FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
Matter No M61/2010
PLAINTIFF M61/2010E PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS
Matter No M69/2010
PLAINTIFF M69 OF 2010 PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS
Plaintiff M61/2010E v Commonwealth of Australia Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 11 November 2010 M61/2010 and M69/2010
ORDER
In each matter:
1.Declare that, in recommending to the second defendant that the plaintiff was not a person to whom Australia has protection obligations, the third defendant made an error of law, in that the third defendant did not treat the provisions of the Migration Act1958 (Cth) and the decisions of Australian courts as binding, and, further, failed to observe the requirements of procedural fairness.
2.Application otherwise dismissed.
3.First and second defendants to pay the plaintiff's costs.
Representation
D S Mortimer SC with R M Niall and K E Foley for the plaintiff in M61/2010 (instructed by Allens Arthur Robinson Lawyers)
S G E McLeish SC with L G De Ferrari and P D Herzfeld for the plaintiff in M69/2010 (instructed by Holding Redlich)
S J Gageler SC, Solicitor-General of the Commonwealth with S P Donaghue and D F O'Leary for the first and second defendants in both matters (instructed by Australian Government Solicitor)
S P Donaghue for the third and fourth defendants in both matters (instructed by Australian Government Solicitor)
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 M61/2010E v Commonwealth of Australia Plaintiff M69 of 2010 v Commonwealth of Australia
Administrative law – Procedural fairness – Error of law – Refugees – Migration – Offshore processing – Plaintiffs were "offshore entry persons" under Migration Act 1958 (Cth) ("Migration Act") – Plaintiffs detained under s 189(3) of Migration Act – Each claimed Australia owed him protection obligations under Refugees Convention as amended by Refugees Protocol – Each plaintiff precluded from making valid visa application unless Minister decided in public interest to allow: s 46A of Migration Act – Minister had power to grant visa in absence of valid application: s 195A of Migration Act – Each plaintiff subject to "Refugee Status Assessment" by departmental officer and subsequent "Independent Merits Review" by independent contractor – Each departmental officer and independent reviewer concluded plaintiff not a person to whom Australia had protection obligations – Powers under ss 46A and 195A "may only be exercised by the Minister personally" – Minister not under duty to consider whether to exercise power under s 46A or s 195A – Whether continuing detention lawful because assessment and review were steps taken under and for purposes of Migration Act – Whether Minister had decided to consider exercising power under s 46A or s 195A of Migration Act in every case where an offshore entry person claimed to be owed protection obligations – Whether those who conducted assessment and review bound to…
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 M61/2010E v Commonwealth [2010] HCA 41
Case
[2010] HCA 41
Decision Date
CaseChat Overview and Summary
In the High Court of Australia, the plaintiffs, identified as "offshore entry persons" under the *Migration Act 1958* (Cth), challenged the lawfulness of their detention. These individuals were detained under section 189(3) of the Act and claimed Australia owed them protection obligations under the Refugees Convention. Their ability to apply for a visa was contingent on the Minister deciding, in the public interest, to allow such an application under section 46A, or the Minister granting a visa in the absence of a valid application under section 195A. Each plaintiff underwent a "Refugee Status Assessment" by a departmental officer and an "Independent Merits Review" by a contractor, both of whom concluded that Australia did not owe the plaintiffs protection obligations. The core dispute revolved around whether the powers under sections 46A and 195A, which could only be exercised by the Minister personally, were subject to a duty to consider their exercise, and whether the assessment and review processes afforded procedural fairness.
The legal issues before the Court included whether the continuing detention of the plaintiffs was lawful, given that the assessment and review processes were undertaken for the purposes of the *Migration Act*. The Court was asked to determine if the Minister was implicitly bound to consider exercising the powers under sections 46A and 195A in every case where an offshore entry person claimed protection obligations, and whether the officers conducting the assessment and review were obliged to afford procedural fairness and act according to law. Furthermore, the Court considered whether the assessment and review processes themselves were procedurally fair and conducted in accordance with the law. Constitutional questions arose regarding the validity of section 46A of the *Migration Act*, specifically whether it was invalid due to the unenforceability of any consideration to exercise the power, and whether the Minister's power was arbitrary, potentially implicating section 75(v) of the Constitution.
The Court reasoned that the "Carltona principle" did not apply to the powers under sections 46A and 195A, meaning the Minister was not bound to consider exercising these powers personally. The Court found that the departmental officers and independent reviewers were not exercising the Minister's personal powers, and therefore were not bound by the *Carltona* principle. However, the Court determined that the officers and reviewers were bound to afford procedural fairness to the plaintiffs and to act according to law. The Court concluded that the third defendant (the independent reviewer) made an error of law by failing to treat the provisions of the *Migration Act* and Australian court decisions as binding, and by failing to observe the requirements of procedural fairness.
In each matter, the Court ordered a declaration that the third defendant made an error of law in its recommendation. The applications were otherwise dismissed, and the first and second defendants were ordered to pay the plaintiffs' costs.
Orders
Orders of the court
In each matter:
1. Declare that, in recommending to the second defendant that the plaintiff was not a person to whom Australia has protection obligations, the third defendant made an error of law, in that the third defendant did not treat the provisions of the Migration Act 1958 (Cth) and the decisions of Australian courts as binding, and, further, failed to observe the requirements of procedural fairness.
2. Application otherwise dismissed.
3. First and second defendants to pay the plaintiff's costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
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Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ