This case note provides an overview of the key facts and findings of the High Court in Plaintiff M68/2015 v. Minister for Immigration and Border Protection & Ors  HCA 1, and sets out some of the key developments following the case. The plaintiff, an asylum seeker from Bangladesh, had been detained in Nauru at one of Australia’s two regional processing centres before being brought to Australia for medical treatment in 2014. She brought this case against the Australian Minister for Immigration and Border Protection, the Commonwealth of Australia and Transfield Services (Australia) Pty Ltd in an effort to prevent her return to Nauru. The main question in the case was whether the Australian government had the power, either in the form of a statutory or non-statutory executive power, to contract for and control the detention of asylum seekers in the offshore detention centre in Nauru. The majority of the court (French CJ, Kiefel, Nettle, Bell, Gageler and Keane JJ) held – in four separate judgments – that the government did have the necessary legal authority to be involved in the detention of asylum seekers in Nauru, although they were divided about whether the Australian government was actually in control of this detention and the basis on which it was lawful. Gordon J was in dissent, finding that the government had significant control over the detention of the plaintiff and had acted beyond its power in doing so.
Temporary Protection Visas and Safe Haven Enterprise Visas
Temporary Protection Visas and Safe Haven Enterprise Visas are types of temporary visas available to asylum seekers in Australia. Holders of a temporary visa do not have the same access to services, rights and residency or citizenship pathways as refugees who hold a (permanent) Protection Visa. The key difference between asylum seekers eligible for a Protection Visa and those eligible for a temporary visa is method of arrival in Australia, not the legitimacy of their refugee status.
- 1. During the operation of the TPV regime, these rules were laid down in Migration Regulations 1994 (Cth), Schedule 2, Visa Subclass 785 – Temporary Protection.
- 2. See Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth); Migration Regulations 1994 (Cth), Schedule 2, cl 866.215.
- 3. Savitri Taylor, ‘Protection or Prevention? A Close Look at the New Temporary Safe Haven Visa Class’ (2000) 23 University of New South Wales Law 75.
- 4. Report of the Expert Panel on Asylum Seekers, Attachment 4: Australia’s Contribution to International Protection, (August 2012), 88.
- 5. Ibid.
- 6. Rural Australians for Refugees, Changes to Asylum Seeker Visas; Will Hodgman, Safe haven Enterprise Visa Program Begins, Tasmanian Department of Premier and Cabinet (10 October 2015), Jay Weatherill, ‘Safe Haven Enterprise Visa zone announcement’ (17 February 2016).
- 7. Australia Minister for Immigration and Border Protection, ‘Reintroducing TPVs to Resolve Labor’s Asylum Legacy Caseload, Cambodia’ (Press Conference, 26 September 2014).
- 8. Refugee Council of Australia, Temporary Protection Visas (Policy Brief, 24 September 2013) <http://www.refugeecouncil.org.au/r/pb/PB1324_TPVs.pdf>
- 9. Human Rights and Equal Opportunity Commission, A Last Resort? National Inquiry into Children in Immigration Detention, April 2004, 20, 815–20.
- 10. Ibid 817–20.
- 11. United Nations High Commissioner for Refugees (UNHCR), Roundtable on Temporary Protection, 19–20 July 2012: Summary Conclusions .
- 12. See Jane McAdam and Tristan Garcia, Submission to the National Human Rights Consultation, 10 June 2009, 26.
- 13. Alice Edwards, ‘Tampering with Refugee Protection: The Case of Australia’ (2003) 15 International Journal of Refugee Law 192, 197–200.
- 14. Council Directive 2001/55/EC of 7 August 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof  OJ L 212/12, art 5.
- 15. Alliance of Liberals and Democrats for Europe, ‘Roadmap to get a grip on the refugee crisis’, (2 February 2016).
- 16. See Council Directive 2011/51/EU of 11 May 2011 amending the Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection  OJ L 132/1; Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents  OJ L 16/44.
- 17. Mansouri, Fethi, Michael Leach and Amy Nethery, ‘Temporary Protection and the Refugee Convention in Australia, Denmark and Germany’ (2010) 26 Refuge 135, 138.
- 18. Immigration New Zealand, Claiming Refugee and Protection Status in New Zealand (June 2015).
- 19. Michael Woodhouse, ‘Mass Arrivals Bill Passes into Law’ (Press Release, 13 June 2013).
- 20. US Department of State, The Reception and Placement Program
- 21. See Senate Legal and Constitutional Affairs Committee, Questions Taken on Notice, Budget Estimates Hearing 21–22 May 2012, Immigration and Citizenship Portfolio. See also Sue Hoffman, ‘Temporary Protection Visas & SIEV X’, Sievx.com, 6 February 2006; Sue Hoffman, ‘The Myths of Temporary Protection Visas’, The Drum, 14 June 2011.
- 22. These tables are sourced from Senate Legal and Constitutional Affairs Committee, Questions Taken on Notice, Budget Estimates Hearing 21–22 May 2012, Immigration and Citizenship Portfolio