Prolonged Immigration Detention Must Have Purpose: [2014] HCA 34
Thursday 11 September 2014 @ 12.32 p.m. | Immigration
The High Court has unanimously declared that the grant of two visas by the Minister of Immigration and Border Protection to the plaintiff was invalid in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34. The special case had very specific circumstances, but the decision demonstrates the need for detention under the Migration Act 1958 (Cth) (“the Act”) to be carried out for a specific, lawful purpose under the Act.
Facts
The plaintiff in this case was a stateless person who arrived in Australia by boat in December 2011. He was taken into detention under the Act. Section 46A(1) of the Act operated to prevent him from making a valid visa application. However, the Minister could exercise his discretion under s 46A(2) of the Act and grant the plaintiff a protection visa.
The plaintiff was detained while the Department of Immigration inquired into the plaintiff’s eligibility for the visa. The department eventually found that the plaintiff was a refugee and satisfied all the necessary health and character requirements. The process took two years.
However, the Minister instead used “public interest” powers under s 195A(2) of the Act to grant the plaintiff a temporary safe haven visa (valid for seven days) and a temporary humanitarian visa (valid for three years). The High Court said:
“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.”
The plaintiff appealed to the High Court, claiming that the grants of the visas were invalid under these circumstances.
Decision
The High Court unanimously accepted that the visas were invalid. They cited their earlier decision in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, where the Court held:
“…detention under and for the purposes of the Act is limited by the purposes for which the detention is being effected. And it further follows that, when describing and justifying detention as being under and for the purposes of the Act, it will always be necessary to identify the purpose for the detention.” [at 26]
The Court held that there are three purposes of detention that are lawful under the act:
- the purpose of removal from Australia;
- the purpose of receiving, investigating and determining an application for a visa; and
- the purpose of determining whether to permit a valid application for a visa [at 26].
The Court also said that the purposes “must be pursued and carried into effect as soon as reasonably practicable” [at 28].
The power given to the Minister under s 195A(2) is very broad, as “[t]he only condition expressly stated for the exercise of the power is "[i]f the Minister thinks that it is in the public interest to do so"” [at 36]. The defendants argued that this meant the Minister could supersede his previous decision to consider granting the plaintiff a visa under s 46A(2). However, the Court disagreed, finding that:
“[w]here, as here, an unlawful non-citizen is detained for the purpose of considering the exercise of power under s 46A, thereby prolonging detention, other powers given by the Act are to be construed as not permitting the making of a decision which would foreclose the exercise of the power under s 46A before a decision is made, thus depriving the prolongation of detention of its purpose.” [at 41]
The Court found that following Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the Act must be read and construed as a whole:
“Reading s 195A as empowering the grant of a visa of the kind described wrongly assumes that the powers given by ss 46A and 195A are to be understood as wholly independent of each other. They are not. The Minister may not circumvent the provisions of s 46A by resort to s 195A. Not least is that so when, as in this case, the grant of a visa of the kind just described would deprive the prolongation of the plaintiff's detention of its purpose.” [at 46]
The plaintiff had submitted that the decisions to grant the visas were severable, and only the seven-day visa should be quashed. But the Court rejected that argument, and quashed the decision to grant both visas. The Court also held it was not appropriate to answer other questions stated in the case about whether and how the Minister is bound to exercise his powers under s 46A.
While the plaintiff was successful in the case, the consequence is that he reverts to his former status as an unlawful non-citizen and may be detained. This leaves the next move to the Minister, who will determine whether or not to exercise his power under s 46A(2).
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Sources:
Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34 (11 September 2014) - and judgment summary
