Plaintiff S4-2014 v Minister for Immigration and Border Protection  HCA 34 (11 September 2014)
The High Court unanimously held invalid the grant by the Minister for Immigration and Border Protection of a temporary safe haven visa to the plaintiff – a stateless asylum seeker – which had the effect of precluding the plaintiff from making a valid application for a protection visa, in circumstances where the plaintiff’s detention had been prolonged for the purpose of the Minister considering the exercise of power to allow the plaintiff to make a valid application for a visa of his choice.
In December 2011, the plaintiff arrived in Australia by boat without a valid visa permitting him to enter or remain in Australia. Pursuant to the Migration Act 1958 (Cth) (the ‘Act’), the plaintiff was taken into immigration detention as an ‘unlawful non-citizen’ and ‘offshore entry person’ (now termed an ‘unauthorised maritime arrival’). Section 46A(1) of the Act prevented the plaintiff from making a valid application for any visa unless the Minister decided to consider whether to exercise his power under s 46A(2) to permit the plaintiff to apply for a visa (ie ‘lift the bar’).
The Minister decided to consider whether to exercise his power under s 46A(2), and the plaintiff remained in detention for more than two years while the Minister’s department inquired into the plaintiff’s eligibility for a protection visa. The department determined that the plaintiff was a refugee (within the meaning of article 1 of the Refugees Convention) and satisfied relevant health and character requirements for the grant of a protection visa.
However, the Minister made no decision to permit or refuse the making of a valid visa application. Instead, the Minister, acting of his own motion under s 195A(2) of the Act – which gives the Minister power to grant a visa to a person in immigration detention if the Minister thinks it is in the public interest to do so – granted the plaintiff two visas: a temporary safe haven visa (valid for 7 days) and a temporary humanitarian concern visa (valid for 3 years). Although the prohibition in s 46A(1) no longer applied once the plaintiff became a lawful non-citizen by reason of the grant of the visas, the grant of the temporary safe haven visa engaged s 91K of the Act which prohibited the plaintiff applying for any visa other than a temporary safe haven visa.
The key question before the Court was whether the grant of the two temporary visas – which the Court accepted as a single Ministerial decision – was lawful.
First, the Court considered the purpose of the plaintiff’s detention. Relying on the principles set out in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, the Court held that detention under and for the purposes of the Act is limited by the purposes for which the detention is being effected: at . The primary purpose of detaining unauthorised maritime arrivals is to effect their removal from Australia. However, if the Minister decides to consider whether to exercise his power to permit a detainee to make a valid visa application – as in the case of the plaintiff – the purpose of the detention is twofold: for determining whether to permit a valid application for a visa and, thereafter, either for processing the application or deporting the applicant.
The Court also held that, because detention under the Act can only be for the purposes specified under the Act, the purposes must be pursued and carried into effect as soon as reasonably practicable: at . This conclusion follows from the purposive nature of detention under the Act, and the text and structure of the Act when read as a whole. Accordingly, the decision to exercise the power under s 46A(2), any necessary inquiry, and the decision itself, must all be made as soon as reasonably practicable. Departure from this requirement would entail a departure from the purpose of the plaintiff’s detention, rendering such detention unlawful.
Second, the Court considered the Minister’s exercise of power under s 195A(2) of the Act to grant the plaintiff the two temporary visas. As a starting point, the Court emphasised the proposition that an Act must be read as a whole on the prima facie basis that its provisions are intended to give effect to harmonious goals (per Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). Sections 46A and 195A are not wholly independent of each other and must be construed in a way that permits harmonious operation of the two sections in a coherent scheme for detention of unlawful non-citizens.
The determinative question is whether, the Minister having decided to consider the exercise of the s 46A(2) power but not having decided how the power will be exercised, s 195A(2) gives the Minister power to grant a visa which forbids the very thing which was the subject of the uncompleted consideration (ie making a valid application for a visa). The Court found that where, as here, an unlawful non-citizen is detained for the purpose of considering the exercise of power under s 46A(2), thereby prolonging detention, other powers given by the Act are to be construed as not permitting the Minister to grant a visa which forecloses the exercise of the power under s 46A(2) before a decision is made, thus depriving the prolongation of detention of its purpose: at . The generality of the power given by s 195A(2) must be read as being subject to the prior exercise of power under s 46A(2). Accordingly, the granting of the two visas under s 195A(2) was invalid.
The Court noted that the restriction imposed by the operation of s 46A(2) on the s 195A(2) power is only relevant in this case because the granting of the temporary safe haven visa engaged the prohibition, under s 91K, against the plaintiff making a valid application for any other class of visa. Otherwise, there would be no intersection between the two powers and, in the present case, s 195A(2) could have been used by the Minister to lawfully end the plaintiff’s detention.
Finally, relying on its judgment in the Offshore Processing Case (Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319) which held that the Minister could not be compelled to exercise his power under s 46A(2), the Court refused to determine whether the Minister was now required to decide whether to permit the plaintiff to make a valid application for a protection visa. However, the Court did note that it is not open to the Minister to detain the plaintiff for any purpose other than the determination, as soon as reasonably practicable, of whether to permit the plaintiff to make a valid application for a protection visa: at .
A significant portion of the judgment focused on the limited purposes for which a person may be detained under the Migration Act 1958 (Cth), and the requirement for those purposes to be exercised or pursued as soon as reasonably practicable by the Minister. This highlights the Act’s inherent safeguards against indefinite or arbitrary detention of unauthorised maritime arrivals by the Executive, and the importance of processing visa applications in a timely manner.
The Court also recognised that the Minister’s two powers under the Act only intersected by reason of s 91K being engaged on the granting of the temporary safe haven visa. This suggests that, if faced with a similar factual situation, it may be possible for the Minister to simply grant a temporary humanitarian concern visa to an unauthorised maritime arrival, and not a temporary safe haven visa. This exercise of the s 195A(2) power would end the unauthorised maritime arrival’s detention, presumably without foreclosing the making of a decision as to whether a valid application for any type of visa can be made by that person.
This case can be found at http://www.austlii.edu.au/au/cases/cth/HCA/2014/34.html
Rhys Ryan is a solicitor with King & Wood Mallesons on secondment with the Human Rights Law Centre.