Kanhalingam v Minister for Home Affairs & Anor

The plaintiff, a Sri Lankan national and unlawful non-citizen, applied to the High Court of Australia for a writ of habeas corpus seeking release from immigration detention, declarations regarding the severe mental and physical pain caused by his indefinite detention, injunctions to prevent the first defendant from breaching a duty of care, and a declaration that it would be in the public interest for the first defendant to exercise his power under s 197AB(1) of the Migration Act 1958 (Cth) to allow him to reside in the community. The defendants contended that the application lacked an arguable basis and should be dismissed.

The court was required to determine whether the plaintiff's indefinite detention was unlawful, constituted torture contrary to the Criminal Code 1995 (Cth), breached a common law duty of care owed by the defendants, or was for an impermissible purpose. Additionally, the court had to consider whether a declaration could be made regarding the first defendant's power under s 197AB(1) of the Migration Act.

The court reasoned that the plaintiff's detention was mandated by ss 189 and 196 of the Migration Act, as he was an unlawful non-citizen and a transitory person, and s 196(3) specifically prevents the release of such individuals unless a visa is granted. Consequently, his detention could not amount to torture under Australian law, nor could a duty of care prohibiting his detention on that basis be sustained, as it would be inconsistent with the Act. The court found that the plaintiff's assertion of indefinite detention was not supported by evidence and that his transfer to Australia for medical treatment was for a temporary purpose related to his removal. Furthermore, the court held that the first defendant was under no duty to consider exercising the power under s 197AB(1) of the Act, and any determination of public interest in such an exercise was a matter committed to the first defendant, not judicial determination.

The application was dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) as it did not disclose an arguable basis for the relief sought. The plaintiff was ordered to pay the defendants' costs of the application.