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Court: High Court of Australia
Legislation considered: Migration Act 1958 (Cth)
Links:  Judgment 
Download:  Casenote Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 (PDF)

 

 
 
 
 
This case note provides an overview of the key facts and findings of the High Court of Australia in Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 (‘S4’). This Court found that the Minister’s granting of temporary protection visas in a manner that precluded the plaintiff from applying for permanent protection was an invalid exercise of the Minister’s powers under the Migration Act 1958 (Cth). Significantly, the Court also delivered obiter which strengthened the constitutional limitations on immigration detention and reaffirmed the Lim principle.

Facts

The plaintiff was a stateless asylum seeker who arrived in Australia by boat in December 2011 and was detained on Christmas Island while his refugee status assessment was completed.1  At the time of his arrival, section 46A(1) of the Migration Act 1958 (Cth) (‘the Act’) prevented the plaintiff from applying for any category of visa. However, the Minister has a power under s 46A(2) of the Act to lift this statutory bar and permit visa applications in individual cases. 

The Minister decided to consider exercising his power under s 46A(2) of the Act to permit the plaintiff to apply for protection.2 After making inquiries over a two-year period during which the plaintiff remained in detention,3 the Minister found the plaintiff to be a genuine refugee and eligible for protection in Australia.4 However, due to a new policy aimed at reducing the incidence of permanent protection visas issued by the Australian government, the Minister declined to make a final decision as to whether to lift the statutory bar and allow the plaintiff to apply for permanent protection under s 46A of the Act. Instead, the Minister exercised his personal power under 195A(2) (31) of the Act to offer the plaintiff a temporary safe haven visa and a temporary humanitarian visa.5 Section 195A of the Act grants the Minister a personal discretion to grant visas to unlawful maritime arrivals regardless of whether or not the person in question has made a visa application. The effect of the Minister’s decision to use this personal power to grant the plaintiff temporary protection visas was to preclude him from applying for permanent protection once these temporary visas expired.6 The question for the court, therefore, was one of statutory interpretation: whether the discretion conferred by s 195A could be read so as to empower the Minister to grant a visa effectively precluding the plaintiff from permanent protection in circumstances where the Minister had begun, but not completed, the process of considering whether to allow him to apply for permanent protection. The court ultimately found that the discretion in s 195A did not so empower the Minister.

Key issues

The central question on which this case was decided is the administrative law matter of whether the Minister could validly grant the temporary visas before he had completed the mandatory second step of the ‘lifting the bar’ process, i.e. making a final decision about whether to allow the plaintiff to apply for permanent protection.7 However, in arriving at its decision the Court also provided some useful guidance on key constitutional questions relating to immigration detention, including: whether the principle in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 (‘Lim’) survives the ruling in Al-Kateb v Godwin (2004) 219 CLR 562 (‘Al-Kateb’);8 whether there are constitutional limitations on immigration detention imposed by a closed list of legitimate purposes for which detention can be used;9 and whether there are constitutional limits on detention based on proportionality, i.e. based on the strength of its connection to those legitimate purposes.10  

Plaintiff’s case

The plaintiff argued that the grant of the two temporary protection visas was invalid on administrative law grounds. He argued that once the Minister had begun the process of considering whether to lift the bar and allow the plaintiff to apply for permanent protection – which, as established by the agreed facts, he had done by determining that the plaintiff was a genuine refugee11 – he was bound to complete the process by making a final decision about the plaintiff’s ability to apply for permanent protection. 

The plaintiff further argued that the Minister was bound to make this final determination based on the same criteria used to determine that the plaintiff was a genuine refugee.12 To allow the Minister to engage different considerations in this mandatory second step, plaintiff’s counsel argued, would allow the Minister to prolong the plaintiff’s detention in an unconstrained manner.13 

Based on these submissions, counsel for the plaintiff argued that the grant of the temporary protection visas was invalid as they rendered the plaintiff a ‘lawful non-citizen’ and therefore cast him outside of the process of lifting the statutory bar altogether. In so doing, the decision to grant temporary protection visas amounted to an invalid attempt to remove the Minister’s obligation to complete the process he had started.14 

Judgment

The Court, made up of French CJ, Hayne, Crennan, Kiefel and Keane JJ, unanimously agreed with the plaintiff that the Minister’s exercise of his personal power under s 195 of the Act to grant temporary protections visas was invalid.15 The Court held that so long as the Minister was still in the process of considering whether to lift the statutory bar and allow the plaintiff to apply for permanent protection, s 195 did not permit him to take action that precluded the plaintiff from applying for permanent protection.16 

Following its decision on these administrative law grounds and its finding of invalidly, the Court also took the opportunity to establish and clarify principles relating to the legality of immigration detention.

The Court delivered significant obiter clarifying the constitutional limitations on immigration detention, despite the fact that this was not argued as a constitutional case. The judgment began this analysis by stating that “detention is not an end in itself”.17 It then reaffirmed the principle in Lim that detention of a non-citizen by the executive must be limited to what is reasonably capable of being seen as necessary for the purposes of deportation or processing.18 The judgment’s restatement of this principle is significant as it was unclear whether this principle had survived the judgment in Al-Kateb.19 

Perhaps even more importantly, the Court built upon the Lim jurisprudence by stating in clear terms that there are only three legitimate purposes for which the executive can lawfully detain non-citizens: removal, the determination of whether the non-citizen should be entitled to apply for a visa, and the processing of a visa application.20 This departs from suggestions in previous cases that there are other legitimate purposes for detention, such as Heydon J’s suggestion in Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 that protection of the Australian community is a lawful justification for ongoing immigration detention.21 

This judgment also contributes to the principle in Lim by clarifying that detention of non-citizens is constitutional as an incident of the executive power of the Commonwealth.22 This is significant as it strengthens the suggestion in Lim that in order for the detention to fall under this incidental power it must be “reasonably capable of being seen as necessary” for the achievement of one of the legitimate purposes listed above.23 

The Court also stated that because detention of non-citizens can only be lawfully implemented for one of these purposes, it follows that the detention must only continue for as long as those purposes are being pursued and that there is an obligation on the executive to effect those purposes “as soon as reasonably practicable”. The Court summarised this principle by stating that the duration of the detention “must be fixed by reference to what is both necessary and incidental to the execution of those powers and the fulfilment of those purposes”.24 

By clearly stating that: 1) detention of non-citizens can only lawfully be implemented for the three purposes listed above; 2) that in order to be a legitimate incident of executive power, the detention must be capable of being seen as necessary to effect one of those purposes and 3) that those purposes must be achieved as soon as reasonably practicable, the Court in S4 strengthened the constitutional limitations on immigration detention practices. In so doing, it called into question the constitutionality of some aspects of Australia’s current regime, including lengthy or indefinite detention, detention on character/security grounds and detention of non-citizens who are not in fact being processed and/or have no reasonably prospects of being processed. 25

Further reading 

The full judgment can be accessed at the High Court website: http://eresources.hcourt.gov.au/showCase/2014/HCA/34

A summary of the judgment can also be accessed at the High Court website: http://www.hcourt.gov.au/assets/publications/judgment-summaries/2014/hca...

Joyce Chia, ‘Back to the Constitution: The implications of Plaintiff S4/2014 for Immigration Detention’ (2015) 38(2) University of New South Wales Law Journal 628

 

  • 1. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 226 and 228.
  • 2. Ibid at 226.
  • 3. Ibid.
  • 4. Ibid.
  • 5. Ibid at 227.
  • 6. Joyce Chia, ‘Back to the Constitution: The implications of Plaintiff S4/2014 for Immigration Detention’ (2015) 38(2) University of New South Wales Law Journal 628 at 648.
  • 7. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 227.
  • 8. Joyce Chia, ‘Back to the Constitution: The implications of Plaintiff S4/2014 for Immigration Detention’ (2015) 38(2) University of New South Wales Law Journal 628 at 650-651.
  • 9. Ibid at 651.
  • 10. Ibid at 652.
  • 11. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 222.
  • 12. Ibid.
  • 13. Ibid.
  • 14. Ibid.
  • 15. Ibid at 227.
  • 16. Ibid.
  • 17. Ibid at 231.
  • 18. Ibid.
  • 19. Joyce Chia, ‘Back to the Constitution: The implications of Plaintiff S4/2014 for Immigration Detention’ (2015) 38(2) University of New South Wales Law Journal 628 at 650.
  • 20. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 231.
  • 21. Joyce Chia, ‘Back to the Constitution: The implications of Plaintiff S4/2014 for immigration Detention’ (2015) 38(2) University of New South Wales Law Journal 628 at 651.
  • 22. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 231.
  • 23. Ibid.
  • 24. Ibid at 232.
  • 25. Joyce Chia, ‘Back to the Constitution: The implications of Plaintiff S4/2014 for immigration Detention’ (2015) 38(2) University of New South Wales Law Journal 628 at 652.
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