Minister for Home Affairs & Anor v Pearson & Anor - [2023] HCATrans 105

[2023] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S14 of 2023

B e t w e e n -
MINISTER FOR HOME AFFAIRS
First Applicant
SECRETARY, DEPARTMENT OF HOME AFFAIRS
Second Applicant
and
KATE PEARSON
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
Application for special leave to appeal

KIEFEL CJ
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 AUGUST 2023, AT 12.30 PM

____________________

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR C.L. LENEHAN, SC appears with MS N.A. WOOTTON and MR J.G. WHERRETT for the applicants. (instructed by Australian Government Solicitor)

MR E.M. NEKVAPIL, SC appears with MR J.D. DONNELLY for the first respondent. (instructed by Zarifi Lawyers)

KIEFEL CJ: There is a submitting appearance for the second respondent. Yes, Mr Lenehan.

MR LENEHAN: Thank you, your Honour. Your Honours have seen that the issue we wish to agitate is whether an aggregate term of imprisonment of 12 months or more imposed under State or Territory legislation is a term of imprisonment of 12 months or more within the meaning of section 501(7)(c) of the Migration Act. Your Honours know that the Full Federal Court held that it was not. In doing so, their Honours held that a person subject to an aggregate sentence of imprisonment of any length could not, by reason of that sentence, fail the character test. We say that is a surprising conclusion that cannot be right.

Can I accept immediately a somewhat awkward point for me, and that is by reason of legislative developments which your Honours have seen, the resolution of this question is unlikely to have any consequences for this particular case apart from cost, but I will come back to one particular aspect of Ms Pearson’s response that may suggest a different view. Can I accept, entirely that for that reason, our application as we framed it is somewhat novel and that I have, I accept, some work to do in persuading your Honours that it is nevertheless appropriate to grant leave.

So, really, what our application comes down to is this proposition: this decision is so plainly wrong and has such potentially damaging consequences for other Commonwealth legislation that it falls within a special case where your Honours would grant leave to ensure the error does not remain uncorrected and is thus not

perpetuated through other statutory contexts and by other courts.

Can I just step back through that in a little more detail. Your Honours saw the Act that was provided yesterday – that is, the Migration Amendment (Aggregate Sentences) Bill 2023 (Cth) – and that Act was given Royal Assent on 16 February 2023 and commenced the next day. Your Honours will have seen that the effect of that Act is to make it clear that a person who is sentenced to an aggregate sentence of…

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.

Continue reading Minister for Home Affairs & Anor v Pearson & Anor

Details

AGLC: Minister for Home Affairs & Anor v Pearson & Anor [2023] HCATrans 105
Case: [2023] HCATrans 105
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Minister for Home Affairs and another party against a decision of the Federal Court of Australia concerning the detention of two individuals, Mr. Pearson and Mr. Singh. The dispute arose from the Minister's decision to refuse to grant visas to Mr. Pearson and Mr. Singh, who were non-citizens detained in immigration detention. The core of the disagreement lay in the lawfulness of their continued detention following the refusal of their visa applications.

The central legal issue before the High Court was whether the continued detention of Mr. Pearson and Mr. Singh was authorised by s 189(1) of the *Migration Act 1958* (Cth) after their visa applications were refused. Specifically, the Court had to determine if s 189(1) mandated their detention even if there was no reasonable prospect of their removal from Australia in the foreseeable future, and if the Minister had a duty to release them in such circumstances.

The High Court, comprising Kiefel CJ and Gleeson J, reasoned that s 189(1) of the *Migration Act* imposes a mandatory obligation on the Minister to detain non-citizens who do not hold a visa. Their Honours held that this obligation is not contingent on the practical possibility of removal. The Court affirmed that the Act does not confer a power or impose a duty on the Minister to release a non-citizen from detention simply because their removal is not reasonably practicable. The statutory scheme, as interpreted, prioritises the detention of unlawful non-citizens over considerations of the feasibility of their removal.

The High Court allowed the appeal, setting aside the orders of the Federal Court.

Orders