Indefinite immigration detention survives another day

The High Court today upheld a challenge to the failure by the Minister for Immigration and Citizenship to consider whether or not to grant a protection visa to an asylum seeker to whom Australia owes protection obligations, but who is the subject of an adverse security assessment by ASIO. The decision in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship, however, did not reconsider the broader question of whether the earlier decision in Al-Kateb v Godwin in which the Court upheld the Commonwealth's power to indefinitely detain asylum seekers, even though they were not to be granted a visa and could not be removed from Australia, had been wrongly decided.

The plaintiff, a Tamil from Sri Lanka, arrived in Australia by boat in May 2010.  She was detained at Christmas Island, in reliance upon section 189(3) of the Migration Act 1958 (Cth).  As an “offshore entry” person, section 46A(1) of the Act prevented the plaintiff from making a valid application for a protection visa.  In July 2010 the plaintiff applied for protection as a refugee under the Refugee Status Assessment process.  That process involved an assessment by the Department of Immigration as to whether or not the plaintiff was a person to whom Australia owed protection obligations.  

In March 2011 the Minister made a “residence determination” which allowed the plaintiff (and her two sons) to live in “community detention”.

In September 2011 an officer of the Department found that the plaintiff was a person to whom Australia owed protection obligations.  The Department proceeded to complete health, identity and security checks.  In April 2012 ASIO provided the Department with an “Adverse Security Assessment” in relation to the plaintiff, assessing the plaintiff as likely to engage in acts prejudicial to Australia’s security if she were granted a protection visa.  Under Ministerial Guidelines that had been issued in March 2012, the plaintiff was not referred to the Minister for consideration of the possible exercise of power under section 46A(2), to lift the bar preventing the plaintiff from making an application for a protection visa.  This was because the plaintiff did not satisfy Public Interest Criterion (PIC) 4002 (as it then stood), and because she had an adverse security assessment issued by ASIO. 

In May 2012, the Minister revoked the residence determination and the plaintiff and her two sons were transferred to detention in New South Wales.  In July 2012 the plaintiff’s spouse was granted a protection visa and became an Australian permanent resident.  They married in October 2012 and her third son was born in January 2013.  He is an Australian resident.  In May 2013 the Minister exercised his power under s 46A(2) of the Act to allow the plaintiff’s two eldest children to lodge an application for a protection visa.  In June 2013 those children were granted protection visas and became Australian permanent residents.  At the request of the plaintiff and her husband, all 3 children live with her in detention as “visitors”, in order not to be separated from their mother.

In October 2012 the Commonwealth announced terms of reference to an Independent Review of Adverse Security Assessments and the Honourable Margaret Stone was appointed as the Independent Reviewer.  The plaintiff was invited to apply for review of the Adverse Security Assessment, which she did in December 2012.  Detailed written submissions were made on her behalf.  The Independent Reviewer concluded that the Adverse Security Assessment was an appropriate outcome, but recommended that it be reviewed again in 12 months’ time.  The plaintiff disputes the correctness of the ASIO conclusions and of the Independent Reviewer’s opinion. 

The plaintiff has no present right to enter and remain in any country other than Sri Lanka.  Despite efforts by the Department to resettle her (and others like her), at present there is no other country to which she can be sent.  The Minister does not propose to remove the plaintiff to Sri Lanka against her will, nor has the plaintiff asked the Minister to remove her to Sri Lanka.

Relying upon its earlier decision in Plaintiff M47, delivered on 5 October 2012, the High Court held that the failure to refer the plaintiff’s case to the Minister for consideration of whether or not to lift the bar imposed by section 46A was infected by an error of law.  The decision not to refer the plaintiff’s case to the Minister proceeded upon an assumption as to the validity of PIC 4200.  That assumption, as was held in Plaintiff M47, was incorrect, and the decision was therefore affected by an error of law. 

As a result, there had been no valid determination of whether or not to consider lifting the bar under section 46A, and the plaintiff’s application for the lifting of that bar remained undetermined.  Accordingly, the plaintiff’s present detention was authorized under section 189 and 196 of the Act, as it was for the purpose of completing statutory processes which will result in a determination of whether or not she is granted permission to remain in Australia.

As the statutory processes remain incomplete, the broader question of whether or not the Court’s earlier decision in Al-Kateb should be overruled did not arise for determination.  French CJ, and Crennan, Bell and Gageler JJ held that it was unnecessary and therefore inappropriate to revisit Al-Kateb.  Bell J therefore declined the opportunity to repeat the views her Honour had expressed in Plaintiff M47 to the effect that Al-Kateb was wrongly decided. 

Hayne J emphatically stated that there was no proper basis for reconsidering Al-Kateb, and in any event expressed the view that it was correct (unsurprisingly, given his Honour was the author of the lead judgment for the majority).  Kiefel and Keane JJ expressed views strongly supportive of the reasoning in Al-Kateb, but in any event held that it should not be re-opened because the decision had “decisively quelled the controversy as to the interpretation of the Act” and had subsequently been regarded as such by subsequent statutory amendments.  That, with respect, is hardly an attractive basis for refusing to revisit an issue that relates not only to the proper construction of the Act, but more fundamentally the Constitutional validity of the Act if that construction be correct.

The continuing authority of Al-Kateb therefore remains up in the air.  There would seem to be a clear three judges (Hayne, Keifel and Keane JJ) who consider that decision to be correct.  Bell J has already expressed the view in M47 that Al-Kateb is incorrect, and the dissenting reasoning of Gleeson CJ to be correct.  The position of French CJ, Crennan and Gageler JJ is judicially unknown.