Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] HCA 53

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

PLAINTIFF M76/2013  PLAINTIFF

AND

MINISTER FOR IMMIGRATION,
MULTICULTURAL AFFAIRS AND CITIZENSHIP
& ORS  DEFENDANTS

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] HCA 53

12 December 2013

M76/2013

ORDER

The questions asked by the parties in the amended Special Case dated 13 August 2013 and referred for consideration by the Full Court be answered as follows:

Question 1

Do ss 189, 196 and 198 of the Migration Act 1958 (Cth) authorise the detention of the Plaintiff?

Answer

The plaintiff's present detention is authorised by ss 189 and 196 of the Act.

Question 2

If the answer to question 1 is "yes", are these provisions beyond the legislative power of the Commonwealth insofar as they apply to the Plaintiff?

Answer

Save that the plaintiff's present detention is validly authorised by ss 189 and 196 of the Act, it is not necessary to answer this question.

Question 3

Does the fact that the Plaintiff's case was not referred to the Minister for him to consider whether to exercise his power under s 46A(2) reveal an error of law?

Answer

Yes.

Question 4

What relief, if any, should issue?

Answer

It should be declared that the exercise of the Minister's power was affected by an error of law in that, in deciding whether to refer the plaintiff's application to the Minister, an officer of the Commonwealth acted upon PIC 4002 as a consideration relevant to the decision.

Question 5

Who should pay the costs of and incidental to this Special Case?

Answer

The defendants.

Representation

R M Niall SC with K L Walker, C L Lenehan and A Rao for the plaintiff (instructed by Allens)

J T Gleeson SC, Solicitor-General of the Commonwealth and S P Donaghue SC with N M Wood for the defendants (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 M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship

Migration – Refugees – Protection visas – Offshore entry persons – Power of Minister to permit valid application for protection visa – Plaintiff assessed to be refugee – Plaintiff subject of adverse security assessment by Australian Security Intelligence Organisation – Minister's department did not refer plaintiff's case for Minister's consideration – Minister's department acted upon invalid regulation – Whether Minister's exercise of power attended by error of law.

Migration – Unlawful non-citizens – Immigration detention pending removal from Australia – Minister's consideration of whether to permit plaintiff to make valid application for visa not completed – Not established that no realistic prospect of removal from Australia in reasonably foreseeable future – Whether appropriate to re‑open Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 – Whether plaintiff's detention authorised.

Administrative law – Non-compellable power – Remedies – Declaration – Plaintiff has real interest in raising question of error – Whether declaration appropriate remedy.

Words and phrases – "adverse security assessment", "declaration", "error of law", "executive detention", "harmless error", "lift the bar", "real interest".

Migration Act 1958 (Cth), ss 46A(2), 189, 196, 198.
Migration Regulations 1994 (Cth), Sched 2, cl 866.225(a), Sched 4, cl 4002.

FRENCH CJ.

Introduction

1. In 2008, the Minister for Immigration and Citizenship established a Refugee Status Assessment ("RSA") process for the assessment of claims for protection under the Refugees Convention as amended by the Refugees Protocol[1] ("the Refugees Convention") by persons known as "offshore entry persons" who had arrived by boat in Australia without a visa.  As this Court held in Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case)[2], the detention of such persons while their claims were being assessed was lawful because the assessment in legal effect informed a statutory process under which the Minister considered whether or not to decide to allow such persons to make applications for protection visas. Applications for such visas by offshore entry persons were otherwise barred by s 46A(1) of the Migration Act 1958 (Cth) ("the Act").

   [1]The "Refugees Convention" means the Convention Relating to the Status of Refugees (1951); the "Refugees Protocol" means the Protocol Relating to the Status of Refugees (1967).

   [2](2010) 243 CLR 319; [2010] HCA 41.

2. This Special Case concerns a plaintiff who was found to be a refugee under the RSA process, but was the subject of an adverse security assessment by the Australian Security Intelligence Organisation ("ASIO"). That assessment was made on the assumption that, if the plaintiff were permitted to apply for a protection visa, it would be a necessary condition of the grant of such a visa, pursuant to public interest criterion 4002 ("PIC 4002"), set out in the Migration Regulations 1994, that she not be the subject of an adverse security assessment. That public interest criterion was subsequently found by this Court in Plaintiff M47/2012 v Director‑General of Security[3] to be invalid.

   [3](2012) 86 ALJR 1372; 292 ALR 243; [2012] HCA 46.

3. Officers of the Department of Immigration and Citizenship, acting on ministerial guidelines, and having regard to the adverse security assessment, did not refer the plaintiff's case to the Minister for a decision on whether to allow her to apply for a protection visa.  Acknowledging that the plaintiff could not be returned to her country of origin — where, as had been found, she would face persecution on Convention grounds — the Department approached a number of other countries to accept her for resettlement.  Those approaches were unsuccessful.  The plaintiff asserts error in the Department's reliance upon the adverse security assessment and challenges the lawfulness of her continuing detention. 

4. For the reasons that follow, the decision by the Department not to refer to the Minister the plaintiff's request to be allowed to apply for a protection visa was informed by error.  Nevertheless, her continuing detention is lawful.  The Minister has not yet made a determination whether or not to allow the plaintiff to apply for a visa.  If a decision is made not to allow her to apply, the question whether she can be detained indefinitely thereafter, where there is no other country to which she can be sent, may arise.  It has not arisen yet.  The occasion is not one which warrants consideration of the correctness of the decision of this Court in Al-Kateb v Godwin[4].  The questions raised in the Special Case should be answered accordingly and a declaration made as proposed in the joint reasons of Crennan, Bell and Gageler JJ[5]. 

   [4](2004) 219 CLR 562; [2004] HCA 37.

   [5]Reasons of Crennan, Bell and Gageler JJ at [150].

   Factual and procedural background

5. On 8 May 2010, the plaintiff, a national of Sri Lanka, entered Australia without a visa at Christmas Island, which was designated under the Act as an "excised offshore place"[6]. Having entered without a visa she was an "unlawful non‑citizen" within the meaning of the Act[7].  Being an unlawful non-citizen who had entered Australia at an excised offshore place, she was also an "offshore entry person"[8]. Because she was an unlawful non-citizen, the plaintiff was taken into immigration detention pursuant to s 189 of the Act.

   [6]Act, s 5(1), definition of "excised offshore place".

   [7]Act, s 14.

   [8]Act, s 5(1), definition of "offshore entry person".

6. The plaintiff claimed at all times to have had a well-founded fear of persecution in Sri Lanka by reason of her race or political opinion. However, because she was an offshore entry person who was in Australia and was an unlawful non-citizen, s 46A(1) of the Act had the effect that an application by her for a visa would not be a valid application. On 27 July 2010, the plaintiff claimed protection as a refugee. She was interviewed by an officer of the Department on 30 July 2010. That interview commenced the RSA process conducted under ministerial guidelines. The nature of the RSA process was described in the Offshore Processing Case. Its purpose was to enable the Minister to consider whether to determine, pursuant to s 46A(2) of the Act, if he thought it in the public interest to do so, that the barring provision in s 46A(1) would not apply to an application by the plaintiff for a visa. Section 46A(7) provided that the Minister was not under a duty to consider whether to exercise his power under s 46A(2)[9].  However, as this Court held in the Offshore Processing Case, the establishment and conduct of the RSA process reflected a ministerial decision to consider exercising the power under s 46A(2) in every case in which an offshore entry person claimed to be a person to whom Australia owed protection obligations[10]. 

   [9]Section 46A(7) was in a form found in a number of provisions of the Act providing for non-compellable dispensing powers and considered in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31.

   [10](2010) 243 CLR 319 at 350–351 [70]–[71].

7. On or about 12 September 2011, the plaintiff was found by a delegate of the Minister to be a person to whom Australia owed protection obligations under the Refugees Convention within the meaning of s 36(2)(a) of the Act.

8. In a response dated 10 March 2009 to a departmental submission concerning the application of s 46A(2) to a group of offshore entry persons, the Minister had directed that health, identity and security checks of an offshore entry person should "be completed prior to release from detention." The Minister added:

   "Unless there are extenuating or special circumstances those requirements should be applied before seek bar to be lifted under Sect 46A(2)." 

   The term "release from detention" was not apposite. "Release from detention" was not a legal consequence of a referral to the Minister of a request that he exercise his power under s 46A(2). It may be that its use was an elliptical reference to the stage at which a person lodged a valid application for a protection visa following a decision by the Minister to allow such an application to be made. Once a visa was issued, release from immigration detention would ordinarily follow.

9. On 12 September 2011, the Department completed its inquiries as to whether the plaintiff was a refugee and concluded that she was a person to whom Australia owed protection obligations under the Refugees Convention.  The plaintiff was interviewed by ASIO on 8 December 2011 for the purpose of conducting a security assessment.

10. On 24 March 2012, the Minister issued further guidelines on ministerial interventions under s 46A(2). In s 10 of the guidelines under the heading "CASES NOT TO BE REFERRED FOR MY CONSIDERATION", the Minister, referring to offshore entry persons as "OEPs", stated:

    "For OEPs who have undertaken a Refugee Status Assessment (RSA) or POE interview prior to the transition to a single PV process on 24 March 2012 ... and in relation to whom the following circumstances apply, their case should not be referred for my consideration:

    ...

    •where my department has conducted an assessment or has accepted an assessment made by an independent merits reviewer, which has found that an OEP engages Australia's protection as provided for under s36(2) of the Act and the OEP does not appear to satisfy or is awaiting to satisfy the relevant Public Interest Criteria for the grant of a PV.

    For all OEPs (regardless of their date of arrival) to whom the following circumstances apply, their case should not be referred for my consideration:

    ...

    •where an OEP has been found to engage Australia's protection as provided for in s36(2) of the Act but has received an adverse security assessment".

    PIC 4002, which was among the public interest criteria referred to in the ministerial guidelines, was specified in the Migration Regulations as a primary criterion which must be satisfied for the grant of a protection visa[11].  It required that:

    "The applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the AustralianSecurity Intelligence Organisation Act 1979."

    That criterion was subsequently held by this Court in Plaintiff M47 to be an invalid exercise of the regulation-making power.  Judgment in Plaintiff M47 was delivered on 5 October 2012.

    [11]Migration Regulations, Sched 2, cl 866.225.

11. In April 2012, the plaintiff was advised by the Department that ASIO had assessed her to be directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth). On that basis it was said that she did not satisfy PIC 4002. For that reason her case was not referred to the Minister for consideration of a determination under s 46A(2) on whether she should be permitted to make a valid application for a protection visa. As a result of the adverse security assessment, no consideration is presently being given to the making of a determination under s 46A(2) or otherwise granting a visa to the plaintiff.

12. The plaintiff had been taken into immigration detention upon her arrival on Christmas Island in May 2010. She had her then two young sons with her. In March 2011, the Minister made a residence determination pursuant to s 197AB of the Act permitting her and her sons to reside in so-called "community detention". Under that determination they could move freely in the community. However, the plaintiff was required to report to the Department regularly and to accept visits at her residence, scheduled and unscheduled, from departmental staff. She moved into the specified residence on or about 8 April 2011. On 23 March 2012, she and her then two sons were transferred to the address of her then de facto spouse, who is now her husband, in Melbourne. He is a national of Sri Lanka who was granted a protection visa on 3 July 2012 and became an Australian permanent resident. The plaintiff and her husband married under Australian law on 18 October 2012. Their son, who is now the plaintiff's youngest child, was born on 15 January 2013 and is an Australian citizen.

13. In May 2012, the Minister revoked the plaintiff's residence determination and she and her then two sons were transferred to Sydney Immigration Residential Housing at Villawood, where she is presently detained. Her placement in that residential housing facility is a species of "immigration detention" as placement in "another place approved by the Minister in writing" for the purposes of par (b)(v) of the definition of "immigration detention" in s 5(1) of the Act. Subsequently, the Minister exercised his power under s 46A(2) so that the plaintiff's two eldest children could lodge valid applications for protection visas, which they were granted on 20 June 2013. The plaintiff's three children live as "visitors" at the residential facility. There is no dispute that the plaintiff is in continuing immigration detention.

14. Following the decision of this Court in Plaintiff M47, the Commonwealth appointed a retired Federal Court judge as an "Independent Reviewer" to review adverse security assessments made by ASIO in relation to persons who had been found by the Department to be owed protection obligations and who remained in immigration detention.  Her terms of reference required the Independent Reviewer to provide an opinion to the Director-General of Security on whether the challenged adverse security assessment was an appropriate outcome based on the material relied upon by ASIO, including any new material which had been referred to ASIO, and to make recommendations for the Director-General's consideration.  The Director-General was not obliged by law to consider or otherwise take any steps in response to any such recommendation.

15. The plaintiff applied on 14 December 2012 for a review of the adverse security assessment against her.  Having received detailed written submissions from the plaintiff, followed by an interview and the receipt of supplementary submissions, the Independent Reviewer wrote to the plaintiff on or about 11 June 2013 informing her that, in the Independent Reviewer's opinion, the adverse security assessment was an appropriate outcome.  The Independent Reviewer recommended that the assessment be reviewed again in 12 months' time.  The Independent Reviewer's decision was not linked to any statutory process.  It had no legal consequence or effect.  The plaintiff's request to be allowed to apply for a protection visa was not referred to the Minister, so the security assessment was not relied upon for any ministerial decision.

16. The plaintiff has no right to enter and remain in any country other than Sri Lanka.  Approaches have been made by the Department, without success, to a number of other countries seeking their assistance to resettle persons from the adverse security assessment cohort, of which the plaintiff is one.  The Department considers that in the absence of a change in circumstances, further approaches to the countries already approached or other countries are unlikely to result in them accepting the plaintiff for resettlement.  The Department intends to keep the plaintiff's case under review with a view to approaching resettlement countries should there be a change in circumstances that would make such an approach appropriate. 

17. In July 2013, a departmental officer sent a letter to the plaintiff's legal advisers requesting that she provide details of relatives which she had said were living in India and another country so the Department could explore the option of third country resettlement with them.  Her legal representatives informed the Department on 25 July 2013 that her mother and two brothers are living as refugees in India, do not have permanent residency and have no right to sponsor a family member to join them.  Her father had moved back to Sri Lanka.  Moreover, the legal advisers informed the Department that India will not accept a refugee who has received an adverse security assessment. 

18. The plaintiff commenced proceedings in this Court on 5 July 2013 with an application, which was amended and further amended.  In the further amended application, which was filed on 14 August 2013, the plaintiff sought a writ of habeas corpus requiring her release on such conditions as the Court sees fit.  She also sought declarations, including a declaration that her detention at Sydney Immigration Residential Housing is unlawful and further declaratory relief.  

19. The plaintiff filed a Special Case on 1 August 2013.  Hayne J made an order on 2 August 2013 referring the Special Case to a Full Court[12].  The Special Case was subsequently amended to reflect the further amended application.  It refers five questions for determination by the Court. 

    [12][2013] HCATrans 162.

    The questions for determination

20. The questions in the Special Case are:

    (1)Do ss 189, 196 and 198 of the Migration Act 1958 (Cth) authorise the detention of the Plaintiff?

    (2)If the answer to question 1 is "yes", are these provisions beyond the legislative power of the Commonwealth insofar as they apply to the Plaintiff?

    (3)Does the fact that the Plaintiff's case was not referred to the Minister for him to consider whether to exercise his power under s 46A(2) reveal an error of law?

    (4)What relief, if any, should issue?

    (5)Who should pay the costs of and incidental to this Special Case? 

    Question 3 — the s 46A question

21. It is convenient to consider question 3 first as, for the reasons that follow, the answer to that question effectively determines this Special Case. The legal nature and effect of the RSA process and the ASIO assessment must be identified in determining whether the non-referral of the plaintiff's request to the Minister to consider exercising his power under s 46A(2) was infected by legal error.

1. The first is shortly stated. The RSA process involved a decision by the Minister to consider the exercise of his power under s 46A(2). That process in its application to the plaintiff provided a lawful basis for her continuing detention[13].  The legal nature and effect of the ASIO assessment requires close consideration of the RSA process and the ministerial guidelines.

   [13]Offshore Processing Case (2010) 243 CLR 319 at 348–351 [62]–[71].

2. The plaintiff had, in effect, requested the opportunity to apply for a protection visa under s 36 of the Act. The relevant ministerial guidelines were directed to requests for ministerial consideration of the exercise of his power under s 46A(2) of the Act. The question to which the RSA process was directed was whether the criterion stated in s 36(2)(a) as a criterion for the grant of a protection visa was met[14].  That was the question whether the plaintiff was:

   "a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol".

   The RSA process involved a proleptic application of that criterion to the plaintiff's request as though she had made an application for a protection visa.  There were other criteria referred to in the Minister's direction of 10 March 2009, under the general description of health and security checks, which the Minister wanted dealt with before having the matter referred to him for consideration.

   [14](2010) 243 CLR 319 at 356 [89].

3. The defendants, in submissions to this Court, characterised the power conferred on the Minister by s 46A(2) of the Act as involving two distinct steps. The first was a decision whether to consider making a determination. The second was the decision to make or not make a determination. That much is not controversial[15]. The defendants submitted that by reason of s 46A(7) the Minister could terminate the process of consideration at any time. That proposition should not be accepted. Once the Minister has decided to consider whether or not to exercise his power under s 46A(2), he must decide to exercise it or not to exercise it. The defendants also argued that, except for a bad faith limitation, a decision to lift the bar imposed by s 46A(1) was conditioned only upon the Minister's view that it was in the public interest to do so. They submitted that it was open to the Minister to direct the Department to refer a case to him for a possible decision under s 46A(2) only if the person met certain criteria, which need not match the criteria for a visa. That can be done. It was not done in this case. The defendants also submitted that the Department's non‑referral of the plaintiff's case accorded with the guidelines issued in 2012. So much may be accepted, but the directions were informed by legal error.

   [15]Offshore Processing Case (2010) 243 CLR 319 at 350 [70] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

4. That result flows from the decision of this Court in Plaintiff M47 that PIC 4002 was invalid.  The application of the RSA process and the ministerial guidelines, designed as they were to provide a proleptic assessment of the plaintiff's satisfaction of PIC 4002, among other criteria, wrongly assumed its validity. 

5. It is not the case that, in considering whether to exercise his power under s 46A(2) in relation to a possible application for a protection visa, the Minister is always required to apply processes of assessment which precisely foreshadow those that would be followed in an application for a protection visa. The determination which the Minister makes under s 46A(2) is made "[i]f the Minister thinks that it is in the public interest to do so". The public interest may allow the Minister to have regard to a range of considerations, consistent with the subject matter, scope and purpose of the Act[16].  Those considerations are not limited to the criteria for the grant of the type of visa being sought.  However, the Minister has committed himself to a process which foreshadows the process to be followed and the criteria to be applied in determining an application for a protection visa.  The plaintiff's continued detention was based upon the need to make relevant inquiries in aid of that process. 

   [16]Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 496 per Latham CJ, 505 per Dixon J; [1947] HCA 21.

6. The Solicitor-General submitted, on behalf of the defendants, that the reference in the March 2012 guidelines to an adverse security assessment indicated both a proleptic application of PIC 4002 and reliance upon an adverse security assessment as a matter informing the public interest, which the Minister would have to consider under s 46A(2). That construction of the guidelines had the character of a reconstruction undertaken in the light of the decision of this Court in Plaintiff M47. The Solicitor-General conceded that if the correct construction of the guidelines was that the fact of an adverse security assessment of itself was not a barrier to referral, then there had been an error and what the Department should have done was to refer the matter to the Minister. Nevertheless, it was submitted that the Minister would remain free under s 46A(2) to determine that the existence of the adverse security assessment was a reason against making a determination to allow the plaintiff to apply for a protection visa.

7. The legal consequences for the Minister and for the plaintiff arising out of the application to her of the RSA process, as governed by the ministerial directions and guidelines and the statutory context, may be summarised as follows:

   (i)Upon the plaintiff's arrival in Australia as an offshore entry person and an unlawful non-citizen, officers of the Department were required, by s 189 of the Act, to take her into immigration detention.

   (ii)Section 198(2) of the Act required officers to remove the plaintiff from Australia as soon as reasonably practicable if she had not made a valid application for a substantive visa or had made a valid application that had finally been adversely determined.

   (iii)By virtue of s 46A(1), the plaintiff was unable to make a valid application for a substantive visa. Absent any claim to engage protection obligations under the Refugees Convention, the plaintiff would have been liable to removal back to Sri Lanka as soon as reasonably practicable after her initial detention.

   (iv)The plaintiff having made a claim to have a well-founded fear of persecution on Convention grounds if returned to Sri Lanka, she was not removed to that country but continued to be detained so that her claim could be assessed under the RSA process.

   (v)Section 198(2) of the Act, as construed by this Court in the Offshore Processing Case, accommodates "the taking of steps for the purpose of informing the Minister of matters relevant to the possible exercise of power under either s 46A or s 195A."[17]  Assuming that such inquiries were undertaken reasonably promptly, detention while they were undertaken would be lawful[18].

   (vi)By operation of s 46A(7), the Minister does not have a duty to consider exercising his power under s 46A(2).

   (vii)The establishment and implementation of the RSA process constituted a decision by the Minister to do that which he was under no duty to do — namely, to consider whether to exercise his power under s 46A(2) in respect of offshore entry persons, including the plaintiff[19].

   (viii)The assessment of the plaintiff's claims under the RSA process as a means of informing the Minister's decision whether or not to exercise his power under s 46A(2) provided the legal underpinning for the plaintiff's continuing detention[20].

   (ix)The Minister's decision, effected by the establishment and implementation of the RSA process, to consider exercising his power under s 46A(2) was not made pursuant to s 46A(7). That subsection confers no power. It merely declares that there is no duty to consider exercising the power under s 46A(2)[21].

   (x)The RSA process and subsequent checks constituted, in respect of the plaintiff, the steps taken to inform the exercise of the Minister's power under s 46A(2)[22].

   (xi)The steps taken under the RSA process and subsequently to inform ministerial consideration of whether to exercise his power under s 46A(2) must be in accordance with law, including compliance with the requirements of procedural fairness and by reference to correct legal principles correctly applied[23].

   [17](2010) 243 CLR 319 at 341–342 [35].

   [18](2010) 243 CLR 319 at 341–342 [35].

   [19](2010) 243 CLR 319 at 349 [66].

   [20](2010) 243 CLR 319 at 351 [71].

   [21](2010) 243 CLR 319 at 347 [59].

   [22](2010) 243 CLR 319 at 349–350 [67], 353–354 [78].

   [23](2010) 243 CLR 319 at 354 [78].

8. In this case the post-RSA process was informed by error of law in relation to PIC 4002. On the basis of that error, the plaintiff's case was not referred to the Minister. There was no separate consideration, and none was provided for in the guidelines, of whether some public interest criterion derived from the "public interest" condition referred to in s 46A(2) would be unable to be met. As a consequence, the third question in the Special Case should be answered "Yes". Declaratory relief to give effect to that answer should be granted in the terms proposed in the joint reasons of Crennan, Bell and Gageler JJ[24].

   [24]Reasons of Crennan, Bell and Gageler JJ at [150].

   The continuing detention of the plaintiff

9. Absent her claim on Australia for protection under the Refugees Convention and the process of assessment that followed it, the plaintiff's continuing detention would only have been lawful while steps were being taken to arrange for her removal as soon as reasonably practicable from Australia to Sri Lanka. The process of assessment provided a distinct legal underpinning for her detention pending its completion and the ministerial decision. The legal proceedings which the plaintiff has instigated in this Court to test that process for legal error must, like the process itself, be accommodated by the provisions of s 198(2). In short, subject to reasonable promptness on the part of the Minister and his officers in responding to the declaration of this Court, the plaintiff's continuing detention is authorised.

10. In the event that the Minister makes a decision under s 46A(2) adverse to the plaintiff, the question may arise whether her detention thereafter is authorised if she is unable to be removed to another country. On the construction of ss 189, 196 and 198 of the Act adopted by the majority in Al-Kateb, it appears that her continuing detention would be authorised until she was able to be removed from Australia. However, question 1 in the Special Case speaks to the present, rather than to the position which may arise after the Minister has made a decision under s 46A(2). In my opinion, question 1 can only be answered by reference to the present circumstances. In the circumstances, this is not a case in which this Court should consider reopening the decision in Al-Kateb, either as to the construction of ss 189, 196 and 198 of the Act or as to the constitutional validity of those provisions. Nor is it necessary to confirm its correctness. The reopening and re-examination of a decision of this Court should only be considered in a case the outcome of which depends upon its application. And in such a case well-established criteria governing the circumstances in which a previous decision of this Court will be reopened would apply[25]. 

    [25]See John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438–439; [1989] HCA 5; Wurridjal v The Commonwealth (2009) 237 CLR 309 at 352 [70] per French CJ; [2009] HCA 2.

    Conclusion

11. I would answer the questions in the Special Case as proposed in the joint judgment of Crennan, Bell and Gageler JJ[26].

    [26]Reasons of Crennan, Bell and Gageler JJ at [150].

12. HAYNE J.   The Migration Act 1958 (Cth) ("the Act") provides[27] that a non‑citizen in the "migration zone"[28] is either a "lawful non‑citizen" or an "unlawful non‑citizen" according to whether he or she holds a visa that is in effect. An officer who knows or reasonably suspects that a person in the migration zone is an unlawful non‑citizen must detain that person under s 189(1) or (3). An unlawful non‑citizen detained under s 189 must be kept[29] in immigration detention until the occurrence of one of four terminating events:  removal[30] from Australia, deportation[31], grant[32] of a visa, or an officer beginning to deal[33] with the non‑citizen for the purpose of taking that person to a regional processing country[34]. An officer must remove from Australia an unlawful non‑citizen detained under s 189(3) "as soon as reasonably practicable"[35].

    [27]ss 13(1) and 14(1).

    [28]Defined in s 5(1).

    [29]s 196(1).

    [30]Under s 198.

    [31]Under s 200.

    [32]Under s 65 or s 195A.

    [33]Under s 198AD(3).

    [34]This last terminating event was added to the Act in 2012, after the plaintiff's initial detention, by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), s 3, Sched 1, item 18. Nothing turns on this amendment.

    [35]s 198(2).

13. Once again, this Court must decide whether these provisions of the Act mean what they say and, if they do, whether they are valid.

14. This Court decided both the construction and the constitutional question in Al‑Kateb v Godwin[36], deciding that ss 189, 196 and 198 had to be construed as meaning what they say, and that those provisions were not beyond the legislative powers of the Parliament. As I said[37] in Al‑Kateb, by reference to the words of Judge Learned Hand[38]:

    "Think what one may of a statute ... when passed by a society which professes to put its faith in [freedom], a court has no warrant for refusing to enforce it.  If that society chooses to flinch when its principles are put to the test, courts are not set up to give it derring‑do."

    [36](2004) 219 CLR 562; [2004] HCA 37.

    [37](2004) 219 CLR 562 at 652 [269].

    [38]United States v Shaughnessy 195 F 2d 964 at 971 (1952).

15. No good reason was proffered for revisiting the conclusions reached in Al‑Kateb about the construction of the relevant provisions and their validity. Despite making numerous amendments to the Act in the intervening years, the Parliament has taken no step to amend these provisions in any relevant way. The provisions are valid laws of the Parliament. No matter what one may think of the provisions, this Court has no warrant for refusing to enforce them.

16. Behind the issues of construction and validity that have been mentioned, there lies a third issue in this case: whether the Minister must decide whether to make a determination under s 46A(2) which would permit the plaintiff to make a valid application for a visa. These reasons will show that, having decided to consider whether to exercise this power, the Minister must decide whether to make a determination under s 46A(2). And the Minister must decide whether to make the determination only by reference to the one consideration which the Minister decided was relevant to the exercise of the power, namely whether Australia owes the plaintiff protection obligations under the Refugees Convention[39] as amended by the Refugees Protocol[40] ("the Convention").

    [39]The Convention relating to the Status of Refugees done at Geneva on 28 July 1951.

    [40]The Protocol relating to the Status of Refugees done at New York on 31 January 1967.

17. Consideration of this third issue requires brief reference to the facts.

    The facts

18. The plaintiff is a Sri Lankan national.  She arrived by boat in Australia in May 2010.  She then held, and now holds, no visa permitting her to travel to and enter Australia or permitting her to remain in Australia.  She is, therefore, an unlawful non‑citizen[41].  Having first arrived in Australia in the Territory of Christmas Island (an "excised offshore place") she is an "offshore entry person"[42].

    [41]ss 5(1) and 14(1).

    [42]s 5(1). Following the enactment of the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), the Act no longer uses the term "offshore entry person". Instead, the Act now uses the term "unauthorised maritime arrival", and defines that term in a way which differs in some respects from the definition of "offshore entry person". Nothing turns on this change. It is convenient to use the term "offshore entry person" in these reasons and to refer to the relevant provisions of the Act in the form they took when the Act used that expression.

19. It is not now disputed that the plaintiff has a well‑founded fear of persecution for reasons of race and political opinion if she returns to Sri Lanka. She is a "refugee" within the meaning of the Convention, but the Act provides[43] that, because she is an offshore entry person, she cannot make a valid application for any visa.  She has been in immigration detention since her arrival in 2010.

    [43]s 46A(1).

20. In April 2012, the Australian Security Intelligence Organisation ("ASIO") gave the Department of Immigration and Citizenship an "adverse security assessment" with respect to the plaintiff. That assessment recorded that ASIO assessed the plaintiff to be directly or indirectly a risk to "security" within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"). The ASIO Act definition of "security" required[44] reference to "the carrying out of Australia's responsibilities to any foreign country" in relation to certain matters.

    [44]s 4, definition of "security", par (b).

21. ASIO later summarised its reasons for making the adverse security assessment in four points.  ASIO had concluded that the plaintiff (a) had been a voluntary member of the Liberation Tigers of Tamil Eelam ("LTTE") who had engaged in armed combat, training and administrative support; (b) remained "strongly ideologically supportive of the LTTE and its aim to achieve Tamil Eelam through the use of violence"; (c) was likely to continue to support the LTTE in Australia; and (d) was "likely to engage in acts prejudicial to Australia's security" if she were to be granted a visa.  On their face, the first three points relate only to the past conduct and present beliefs of the plaintiff.  The real sting of the assessment appears to lie in the last point made but neither its content nor its basis has been revealed, whether in the course of these proceedings or otherwise.  It is not a point which necessarily follows from any one or more of the first three points.

22. In April 2012, when ASIO gave its adverse security assessment, regulations made under the Act provided[45] that a criterion[46] for the grant of a protection visa ("PIC 4002") was, in effect, that ASIO not have provided an adverse security assessment in respect of the visa applicant.  In October 2012, this Court held[47], in Plaintiff M47/2012 v Director‑General of Security, that PIC 4002 was invalid because its making was inconsistent with the Act. Sections 500(1) and 501(6) prescribed character requirements for the grant of a protection visa and made special provision for the review of decisions refusing to grant a protection visa relying on Art 1F, 32 or 33(2) of the Convention or on the ground (among others) that there is a significant risk that a person would represent a danger to the Australian community or to a segment of that community. None of those grounds permitted consideration of foreign country security obligations of the kind referred to in par (b) of the ASIO Act definition of "security". Hence, PIC 4002 prescribed a criterion which went beyond those expressly provided by the Act, was inconsistent with the Act and was invalid.

    [45]Migration Regulations 1994 (Cth), Sched 2, cl 866.225(a).

    [46]Migration Regulations 1994, Sched 4, cl 4002.

    [47](2012) 86 ALJR 1372 at 1396‑1397 [71] per French CJ, 1418‑1419 [206] per Hayne J, 1455 [399] per Crennan J, 1465 [455], [458]‑[459] per Kiefel J; 292 ALR 243 at 267, 297‑298, 348, 361‑362; [2012] HCA 46.

1. The plaintiff has no right to enter and remain in any country other than Sri Lanka.  The Minister does not propose to remove the plaintiff to Sri Lanka against her will.  Despite efforts to resettle the plaintiff in another country, no country has agreed to take the plaintiff and it is agreed that no country appears likely to do so.  The defendants ("the Commonwealth parties") accepted that, in the circumstances, it would be open to conclude that there is no real likelihood or prospect that the plaintiff will be removed from Australia in the reasonably foreseeable future.

2. The plaintiff commenced proceedings in the original jurisdiction of this Court alleging that her continued detention was unlawful.  The parties agreed in stating questions of law in the form of a special case for the consideration of the Full Court.

3. It is convenient to deal first with whether the Minister decided to consider whether to make a s 46A(2) determination (permitting the plaintiff to make a valid application for a visa).

   Did the Minister decide to consider whether to make a s 46A(2) determination?

4. At all times relevant to this matter, s 46A(1) of the Act has provided that an application for a visa is not a valid application if it is made by an offshore entry person who is in Australia and is an unlawful non‑citizen. Section 46A(2) provided:

   "If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination."

5. This power (often referred to as the power to "lift the bar") may only be exercised by the Minister personally[48]. Section 46A(7) provided that:

   "The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances."

   The effect of s 46A(7) is often referred to as making the power "non‑compellable".

   [48]s 46A(3).

6. Before the plaintiff arrived and was detained at Christmas Island, the Minister had established administrative processes for determining whether, as a matter of international law, Australia's obligations under the Convention were engaged in respect of particular offshore entry persons.  These administrative processes were described in a "Refugee Status Assessment Procedures Manual" ("the RSA Manual").

7. This Court considered some aspects of the nature and effect of those administrative processes ("the RSA process") in Plaintiff M61/2010E v The Commonwealth ("the Offshore Processing Case")[49].  In particular, this Court held[50] that assessments made under the RSA process had to be made according to law and in a manner that afforded procedural fairness to the person whose claim was being assessed. 

   [49](2010) 243 CLR 319; [2010] HCA 41.

   [50](2010) 243 CLR 319 at 355‑357 [87]‑[91].

8. The central premise[51] for the decision in the Offshore Processing Case was that offshore entry persons who were detained while the RSA process was conducted were detained under and for the purposes of the Act. More particularly, those persons were detained for the purpose of the Minister considering whether to exercise power under the Act. And argument of the present matter proceeded on the undisputed footing that the RSA process was engaged in the plaintiff's case for that purpose. Having regard, however, to the course taken in argument of the present matter, it is necessary to identify more precisely why the plaintiff's detention for the purpose of considering whether to lift the bar was detention under and for the purposes of the Act.

   [51](2010) 243 CLR 319 at 351 [70].

9. It will be recalled that one of the terminating events prescribed by s 196(1) as fixing the duration of immigration detention is that the unlawful non‑citizen detained under s 189 "is granted a visa"[52]. When the obligation under s 198(2) to remove an unlawful non‑citizen "as soon as reasonably practicable" is read with both the inability of an offshore entry person to make a valid application for a visa[53] and the Minister's power under s 46A(2) to lift the bar, it is evident that the Act authorises detention of an unlawful non‑citizen for so long as is reasonably necessary for the Minister first, to decide whether to consider exercising the power to lift the bar and second, to decide whether to lift the bar[54]. 

   [52]s 196(1)(c).

   [53]s 46A(1).

   [54]cf Offshore Processing Case (2010) 243 CLR 319 at 350 [70].

10. In the case of this plaintiff, like other offshore entry persons to whom the RSA process was applied, the Minister had determined[55] (by establishing the RSA process and detaining the plaintiff and others while that process was conducted) to consider whether to lift the bar.  The Minister could not have been compelled to embark upon that consideration.  But the following observations require the conclusion that the Minister did embark upon that consideration. 

    [55]Offshore Processing Case (2010) 243 CLR 319 at 350‑351 [70]‑[71].

11. The Minister decided that the RSA process would be followed for every offshore entry person who claimed that Australia owed protection obligations to him or her. The plaintiff made such a claim. The RSA process began and she was not removed from Australia as soon as reasonably practicable as would otherwise have been required by s 198(2). But the plaintiff was still detained and her continued detention was justifiable only if it was under and for the purposes of the Act. The only possible statutory purpose for detaining an offshore entry person, other than for removal, was for consideration of whether to permit that person (under s 46A(2)) to make a valid application for a visa. And if detention was for that purpose, consideration of whether to exercise the power given by s 46A(2) must have begun.

12. That is, by detaining an offshore entry person to follow the RSA process, the Minister necessarily decided to consider exercising the power given by s 46A(2) in respect of that person. To put the same point another way, the operation of s 46A(7) was exhausted once the RSA process was engaged in respect of an offshore entry person who was detained.

    Relevant contextual considerations

13. The steps that were taken in respect of the plaintiff for the purposes of the Minister's consideration of whether to lift the bar must be understood having regard to the policy which was then being pursued.  That, in turn, requires reference to some matters of history.  Those matters are described[56] in some detail in the Offshore Processing Case.  It is sufficient for present purposes to notice only the following features. 

    [56](2010) 243 CLR 319 at 339‑342 [29]‑[40].

14. In 2001, the Parliament enacted six Acts[57], one after the other, which affected the entry into and remaining in Australia by non‑citizens.  The changes made by those Acts included provision for excising certain Australian territory, including the Territory of Christmas Island, from the migration zone[58] and the insertion into the Act of various sections, including ss 46A[59] and 198A[60]. 

    [57]Border Protection (Validation and Enforcement Powers) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth); Migration Legislation Amendment Act (No 1) 2001 (Cth); Migration Legislation Amendment Act (No 5) 2001 (Cth); Migration Legislation Amendment Act (No 6) 2001 (Cth).

    [58]Migration Amendment (Excision from Migration Zone) Act 2001, s 3, Sched 1, item 1.

    [59]Migration Amendment (Excision from Migration Zone) Act 2001, s 3, Sched 1, item 4.

    [60]Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001, s 3(1), Sched 1, item 6.

15. Section 198A(1) provided that offshore entry persons might be taken from Australia to a country declared under that section. The Republic of Nauru and the Independent State of Papua New Guinea were declared countries and persons were removed from Australia to those places in exercise of the power given by s 198A(1). This procedure came to be called the "Pacific Strategy".

16. As noted[61] in the Offshore Processing Case, the changes to the Act "that were worked by inserting s 46A and, in consequence, inserting s 198A, are to be seen as reflecting a legislative intention to adhere to that understanding of Australia's obligations under the [Convention] that informed other provisions made by the Act".

    [61](2010) 243 CLR 319 at 341 [34].

17. Following a change of government in 2007, offshore entry persons were no longer taken to Nauru or Papua New Guinea.  The Government decided that all offshore entry persons would be "processed" on Christmas Island and that the RSA process would be followed in respect of offshore entry persons who claimed to be refugees.  As was said[62] in the Offshore Processing Case, the adoption of the RSA process and its application to offshore entry persons could only be understood as implementing the decision no longer to follow the Pacific Strategy but instead to undertake the RSA process as the means of meeting Australia's obligations under the Convention.

    [62](2010) 243 CLR 319 at 342 [40].

    The purpose and content of the RSA process

18. The RSA Manual recorded, under the heading "Background", that offshore entry persons "who raise claims or information which prima facie may engage Australia's protection obligations [will] have such claims examined under a separate RSA process so that the Minister can be advised whether Australia's protection obligations under the Refugees Convention are engaged" (emphasis added). 

19. Not only did the RSA Manual show that the RSA process was directed to determining whether Australia owed protection obligations to any offshore entry person who made a claim to protection, offshore entry persons were told that this was what the process was deciding.  Offshore entry persons to whom the RSA process was applied were told, at the start of the process, that what was being done was to "assess and process" their claims to be refugees. 

20. The RSA Manual required that an offshore entry person who raised "claims or information that may engage Australia's protection obligations" was to be provided with an information sheet outlining the RSA process.  That information sheet (available in a number of languages) told the offshore entry person that:

    "If a finding is made that you are a refugee, the department will write to the Minister for Immigration and Citizenship (the minister) asking him to allow you to make a visa application to stay in Australia. 

    If the minister allows you to lodge a visa application, you will be asked to complete and sign a form asking for a visa to stay in Australia.  Your agent can help you with this. 

    If you are successful with your application for a visa, you will be given a permanent visa to live in mainland Australia.  You will be moved to mainland Australia and will receive help with settlement into the Australian community." 

    The information sheet also described what would happen if a finding was made that the person concerned was not a refugee and what would happen if that person sought review of the decision by an independent reviewer.  It is not necessary, in this case, to refer to the review processes.

21. Although the special case does not state expressly that the plaintiff was given such an information sheet, it should be inferred that she was. 

22. The RSA Manual provided that the assessment of claims made by an offshore entry person would be made by an "RSA officer":  "a departmental employee tasked by the Minister ... to identify refugees according to the definition of a refugee as set out in the Refugees Convention".  The RSA Manual required the RSA officer to consider eight issues:

    (a)what the claimant's country of nationality or former habitual residence was;

    (b)whether the claimant had the right to enter and reside in a safe third country;

    (c)whether Art 1C of the Convention (providing for the cessation of protection obligations) applied;

    (d)whether any of the exclusion clauses of Art 1D, 1E or 1F of the Convention applied;

    (e)whether Art 33(2) of the Convention (providing, among other things, that the benefit of the obligation not to expel or return a refugee to the borders of a country where he or she fears persecution for a Convention reason "may not ... be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he [or she] is") applied;

    (f)whether the claimant feared harm for a Convention reason;

    (g)      whether the harm feared amounted to persecution; and

    (h)whether the claimant's fear was well‑founded. 

23. The RSA Manual required the RSA officer, for each issue, to "set out, evaluate and weigh evidence", "set out, discuss and consider the relevant articles of the Refugees Convention", "state and explain the overall conclusion reached in relation to each issue" and "record a finding" for each of the issues considered.

24. Once an RSA officer completed the assessment of the claims made by an offshore entry person, the officer was "to record [his or her] finding on the claimant's claims and determine whether the claimant is or is not a refugee under Article 1 of the Convention".

25. As would be expected, the information set out in the information sheet provided to offshore entry persons was consistent with the RSA Manual's description of the way in which cases should be finalised by RSA officers.  A "[p]ositive RSA outcome" was described in the following terms:

    "When an [offshore entry person] is found to be owed protection through the RSA process, and is not subject to exclusion clauses under Articles 1F and 33(2) of the Refugees Convention, Australia's protection obligations under the Convention are enlivened.

    A submission will be provided to the Minister for [his or her] consideration of whether to exercise [his or her] power under section 46A(2) of the Migration Act and lift the section 46A(1) bar to allow a protection (or other) visa application to be made. If the Minister decides to lift the bar, the [offshore entry person] will be invited to lodge a Protection visa application using Form 866.  This application will be assessed with reference to the claims made during the RSA process.  Subject to health and character requirements being met, a Protection visa will then be granted to the [offshore entry person].  Following grant, the [offshore entry person] will be resettled in Australia."  (emphasis added) 

26. The RSA Manual shows that the RSA process was directed to advising the Minister whether Australia's international obligations under the Convention were engaged.  The RSA process had no wider purpose.  In particular, the RSA process was not directed to determining whether a protection visa would be granted if a valid application could be made.  The RSA Manual acknowledged, more than once, that if the Minister lifted the bar, the person concerned had to make an application for a protection visa and meet necessary health and character requirements as part of the process of consideration of the visa application.

    The assessment of the plaintiff's claims

27. The RSA officer who assessed the plaintiff's claims under the RSA process determined that she was a refugee as defined by the Convention.  The RSA officer found that Art 1F of the Convention was not engaged, there being "no serious reasons for considering that the [plaintiff] was complicit in any war crime or crimes against humanity".  The RSA officer further found that the plaintiff did not come within the express exception provided by Art 33(2) of the Convention to the obligation not to expel or return a refugee to the borders of a country in which that person had a well‑founded fear of persecution for a Convention reason.  That is, the RSA officer found that there were not "reasonable grounds for regarding [the plaintiff] as a danger to the security" of Australia.

28. The decision made under the RSA process was communicated by the Department to the plaintiff.  The plaintiff was told that she was "still subject to health, identity, security and character checking processes", as were family members who had made protection claims dependent on hers.

    Steps following the adverse security assessment

29. As has already been noted, ASIO gave the Department an adverse security assessment in respect of the plaintiff in April 2012.  The Department treated the adverse security assessment as requiring that it not refer the plaintiff's case to the Minister and it did not. 

30. The Department's decision not to refer the plaintiff's case to the Minister was based upon two different ministerial communications, one in 2009 and the other in 2012.  It is necessary to say something about each.

    The 2009 ministerial comments

31. In 2009, well before the plaintiff had arrived at Christmas Island, the Department had made a submission to the Minister seeking what was described as "your decision on whether you wish to exercise your section 46A(2) power in the case of thirty two people" who had arrived on a particular boat.

32. Twenty‑nine of the persons concerned had had health, character and security clearances finalised; three had outstanding security clearances.  The Department's submission said that protection visa applications by those three persons would "remain undecided until all clearances have been finalised".  It went on to point out that:

    "once the three clients are in the [protection visa] stream, and if they happen to receive a negative finding, they will have access to both merits and judicial review. Alternatively you may decide to defer your decision to exercise your section 46A(2) power for the three individuals until all mandatory checks have been completed."

33. The Minister declined to determine that any of the three persons awaiting a security clearance should be entitled to make a valid application for a visa. The Minister said that government policy was for health, identity and security checks to be completed prior to release from detention and that, unless there were extenuating or special circumstances, those requirements should be applied before seeking to lift the bar under s 46A(2).

34. The Minister's reference to completing health and security checks before release from detention assumed, wrongly, that deciding to permit the making of a valid application for a visa would release the plaintiff from detention. Permitting the making of a valid application for a visa would not have had that effect. The Act required continuing detention of every unlawful non‑citizen until a visa was granted or one of the other terminating events specified in s 196(1) occurred. The plaintiff did not submit that anything turned upon this error and it may be put aside from further consideration.

35. The comments made by the Minister were treated by the Department as a general direction to be followed in later cases in which there was a question about seeking the Minister's exercise of power under s 46A(2). That is, they were treated as identifying when the Minister wished not to embark upon the task of deciding whether to lift the bar. But as has been demonstrated, the Minister had already taken that step. Whatever may have been the effect of the Minister's comments in the particular cases then under consideration, they were not comments which bore at all on whether the Minister should decide to lift the bar in the plaintiff's case. The comments which the Minister made in his 2009 decision were irrelevant to the plaintiff's case and the Department was wrong to treat them as applicable.

    The 2012 direction

36. In 2012, one month before ASIO gave the adverse security assessment in respect of the plaintiff, the Minister gave directions about the circumstances in which he may wish to consider exercising his power under s 46A(2), and in which the Department should draw particular cases to his attention. One kind of case which the directions said should not be referred for the Minister's consideration was where an offshore entry person was found to engage Australia's protection obligations as provided by s 36(2) of the Act but had received an adverse security assessment.

1. Like the 2009 ministerial comments, the directions given in 2012 were, and are, irrelevant to the plaintiff's case. They were, and are, irrelevant because the Minister had already decided to consider exercising power under s 46A(2) in respect of the plaintiff. The directions given in 2012 dealt only with whether the Minister would consider exercising the power. Contrary to the premise for some of the submissions advanced by the Commonwealth parties, once the RSA process had begun, there was no further occasion upon which s 46A(7) could be applied in the plaintiff's case.

   The s 46A(2) power remains unperformed

2. Having decided to consider exercising power under s 46A(2), the Minister has never done so. The Minister has never made a decision whether to permit the plaintiff to make a valid application for a visa. The power under s 46A(2) remains unperformed.

3. What consequences follow must be determined by first identifying the relationship between the RSA process and the power given by s 46A(2).

   The RSA process and the power given by s 46A(2)

4. It is unsurprising that, in considering whether to permit making an application for a protection visa, the only question considered in the RSA process was whether Australia's international obligations were engaged, leaving for later determination, in accordance with the requirements of the Act, whether a visa should be granted. It is unsurprising, in other words, that the process which the Minister directed should be followed when an offshore entry person claimed to be owed protection obligations was not a process directed to informing the Minister whether he would be obliged to grant or refuse a visa if a valid application were to be made. It is unsurprising because whether to permit the making of a valid application for a protection visa was to be understood as a threshold question governed only by the need to avoid breaching Australia's international obligations. The Act would be left to do its work in respect of domestic requirements (including security requirements) after the making of an application. 

5. It is to be recalled that the power given by s 46A(2), if exercised, would only permit an offshore entry person to make a valid application for a visa. If a valid application were made, it would have to be dealt with in accordance with the Act. After considering the application, the Minister would be bound[63] to grant the visa if satisfied that the health and other criteria for the visa had been met and if satisfied that the grant of the visa was not prevented by (among other provisions) s 501.  If not satisfied of these matters, the Minister would be bound[64] to refuse to grant the visa sought. 

   [63]s 65(1)(a).

   [64]s 65(1)(b).

6. Section 46A(2) did not provide for, or permit, the establishment of a system for the grant of visas to offshore entry persons. The power under s 46A(2) concerned only the making of a valid application for a visa. Section 195A(2) of the Act gave the Minister discretionary power to grant a visa to any person in detention under s 189, including an offshore entry person. The fields of operation of ss 46A and 195A were distinct. There is no basis for reading them as overlapping in any way.

7. It may be that consideration of whether a visa would have to be granted could be said to be always irrelevant to the exercise of the power to determine whether a valid application could be made. It is not necessary to decide whether that is so. If consideration of whether a visa would have to be granted could be relevant to the exercise of the power given by s 46A(2), only lawfully made criteria for the grant of a visa could properly be taken into account. And this Court held in Plaintiff M47/2012 that PIC 4002 was not a valid criterion for the grant of a protection visa. But there are more fundamental reasons for concluding that the particular steps which the Minister has taken in administering the Act have limited the considerations which can now be taken into account in exercising the power given by s 46A(2) in respect of the plaintiff. It is necessary to explain why that is so.

   A power exercisable in "the public interest"

8. The power given by s 46A(2) (to permit the making of a valid application for a visa) might be exercised by the Minister "[i]f the Minister thinks that it is in the public interest to do so". The discretion thus given to the Minister is very wide[65].  Like the provision considered in Water Conservation and Irrigation Commission (NSW) v Browning[66], s 46A(2) granted a discretion that, "though ... neither arbitrary nor completely unlimited ... is certainly undefined". That is, "there is no positive indication of the considerations upon which it is intended that the grant or refusal of [the determination] shall depend"[67].  Accordingly, as Dixon J pointed out in Swan Hill Corporation v Bradbury[68]:

   "only a negative definition of the grounds governing the discretion may be given.  It may be possible to say that this or that consideration is extraneous to the power, but it must always be impracticable in such cases to make more than the most general positive statement of the permissible limits within which the discretion is exercisable and is beyond legal control." 

   [65]See, for example, The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 at 400‑401 [42]; [2012] HCA 36.

   [66](1947) 74 CLR 492 at 505 per Dixon J; [1947] HCA 21.

   [67](1947) 74 CLR 492 at 505.

   [68](1937) 56 CLR 746 at 758; [1937] HCA 15.

9. The resolution of this case, however, does not depend upon attempting some a priori statement of the grounds which might fall outside the public interest.  The questions to be considered are more particular.  The Minister identified only one issue which bore upon the decision whether to lift the bar:  is the plaintiff a refugee within the meaning of the Convention?  Having decided that the plaintiff should be detained for consideration of whether to lift the bar by reference to the outcome of the RSA process, can the Minister now make no decision at all?  If the Minister does make a decision, can any other consideration be taken into account? 

10. The plaintiff's detention was under and for the purposes of the Act because (and only because) it was for the purpose of the Minister considering whether to make a determination that it is in the public interest to permit the plaintiff to make a valid application for a visa.  The RSA officer who assessed the plaintiff's claims resolved the only issue which the Minister had identified as relevant to the exercise of the power in the plaintiff's favour. 

11. The Commonwealth parties submitted, in this Court, that the Minister could refuse at any time to make a decision under s 46A(2). The Commonwealth parties further submitted that, if the Minister were to make a decision about whether he would permit the plaintiff to make a valid application for a visa, he could lawfully take any consideration relevant to the public interest into account and treat any public interest consideration as determinative, no matter what inquiries may have been made while the plaintiff was detained.

12. Both of these submissions should be rejected. Having decided to consider whether to make a determination under s 46A(2), the Minister had to conclude that consideration. Having identified only one issue as relevant to the decision to lift the bar, the Minister could not make that decision by reference to any other consideration.

    The Minister must decide

13. Having decided that he would consider whether to make a determination under s 46A(2), the Minister must decide whether or not to lift the bar for the plaintiff.

14. As was said[69] in the Offshore Processing Case, "[i]t is not readily to be supposed that a statutory power to detain a person permits continuation of that detention at the unconstrained discretion of the Executive."  But there would be detention at the unconstrained discretion of the Executive if the Commonwealth parties were right to submit that the Minister could decide, at any time, to refuse to conclude, or to stop, consideration of whether to lift the bar.  If the Minister, having decided to consider whether to exercise the power to lift the bar, had no duty to conclude that consideration, the Act would authorise detention at the will of the Minister. That construction of the Act should not be adopted. Rather, having decided to determine whether or not to lift the bar, the Minister should be held to be bound to make that decision and to do so within a reasonable time[70]. 

    [69](2010) 243 CLR 319 at 348 [64].

    [70]cf Koon Wing Lau v Calwell (1949) 80 CLR 533 at 581 per Dixon J; [1949] HCA 65.

15. Section 46A(7) makes plain that the Minister has no duty, and may not be compelled, to consider whether to exercise the power given by s 46A(2). But once the Minister has decided to consider whether to exercise the power, neither s 46A(7) nor any other provision of the Act permits or requires the conclusion that the Minister may, at will, decline to make any decision under s 46A(2) even though the subject of consideration has been detained for the purposes of the Minister having inquiries made which are relevant to the exercise of the power given by that provision.

    What may be considered?

16. Can the Minister now act on any matter which he considers relevant to the public interest? 

17. Again, this question must be answered recognising the legal foundation for the plaintiff's detention. The Executive detained the plaintiff under and for the purposes of the Act. The detention was under and for the purposes of the Act, and lawful, only because the Minister had decided two things: first, to consider whether to make a determination under s 46A(2) to lift the bar and second, to have his Department inquire into and advise him, for the purposes of his making that decision, whether the plaintiff was a refugee to whom Australia owed protection obligations under the Convention.

18. The Minister could have left the Act to operate according to its terms in respect of the plaintiff, or in respect of offshore entry persons generally. He did not. That is, the Minister could have left the plaintiff (or other offshore entry persons detained in accordance with s 189 of the Act) to be removed from Australia in accordance with s 198(2) as soon after their arrival at an excised offshore place as was reasonably practicable. Carrying out the RSA process thus directly affected the liberty of those to whom it was applied. Those persons were detained for longer than whatever may have been the time to effect their removal from Australia as soon as reasonably practicable.

19. The power to detain unlawful non‑citizens given by the Act should not be construed as unbounded. Nor are the applicable provisions of the Act to be construed as authorising detention for whatever period of time the Minister may choose.

20. The primary temporal limitation on the power to detain is provided by the imposition of the statutory duty to remove as soon as reasonably practicable. Further detention is authorised only if the detention is under and for the purposes of the Act. The bounds of that further detention must be ascertainable, and enforceable, at all times during its continuance. The lawfulness of the detention (as to both its purpose and its duration) must be capable of being fixed, and be fixed, by a criterion or criteria determined at the start of the detention. Fixing the lawful boundaries for the detention at its outset is essential because only if that is done can the lawfulness of the detention be adjudged and enforced by a court, including this Court in exercise of its jurisdiction under s 75(v) of the Constitution, at any time during its continuance.

21. The plaintiff was detained for the purpose of the Minister considering whether to make a determination under s 46A(2) to lift the bar. That purpose was being fulfilled, and the plaintiff's detention was lawful, only because the RSA process was engaged in respect of the plaintiff. But the purpose (the Minister considering whether to make a determination) could not be fulfilled by a means other than the means in virtue of which the purpose was first satisfied. That is, the means of pursuing the purpose were set according to the sole issue which was considered in the RSA process. By setting those means, the duration of the detention was set as the time reasonably necessary to carry out those means in order to decide whether to lift the bar.

22. The administrative choice which the Minister made by detaining the plaintiff on the basis described, rather than allowing performance of the duty to remove her from Australia "as soon as reasonably practicable", once made, could not be undone.  It could not be undone because of the effect it had on the plaintiff's liberty.  The administrative choice which the Minister made was a choice which prolonged the plaintiff's detention. 

23. The administrative decision to detain the plaintiff for the purpose of deciding whether to lift the bar, once made, limited the purpose of detention by identifying at its outset only one consideration which the Minister would take into account in exercising power under s 46A(2). And by taking these steps the Minister fixed not only the means of pursuing the purpose of the detention but also the duration of the detention.

24. The Act does not authorise detention of an offshore entry person for whatever number of successive periods of detention would be necessary for the Minister to obtain information and advice about a series of disconnected inquiries said to relate to questions of public interest governing the exercise of the power under s 46A(2). To read the Act as permitting that to occur would be to read the Act as permitting detention at the will of the Executive. That construction should be rejected.

25. As it happens, nothing the Minister or the Department said or did in the course of the detention of the plaintiff departed from the operation of the Act that has been described. The Minister decided that those offshore entry persons who made claims to protection should have their claims investigated, assessed and, if need be, reviewed. The Minister established the RSA process for these purposes. One step in that process was to tell offshore entry persons, in the information sheet issued at the start of the process, what issue would be investigated.

26. Neither the RSA Manual nor the information sheet suggested that security criteria wider than those presented by the Convention, or any health criteria, would be investigated before a decision was made whether or not to lift the bar.  The RSA Manual expressly stated, more than once, that these were issues that would be considered in the course of determining an application for a protection visa. 

27. The Minister was not bound to limit the inquiry in the way he did.  The Minister could have established less confined inquiries about any matters which could be thought to bear upon the relevant public interest criterion. But the Minister did not do that. And in light of the contextual considerations set out earlier in these reasons, it is unsurprising that the Minister did not. The policy then being pursued (by establishing and implementing the RSA process) was directed to ensuring that, using the then structures of the Act, Australia adhered to its international obligations. As the arguments advanced by the Commonwealth parties in the Offshore Processing Case showed, the intention was that this should be done by a "non‑statutory" administrative process.  But compliance with Australia's international obligations was the driving force for all of the procedures that were established.

28. The Act having been administered as it was, and the plaintiff having been detained as she was, the Minister may not now make the decision whether to make a determination under s 46A(2) by reference to any consideration except the outcome of the RSA process.

29. It is important, however, to emphasise two points. First, as already explained, the Minister could lawfully have administered the Act in other ways. He did not. Second, the conclusion that the Minister may not now take account of the adverse security assessment which ASIO has provided in respect of the plaintiff, when deciding whether to make a determination under s 46A(2) to lift the bar, leaves the relevant security issues to be determined in the course of deciding whether a visa must be granted. Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. A person fails[71] that test if, among other things, there is a significant risk that the person, if allowed to enter or to remain in Australia, would "represent a danger to the Australian community or to a segment of that community". 

    [71]s 501(6)(d)(v).

    The consequences of the s 46A(2) power being unperformed

30. What follows from the Minister's failure to decide whether to exercise the power given by s 46A(2)? The plaintiff has made no claim for mandamus. She claims a declaration that the Minister's power remains unperformed and a declaration to that effect should be made. Before turning to consider the construction and constitutional issues, however, it is convenient to consider the argument advanced by the Commonwealth parties that mandamus could not be granted in this matter.

31. The Commonwealth parties submitted that the Offshore Processing Case decided that mandamus will not go to compel consideration of the exercise of power under s 46A. In that case, the Court said[72]:

    "Because ss 46A and 195A both state, in terms, that the Minister does not have a duty to consider whether to exercise the power given by the section, mandamus will not issue to compel the Minister to consider or reconsider exercising either power. That the Minister decided to consider exercising the powers and, for that purpose, directed the making of Refugee Status Assessments and Independent Merits Reviews does not entail that, if the process of inquiry miscarried, the Minister can be compelled again to consider exercising the power."

    [72](2010) 243 CLR 319 at 358 [99].

32. It is important to notice, however, that the complaints made in the Offshore Processing Case were about steps taken in the course of conducting the inquiries which the Minister had directed be undertaken. The complaints that were made and considered in that case were not complaints about the Minister failing to exercise power under s 46A(2) or s 195A(2). Rather, the issue was whether the Minister could be required, by mandamus, to make fresh inquiries about matters which had been examined imperfectly. Neither the argument in that case, nor the reasons for judgment, focused directly upon whether mandamus could issue to compel the Minister, having already embarked upon consideration of whether to exercise the power given by s 46A(2), to decide whether to exercise that power.  And, as was made plain in the Court's reasons[73], it was not necessary for the Court to examine whether submissions then made by the Commonwealth parties "might permit or require modification to accommodate cases ... where the right that is affected by conducting the impugned process of decision making is a right to liberty".

    [73](2010) 243 CLR 319 at 359 [100].

33. In this matter, the special case prepared by the parties recorded that, if the Court declared "that the Minister erred in failing to decide whether to exercise his power under s 46A(2) ... or that an officer of the Department erred in failing to refer the Plaintiff's case to the Minister for him to exercise his power under s 46A(2), consideration would be given by the Department" to whether the plaintiff's case should be referred to the Minister. Although this was expressed in terms of the Department giving consideration to taking action, the Solicitor‑General of the Commonwealth accepted that, as would be expected, the Department and the Minister would give effect to any declaration the Court made. 

1. It was common ground that, under the terms of the Act at the time, the plaintiff was an "offshore entry person" as that term was defined by s 5(1) of the Act for the purposes of s 46A of the Act.

2. In Plaintiff M61/2010E v The Commonwealth[142] ("the Offshore Processing Case"), the Court explained the operation of s 46A:

   "The power given by s 46A is, in effect, to determine that an offshore entry person may make a valid application for a visa of a class specified. It is commonly referred to as a decision to 'lift the bar' (scil on making a valid application for a visa)."

   The Court also explained[143] that the exercise of power under s 46A is constituted by two distinct steps, the first of which is to consider exercising the power to lift the bar. The second is whether to lift the bar.

   [142](2010) 243 CLR 319 at 336 [13].

   [143](2010) 243 CLR 319 at 350 [70].

3. In the Offshore Processing Case, the Minister had decided that consideration was to be given to the exercise of the statutory powers under s 46A with respect to offshore entry persons. That decision was consistent with, and was to be understood by reference to, Australia's obligations under the Refugees Convention[144].  Having decided that he would consider the exercise of power, the Minister required his Department to undertake the necessary enquiries to make an assessment.  The importance of those steps for the Offshore Processing Case was that, while those enquiries were made, detention was lawful[145].

   [144](2010) 243 CLR 319 at 350 [70].

   [145](2010) 243 CLR 319 at 341-342 [35].

4. The establishment and implementation of the RSA process evidenced the Minister's decision to consider whether to exercise the powers under s 46A with respect to an offshore entry person who claimed protection[146]. The fact remains that the Minister has begun the task of considering whether to exercise the powers under s 46A even if no submission is put before the Minister or even if there has been an unfavourable outcome of the RSA process[147].

   [146](2010) 243 CLR 319 at 349 [66].

   [147](2010) 243 CLR 319 at 349-350 [67].

5. The Court in the Offshore Processing Case[148] explained what follows from this:

   "[O]nce it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant's liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power will be exercised.

   The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant's liberty. … [T]he consideration must proceed by reference to correct legal principles, correctly applied."

   [148](2010) 243 CLR 319 at 353-354 [77]-[78].

6. The letter of 19 September 2011 by the Department to the plaintiff advised, in effect, that she had been assessed to be a refugee. Government policy at that time was that requirements relating to health, identity and security checks should be applied before considering whether to lift the bar under s 46A(2).

7. On 24 April 2012 ASIO furnished to the Minister an adverse security assessment in respect of the plaintiff. ASIO assessed that the plaintiff was directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"). By letter dated the same day, the Department informed the plaintiff that she was not eligible for the grant of a visa to remain in Australia because the ASIO assessment meant that she could not satisfy the requirements of PIC 4002 as a criterion for the grant of a protection visa[149].  The letter also informed the plaintiff that ASIO's assessment was not amenable to merits review. 

   [149]Migration Act 1958 (Cth), s 65(1)(a)(ii).

8. PIC 4002 was in the following terms:

   "The applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the [ASIO Act]."

9. It was agreed between the parties that, as a consequence of the adverse security assessment, no consideration is currently being given to the making of a determination under s 46A(2) or of otherwise granting a visa to the plaintiff. That would not appear to us to be relevant to any question in the case.

10. In Plaintiff M47/2012, which was delivered subsequent to the decision communicated to the plaintiff, the majority, consisting of French CJ, Hayne, Crennan and Kiefel JJ, held that cl 866.225 of Sched 2 to the Migration Regulations 1994 (Cth) was invalid to the extent that it prescribed PIC 4002 as a criterion for the grant of a protection visa. The regulation operating by reference to that criterion was inconsistent with the Act[150]. 

    [150](2012) 86 ALJR 1372 at 1396-1397 [71], 1421 [221], 1455 [399], 1465 [458]; 292 ALR 243 at 267, 301, 348, 361-362.

11. The defendants did not seek to argue that Plaintiff M47/2012 had not been correctly decided.  We therefore conclude that, as at 24 April 2012, an error of law led the Department to conclude that PIC 4002 was a basis on which a visa could lawfully have been refused to the plaintiff.  The failure to satisfy PIC 4002 was the only reason given by the Department for the decision communicated to the plaintiff by its letter of 24 April 2012.

12. The plaintiff's contention in relation to question 3 was that the Minister embarked upon a process of consideration of whether to exercise his power under s 46A(2) of the Act having regard to Australia's protection obligations under the Refugees Convention, and that process was terminated as a result of an error of law in that PIC 4002 was not a basis on which a visa could lawfully have been refused.

13. On 24 March 2012 the Minister issued guidelines ("the guidelines") in relation to the circumstances in which he wished to consider the possible exercise of his power under s 46A(2) of the Act. The guidelines stated that a person who was a person to whom Australia owed protection obligations as provided for in s 36(2) of the Act, but who had received an adverse security assessment, should not be referred to him for the purposes of s 46A(2). It is common ground that the guidelines applied, and continue to apply, to the plaintiff.

14. The defendants sought to rely upon the circumstance that the guidelines indicated that the Minister did not wish to consider exercising his power under s 46A(2) of the Act to lift the bar with respect to persons who, like the plaintiff, have received adverse security assessments from ASIO quite apart from specific reliance upon PIC 4002. In this regard, it was agreed between the parties that the plaintiff's case was not referred to the Minister for him to consider whether to exercise his power under s 46A(2) because the plaintiff did not satisfy PIC 4002 and the plaintiff had an adverse security assessment from ASIO. The defendants argued that the existence of an additional and independent disqualifying criterion – the fact that the plaintiff had received an adverse security assessment – rendered the Department's reliance on PIC 4002 a harmless error. The non‑referral of the plaintiff's case to the Minister for consideration of the possible exercise of the power under s 46A(2) was not caused, in the defendants' submission, by an error of law on the part of an officer of the Department.

15. The plaintiff argued that this circumstance does not cure the flaw in the process which has occurred in relation to the lifting of the bar under s 46A(2) of the Act. It was submitted that, given Australia's protection obligations under the Refugees Convention, the prospect of the grant of a protection visa under s 65(1)(a) of the Act was not foreclosed by reason of other provisions of the Act including ss 500 and 501, provisions which ought to be considered by the Minister in exercising his discretion under s 46A(2) of the Act[151].  In that regard, as was observed in Plaintiff M47/2012, the notion of security for the purpose of an assessment under the ASIO Act may be wider than that contemplated by Arts 32 and 33(2) of the Refugees Convention, which are relevant to decisions under ss 500(1)(c) and 501(1) of the Act[152].

    [151]Plaintiff M47/2012 v Director-General of Security (2012) 86 ALJR 1372 at 1391 [43], 1416 [193], 1453-1454 [389], 1464 [451]; 292 ALR 243 at 259-260, 294-295, 346, 360.

    [152](2012) 86 ALJR 1372 at 1418 [204], 1460-1461 [432]-[433]; 292 ALR 243 at 297, 355-356.

16. The further consideration given to the plaintiff's case at the time the error concerning PIC 4002 occurred was for the purpose of the Minister's decision under s 46A(2), whether to lift the bar and allow the plaintiff to make a valid application for a protection visa. It follows from the Offshore Processing Case that such consideration was undertaken for the purposes of the Act. Her continued detention at that point was justified by reference to that further consideration for those purposes. It was required to be undertaken in accordance with a correct view of the law. It was not.

17. The Minister's decision whether to lift the bar was foreclosed by the error concerning PIC 4002.  It was wrongly considered that the failure to meet that criterion meant that the plaintiff was not eligible for the grant of a protection visa.  That is what the letter of 24 April 2012 advised.  On that view, there would be no point in referring the matter to the Minister for his decision.

18. The defendants submitted, by reference to s 46A(7), that the Minister was under no duty to decide to lift the bar. So much may be accepted. But the point is that a decision had been made to consider whether to exercise that power. That is what the security assessment and consideration of PIC 4002 were directed to. Section 46A(7) is beside the point.

19. The defendants' reliance upon an alternative basis for non‑referral of the plaintiff's matter to the Minister, namely the existence of the adverse ASIO assessment, is misplaced. The question whether the Minister can halt the process of decision‑making on the basis of such an assessment, given the provisions of the Act relating to relevant aspects of security, may be put to one side. The defendants' submission denies the basis in fact upon which the process was halted.

20. The fact that a non-referral might, in the terms of the guidelines, be justified on another basis is irrelevant. The question whether ASIO's adverse security assessment could and would have led, justifiably, to the plaintiff's application not being referred to the Minister for his consideration under s 46A(2) is hypothetical given that it does not arise in respect of a process of decision‑making which has actually occurred. It is neither necessary nor appropriate for this Court to seek to resolve the defendants' argument that the Department's reliance on PIC 4002 was a harmless error. The Court cannot speculate as to whether the plaintiff has no prospects of a favourable decision, because of the existence of the ASIO assessment, and whether any referral to the Minister is therefore futile.

21. On this view, the third question posed for determination should be answered "Yes".  The nature and extent of the relief appropriate to that conclusion is the subject of the next question. 

    Question 4:  relief

22. There are reasons for making a declaration to the effect of the answer to question 3, even if it cannot be shown that it will have practical consequences for the future. 

23. First, there is support in the authorities for taking such a course.  In Ainsworth v Criminal Justice Commission[153] the Criminal Justice Commission had prepared a report on the gaming machine industry, which, inter alia, ascribed certain conduct to the appellants (who were manufacturers and suppliers of poker machines) and was critical of that conduct.  The report recommended that the appellants' corporate group should "not be permitted to participate in the gaming machine industry in Queensland."[154]  Under the relevant legislation, the report was granted all the immunities and privileges that it would have been provided with if it had been tabled and printed in Parliament.  However, the appellants were not afforded procedural fairness during the report's preparation in that they were not informed of the Commission's investigation, nor were they given the chance to respond to the allegations before the report was published[155]. 

    [153](1992) 175 CLR 564; [1992] HCA 10.

    [154](1992) 175 CLR 564 at 571.

    [155](1992) 175 CLR 564 at 571.

24. The appellants sought relief by way of certiorari and mandamus.  The Court refused to grant either writ.  Certiorari could not be granted because the Commission's report had, by itself, no legal effect or consequence[156].  Similarly, mandamus was not available because the Commission was not under a duty to investigate and report the appellants' dealings in the Queensland gaming machine industry[157]. 

    [156](1992) 175 CLR 564 at 580.

    [157](1992) 175 CLR 564 at 579.

25. The Court proceeded to make a declaration that the appellants had been denied procedural fairness in the publication of the report.  The plurality stated[158]:

    "It does not follow that, because mandamus and certiorari are inapplicable, the appellants must leave this Court without remedy.  The law with respect to procedural fairness has developed in spite of the technical aspects of the prerogative writs.  Moreover, had the appellants had advance notice of the Commission's intention to report adversely, its failure to observe the requirements of procedural fairness would have entitled them to relief by way of prohibition preventing it from reporting adversely without first giving them an opportunity to answer the matters put against them and to put submissions as to findings or recommendations that might be made.  ...  [A]lthough it [the report] had no legal effect or consequence, it had the practical effect of blackening the appellants' reputations.  Prima facie, at least, these matters suggest that the appellants are entitled to declaratory relief".  (footnotes omitted)

    [158](1992) 175 CLR 564 at 581.

26. In the Offshore Processing Case, the Court made a declaration in circumstances where a writ of mandamus could not compel the Minister to consider or reconsider the exercise of the power reposed in him so that there was no utility in granting mandamus.  For the same reason, certiorari would also have been inutile[159].  Nevertheless, the Court said[160]:

    "Although the plaintiffs' claims for certiorari and mandamus should be rejected, a declaration should be made in each case that the processes undertaken to arrive at the reviewer's recommendation were flawed in the respects that have been identified.  In many cases, the conclusion that certiorari and mandamus do not lie would require the further conclusion that no declaration of right should be made."

    [159](2010) 243 CLR 319 at 358-359 [99]-[100].

    [160](2010) 243 CLR 319 at 359 [101].

27. It was held that a declaration was appropriate because the plaintiffs had a "real interest" in raising the question with which the declaration was concerned[161].  In this case, the plaintiff has a real interest in raising the question as to the error in the decision‑making process. 

    [161](2010) 243 CLR 319 at 359 [103].

28. Secondly, it was common ground in the Special Case stated for determination by the Court that:

    "[i]n the event that the Court declares in this proceeding that … an officer of the Department erred in failing to refer the [p]laintiff's case to the Minister for him to exercise his power under s 46A(2), consideration would be given by the Department … to whether the [p]laintiff's case should be referred to the Minister for the possible exercise of his power under s 46A(2)."

29. Accordingly, it should be declared that the exercise of the Minister's power under s 46A(2) was affected by an error of law in that, in deciding whether to refer the plaintiff's application to the Minister, an officer of the Commonwealth acted upon PIC 4002 as a consideration relevant to the decision.

    Question 5:  costs

30. The disposition of the costs of the litigation is in the discretion of the Court[162].  Usually, in the exercise of this discretion, it is ordered that the costs should follow the event[163].  In some cases the "event" may be contestable, especially where separate issues have fallen in different ways.  This is such a case.

    [162]Rule 50.01 of the High Court Rules 2004 provides that "[s]ubject to the provisions of any law of the Commonwealth and to these Rules, the costs of and incidental to all proceedings in the Court are in the discretion of the Court or a Justice."

    [163]See, for example, Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [67] per McHugh J; [1998] HCA 11.

31. The plaintiff has been unsuccessful in her challenges to Al‑Kateb, and to the validity of ss 189, 196 and 198 of the Act. On the other hand, the plaintiff has succeeded in obtaining declaratory relief. Whether that success will enure to her substantial benefit is not a matter upon which the Court can speculate. It is correct to say, however, that while the plaintiff has enjoyed some success, it has largely been a Pyrrhic victory, given the rejection of substantial aspects of her case. It may be said that, although the order which the Court should make in her favour reflects only a modest level of success on her part, the determination of the questions by the Court was necessary to enable her to achieve even that level of relief. That would not be a sound basis on which to make an award of costs in the plaintiff's favour.

32. It appears from the Special Case that the plaintiff's parents and brothers reside in India and that she has sisters who live in another country.  On 23 July 2013 the Department wrote to the plaintiff's legal advisers suggesting, among other things, that the plaintiff contact her family members in order to enlist their support regarding her possible resettlement.  This letter elicited the following response from the plaintiff's legal advisers:

    "We are instructed that our client does not feel comfortable asking her family directly whether or not they would support or sponsor her to resettle in another country, as they do not share a close relationship and they have not been disposed to help her previously.  She has requested that we instead speak to her family directly.  If that is not agreed, we request that you make it clear in communications with our client's family that it is not at her instigation that these enquiries are being made."

33. The attitude manifest in that response detracts from the force of the suggestion that the plaintiff's predicament is such that the only means of relief available to her was the pursuit of her claim in this Court. 

34. In these circumstances, each side should bear its own costs.  There should be no order as to costs.

    Conclusion

35. The questions stated for determination should be answered as follows:

    1.        Yes.

    2.        No.

    3.        Yes.

    4.It should be declared that the exercise of the Minister's power was affected by an error of law in that, in deciding whether to refer the plaintiff's application to the Minister, an officer of the Commonwealth acted upon PIC 4002 as a consideration relevant to the decision.

    5.        There should be no order as to costs.