Kazemi v Minister for Home Affairs & Anor

The plaintiff, an unlawful non-citizen who arrived in Australia from Iran in September 2013 and was subsequently transferred to Manus Island, sought various forms of relief against the Minister for Home Affairs and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs in the High Court of Australia. The plaintiff had been transferred to Australia for medical treatment in July 2019 and had been detained since his arrival. The application sought a writ of habeas corpus for release from immigration detention, declarations and injunctions concerning alleged pain and suffering from indefinite detention, and declarations regarding the public interest in the Minister considering a residence determination and the consideration of non-refoulement obligations.

The High Court was required to determine whether the plaintiff's application disclosed any arguable basis for the relief sought, such that it should be dismissed under rule 25.09.1 of the High Court Rules 2004 (Cth). The court also considered, as an alternative submission, whether the matter should be remitted to the Federal Circuit Court of Australia. The legal issues revolved around the plaintiff's mandatory detention under ss 189 and 196 of the Migration Act 1958 (Cth), the Minister's power to make a residence determination under s 197AB, and the availability of habeas corpus, declarations, and injunctions in the circumstances.

The Court dismissed the application, accepting the defendants' primary submission that it lacked an arguable basis. The Court reasoned that the plaintiff's detention was mandatory under the Migration Act, not discretionary, and that s 196(3) prevented release by a court except in specified circumstances, none of which applied. The claims for declarations and injunctions regarding pain and suffering were found to be without arguable basis because they were predicated on the legality of detention itself, rather than the conditions of detention, and the legality of detention did not depend on such circumstances. Declarations concerning the public interest in the Minister considering a residence determination or non-refoulement obligations were deemed inutile, as they would be abstract declarations affecting no legal right or interest. The Court noted that similar applications had been dismissed by other judges of the High Court on the same grounds.

The orders of the Court were that the plaintiff's application be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth), and that the plaintiff pay the costs of the defendants.