High Court Ruling in Fairness v Minister for Immigration

On Thursday the High Court made its judgment in the case of Plaintiff S4-2014 v Minister for Immigration and Border Protection. The principal matter of the case concerned the lawfulness of decisions made by the Minister for Immigration regarding visas. Unable to legislate for the reintroduction of temporary protection visas, the Minister for Immigration has been poking at loopholes in the Migration Act in order to offer refuges temporary visas and prevent them from applying for permanent protection visas. The Court ruled that such a loophole does not exist and that the Government acted unlawfully in the case at hand. This decision will be welcomed by significant numbers of refugees who were granted temporary visas through the Minister’s discretionary powers under the Act, only to be told that, as a result, they were ineligible to apply for protection visas.

The Court also made judgments on mandatory detention that will substantially change Australia’s current program of detention for the sake of deterrence. Given that the Court’s ruling on detention relates to both the Constitution and a piece of legislation to which the Senate is reluctant to pass amendments, the Government will need to drastically change its practices.

The relevant parts of the Court’s ruling are below. In summary, the Court ruled that a person arriving “unlawfully” (that is, by boat without a visa) is not an “outlaw” and cannot be detained except in accordance with law. Lawfully, the purpose of detention can only be one of three purposes: removal from Australia; receiving, investigating and determining an application for a visa permitting an alien to enter and remain in Australia; or the purpose of determining whether to permit a valid application for a visa.

Because detention under the Act can only be for the purposes identified, the purposes must be pursued and carried into effect as soon as reasonably practicable. Its duration must be fixed by reference to what is both necessary and incidental to the execution of those powers and the fulfilment of those purposes. In other words, detention cannot simply be for the sake of detention, to deter people from travelling to Australia by boat.

21. As was noted at the start of these reasons, there was no dispute that the plaintiff was lawfully taken into immigration detention upon his arrival at Christmas Island. Nor was there any dispute that the plaintiff's detention was thereafter justified as detention under and for the purposes of the Act. Hence, there was no dispute that the plaintiff could lawfully be, and was, detained for the purposes of the Minister deciding whether to permit the plaintiff to make a valid application for a protection visa. Central to the decision of the issues in this case is an understanding of what follows from the observation that the plaintiff's detention for the purposes of the Minister considering whether to exercise that power was lawful.

22. The defendants rightly accepted that the Act does not authorise detention at the unconstrained discretion of the Executive. In this case, however, it is useful to begin by identifying when detention under the Act is authorised.

23. The object of the Act, stated in s 4(1), is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. Both the text and the structure of the Act show that regulation of the coming into, and presence in, Australia of non-citizens is effected by providing that the Act – and the visas for which it provides – are to "be the only source of the right of non-citizens to so enter or remain" in Australia, and by further providing that non-citizens whose presence in Australia is not permitted by the Act shall be removed or deported. More particularly, the Act gives the Executive power to detain non-citizens in the context, and for the purposes, of the Executive's statutory power to remove from Australia an alien who is an unlawful non-citizen. The statutory power to remove an unlawful non-citizen is coupled with the statutory obligation to effect that removal "as soon as reasonably practicable".

24. An alien within Australia, whether lawfully or not, is not an outlaw. An alien within Australia, whether lawfully or not, cannot be detained except under and in accordance with law. The detention which the Act authorises in respect of an alien who is an unlawful non-citizen can be described most generally as detention under and for the purposes of the Act. Detention under the Act is not an end in itself. It is not detention in execution of any conviction. Detention under the Act is in aid of the object stated in s 4(1) of the Act.

25. The detention which the Act authorises is detention by the Executive without judicial order or warrant. In Chu Kheng Lim v Minister for Immigration this Court held that laws providing for the mandatory detention of certain aliens were valid and did not infringe Ch III of the Constitution. The Court held that the statutory conferral on the Executive of authority to detain an alien, when conferred in the context of an executive power of deportation or expulsion, constitutes an incident of that executive power. Likewise, the Court held that authority to detain an alien in custody, when conferred in the context and for the purpose of executive powers to receive, investigate and determine an application by that alien for permission to enter and remain in Australia, constitutes an incident of those executive powers.

26. Importantly, the Court further held that the provisions of the Act which then authorised mandatory detention of certain aliens were valid laws if the detention which those laws required and authorised was limited to what was 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 to be made and considered. It follows that 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. Lawfully, that purpose can only be one of three purposes: the purpose of removal from Australia; the purpose of receiving, investigating and determining an application for a visa permitting the alien to enter and remain in Australia; or, in a case such as the present, the purpose of determining whether to permit a valid application for a visa.

27. Because those who are designated as unauthorised maritime arrivals cannot make a valid application for a visa, the primary purpose for detaining those persons is for effecting their removal from Australia. In this case, however, once the Minister decided that he would consider whether he would exercise his power to permit the plaintiff (and others) to make a valid application for a visa, the detention was for a more complex purpose: for determining whether to permit a valid application for a visa (by making inquiries into matters relevant to the exercise of the power under s 46A and then deciding whether to exercise that power), and thereafter (according to the decision about exercising power under s 46A(2)) either for removal or for the processing of the permitted application.

28. Because detention under the Act can only be for the purposes identified, the purposes must be pursued and carried into effect as soon as reasonably practicable. That conclusion follows from the purposive nature of detention under the Act. But it is a conclusion that is reinforced by consideration of the text and structure of the Act, understood against the background of fundamental principle.

29. The duration of any form of detention, and thus its lawfulness, must be capable of being determined at any time and from time to time. Otherwise, the lawfulness of the detention could not be determined and enforced by the courts, and, ultimately, by this Court. And because immigration detention is not discretionary, but is an incident of the execution of particular powers of the Executive, it must serve the purposes of the Act and its duration must be fixed by reference to what is both necessary and incidental to the execution of those powers and the fulfilment of those purposes. These criteria, against which the lawfulness of detention is to be judged, are set at the start of the detention. No doubt, the facts to which these criteria are to be applied may, and often will, vary according to the course of inquiries and decisions that are made along the way. In cases like the present, where inquiries were made about whether to permit the plaintiff to apply for a protection visa, application of the criteria which fix the duration of detention varies according to such matters as whether the detainee is found to be a refugee within the meaning of Art 1 of the Refugees Convention. But the criteria to be applied at any time during the currency of the detention in determining its lawfulness do not, and may not, vary.