YTLT v Minister for Home Affairs & Anor

[2021] HCATrans 177

[2021] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P15 of 2021

B e t w e e n -

YTLT

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON THURSDAY, 28 OCTOBER 2021, AT 9.31 AM

Copyright in the High Court of Australia

HIS HONOUR:   I dismiss with costs the plaintiff’s application for a constitutional or other writ.  I publish my reasons and I direct that those reasons be incorporated into the transcript.

The plaintiff in this application for constitutional or other writ in the original jurisdiction of the High Court is a citizen of the People’s Republic of China (“PRC”).  The defendants are the Minister for Home Affairs and the Commonwealth of Australia.

In 2014, the plaintiff was granted a visa and migrated to Australia with his family.

In 2017, the plaintiff was convicted of acts of indecency and was sentenced in the Local Court of New South Wales to an aggregate term of five years of imprisonment with a non‑parole period of 3 years.  The sentence was confirmed on appeal to the District Court of New South Wales.

In 2019, a delegate of the Minister for Home Affairs made a decision to cancel the plaintiff’s visa under s 501(3A) of the Migration Act 1958 (Cth). In 2020, the State Parole Authority of New South Wales directed that the plaintiff be released on parole. Soon after his release on parole, the plaintiff was on 26 July 2020 taken into immigration detention.

The Administrative Appeals Tribunal subsequently set aside a non‑revocation decision made by another delegate and substituted its own decision to revoke the visa cancellation under s 501CA(4) of the Act.  In consequence, the plaintiff was released from immigration detention on 9 March 2021.  However, the Minister decided to set aside the decision of the Tribunal and cancelled the plaintiff’s visa under s 501BA(2) of the Act.  In consequence, the plaintiff was again taken into immigration detention on 10 March 2021 where he remains.

The plaintiff has therefore been held in immigration detention for two periods:  (a) from 26 July 2020 to 9 March 2021; and (b) from 10 March 2021 to the present.

By his amended application, the plaintiff seeks declarations to the effect that the exercises of power supporting the following decisions were contrary to law:  (a) the decision in 2019 to cancel his visa; (b) the decisions to detain him for both periods of immigration detention; (c) the non‑revocation decision; (d) the Tribunal’s decision to set aside the non‑revocation decision and substitute its own decision to revoke the original cancellation decision; and (e) the decision of the Minister to set aside the Tribunal’s decision and cancel the plaintiff’s visa.

Why the plaintiff should seek a declaration in relation to the decision of the Tribunal in his favour is not apparent.  The Tribunal is not a party.  Thankfully, nothing turns on that oddity and procedural irregularity.

By the amended application, the plaintiff also seeks a writ of prohibition restraining the defendants and their officers from “acting upon or giving effect” to the decisions as well as a writ of habeas corpus and damages for false imprisonment.

The amended application relies on five grounds.  The first three can be taken together.  The first is that the exercises of power “abrogated and curtailed the sentence and parole orders” of the Local Court as confirmed on appeal by the District Court and the parole orders of the State Parole Authority “in violation of the principle of legality”.  The second is that the exercises of power “abrogated and curtailed the sentence and parole orders of the [Local Court], as confirmed on appeal by the [District Court], and the parole orders of the [State Parole Authority] in violation of the separation of powers doctrine” in Chapter III of the Constitution. The third is that the exercises of power “abrogated and curtailed the sentence and parole orders of the [Local Court], as confirmed by the [District Court], and the parole order by the [State Parole Authority], in violation of the principle of state immunity” under ss 106 and 107 of the Constitution.  For the reasons sufficiently set out in Isley v Minister for Home Affairs [2021] HCATrans 121 and in Raibevu v Minister for Home Affairs [2021] HCATrans 120, none of those grounds is even remotely arguable.

The fourth ground is to the effect that the Minister’s decision to set aside the decision of the Tribunal was beyond the power conferred by s 501BA(2) of the Act in circumstances where there was no change to the factual basis on which the Tribunal made its decision.  The plaintiff here seeks to rely on Minister for Immigration and Border Protection v Makasa (2021) 95 ALJR 117; 386 ALR 200. However, that reliance is misplaced. Section 501BA(2) confers a power, which can be described as one of “ministerial override”, analogous to the power of ministerial override conferred by s 501A(3), which was held in Makasa at [53] to be capable of being exercised by the Minister without need for any change to the factual basis on which the Tribunal made its decision.

The fifth and final ground is to the effect that the plaintiff’s immigration detention was and is in excess of the power conferred by s 189(1) of the Act “given the defendants are unable to remove the plaintiff from Australia to China as soon as [reasonably] practicable and the defendants are unwilling to grant the plaintiff a visa to remain in Australia”.  The plaintiff seeks to distinguish The Commonwealth v AJL20 (2021) 95 ALJR 567; 391 ALR 562 on the basis that the correctness of the constitutional holding in Al-Kateb v Godwin (2004) 219 CLR 562 is here a “live issue”. Yet there is simply no evidence that the Minister or any relevant officer of the Commonwealth is even unwilling, let alone unable, to remove the plaintiff to China in the foreseeable future. To the extent that judicial notice is appropriate to be taken of the existence of limitations on international travel from Australia and to China during the COVID-19 pandemic, here as in other cases, judicial notice is also appropriate to be taken of those limitations on international travel evolving and being kept under constant revision.

The application will accordingly be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth). The plaintiff must pay the costs of the defendants.

AT 9.32 AM THE MATTER WAS CONCLUDED