The High Court has issued a writ of peremptory mandamus commanding the Minister to grant the plaintiff a permanent protection visa. In June 2014, the High Court upheld a challenge to the validity of the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth), known as the PPV Regulation, in two related matters. The Court held the Minister’s determinations in relation to Plaintiffs S297/2013 and M150/2013 were invalid and issued a writ of mandamus in each instance directing the Minister to consider and determine each visa application according to law. Continue reading
The High Court has decided a special case relating to the Government’s attempt to return up to 153 asylum seekers to Sri Lanka. On 7 July 2014 Crennan J issued an injunction to prevent Continue reading
The High Court’s decision in Minister for Immigration and Border Protection v SZSCA will be handed down on 12 November 2014. In expectation of the judgment we wanted to share this piece by Melbourne Law School Professorial Fellow and former Dean and current professor at Michigan Law School, James C. Hathaway, on the December 2013 Full Federal Court decision in the case. This post has been republished with permission from Reflaw.
By Professor James C. Hathaway
The Full Federal Court of Australia recently considered the refugee status of an Afghan who had worked for nearly a quarter century as a jewelry maker in Kabul, before deciding in 2007 to work instead as a self-employed truck driver. Initially, his work consisted of transporting such goods as wood, animal skins, and food across the country. But starting in January 2011, he agreed to begin hauling building materials from Kabul to Jaghori in order to supply reconstruction projects being undertaken by the government and international aid agencies. He took on this new work because “he was paid more” , noting that “there was not a lot of work and he had to support his family” . When the Taliban threatened to kill him if he continued to transport building materials used in reconstruction, he fled Afghanistan and advanced a refugee claim in Australia.
The claimant reasonably argued that an adverse political opinion had been imputed to him by the Taliban, and that the Afghan government could not be counted on to shield him from the Taliban’s death threats. The Australian government contended, however, that he could avoid the risk by giving up truck driving and returning to his prior career as a jeweler. Counsel for the applicant countered that the applicant could not be compelled to give up his preferred work, and that if that work gave rise to a risk of being persecuted for reasons of an imputed political opinion, his refugee status should be recognized.
The majority of the Full Federal Court of Australia agreed with the applicant. Understanding the High Court of Australia to have ruled in S395 that a decision-maker “cannot require an asylum seeker to behave in a particular manner”  – the only relevant question being “whether an asylum seeker would not in fact behave in a particular matter upon his or her return”  – it was held that there was a duty to grant refugee status given the applicant’s unwillingness to resume his work as a jeweler in Kabul.
This decision continues a no doubt well-meaning, but analytically flawed, approach. Continue reading
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. Continue reading
By Anna Dziedzic and Sophie Walker
There is only one set of offences under federal law that attracts a mandatory sentence, and perhaps unsurprisingly these offences all relate to people smuggling. Upon conviction of a crime of aggravated people smuggling under the Migration Act 1958 (Cth), the sentencing judge must impose a jail term of at least five years. In Magaming v The Queen  HCA 40, six of the seven judges of the High Court upheld the validity of this mandatory sentencing provision under the Australian Constitution. But this is only part of the story. After all, the principal character is Bonang Darius Magaming, a 19 year old Indonesian fisherman who was recruited to steer the boat which carried 52 asylum seekers to Australia. On 6 September 2010, his boat was detained by the Australian Navy near Ashmore Reef. Mr Magaming pleaded guilty to the aggravated offence of smuggling at least five people into Australia. At sentencing, the judge described Mr Magaming as ‘a simple Indonesian fisherman’ and explained that but for the mandatory sentencing provision, he would have imposed a lighter sentence. The judge said:
The seriousness of [Mr Magaming’s] part in the offence therefore falls right at the bottom end of the scale. … In the ordinary course of events, normal sentencing principles would not require a sentence to be imposed as heavy as the mandatory penalties that have been imposed by Federal Parliament. However, I am constrained by the legislation to impose that sentence.
Neither the pleadings, nor the judgment, nor media reports manage to fill in many of the gaps in Mr Magaming’s story. Why did he decide to join the crew? How was his mental and physical health? How did the imposition of a mandatory sentence which the judge considered well beyond the severity of the sentence that would have otherwise been imposed affect him? Continue reading
By Megan Driscoll
Asylum seeker policy has been a polarising subject in Australian politics for more than a decade and it continues to be so with the recently-elected Abbott government attempting to impose its perspective on the political debate on the topic by mandating asylum seekers arriving by boat be referred to as ‘illegal’. Consecutive federal governments have introduced increasingly harsh schemes to deal with the perceived influx of people arriving in Australian territorial waters by boat to seek asylum. The High Court is yet to hear a case challenging the legality of the current arrangement of transferring asylum seekers to Papua New Guinea, Plaintiff S156/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (transcripts of directions hearings here and here).
Plaintiff M79/2012 v Minister for Immigration and Citizenship  HCA 24 (Plaintiff M79) deals with another aspect of the asylum seeker statutory regime: the validity of a temporary safe haven visa granted to a person who had not made an application. In this instance, the Minister granted a temporary safe haven visa to the plaintiff, a Sri Lankan national who arrived by boat on Christmas Island in February 2010 seeking Australia’s protection. The validity of the visa depended on the criteria the High Court determined the Minister was bound to consider when granting the visa, and whether the Minister had addressed those criteria. A majority of the Court found that the sole criterion binding the Minister was whether or not it was in the ‘public interest’ and that it was within the Minister’s discretion to determine what factors were relevant to that interest. Interestingly, Plaintiff M79 could signify that the High Court is beginning to take a more deferential approach to ministerial conduct in deciding to grant or decline visa applications than it has in the recent past, including in the case that rejected the previous government’s so-called ‘Malaysian solution’. Continue reading
Next week is the final week of the 2013 federal election campaign. It has been a campaign where immigration issues have been prominent despite the Rudd government attempting to neutralise the politics of irregular migration by entering into the highly publicised arrangement with Papua New Guinea for that country to detain asylum seekers and settle refugees who arrive in Australia by sea. While other matters of policy and electioneering might occupy news bulletins next week, irregular migration and refugee laws will be front and centre before the High Court. Continue reading
By Sara Dehm and Cait Storr
The administration of migration and asylum applications is one of the most politicised powers of the Commonwealth government. Not only are the administrative decisions of the Department of Immigration and Citizenship frequently on the front pages, but the processes of appeal — via the Refugee and Migration Review Tribunals through to the Federal and ultimately the High Court — can also expose the sometimes hazy character of the separation of powers in Australia.
Judicial review of administrative decisions on migration and refugee status is now one of the key drivers of Australian administrative law. For instance, the question of how much scope the courts have to review the decisions of the Refugee Review Tribunal and the Migration Review Tribunal, particularly in the exercise of their respective statutory discretions as delegated under the Migration Act 1958 (Cth), has generated a significant line of High Court cases on procedural fairness and the fair hearing rule, from Eshetu through Miah to SZGUR. The legislature has made numerous attempts to limit the application of common law principles of procedural fairness to various delegated powers of the Migration Review Tribunal. Whether and to what extent common law principles of unreasonableness apply to such delegated decision-making has emerged as an area of key contention in these cases.
The decision in Minister for Immigration and Citizenship v Li  HCA 18 adds to this small but growing body of law which serves to refine the principles, operation and scope of what is unreasonable conduct of decision-makers within the increasingly politicised statutory patchwork that the Migration Act 1958 has become. The UK case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation  EWCA Civ 1 is frequently taken as the departure point for determining the standard of ‘unreasonableness’ for courts and tribunals. In Wednesbury, Lord Greene MR famously stated that the courts can intervene where a decision by a Minister or government body ‘is so unreasonable that no reasonable authority could ever have come to it’, a definition frequently critiqued as circular. Australian courts have seemed reluctant to either reject Wednesbury reasonableness because of this uncertainty or to expand its application. Continue reading