ASP15 v Commonwealth

Case [2016] FCAFC 145

FEDERAL COURT OF AUSTRALIA

ASP15 v Commonwealth of Australia [2016] FCAFC 145

Appeal from:

ASP15 v Commonwealth of Australia & Anor (No.3) [2015] FCCA 3275

AKZ15 v Commonwealth of Australia & Anor (No.3) [2015] FCCA 3285

File numbers: NSD 1741 of 2015
NSD 1742 of 2015
Judges: ROBERTSON, GRIFFITHS AND BROMWICH JJ
Date of judgment: 21 October 2016
Catchwords: MIGRATION – appeal from dismissal of application before the Federal Circuit Court for damages for unlawful imprisonment – where appellants claimed unreasonable delay in processing protection visa applications following repeal of s 65A of the Migration Act 1958 (Cth) – claim for unlawful imprisonment and damages arising from duration of mandatory detention – ambit of Minister’s authority to detain – no legal or factual basis for appeal – appeal dismissed
Legislation:

Australian Security Intelligence Organisation Act 1979 (Cth), s 4

Migration Act 1958 (Cth), ss 36, 36(1B), 36(1C), 46A, 47, 65, 65A, 91W, 91WA, 189, 189(1), 189(2), 195A, 196, 197AB, 198, 336E, 336F, 494AA, 501

Migration Amendment Act 2014 (Cth)

Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015 (Cth)

Migration Amendment (Protection and Other Measures) Act 2015 (Cth)

Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), s 2, Sch 7 Pt 1 item 4, Pt 2 item 16(2)

Migration Regulations 1994 (Cth), reg 2.08F, Sch 2 cll 866.222, 866.225

Convention Relating to the Status of Refugees (1951) (as amended by the Protocol relating to the Status of Refugees (1967)), Arts 1F, 1F(b), 32, 33(2)  
Cases cited:

Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562

Bidjara Aboriginal Housing and Land Company Ltd v Indigenous Land Corporation [2001] FCA 138; (2001) 106 FCR 203

Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1

Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322

Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219

Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179

Prince Alfred College Incorporated v ADC [2016] HCA 37

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Re O’Reilly; Ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36 sub nom Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577

Thornton v Repatriation Commission (1981) 52 FLR 285; (1981) 35 ALR 485

Wang v Commissioner of Inland Revenue [1995] 1 All ER 367; [1994] 1 WLR 1286

Date of hearing: 19 August 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 143
Counsel for the Appellants: Mr J F Gormly
Solicitor for the Appellants: Michaela…

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AGLC
ASP15 v Commonwealth of Australia [2016] FCAFC 145
Case
[2016] FCAFC 145
Decision Date

CaseChat Overview and Summary

In the case of ASP15 v Commonwealth, the appellants, two brothers, sought damages for unlawful imprisonment and argued that the delay in processing their protection visa applications resulted in their unlawful detention. The Federal Circuit Court dismissed their application, and the matter was appealed to the High Court of Australia. The court considered whether the Minister had the authority to detain the appellants beyond the statutory decision deadline and whether the appellants were unlawfully detained due to the delay in processing their applications.

The central legal issues were whether the repeal of s 65A of the Migration Act 1958 (Cth) retroactively removed the statutory time limit for deciding on protection visa applications, and if so, whether the Minister had the authority to detain the appellants beyond this repealed time limit. The court had to determine the scope of the Minister's power to detain under ss 189 and 196 of the Migration Act and whether the appellants' detention was lawful under these provisions.

The court found that the repeal of s 65A, which imposed a statutory 90-day decision deadline for protection visa applications, was effective retroactively, meaning that the statutory time limit did not apply to applications still pending at the time of repeal. The court held that the Minister's authority to detain the appellants arose from ss 189 and 196 of the Migration Act, which required their detention until they were granted visas or removed from Australia. The court determined that the appellants were not unlawfully detained, as their detention was authorised by statute and continued until they were granted visas on 16 December 2015.

The appeal was dismissed, and the appellants were ordered to pay the respondents' costs of the appeal as taxed or agreed. This decision clarifies the legal framework governing the Minister's authority to detain non-citizens under the Migration Act and the implications of the repeal of s 65A on the processing of protection visa applications.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal as taxed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The former s 65A of the Migration Act provided a 90-day decision deadline for the determination of protection visa applications by the Minister. Immediately prior to its repeal on 16 December 2014, s 65A provided as follows:65A Period within which Minister must make decision on protection visas(1)If an application for a protection visa:(a)was validly made under section 46; or(b)was remitted by any court or tribunal to the Minister for reconsideration;then the Minister must make a decision under section 65 within 90 days starting on:(c)the day on which the application for the protection visa was made or remitted; or(d)in the circumstances prescribed by the regulations—the day prescribed by the regulations.(2)Failure to comply with this section does not affect the validity of a decision made under section 65 on an application for a protection visa. Section 65A was still in force at the time of the second remittals by the Tribunal on 10 July 2014 for the older brother, and on 18 July 2014 for the younger brother. Therefore, at that time there was a statutory obligation imposed on the Minister to make a decision as to the grant or refusal of a valid protection visa application within 90 days. That produced a statutory decision deadline for the older brother of 8 October 2014 and for the younger brother of 16 October 2014. Neither deadline was met. However, s 65A was repealed retroactively and it was not disputed that the practical and legal effect was that the statutory time limit did not apply to any protection visa application that was outstanding and still to be determined at the time of repeal. The provisions by which s 65A was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Legacy Act) are as follows:Schedule 7—Caseload managementPart 1—AmendmentsMigration Act 1958…4Section 65ARepeal the section.…Part 2—Application and savings16Application of amendments…(2)The repeal of section 65A of the Migration Act 1958 made by Part 1 of this Schedule applies in relation to an application for a protection visa:(a)made on or after the commencement of that Part; or(b)made before the commencement of that Part but not finally determined as at the commencement of that Part. With the removal of a statutory time limit the existence of any time period within which a decision must be made on a valid protection visa application is a matter of statutory interpretation, arising from the obligations imposed by ss 47 and 65 of the Migration Act. The plurality in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179, commenting about visas for which there was no statutory time limit for making a decision, and thus now applicable to the appellants as well, said that this was, by implication, to be performed within a “reasonable time”, citing several authorities. Their Honours observed at 189-190 [37] that:… What amounts to a reasonable time is ultimately for determination by a court, on an application for mandamus against the Minister under s 75(v) of the Constitution or equivalent statutory jurisdiction, having regard to the circumstances of the particular case within the context of the decision-making framework established by the Act.

Ratio Decidendi

Legal Principle Established

Section 189 of the Migration Act required that the appellants be detained upon their arrival at Christmas Island. Section 196 fixed the period for which they were required to be detained as follows:196Duration of detention(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until:(a)he or she is removed from Australia under section 198 or 199; or(aa)an officer begins to deal with the non-citizen under subsection 198AD(3); or(b)he or she is deported under section 200; or(c)he or she is granted a visa.…(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.…(6)This section has effect despite any other law. None of the events specified in s 196(1) had occurred prior to 16 December 2015, being the date upon which the appellants were granted their visas, and therefore the date upon which s 196(1)(c) brought their lawful detention to an end, if it had not ended sooner on the appellants’ case. On its face, s 196(1), by the use of the word “must”, required the continued detention of both of the appellants until they were granted visas on 16 December 2015 (or until one of the other events listed in s 196(1) took place). The plain words of s 196(1) are emphasised by the terms of s 196(3) and (6). Section 198(2) and (5A) of the Migration Act relevantly provided as follows:198Removal from Australia of unlawful non-citizens…Removal of unlawful non-citizens in other circumstances(2)An officer must remove as soon as reasonably practicable an unlawful non-citizen:(a)who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and(b)who has not subsequently been immigration cleared; and(c)who either:(i)has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or(ii)has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.…(5A)Despite subsection (5), an officer must not remove an unlawful non-citizen if:(a)the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and(b)either:(i)the grant of the visa has not been refused; or(ii)the application has not been finally determined. In Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1, at 33, Brennan, Deane and Dawson JJ held that a provision of the Migration Act which required a designated class of persons to be held in detention, and a related provision, would be valid:… if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.Mason CJ agreed on this point, making this a majority determination. However, Lim was not concerned with the period of detention that was authorised.