Sabanayagam v Minister for Home Affairs & Anor

The plaintiff, an unlawful non-citizen who arrived in Australia from Sri Lanka, sought constitutional writs and other relief from the High Court of Australia. The plaintiff had been transferred to Australia from Papua New Guinea for medical treatment and had since been held in immigration detention. The defendants, the Minister for Home Affairs and another, contended that the plaintiff's application lacked an arguable basis and should be dismissed.

The court was required to determine whether the plaintiff's detention in Australia was unlawful, whether it was for a permissible purpose, and whether he had been brought to Australia under duress. Additionally, the court considered whether a writ of mandamus should issue to compel the Minister to make a determination under s 197AB(1) of the *Migration Act 1958* (Cth) regarding the plaintiff's residence in the community, and whether comments made by the Minister in Parliament gave rise to an apprehension of bias.

The court reasoned that the plaintiff's contention that his detention was unlawful due to an inappropriate level of restraint was without merit, as the circumstances of detention do not affect its legality. The argument that detention was not for a permissible purpose, based on the COVID-19 pandemic delaying removal, was also rejected, as the pandemic's impact on removal did not negate the initial purpose of detention. The court found no evidentiary basis to support the claim of duress in his transfer to Australia, noting that the manner of arrival does not impact the legality of continued detention. Furthermore, the court held that the exercise of power under s 197AB(1) is non-compellable under s 197AE of the Act, meaning the Minister is not under a duty to consider or exercise this power. Finally, the court determined that prior comments by the Minister did not create a reasonable apprehension of bias, as forming a view before exercising a power does not, in itself, render a decision voidable for bias.

Consequently, the High Court dismissed the plaintiff's application pursuant to rule 25.09.1 of the *High Court Rules 2004* (Cth) for failing to disclose an arguable basis for the relief sought, and ordered the plaintiff to pay the defendants' costs.