KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
COMMONWEALTH OF AUSTRALIA APPELLANT
AND
AJL20 RESPONDENT
Commonwealth of Australia v AJL20
[2021] HCA 21
Date of Hearing: 13 April 2021 Date of Judgment: 23 June 2021
C16/2020 & C17/2020
ORDER
Matter No C16/2020
1.Appeal allowed.
2. Set aside the orders made by the Federal Court of Australia on 29 September 2020 and, in their place, it be ordered that the proceeding be dismissed with costs.
3.The respondent must pay the appellant's costs of the appeal to this Court.
Matter No C17/2020
1.Appeal allowed.
2. Set aside the orders made by the Federal Court of Australia on 11 September 2020 and, in their place, it be ordered that the application filed in the Federal Circuit Court of Australia on 12 May 2020 and transferred to the Federal Court of Australia on 27 May 2020 be dismissed with costs.
3.The respondent must pay the appellant's costs of the appeal to this Court.
Representation
S P Donaghue QC, Solicitor-General of the Commonwealth, with G R Kennett SC, C J Tran and N A Wootton for the appellant and for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
J T Gleeson SC with N M Wood and J E Hartley for the respondent (instructed by Human Rights for All)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Commonwealth of Australia v AJL20
Constitutional law (Cth) – Immigration – Tort – False imprisonment – Where respondent "unlawful non-citizen" detained by Executive under ss 189(1) and 196(1) of Migration Act 1958 (Cth) – Whether period of executive detention authorised and required by ss 189(1) and 196(1) ceases when removal of "unlawful non-citizen" from Australia should have occurred had Executive acted with all reasonable despatch in performance of s 198(6) duty to remove, or continues until actual event of removal or grant of visa – Whether Parliament's power to authorise and require detention until actual event of removal or grant of visa limited by implications of Ch III of Constitution – Whether non-performance by Executive of statutory duties erases legitimate non-punitive statutory purposes which those duties support.
Words and phrases – "aliens", "deportation", "duty to remove", "exclusive vesting of the judicial power of the Commonwealth", "executive detention", "executive power", "executive purpose", "false imprisonment", "habeas corpus", "hedging duty", "judicial power", "lawful non-citizen", "legitimate non-punitive purposes", "Lim principle", "mandamus", "non-refoulement", "Parliamentary supremacy", "reading down", "removal", "remove as soon as reasonably practicable", "separation of powers", "statutory duty", "statutory purposes", "terminating events", "unlawful non-citizen", "visa".
Constitution, s 51(xix), Ch III. Migration Act1958 (Cth), ss 4, 13, 14, 189, 196, 197C, 198.
KIEFEL CJ, GAGELER, KEANE AND STEWARD JJ. The respondent is a Syrian citizen, who arrived in Australia in May 2005 as the holder of a child visa. On 2 October 2014, the then Minister for Immigration and Border Protection ("the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
The Commonwealth v AJL20 [2021] HCA 21
Case
[2021] HCA 21
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard appeals from decisions of the Federal Court concerning the detention of unlawful non-citizens under the *Migration Act 1958* (Cth). The primary dispute involved whether the period of executive detention authorised by sections 189(1) and 196(1) of the Act continued until the actual removal of the unlawful non-citizen from Australia or the grant of a visa, or whether it ceased when removal should have occurred had the Executive acted with all reasonable despatch in fulfilling its statutory duty to remove. The appellant was the Commonwealth of Australia, and the respondents were unlawful non-citizens who had been detained.
The central legal issues before the Court were: (1) whether the period of detention authorised by sections 189(1) and 196(1) of the *Migration Act* ceases when the removal of an unlawful non-citizen should have occurred had the Executive acted with reasonable despatch, or continues until actual removal or visa grant; (2) whether the Parliament's power to authorise and require detention until actual removal or visa grant is limited by implications arising from Chapter III of the Constitution, particularly concerning the separation of powers; and (3) whether the non-performance by the Executive of its statutory duties erases legitimate non-punitive statutory purposes that those duties support.
The Court reasoned that sections 189(1) and 196(1) of the *Migration Act* authorise and require the detention of an unlawful non-citizen until one of the specified terminating events occurs, namely removal from Australia, deportation, or the grant of a visa. This statutory scheme is not limited by the implications of Chapter III of the Constitution, as the detention is for a legitimate non-punitive executive purpose. The Court held that the Executive's obligation under section 198 to remove an unlawful non-citizen "as soon as reasonably practicable" does not operate to terminate the period of detention mandated by section 196(1) if removal is delayed. The non-performance of the Executive's duty to remove with reasonable despatch does not invalidate the legislative purpose of detention until actual removal or visa grant.
The appeals were allowed, and the orders of the Federal Court were set aside. The proceedings were dismissed with costs, and the respondents were ordered to pay the appellant's costs of the appeals.
Orders
Orders of the court
Matter No C16/2020
1. Appeal allowed.
2. Set aside the orders made by the Federal Court of Australia on 29 September 2020 and, in their place, it be ordered that the proceeding be dismissed with costs.
3. The respondent must pay the appellant's costs of the appeal to this Court.
Matter No C17/2020
1. Appeal allowed.
2. Set aside the orders made by the Federal Court of Australia on 11 September 2020 and, in their place, it be ordered that the application filed in the Federal Circuit Court of Australia on 12 May 2020 and transferred to the Federal Court of Australia on 27 May 2020 be dismissed with costs.
3. The respondent must pay the appellant's costs of the appeal to this Court.
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
KIEFEL CJ, GAGELER, KEANE AND STEWARD JJ
GORDON AND GLEESON JJ
Section 196 governs the period for which a person taken into immigration detention is to be kept in immigration detention under s 189(1) by or at the direction of an officer who knows or reasonably suspects that the person is an unlawful non-citizen. It provides relevantly:"(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.(2)To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non‑citizen.(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.(7) In this section:visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa)." The authority and duty to detain an unlawful non‑citizen pursuant to s 189(1) for the period specified in s 196(1) is attended by an obligation on the Executive to effect the removal of an unlawful non‑citizen "as soon as reasonably practicable". This obligation is contained in s 198, which relevantly provides:"Removal on request(1)An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed....Removal of unlawful non-citizens in other circumstances...(6)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:(a)the non-citizen is a detainee; and(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and(c) one of the following applies:(i)the grant of the visa has been refused and the application has been finally determined;(ii) the visa cannot be granted; and(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone." Section 197C was inserted into the Act to overcome decisions which had interpreted s 198 to the effect that it did not require the removal of an unlawful non-citizen where the removal would place Australia in breach of its non-refoulement obligations[12]. At the material time, s 197C provided:"(1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.(2)An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen."The course of authority[12]Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505. See Australia, House of Representatives, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, Explanatory Memorandum at 165-166 [1135]‑[1140].The power of the Parliament
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER, KEANE AND STEWARD JJ,
GORDON AND GLEESON JJ