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

The plaintiff, an unlawful non-citizen and offshore entry person who arrived in Australia without a visa, sought to make a valid application for a protection visa. The plaintiff claimed to have a well-founded fear of persecution in Sri Lanka. However, due to her status, section 46A(1) of the *Migration Act 1958* (Cth) prevented her from making a valid application unless the Minister exercised a non-compellable power under section 46A(2) to permit her to do so. The plaintiff was detained under section 189 of the Act. The case was heard by the Full Court of the High Court of Australia.

The central legal issues before the Court were whether the plaintiff's detention was authorised by the *Migration Act*, whether those provisions were constitutionally valid in their application to her, and whether the failure to refer her case to the Minister for consideration under section 46A(2) constituted an error of law. The Court was also asked to determine what relief, if any, should be granted. The Court considered whether it was appropriate to re-examine the principles established in *Al-Kateb v Godwin* regarding the detention of unlawful non-citizens.

The Court reasoned that the plaintiff's detention was authorised by sections 189 and 196 of the *Migration Act*. It found that the department's decision not to refer the plaintiff's case for the Minister's consideration under section 46A(2) was informed by an error of law, specifically by acting upon an invalid regulation. The Court held that the establishment and conduct of the Refugee Status Assessment (RSA) process, which the plaintiff was subjected to, implied a ministerial decision to consider exercising the power under section 46A(2). The Court concluded that it was not necessary to re-open *Al-Kateb v Godwin* as the outcome of the present case did not depend on its application.

The Court ordered that the plaintiff's present detention was authorised by sections 189 and 196 of the Act. It was declared that the exercise of the Minister's power was affected by an error of law, as an officer of the Commonwealth acted upon an invalid consideration when deciding whether to refer the plaintiff's application to the Minister. The defendants were ordered to pay the costs of the Special Case.