Plaintiff S4/2014 v Minister for Immigration and Border Protection

The High Court has decided a separate special case that was originally joined to the cases of Plaintiff S297/2013 and Plaintiff M150/2013, recently decided by the Full Court. On 13 April 2012, the Department of Immigration and Citizenship informed the plaintiff that he was a person to whom Australia owed protection obligations. On 18 April 2012, the Department referred S4’s case to ASIO for a security assessment, which continued (while the plaintiff remained in detention) until after he had commenced proceedings on 6 January 2014. On 21 January 2014, the Department was advised that S4 was assessed with a ‘non-prejudicial (clear) security assessment’. On 4 February 2014, the Minister (without giving notice to S4), exercised his power under s 195A(2) of the Migration Act 1958 (Cth) to grant Temporary Safe Haven and Temporary (Humanitarian Concern) class visas. The TSH visa remained in force for seven days, but enlivened the bar imposed by s 91K that precludes the plaintiff from applying for a visa (other than a TSH visa). The plaintiff challenges the validity of the Minister’s decision under s 195A, and also contends that the Minister was bound to exercise his power under s 46A(2) to lift the bar imposed by s 91K.

The High Court unanimously held that the Minister’s grant of the TSH and THC visas was invalid and issued a writ of certiorari to quash the Minister’s decision to grant these visas. Because the Minister had not exercised his power under s 46A, s 195A did not allow him to grant a visa which precluded Plaintiff S4 from applying for a protection visa (at [7]). The purpose for detaining unauthorised maritime arrivals under the Migration Act is to effect their removal from Australia, and those purposes must be ‘pursued and carried into effect as soon as reasonably practicable’ (at [27]–[28]). As an unauthorised maritime arrival, the duration of Plaintiff S4’s detention was bounded by this requirement of removal: the Minister’s consideration of whether Plaintiff S4 might seek or be granted a TSH or THC visa ‘had to be undertaken within that framework … Departure from that requirement would entail departure from the purpose for his detention and could be justified only if the Act were construed as permitting detention at the discretion of the Executive’ (at [34]). In construing the Migration Act the Court held that s 46A and s 195A had to be understood with reference to each other: ‘the Minister may not circumvent the provisions of s 46A by resort to s 195A. Not least is that so when, as in this case, the grant of a visa … would deprive the prolongation of the plaintiff’s detention of its purpose’ (at [46]). While s 195A is worded generally, it must be read as subject to the earlier exercise of power under s 46A ([48]). The Court also held that it was inappropriate to rule on whether the Minister is bound to determine that ss 46A(1) or 46A(2) does not apply to Plaintiff S4. Whether and how the Minister must make a decision under s 46A will require his further consideration, and the Court reiterated its earlier reluctance to grant mandamus in s 46A cases (see Plaintiff M61/2010E v Commonwealth [2010] HCA 41 and at [38]–[41], [59]–[60]) and that whether that relief was available or would be appropriate here were not necessary to explore ([59]). The Court also noted that the Minister’s decision on whether or not to exercise his power under s 46A must be made ‘as soon as reasonably practicable’ (at [9]).

High Court Judgment [2014] HCA 34 11 September 2014
Result TSH and THC visas invalid, ceritorari issued
High Court Documents Plaintiff S4/2014
Full Court Hearing [2014] HCATrans 162  13 August 2014
Directions Hearings [2014] HCATrans 70 3 April 2014
[2014] HCATrans 2  23 January 2014