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Re Woolley; Ex parte Applicants M276/2003

Re Woolley; Ex parte Applicants M276/2003

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
RE KIT WOOLLEY (MANAGER OF THE
BAXTER IMMIGRATION DETENTION CENTRE)
& ANOR RESPONDENTS
EX PARTE: APPLICANTS M276/2003
BY THEIR NEXT FRIEND GS PROSECUTORS
Re Woolley;
Ex parte Applicants M276/2003 by their next friend GS
[2004] HCA 49
7 October 2004
M276/2003
ORDER
Application dismissed.
Representation:
G Griffith QC with C J Horan and C M Harris for the prosecutors (instructed by Vadarlis & Associates)
D M J Bennett QC, Solicitor-General of the Commonwealth, with G R Kennett for the respondents and intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
B W Walker SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

The applicants are four children, at the time of the proceedings aged 15, 13, 11 and seven respectively, of Afghani nationality, who were brought to Australia by their parents in 2001. Neither they nor their parents had permission to enter Australia. The members of the family were all treated as unlawful non-citizens within the meaning of that expression in the Migration Act 1958 (Cth) ("the Act"). Section 189 of the Act provides that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain that person. Pursuant to that requirement, the applicants and their parents were taken into immigration detention. The issue in the case concerns the lawfulness of the detention of the applicants.
Soon after the arrival of the family in Australia, the applicants' father applied for protection visas for himself and his family. A delegate of the second respondent refused the application. The Act makes provision for procedures of administrative review of such a decision, and for judicial review of administrative decisions. Such procedures, if they ultimately lead to an appeal to this Court, sometimes involve up to five levels of administrative and judicial decision-making. Years may pass while rights of review or appeal are pursued. The proceedings initiated by the applicants' father remain on foot. Their history to date is set out in the reasons of Callinan J. The applicants and their family were in Baxter Immigration Detention Centre at the time of the hearing of this matter.
It is contended for the applicants that the provisions of the Act pursuant to which they are being detained, if and to the extent to which they apply to children, are invalid. The applicants seek, against the Manager of the Baxter Immigration Detention Centre, and the Minister for Immigration and Multicultural and Indigenous Affairs, orders for habeas corpus, prohibition and injunction.
The legislation
The period of the detention required by s 189 of the Act is prescribed by s 196, which must be read together with s 198. Section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] HCA 49
Decision Date: 7 October 2004

CaseChat Overview and Summary

The applicants, children aged between seven and fifteen years and citizens of Afghanistan, sought a writ of habeas corpus, prohibition, or injunction. They had arrived in Australia with their parents in January 2001 and were subsequently placed in immigration detention. Their father applied for protection visas for the family, and they remained in detention until after the hearing before the High Court, at which point they were granted temporary protection visas and released. The Commonwealth contended that their detention was lawful under sections 189 and 196 of the *Migration Act 1958* (Cth).

The High Court was required to determine two principal legal issues. Firstly, whether sections 189 and 196 of the *Migration Act* applied to alien children in Australia while their visa applications were being processed. Secondly, if these sections did apply, whether they were constitutionally valid, particularly in relation to the conferral of judicial power contrary to Chapter III of the Constitution, and whether the detention was reasonably capable of being seen as necessary for the purposes of the reception, investigation, admission, or deportation of aliens. The applicants argued that indefinite detention of children was punitive and thus an impermissible exercise of executive power.

The Court reasoned that sections 189 and 196 of the *Migration Act* validly apply to alien children in Australia. It was held that the provisions requiring the detention of "unlawful non-citizens" until removal, deportation, or grant of a visa were constitutional enactments. The Court acknowledged the significance of international jurisprudence and the *parens patriae* jurisdiction concerning children but concluded that these considerations did not alter the legal interpretation of the Act or the constitutional characterisation of immigration detention. The Court found that the detention was not punitive in a manner that would render the legislation invalid.

The application was dismissed.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

In my opinion, on their correct construction, ss 189 and 196 apply to alien children in Australia and they are valid enactments of the Parliament of the Commonwealth.Statement of facts The applicants are children who at the time of the hearing before this Court were aged 15, 13, 11 and seven years old. They are citizens of Afghanistan. They arrived with their parents in Australia in January 2001. Shortly after, officers of the Department of Immigration and Multicultural and Indigenous Affairs took all members of the family to an immigration detention centre at Woomera in South Australia. In February 2001, the applicants' father applied for a protection visa. He included the applicants in the application. The applicants were detained at Woomera until January 2003 when they were taken to the Baxter immigration detention facility in South Australia. After the hearing before this Court, the applicants were granted temporary protection visas and released from detention. The Commonwealth contends that the applicants were lawfully detained because of ss 189 and 196 of the Act.Legislative framework Division 7 of Pt 2 of the Act establishes the statutory scheme under which the applicants were detained. Section 189 both authorises and requires the detention of "unlawful non-citizens". Section 196 requires that an unlawful non-citizen detained under s 189 be kept in immigration detention until he or she is:(a) removed from Australia under s 198 or s 199; or(b) deported under s 200; or(c) granted a visa. Section 5(1) of the Act defines "detain" to mean:"(a) take into immigration detention; or (b)keep, or cause to be kept, in immigration detention". "Immigration detention" is defined in s 5(1) to mean, among other things:"(b) being held by, or on behalf of, an officer:(i)in a detention centre established under this Act; or(ii)in a prison or remand centre of the Commonwealth, a State or a Territory; or… (v)in another place approved by the Minister in writing". Section 13 of the Act declares that a non-citizen in the "migration zone" (essentially, the States and Territories) who holds a visa that is in effect is a lawful non-citizen[21]. Section 14 deems any non-citizen who is in the migration zone who is not a "lawful non-citizen" to be an "unlawful non-citizen". By operation of ss 13 and 14, an "unlawful non-citizen" is a person who is in the migration zone who is not an Australian citizen[22] and who does not hold a valid visa. [21]A visa is a permission granted to a non-citizen by the Minister to travel to and enter Australia and/or to remain in Australia: s 29.[22]This Court held by majority in Shaw v Minister for Immigration and Multicultural Affairs that all non-citizens are aliens for the purposes of s 51(xix) of the Constitution: (2003) 78 ALJR 203; 203 ALR 143. Gleeson CJ, Gummow and Hayne JJ held that all persons who entered Australia after 26 January 1949, who were born out of Australia of parents who were not Australian citizens and who had not been naturalised were "aliens" for constitutional purposes: Shaw (2003) 78 ALJR 203 at 210 [32]; 203 ALR 143 at 151. In Singh v The Commonwealth, a majority of this Court held that for constitutional purposes the Parliament could treat as an alien any person born in Australia after 20 August 1986 if neither parent was, at the time of the person's birth, an Australian citizen or a permanent resident, and the person had not been ordinarily resident in Australia for 10 years since his or her date of birth: [2004] HCA 43.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ HUGH J CALLINAN J HEYDON J

The special concern of the law for families and children, as evidenced by the Convention on the Rights of the Child and the parens patriae jurisdiction of courts, was invoked in argument. This is unquestionably an important consideration of legislative policy, but it does not lead to any legally relevant conclusion as to the meaning of the Act, or the character for constitutional purposes of immigration detention.Conclusion The application should be dismissed. Mc Two questions arise in this application for a writ of habeas corpus against the first respondent and, against the second respondent, a writ of prohibition or, alternatively, an injunction. First, do ss 189 and 196 of the Migration Act 1958 (Cth) ("the Act") apply to alien children in Australia pending the determination of whether they are entitled to visas under that Act? Second, if they do, are they invalid because they constitute a conferral of the judicial power of the Commonwealth otherwise than in accordance with Ch III of the Constitution? In my opinion, on their correct construction, ss 189 and 196 apply to alien children in Australia and they are valid enactments of the Parliament of the Commonwealth.Statement of facts The applicants are children who at the time of the hearing before this Court were aged 15, 13, 11 and seven years old. They are citizens of Afghanistan. They arrived with their parents in Australia in January 2001. Shortly after, officers of the Department of Immigration and Multicultural and Indigenous Affairs took all members of the family to an immigration detention centre at Woomera in South Australia. In February 2001, the applicants' father applied for a protection visa. He included the applicants in the application. The applicants were detained at Woomera until January 2003 when they were taken to the Baxter immigration detention facility in South Australia. After the hearing before this Court, the applicants were granted temporary protection visas and released from detention. The Commonwealth contends that the applicants were lawfully detained because of ss 189 and 196 of the Act.Legislative framework Division 7 of Pt 2 of the Act establishes the statutory scheme under which the applicants were detained. Section 189 both authorises and requires the detention of "unlawful non-citizens". Section 196 requires that an unlawful non-citizen detained under s 189 be kept in immigration detention until he or she is:(a) removed from Australia under s 198 or s 199; or(b) deported under s 200; or(c) granted a visa. Section 5(1) of the Act defines "detain" to mean:"(a) take into immigration detention; or (b)keep, or cause to be kept, in immigration detention". "Immigration detention" is defined in s 5(1) to mean, among other things:"(b) being held by, or on behalf of, an officer:(i)in a detention centre established under this Act; or(ii)in a prison or remand centre of the Commonwealth, a State or a Territory; or… (v)in another place approved by the Minister in writing".

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HUGH J, CALLINAN J, HEYDON J

Section 196 is as follows:"Duration of detention(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a)removed from Australia under section 198 or 199; or(b) deported under section 200; or(c) granted a visa. (2)To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa. (4)Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen. (4A)Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful. (5) To avoid doubt, subsection (4) or (4A) applies: (a)whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and(b)whether or not a visa decision relating to the person detained is, or may be, unlawful. (5A)Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply. (6) This section has effect despite any other law. (7) In this section: visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa)." Section 198 is comprehensively expressed and provides for the mandatory removal of unlawful non-citizens, a statutory appellation applicable to the applicants, "as soon as reasonably practicable". It need not be set out here. The applicants' argument The applicants put their argument in different ways. First, it was said that the Commonwealth Parliament has no power to enact a law that provides for the prolonged administrative detention of alien children: that in particular, indefiniteness as to its duration is of itself plainly punitive. In the result, ss 189 and 196 of the Act or any other sections of it purporting to authorise the detention of the applicants are invalid. A number of arguments are urged in support of the proposition that the Commonwealth lacks legislative power to detain alien children indefinitely: that detention of children in any circumstances is not reasonably capable of being seen as necessary for the purposes of processing, deportation or removal of unlawful non-citizens; that such detention is not an incident of the executive power to exclude, admit and deport, or remove them; and, that, because the detention is punitive in nature, it is an impermissible exercise by the executive of the judicial power of the Commonwealth. The detention was said to be punitive not only because it inhibited the applicants' freedom, but also because it was not reasonably necessary to achieve, or was not reasonably adapted to the removal of the applicants especially as they were only children.