Plaintiff S321/2019 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] HCATrans 24

[2020] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S321 of 2019

B e t w e e n -

PLAINTIFF S321/2019

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 10 MARCH 2020, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR: On 14 November 2019, the plaintiff filed an application for a constitutional or other writ seeking relief in relation to his detention pursuant to Pt 2, Div 7 of the Migration Act 1958 (Cth) and a declaration that the defendant’s policy guidelines in relation to the use of the defendant’s discretionary powers under ss 195A, 197AB, 351, 417 and 501J of the Migration Act in respect of people subject to an adverse security assessment from the Australian Security Intelligence Organisation are unlawful.

For the reasons that I now publish, the application for a constitutional or other writ should be dismissed with costs.  I publish those reasons.

In matter S321 of 2019 the order of the Court is: pursuant to r 25.09.1 of the High Court Rules 2004 (Cth), the application for a constitutional or other writ filed on 14 November 2019 is dismissed with costs. I publish that order. I direct that the reasons as published be incorporated into the transcript.

On 14 November 2019, the plaintiff filed an application for a constitutional or other writ seeking relief in relation to his detention pursuant to Pt 2, Div 7 of the Migration Act 1958 (Cth), and a declaration that the defendant’s policy guidelines in relation to the use of the defendant’s discretionary powers under ss 195A, 197AB, 351, 417 and 501J of the Migration Act in respect of people subject to an adverse security assessment from the Australian Security Intelligence Organisation are unlawful.

Each party has filed extensive written submissions in this matter and for that reason, and because of the nature of the application, I have concluded that it is appropriate to be dealt with on the papers. Accordingly, I direct pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) that the application be dismissed without listing it for hearing because the application does not disclose an arguable basis for the relief sought.

The plaintiff is a citizen of Afghanistan who arrived in Australia as the holder of a Partner (Provisional) (Class UF) (Subclass 309) visa on 15 November 2008. He was issued with an adverse security assessment by the Australian Security Intelligence Organisation (“ASIO”) on 17 June 2013. On 19 June 2013, his visa was cancelled pursuant to s 501 of the Migration Act and he has remained in immigration detention since then.  On 25 June 2013, the plaintiff’s application for a Partner (Migration) Subclass 100 visa was refused.

The plaintiff sought judicial review of his adverse security assessment in this Court, and that matter was remitted to the Federal Court of Australia.  The Full Court of the Federal Court dismissed the application for review.  Special leave to appeal to this Court was refused on 13 February 2015.

Between 2015 and 2017, the plaintiff contacted the Director‑General of Security, the Office of the Inspector‑General of the Intelligence Services, and the Independent Reviewer of Adverse Security Assessments, requesting that a new security assessment be undertaken by the Director‑General.  He was unsuccessful.

The plaintiff applied for a Protection (Class XA) (Subclass 866) visa in 2015.  That application was refused and in 2016 the Administrative Appeals Tribunal (“the AAT”) affirmed that decision.  The plaintiff accepts that the AAT found that he did not have a well‑founded fear of persecution in all areas of Afghanistan because it considered that the chances of him being seriously harmed in Mazar‑e‑Sharif, in northern Afghanistan, were remote.  The plaintiff sought judicial review of that decision, though this was unsuccessful at first instance[1] and on appeal[2].

[1]DFE16 v Minister for Immigration and Border Protection (2017) 317 FLR 215.

[2]DFE16 v Minister for Immigration and Border Protection (2018) 265 FCR 57.

The plaintiff then claims that, since the date of the AAT’s decision, new information suggests that the situation in Mazar‑e‑Sharif has “significantly deteriorated”.  The plaintiff further submits that material released by the Australian Federal Police (“AFP”) under the Freedom of Information Act 1987 (Cth) shows that an AFP investigation into allegations of the plaintiff being involved in people‑smuggling was finalised in November 2013 due to a lack of evidence.

Legality of the plaintiff’s detention

The plaintiff submits that he has now been in immigration detention for over six and a half years, that his detention is not for the purposes of enabling a visa application to be made, and that his removal cannot be effected in the reasonably foreseeable future.  These contentions are central to the plaintiff’s prospects of success.

The plaintiff submits that s 189 of the Migration Act, as applied by s 196(4), (5) and (6) of that Act, is invalid.  The plaintiff points out that the effect of s 196(4)-(6) was not in issue in Al‑Kateb v Godwin[3], suggesting that there is a constitutional question as to the effect of those provisions. The plaintiff further submits that those parts of s 196 affect the operation of ss 189 and 198, such that detention under the latter provisions can no longer be said to be referable to what is reasonably necessary for the purposes of deportation or to enable a visa application to be made[4].

[3](2004) 219 CLR 562 at 606 [115] per Gummow J.

[4]cfChu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 33; Al-Kateb (2004) 219 CLR 562 at 586 [49] per McHugh J.

The plaintiff directly seeks to overturn Al‑Kateb and argues that this Court should now adopt the dissenting reasons of Gleeson CJ in that case.  The plaintiff cites three reasons:  

(i)the majority’s construction means that detention may continue even where it no longer serves the purpose of the non‑citizen being considered for the grant of a visa, and the person’s removal cannot be effected in the reasonably foreseeable future;

(ii)the majority’s construction engages the principle of legality, but McHugh and Callinan JJ did not advert to that principle in their reasoning in Al-Kateb; and

(iii)the majority’s construction would place Australia in breach of its obligations under the International Covenant on Civil and Political Rights (1966).

As the respondent, the Minister, submits, the facts of this case do not raise these issues.  It is necessary to explain that conclusion.

There is a memorandum of understanding (“MOU”) between the Australian Government, the government of Afghanistan and the United Nations High Commissioner for Refugees.  That MOU allows Afghan nationals to be repatriated if they are found not to be in need of international protection.  An Afghan national may travel on a document issued by the Australian Government for this purpose.  The Minister submitted, supported by sworn evidence, that steps are being taken to effect the plaintiff’s removal in accordance with the MOU.  The Minister submitted:

“The Department has arranged for the issue of Australian travel documents for the plaintiff.  The Department is also preparing an application to verify the plaintiff’s identity and nationality with the Afghan government.  That process is expected to take two to three weeks once the application is submitted.  Once that occurs, there is nothing to suggest that the other administrative and logistical steps required to effect the plaintiff’s removal are not reasonably practicable in the reasonably foreseeable future.”

The Minister also submitted that people in a position similar to the plaintiff have been successfully removed to Afghanistan under the MOU in the past.

The plaintiff did not respond to these matters raised by the Minister.  Thus, on the material presently before this Court, it cannot be said that the plaintiff’s removal will not be reasonably practicable within the reasonably foreseeable future.  The plaintiff therefore appears to fall into the same category as the plaintiff in Plaintiff M47/2018 v Minister for Home Affairs[5].  That is, there is no factual basis on which to find that the minority view in Al‑Kateb applies to the plaintiff, and so there seems to be no utility in allowing the questions of principle to be tried – those questions do not arise here[6].  

[5](2019) 93 ALJR 732; 367 ALR 711.

[6]cf Plaintiff M47/2018 (2019) 93 ALJR 732 at 740 [41]-[42]; 367 ALR 711 at 721.

Given that conclusion, the plaintiff’s further contention that if the Migration Act cannot validly authorise detention which is not reasonably capable of being seen as necessary for the purposes of removal, then it cannot authorise his detention, necessarily falls away.  The factual premise has not been established.

Legality of the Minister’s policy

The plaintiff further submits that the Minister’s policy guidelines prevent the Minister exercising certain statutory powers where a visa applicant (such as the plaintiff) is subject to an adverse security assessment.  The policies concern the Minister’s powers in the following statutory provisions:

(1)s 195A (allowing the Minister to grant a visa to a person in detention if the Minister thinks that the grant is in the public interest);

(2)s 197AB (allowing the Minister to direct a person to reside at a specified place rather than remain in detention); and

(3)ss 351, 417 and 501J (allowing the Minister to substitute a more favourable decision for that made by the AAT).

It is necessary to address each in turn.

Section 195A guidelines

The guidelines covering exercise of the s 195A power were exhibited to an affidavit provided on behalf of the Minister. The guidelines state that the Minister would “generally not expect” to have cases referred to him where a person has an adverse ASIO security assessment (emphasis added).  The guidelines also note that the Minister is able to consider a case whether it falls within the guidelines or not.  Not only is there no factual basis identified by the plaintiff for the application of the guideline to him, contrary to the plaintiff’s submissions the guidelines do not impose a total bar on the Minister considering applicants who have an adverse security assessment.  

Section 197AB guidelines

The guidelines covering exercise of the s 197AB power were also exhibited to an affidavit provided on behalf of the Minister and were in substantively similar terms. They state that the Minister “would not expect” to have cases referred to him involving an adverse ASIO security assessment, “unless there are exceptional reasons or [the Minister has] requested it”. Again, the plaintiff does not identify a factual basis for application of the guidelines and the guidelines do not impose a total bar on the Minister’s consideration of applicants with an adverse security assessment.

Sections 351, 417 and 501J guidelines

The guidelines covering exercise of these powers were also exhibited to an affidavit provided on behalf of the Minister but were expressed in different terms.  They state that it is “inappropriate” for the Minister to consider exercising his power under certain conditions, and that the Department “will finalise these cases without referral to [the Minister]”.  One such situation is where a person has an adverse ASIO security assessment.

However, these guidelines do not assist the plaintiff.  The fact that the guidelines are arguably inflexible carries no weight where the power is personal and non‑compellable, as these powers are[7].  The Minister cannot be compelled to exercise the powers[8].  Nor is the Minister obliged to consider exercising his powers[9].  As the Full Court of the Federal Court said in Minister for Immigration and Citizenship v SZQRB[10], this makes it impossible to quash the decision of the Minister, “because there is no utility in doing so when the courts cannot thereafter compel the Minister to exercise the powers”.

[7]Migration Act 1958 (Cth), ss 351(7), 417(7), 501J(8).

[8]Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 358 [99].

[9]Plaintiff M61/2010E (2010) 243 CLR 319 at 350 [70].

[10](2013) 210 FCR 505 at 546 [206].

Conclusion

It is unfortunate that the plaintiff has spent over six years in detention. However, the plaintiff’s current situation does not provide a basis to agitate the various issues he has identified. If the steps now being taken by the Minister fail to address the plaintiff’s continued detention, then the plaintiff may have, on the facts then in existence, a basis to seek to agitate these issues in a future application. Pursuant to r 25.09.1 of the High Court Rules 2004 (Cth), the application for a constitutional or other writ filed on 14 November 2019 is dismissed with costs.

Adjourn the Court.

AT 9.32 AM THE MATTER WAS CONCLUDED