Palasingam v Minister for Home Affairs & Anor

In the High Court of Australia, Pakeerathan Palasingam sought various forms of relief against the Minister for Home Affairs and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The plaintiff, an unlawful non-citizen from Sri Lanka, applied for a constitutional writ, specifically a writ of habeas corpus, to secure his release from immigration detention. He also sought declarations that his prolonged detention was causing him severe mental and physical suffering, injunctions to prevent the defendants from breaching their duty of care by maintaining his indefinite detention, and a declaration that it was in the public interest for the Minister to exercise a power under 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 ongoing detention was unlawful, whether it constituted torture contrary to the *Criminal Code 1995* (Cth), whether it breached a common law duty of care owed by the defendants, and whether the Minister had a duty to consider exercising a specific power under the *Migration Act*. Central to these issues was the legal effect of ss 189 and 196 of the *Migration Act*, which mandate the detention of unlawful non-citizens. The court also considered whether the plaintiff's detention was for a permissible purpose and the scope of judicial review concerning the exercise of ministerial powers.

The High Court dismissed the plaintiff's application, finding that his detention was mandated by ss 189 and 196 of the *Migration Act*, which require the detention of unlawful non-citizens and prevent their release unless a visa is granted. The court held that this statutory requirement meant his detention could not amount to torture under Australian law. Furthermore, any common law duty of care would be inconsistent with the Act's provisions regarding detention, and while a breach of such a duty might give rise to a claim for damages or a change in detention circumstances, it could not support an order for release. The court also found that the plaintiff's assertion of indefinite detention was unsupported by evidence and that his detention was for the permissible purpose of removal. Regarding the application for a declaration concerning the Minister's power under s 197AB(1) of the Act, the court determined that the Minister was under no duty to consider exercising this power, and any declaration regarding public interest in its exercise was a matter committed to the Minister, not judicial determination. Consequently, the application was dismissed, and the plaintiff was ordered to pay the defendants' costs.