister did not intend to remove the plaintiff to Sri Lanka. The plaintiff was detained purportedly under the Act sections 189(1) and 196(1) for the "purpose of a pending removal".

In order to consider whether to exercise that power, the Minister had put in place processes by which his department assessed whether the plaintiff was a person in respect of whom Australia owed protection obligations under the International Refugees Convention. The plaintiff was assessed to be such a person. However, the plaintiff was also the subject of an "adverse security assessment" made by the Australian Security Intelligence Organisation (ASIO) and the Minister's department took that adverse security assessment to mean that the plaintiff could not satisfy a criterion (known as public interest criterion 4002) for the grant of a visa. For that reason the Minister's department did not refer the plaintiff's case to the Minister for exercise his discretion. Subsequently, in another case Plaintiff M47/2012 v Director-General of Security [2012] HCA 46, the High Court of Australia held that "public interest criterion 4002" was not valid.

This resulted in the plaintiff being held in immigration detention and because of her refugee status, unable to be returned to Sri Lanka. Approaches to third countries for her to be resettled had also failed.

Nature of Claim

The plaintiff sought habeas corpus and declaratory relief, claiming on both statutory and constitutional grounds that her detention was unauthorised.

The Result

The High Court held in a unanimous decision that the exercise of the Minister's power was affected by an error of law. The Minister's department had acted upon an invalid regulation in making its decision not to refer the plaintiff's case to the Minister. Because of the error the court also held that the Minister had yet to complete his consideration of whether to permit the plaintiff to make a valid application for a visa, and that as a result the plaintiff's present detention, being for the purpose of allowing that consideration to be completed according to law; was authorised by the Act. Following from this a majority of the Court then found that it was unnecessary to decide the plaintiff's constitutional claim or whether to reopen the decision in Al-Kateb v Godwin.

Reaction

A report in the SMH quotes Refugee lawyer David Manne as expressing "disappointment that Thursday's decision did not resolve the predicament of Ranjini (the plaintiff) and almost 50 other refugees deemed security threats. Some have been in detention more than four years."

The report goes on to say that while the court found an error of law, it did not reopen the question of whether the plaintiff's indefinite detention was lawful.

The Government however continues its strong support for current policy as the SMH reports quoting the Immigration Minister:

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

• Plaintiff M76/2013 v Minister For Immigration, Multicultural Affairs and Citizenship [2013] HCA 53 (delivered 12 December 2013)
• High Court ruling leaves asylum seekers in limbo (Sydney Morning Herald - 13 December 2013)