By Megan Driscoll and Houston Ash
Dozens of people who have been found to be genuine refugees remain in immigration detention in Australia because they are the subjects of secret adverse security assessments made by the Australian Security and Intelligence Organisation (ASIO). Plaintiff M76/2013 v Minister for Immigration and Citizenship  HCA 53 was a case brought by one of these refugees, challenging her continued detention under the Migration Act 1958 (Cth). It was of particular interest to High Court watchers because the plaintiff sought to challenge the correctness of the controversial 2004 High Court decision of Al-Kateb v Godwin  HCA 37. In that case, a majority of the High Court held that the Migration Act could authorise the indefinite detention of ‘unlawful non-citizens’. In the event, a majority of the High Court in Plaintiff M76 chose not to consider the correctness of Al-Kateb. However, Plainitff M76 nonetheless sheds some light on the prospect of Al-Kateb being overturned in the future. It also ties together two recent decisions of the High Court relating to Australia’s asylum seeker assessment procedures.
Plaintiff M76’s entry into Australia
The plaintiff in this case is a Sri Lankan Tamil woman, known to us as Plaintiff M76, who entered Australia by boat at Christmas Island in May 2010 seeking asylum. Under the Migration Act, she was classified as an ‘unlawful non-citizen’ and, having arrived in Australia at an ‘excised offshore place’, she was also an ‘offshore entry person’ (now ‘unauthorised maritime arrival’). Section 189(3) of the Migration Act required officers of the Department of Immigration to immediately detain her, and under s 196(1) she must remain in immigration detention until she is removed from Australia, deported, granted a visa, or she is dealt with for the purpose of removing her to a regional processing country. Section 198(2) of the Migration Act requires officers to remove Plaintiff M76 from Australia as soon as reasonably practicable provided that she either has not made a valid application for a substantive visa or her visa application has been finally determined.
Assessing Plaintiff M76’s claim for Australia’s protection
Section 46A(1) of the Act prevents unlawful non-citizens from making a valid application for a visa. This is referred to as a ‘statutory bar’. The only way that Plaintiff M76 can make a valid application for a visa is if the Minister chooses to exercise his or her non-compellable power under s 46A(2) to lift the bar. This power is at the heart of the system Australia adopted in 2008 to implement its obligations under the Convention relating to the Status of Refugees (1951). Under the scheme announced by the Minister in 2008, all people who arrived in an excised offshore place and claimed Australia’s protection, like Plaintiff M76, were subjected to a Refugee Status Assessment. If the person was found to meet the definition of ‘refugee’ under art 1 of the Refugee Convention (enshrined in s 36(2)(a) of the Migration Act), that person’s case would be referred to the Minister who would then decide whether or not to exercise his or her power under s 46A(2) to lift the bar.
In September 2011, Plaintiff M76 was found to be a genuine refugee. However, in April 2012, the Department advised her that ASIO had assessed her to be directly or indirectly a risk to security within the meaning of the Australian Security and Intelligence Organisation Act 1979 (Cth). As a consequence, and in accordance with ministerial guidelines, Plaintiff M76’s case was not referred to the Minister.
Nowhere to go, but you can’t stay here
The decision to not refer Plaintiff M76’s claim to the Minister meant that she could not apply for a visa. Because of Australia’s international obligations under the Refugee Convention, she cannot be returned to Sri Lanka. Further, because of the adverse security order, no third country is likely to accept her. Thus none of the terminating events that can bring her detention under s 196(1) to an end appear likely to happen in the foreseeable future. In short, Plaintiff M76 faces the prospect of indefinite detention.
In Al-Kateb, the High Court held that ss 189, 196 and 198 of the Migration Act could authorise the indefinite detention of ‘unlawful non-citizens’. Plaintiff M76 sought to challenge this decision. She also asserted that the decision not to refer her case to the Minister was infected by an error of law.
A somewhat disappointing outcome
In the event, a 4:3 majority of the High Court (French CJ, Crennan, Bell and Gageler JJ) elected not to decide whether Al-Kateb should be overturned as they held that the question of indefinite detention had not yet arisen in Plainitff M76’s case. Instead, the Court unanimously declared that the failure to refer Plaintiff M76’s application to the Minister constituted an error of law. The upshot of this decision is that the plaintiff must continue to wait in immigration detention while the Minister decides, in accordance with law, whether or not to lift the statutory bar preventing her from making a valid application for a visa.
A closer look at the Minister’s power to ‘lift the bar’
The asylum seeker processing system outlined above was the subject of Plaintiff M61/2010E v Commonwealth of Australia  HCA 41 (the Offshore Processing Case). In that case, it was found that because Refugee Status Assessments were undertaken for the purpose of advising the Minister whether to exercise his or her power to lift the bar, the process was undertaken under and for the purposes of the Migration Act. Accordingly, the assessment and any subsequent merits review of the decision had to be conducted in accordance with law. The High Court emphasised that the Minister’s power to lift the statutory bar involved two steps: first, a decision to consider exercising the power and, secondly, a decision whether or not to actually do so. In the Offshore Processing Case, it was also held that by establishing the Refugee Status Assessments process, the Minister had decided to consider exercising the power in s 46A(2) to lift the statutory bar in all cases where an offshore entry person claimed Australia’s protection. Moreover, as the High Court’s decision in the instant case makes clear, once the Minister decides by initiating a Refugee Status Assessment to consider whether to exercise the s 46A(2) power, he or she must make a decision as to whether or not to lift the bar.
If Plaintiff M76 was a genuine refugee, why wasn’t she allowed to apply for a protection visa?
In Australia, a character test is applied to applicants for all visas, including protection visas. This means that while a person may engage Australia’s protection obligations under the Refugee Convention and meet the definition of ‘refugee’ required for a protection visa (s 36(2)(a)), they might nonetheless be denied a visa on character grounds. The character test for all visas is found in s 501, but s 31(3) allows the government to make further regulations relating to the character test for certain classes of visa.
At the time of Plaintiff M76’s Refugee Status Assessment, Public Interest Criterion 4002 formed part of the character test that applied to applications for protection visas specifically. This criterion was found in sch 4 of the Migration Regulations 1994 (Cth). To satisfy Public Interest Criterion 4002, an applicant could not be ‘assessed by the Australian Security and Intelligence Agency to be directly or indirectly a risk to security, within the meaning of … the Australian Security and Intelligence Organisation Act 1979 [(Cth)]’. Ministerial guidelines at that time stipulated that anyone who would fail to satisfy this criterion should not have their protection claim referred to the Minister to decide whether or not to lift the bar.
In October 2012, the High Court held in Plaintiff M47/2012 v Director-General of Security  HCA 46 that Public Interest Criterion 4002 was invalid because it was beyond the regulation-making power conferred on the executive by s 31(3). Specifically, it was found to be inconsistent with the character test provided for in s 501. Thus the ministerial guidelines that prevented Plaintiff M76’s case from being referred to the Minister had incorrectly presupposed the validity of Public Interest Criterion 4002 as a ground for rejecting an application for a protection visa.
What these previous High Court judgments meant for Plaintiff M76: The result in this case
The High Court issued a declaration that the exercise of the Minister’s power was affected by an error of law because the now-invalidated Public Interest Criterion 4002 had been relied upon as a reason to not refer Plaintiff M76’s case to the Minister. Because the Refugee Status Assessment had to be conducted according to law, as was required by the result in the Offshore Processing Case, the Minister had not yet decided whether to allow Plaintiff M76 to apply for a visa (let alone whether or not to issue one). Until this process is completed according to law, the High Court held that ss 189, 196 and 198 continue to authorise Plaintiff M76’s detention.
Although agreeing in substance with the result, Justice Hayne’s approach was somewhat different to the other members of the court. His Honour found that the Refugee Status Assessment was confined to determining whether or not Australia owed protection obligations to an individual. Although the Minister was entitled under s 46A(2) to take any considerations into account that he deemed ‘in the public interest’ when deciding whether or not to lift the bar, the Minister had elected to narrow the inquiry by announcing the asylum seeker processing scheme in 2008 and distributing information to asylum seekers on how their claims were to be assessed. The Minister was not entitled then to take into account other considerations. Thus, in Justice Hayne’s view, character assessments that went beyond determining whether a person was a refugee could have no bearing on whether or not the claim was referred to the Minister. The character test should only be applied once the bar has been lifted and a valid application has been made.
What did Plaintiff M76 actually want from the High Court? Revisiting Al-Kateb
While technically a ‘win’ for Plaintiff M76, the High Court’s decision is unlikely to lead to a favourable practical outcome for her. Even if the Minister allows Plaintiff M76 to apply for a visa, it appears unlikely that her application would be successful in view of the adverse security assessment against her. Although Public Interest Criterion 4002 can no longer be used to deny her a visa, the ASIO assessment is likely to be fatal to other aspects of the character test. As mentioned above, what Plaintiff M76 really wanted was for the High Court to overturn its decision in Al-Kateb.
Few cases in recent years have aroused as much controversy as Al-Kateb. That case concerned a stateless Palestinian man who, like Plaintiff M76, arrived in Australia by boat without a visa. Having been refused a temporary protection visa, Al-Kateb sought removal to a third country but no country would accept him. Consequently, the High Court had to decide whether ss 189, 196 and 198 of the Migration Act permitted his detention in circumstances where his removal from Australia had become incapable of fulfilment. That is, the question before the Court was whether the Act authorised Al-Kateb’s indefinite detention. If it did, he argued that this would be impermissible under ch III of the Constitution of Australia. In a 4:3 decision, the High Court ruled that the relevant provisions did authorise Al Kateb’s indefinite detention. Moreover, the majority decided that, so construed, ss 189, 196 and 198 of the Migration Act were constitutional.
Like Al-Kateb, Plaintiff M76 argued that there was no real likelihood or prospect of her being removed to a third country in the reasonably foreseeable future. However, unlike Al-Kateb (who had been refused a visa), the High Court held that Plaintiff M76’s visa application had not yet been finally determined. Until it has been, ss 189, 196 and 198 authorise the plaintiff’s detention for the purpose of completing the process of determining whether she is to be granted a visa. The question of whether ss 189, 196 and 198 would authorise her indefinite detention in circumstances where her removal from Australia to a third country was not reasonably practicable in the foreseeable future could only arise if a visa were refused.
Where to from here?
Only Justice Hayne was a sitting High Court Justice when Al-Kateb was decided. His Honour was part of the majority in that case and reaffirmed his view that Al-Kateb was correctly decided in Plaintiff M76. Moreover, Kiefel and Keane JJ also expressed a preference for the majority decision. On the other side of the ledger, Bell J has held in a previous case (Plaintiff M47) that, correctly construed, ss 189, 195 and 198 do not authorise indefinite detention. Chief Justice French and Gageler and Crennan JJ have yet to express a view on Al-Kateb.
This means that there is still a slim chance that the current High Court bench will overturn Al-Kateb in a future case. However, the majority in Plaintiff M76 has made it very clear that they will only consider such a challenge if all administrative processes in relation to a future plaintiff’s claim for protection have been exhausted according to law, and if that plaintiff’s removal from Australia has become incapable of fulfilment.
AGLC3 Citation: Megan Driscoll and Houston Ash, ‘Australia’s Indefinite Stance on Indefinite Detention: Plaintiff M76/2013 v Minister for Immigration and Citizenship’ on Opinions on High (11 February 2014) <https://blogs.unimelb.edu.au/opinionsonhigh/2014/02/11/driscoll-ash-m76/>.
Megan Driscoll is a final year JD student at Melbourne Law School and Editorial Assistant of the Public Law Review. She also holds a BA with a double major in French and Spanish from The University of Melbourne.
Houston Ash is a final year JD student at Melbourne Law School. He is one of the 2014 Editors of the Melbourne Journal of International Law, and also works as a research assistant at the Centre for Comparative Constitutional Studies.