On 14 October 2014, PLPRU members Alex Reilly, Gabrielle Appleby, and Anna Olijnyk were joined by Mike Waite of the Crown Solicitors Office and Stephen McDonald of Hanson Chambers to discuss the recent High Court case, Plaintiff S4-2014 v Minister for Immigration and Border Protection HCA 34. The case involved a challenge to the power of the Minister for Immigration and Border Protection to grant the plaintiff a Temporary Safe Haven visa and a Temporary Humanitarian Concern visa under s 195A of the Migration Act, and thereby cease consideration of the plaintiff’s application for a protection visa.
The plaintiff was a stateless person who came to Australia by boat in December 2011 seeking asylum. Section 46A(1) of the Migration Act 1958 prevents ‘unauthorised maritime arrivals’ from making a valid application for a visa, unless under s 46A(2) the Minister determines it is in the ‘public interest’ to allow an application. As a result of Plaintiff M61 in 2013 (the Offshore Processing case), the Minister has agreed to consider exercising the power to ‘lift the bar under s 46A(2) for all offshore entry persons’. However, after more than two years in immigration detention , the power had not been exercised in the case of the plaintiff. The facts revealed that the Department agreed that the plaintiff was a person to whom Australia owed protection obligations, and that the only inquiries that needed to be made were about health and character.
The High Court held that the grant of the visas under s 195A were invalid on the basis that it frustrated the Minister’s consideration of whether to lift the bar and entertain an application for a protection visa under s 46A. The decision was based on an interpretation of the relationship between sections 46A and s 195A. This interpretation was in turn influenced by constitutional limits on the power to detain aliens expressed in the case of Chu Kheng Lim, namely; that laws for the detention of aliens must be limited to what is ‘reasonably capable of being seen as necessary for the purposes of deportation or to enable an application for permission to enter and remain in Australia’. The Migration Act authorises the detention of aliens for the purpose of removing them from Australia or for the purpose of ‘receiving, investigating and determining an application for a visa’, or for determining whether to permit a valid application for a visa’. [para 26] The Court held these purposes must be ‘pursued and carried into effect as soon as reasonably practicable’ [para 28] and that the duration of detention ‘ must be fixed by reference to what is both necessary and incidental to the execution of .. the fulfilment of those purposes’ [para 29].
Within these guiding principles, the Court held that since the plaintiff had been detained for a long period of time under s 46A(2) while the Minister considered whether to lift the bar and allow the plaintiff to make a protection visa application, the Minister could not ‘foreclose the exercise of the power under s46A before a decision is made’. [para 41]
A number of points arose in our discussion of the case. We noted that the Court relied on Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 as authority for the power to detain aliens and the affect this had on the interpretation of the Migration Act, and not the more recent case of Al-Kateb v Godwin (2004) 219 CLR 562. This might suggest a move back to stricter limits on the power to detain. This is reinforced by the result of the case. It would seem that the longer an alien is detained, the more scrutiny that will be applied to decisions of the Minister that might either prolong detention, or in the context of the case, frustrate an administrative process for which detention had been justified. However, it must be noted that the Court did not question the plaintiff’s detention for over 2 years, despite little if any discernible activity by the Minister in progressing the decision to lift the bar. Also, the Court did not question whether the length of detention suggested the purpose of the detention was no longer for a statutory purpose. The decision may then, not represent a significant departure from Al-Kateb, although we noted that Hayne J may have shifted his position from that case to join the unanimous judgment.