FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
PLAINTIFF M47/2012 PLAINTIFF
AND
DIRECTOR GENERAL OF SECURITY & ORS DEFENDANTS
Plaintiff M47/2012 v Director General of Security
[2012] HCA 46
5 October 2012
M47/2012
ORDER
Question 2A of the Further Amended Special Case dated 20 June 2012 should be amended and the questions stated in the Special Case (as so amended) should be answered as follows:
Question 1
In furnishing the 2012 assessment, did the First Defendant fail to comply with the requirements of procedural fairness?
Answer
No.
Question 2
Does s 198 of the Migration Act 1958 (Cth) authorise the removal of the Plaintiff, being a non-citizen:
2.1to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
2.2 whom ASIO has assessed poses a direct or indirect risk to security;
to a country where he does not have a well-founded fear of persecution for the purposes of Article 1A of the Refugees Convention as amended by the Refugees Protocol?
Answer
It is not necessary to answer this question.
Question 2A
If the plaintiff's application for a protection visa is refused by reason of the plaintiff's failure to satisfy public interest criterion 4002 within the meaning of clause 866.225 of Schedule 2 of the Migration Regulations 1994, is that clause to that extent ultra vires the power conferred by section 31(3) of the Migration Act 1958 (Cth) and invalid?
Answer
The prescription of public interest criterion 4002 as a criterion for the grant of a protection visa is beyond the power conferred by s 31(3) of the Act and is invalid.
Question 3
Do ss 189 and 196 of the Migration Act 1958 (Cth) authorise the Plaintiff's detention?
Answer
The plaintiff is validly detained for the purposes of the determination of his application for a protection visa.
Question 4
Who should pay the costs of the special case?
Answer
The defendants.
Representation
R M Niall SC with C L Lenehan, K L Walker and M P Costello for the plaintiff (instructed by Allens Lawyers)
S P Donaghue SC with C J Horan, F I Gordon and N M Wood for the defendants (instructed by Australian Government Solicitor)
Interveners
J G Renwick SC with K M Richardson intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))
J K Kirk SC with S J Free and A E Munro intervening on behalf of Plaintiff S138/2012 (instructed by King & Wood Mallesons)
D S Mortimer SC with A D Pound and K E Foley intervening on behalf of the Australian Human Rights Commission (instructed by Australian Human Rights Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Plaintiff M47/2012 v Director General of Security
Citizenship and migration – Migration – Refugees – Protection visas – Inconsistency between Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth)…
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
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46
Case
[2012] HCA 46
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the case of Plaintiff M47/2012, who sought a protection visa. The plaintiff, a national of Sri Lanka and a former member of the LTTE, was found to be a refugee with a well-founded fear of persecution if returned to his home country. However, his application for a protection visa was refused because the Australian Security Intelligence Organisation (ASIO) had assessed him as posing a risk to security. The plaintiff had been held in immigration detention since his visa expired upon arrival in Australia.
The legal issues before the Court included whether ASIO had denied the plaintiff procedural fairness in its assessment, whether the plaintiff's continued detention under sections 189 and 196 of the *Migration Act 1958* (Cth) was authorised, and crucially, whether clause 866.225(a) of Schedule 2 to the *Migration Regulations 1994* (Cth), which prescribed the public interest criterion 4002 (requiring an applicant not to be assessed as a risk to security by ASIO), was validly made under section 31(3) of the *Migration Act*.
The Court reasoned that ASIO had not denied the plaintiff procedural fairness in its assessment, as the nature of procedural fairness in this context depended on how the assessment was used and the decision ultimately made. The Court also found that the plaintiff was validly detained for the purpose of determining his protection visa application. However, the Court held that the prescription of public interest criterion 4002 as a criterion for the grant of a protection visa was beyond the power conferred by section 31(3) of the *Migration Act* and was therefore invalid.
Consequently, the Court amended Question 2A of the Special Case and answered it by declaring the relevant clause of the Regulations invalid. The Court also answered that the plaintiff was not denied procedural fairness and that his detention was authorised. The defendants were ordered to pay the costs of the special case.
Orders
Orders of the court
Question 2A of the Further Amended Special Case dated 20 June 2012 should be amended and the questions stated in the Special Case (as so amended) should be answered as follows:
Question 1
In furnishing the 2012 assessment, did the First Defendant fail to comply with the requirements of procedural fairness?
Answer
No.
Question 2
Does s 198 of the Migration Act 1958 (Cth) authorise the removal of the Plaintiff, being a non-citizen:
2.1 to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
2.2 whom ASIO has assessed poses a direct or indirect risk to security;
to a country where he does not have a well-founded fear of persecution for the purposes of Article 1A of the Refugees Convention as amended by the Refugees Protocol?
Answer
It is not necessary to answer this question.
Question 2A
If the plaintiff's application for a protection visa is refused by reason of the plaintiff's failure to satisfy public interest criterion 4002 within the meaning of clause 866.225 of Schedule 2 of the Migration Regulations 1994, is that clause to that extent ultra vires the power conferred by section 31(3) of the Migration Act 1958 (Cth) and invalid?
Answer
The prescription of public interest criterion 4002 as a criterion for the grant of a protection visa is beyond the power conferred by s 31(3) of the Act and is invalid.
Question 3
Do ss 189 and 196 of the Migration Act 1958 (Cth) authorise the Plaintiff's detention?
Answer
The plaintiff is validly detained for the purposes of the determination of his application for a protection visa.
Question 4
Who should pay the costs of the special case?
Answer
The defendants.
Background
Background to the litigation
Critical to the disposition of this case is the question whether the regulation, which effectively vests in ASIO the power to refuse a visa on security grounds, is consistent with the scheme of the Migration Act, including the responsibility it imposes on the Minister and the Minister's officers, the system of merits review which it establishes and the personal responsibility and accountability of the Minister for decisions precluding review. As appears from the following reasons, the answer to that question is no. The regulation is invalid. The plaintiff is entitled to have his application for a protection visa considered according to law. In the meantime he can lawfully be detained pursuant to s 196 of the Migration Act. Factual and procedural background At about 11.10pm on 29 December 2009 the plaintiff, a national of Sri Lanka, entered the Australian territory of Christmas Island on a special purpose visa. The visa expired at midnight. It has not been renewed nor has any other visa been granted. Since midnight on 29 December 2009, therefore, the plaintiff has been an unlawful non-citizen within the meaning of s 14 of the Migration Act and has been held in immigration detention pursuant to ss 189 and 196 of that Act. The plaintiff applied for a protection visa under s 36 of the Migration Act. A delegate of the Minister concluded that the plaintiff had a well-founded fear of persecution on the basis of his race and political opinion if he were to be returned to Sri Lanka. As a former member of the Liberation Tigers of Tamil Eelam ("LTTE") he was at risk of being targeted by the Sri Lankan Government and/or paramilitary groups in Sri Lanka. As a person who had refused to rejoin the LTTE he was at risk of persecution from Tamil separatist groups. The delegate also found, and it is common ground in these proceedings, that should the plaintiff be returned to Sri Lanka there is a real chance that he would be subject to abduction, torture or death. The plaintiff was therefore a refugee within the meaning of the Convention. On 18 February 2011, in spite of finding the plaintiff to be a refugee, the delegate refused the application for the grant of a protection visa. The reason for that refusal was that on 11 December 2009, ASIO had issued to the Department of Immigration and Citizenship ("the Department") an assessment of the plaintiff under s 37 of the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"). The assessment stated that:"ASIO assesses [the plaintiff] ... from the Oceanic Viking caseload to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979." Because of that assessment the plaintiff did not meet public interest criterion 4002 set out in the Migration Regulations 1994 ("the Regulations") for the grant of a protection visa. That criterion requires that an applicant for a protection visa is not assessed by ASIO to be directly or indirectly a risk to security. The Refugee Review Tribunal ("the RRT"), unable to look behind the security assessment[1], affirmed the delegate's decision not to grant the plaintiff a protection visa. [1]ASIO Act, s 36(b) read with definition of "prescribed administrative action" in s 35(1).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
GUMMOW J
It may be accepted that the requirements of procedural fairness are attracted to the making of a security assessment under the ASIO Act. The content of those requirements is not necessarily to be answered solely by reference to the terms of the ASIO Act and the potential effect of an assessment upon the interests of the person about whom it is made. A security assessment may be used for a variety of purposes involving the exercise of different statutory powers. Such an assessment may be relied upon for more than one purpose under the Migration Act. The content of procedural fairness will depend upon the part played by the assessment in the exercise of the power in which it is considered and the nature of that power. Whether or not procedural fairness was accorded in this case depends upon the way in which the assessment is used and upon the decision ultimately made. The question remains hypothetical unless, and until, the assessment is used to support a decision adverse to the plaintiff, other than a decision involving the application of public interest criterion 4002.Conclusion I would amend Question 2A and answer the reserved questions in the terms proposed by Hayne J[108].[108]Reasons of Hayne J at [227]. In R (European Roma Rights Centre) v Immigration Officer at Prague Airport[109] Lord Bingham of Cornhill described[110] the tension in domestic statute law which governs the administration of immigration control between, on the one hand, the powers of the sovereign state to admit, exclude and repel aliens, and, on the other hand, the humane practice, reflected in treaty obligations, to admit aliens, or some of them, seeking refuge from persecution elsewhere. His Lordship spoke of this tension with reference to a range of materials, including what had been said in this Court in Applicant A v Minister for Immigration and Ethnic Affairs[111] and Minister for Immigration and Multicultural Affairs v Ibrahim[112].[109][2005] 2 AC 1.[110][2005] 2 AC 1 at 27-32. Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell agreed with the reasons of Lord Bingham on this issue.[111](1997) 190 CLR 225 at 247-248, 273-274; [1997] HCA 4.[112](2000) 204 CLR 1 at 45-46 [137]‑[138]; [2000] HCA 55. See also Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 15-17 [41]-[48]; [2002] HCA 14; NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at 169‑171 [13]‑[21]; [2005] HCA 6. The plaintiff acknowledges that his construction would result in a person in his position being entitled to reside in Australia notwithstanding that the person had not been granted a visa. It is a construction that does not sit with the objects and scheme of the Act[488]. The plaintiff submits that a material change to the Act since the decision in Al-Kateb is the insertion of subdiv B in Div 7 of Pt 2, which provides for the making of "residence determinations"[489]. The introduction of the residence determination scheme, it is argued, removes any "imperative" that an unlawful non-citizen be detained until removed, deported or granted a visa[490]. [488]The Act, ss 4, 13-14, 189.[489]Inserted by the Migration Amendment (Detention Arrangements) Act 2005 (Cth). [490]Al-Kateb (2004) 219 CLR 562 at 576 [17] per Gleeson CJ, 638 [226] per Hayne J.