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

The plaintiff, an Afghan citizen who had been in immigration detention since 2013 following an adverse security assessment by ASIO and the cancellation of his visa, sought a constitutional or other writ from the High Court of Australia. The plaintiff challenged the lawfulness of his ongoing detention and sought a declaration that the Minister's policy guidelines concerning the exercise of discretionary powers under various sections of the *Migration Act 1958* (Cth) in relation to individuals with adverse security assessments were unlawful.

The High Court was required to determine two primary legal issues. Firstly, whether the plaintiff's prolonged detention was lawful, particularly in light of arguments that it no longer served the purpose of enabling a visa application or effecting removal within a reasonably foreseeable future, and whether this raised a constitutional question regarding the *Migration Act*. Secondly, the Court had to consider whether the Minister's policy guidelines, which appeared to restrict the exercise of discretionary powers under ss 195A, 197AB, 351, 417, and 501J of the *Migration Act* for individuals with adverse security assessments, were unlawful.

The Court dismissed the application, finding that the plaintiff had not established an arguable basis for the relief sought. Regarding the detention, the Minister provided evidence, which the plaintiff did not contest, that steps were being taken to effect the plaintiff's removal to Afghanistan under a Memorandum of Understanding, and that this was expected to occur within the reasonably foreseeable future. Consequently, the Court held that the factual premise for challenging the lawfulness of detention based on *Al-Kateb v Godwin* was not met. Concerning the policy guidelines, the Court found that while some guidelines indicated that cases involving adverse security assessments would generally not be referred to the Minister, they did not impose a total bar. Furthermore, for the discretionary powers under ss 351, 417, and 501J, the Court noted that these powers were personal and non-compellable, meaning the Minister could not be compelled to exercise them, thus rendering the challenge to the guidelines ineffectual. The application was dismissed with costs.