Consideration and determination
27 The Commonwealth submitted that grounds 1 and 2 had to be upheld in light of the majority decision of the High Court in Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567 (AJL20 High Court). That submission should be accepted.
28 The majority (Kiefel CJ, Gageler, Keane and Steward JJ) emphasised at [14] the dichotomy between lawful non-citizens (i.e. those who hold a valid visa) and unlawful non-citizens (i.e. those without a valid visa) in the statutory scheme constituted by ss 189, 196 and 198. These provisions operate to prevent an unlawful non-citizen from entering the Australian community. The majority held that an unlawful non-citizen detained under s 189 must be detained until the occurrence of one of the events specified in s 196(1).
29 It is desirable to set out [34]-[35] and [47]-[48] of the majority's reasons for judgment which explain the operation of the statutory scheme in both a constitutional and administrative law sense (footnotes omitted and emphasis added):
34 The duration of the detention required and authorised by s 196(1) is, as Hayne J said in Al-Kateb, "fixed by reference to the occurrence of any of [the four] specified events. Detention must continue 'until' one of those events occurs."
35 The combined effect of ss 189(1) and 196(1) is that a non‑citizen can be lawfully within the Australian community only if he or she has been granted a visa. Otherwise, an unlawful non‑citizen must be detained until such time as he or she departs Australia by one of the means referred to in s 196(1), relevantly in this case removal under s 198. That removal is to be effectuated by the performance of the duty that s 198(6) places on officers of the Commonwealth to remove "as soon as reasonably practicable". This view of the relationship between s 196 and s 198 has consistently been accepted and applied in the Federal Court.
…
47 The primary judge noted that the plurality in Plaintiff M96A said, in relation to the event listed in s 196(1)(a), that "it is a condition that removal must occur as soon as reasonably practicable". His Honour took this statement to support the view that the detention of an unlawful non‑citizen ceases to be authorised by the Act immediately, where there has been a delay in the Executive's performance of the duty imposed by s 198. The respondent sought to rely upon the reasoning of Brennan, Deane and Dawson JJ in Lim in support of much the same proposition. The respondent's contention was to the effect that only where the Executive properly performs the duties that establish the legitimate non‑punitive purposes of the Act can the unlawful non-citizen's detention ordained by the Parliament be reasonably capable of being seen as necessary for legitimate non‑punitive purposes.
48 Neither Plaintiff M96A nor Lim suggests that the operation of s 189(1) is conditioned upon s 198(6) in this manner, either as a matter of ordinary construction or in order to preserve its constitutional validity. When read in the context of the observation that "detention in Australia will conclude if any of the various preconditions [in s 196(1)] are met", the statement of the plurality in Plaintiff M96A does not suggest that the authority and duty to detain imposed by s 189(1) disappears immediately upon delay in the performance of the hedging duty in s 198(6). Nor can one discern in, or attribute to, the plurality's statement in Plaintiff M96A or the reasoning in Lim (or the passages in Plaintiff S4 to which reference has been and will be made) any adherence to the heresy that, where a law is within the Parliament's competence because of the imposition of duties on officers of the Executive, delay in performance of those duties by those officers can take the law outside Parliament's competence. A failure by the Executive diligently to perform the duties that give effect to the legitimate non-punitive purposes for which detention is authorised and required by the Act erases neither those duties nor the statutory purposes which those duties support. Were it otherwise, the supremacy of the Parliament over the Executive would be reversed and the rule of law subverted.
30 After analysing earlier High Court authorities, including Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16; 261 CLR 582; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1; Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 and Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562, the majority held that the operation of ss 189(1) and 196(1) is not conditional upon compliance with s 198(6), either as a matter of ordinary statutory construction or in order to preserve its constitutional validity. Their Honours said at [51] (emphasis in original):
The duty imposed upon officers of the Executive by ss 189(1) and 196(1) of the Act is to detain the unlawful non‑citizen until the occurrence of one of the events referred to in s 196. The duty so imposed by the Act is neither conditional upon, nor co‑extensive with, the intents or purposes of officers of the Executive towards the detainee.
(See also the penultimate sentence of [48] of the plurality's reasons as set out above at [29].)
31 At [52], the majority made the following important statements with respect to instances where the Executive is dilatory in performing what were earlier described as "the hedging duties" imposed upon it by the statutory regime (footnotes omitted and emphasis added):
Where the Executive is dilatory in performing the hedging duties imposed upon it, as French J observed [in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231], the remedy of mandamus is available to compel the proper performance of those duties. It is precisely because the hedging duties may be enforced so as to bring the detention of the unlawful non‑citizen to an end that the executive detention authorised and required by ss 189 and 196 can be seen to be within the Parliament's power under s 51(xix) of the Constitution as limited by the implications of Ch III. These hedging duties are not things written in water. A failure on the part of the responsible officers of the Executive to comply with an order of the court mandating performance of their statutory duties may result in those officers being committed to prison for contempt of court. By this means, judicial power is exercised to give effect to the scheme of the Act, enforcing the supremacy of the Parliament over the Executive.
32 Having regard to the majority's reasoning in AJL20 High Court, we accept the Commonwealth's submission that neither the first nor second paths of reasoning adopted by the primary judge can survive.
33 The respondent submitted that AJL20 High Court did not foreclose the first path of reasoning applied by the primary judge in the present proceeding. He contended that that path of reasoning remains sound, despite AJL20 High Court, and continues to be supported by cases such as Plaintiff S4; Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 and Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336. For the following reasons, that submission cannot be accepted.
34 First, the respondent has misunderstood Plaintiff S4. It was not a case about detention. Rather it focused on a different question, namely whether s 195A of the Migration Act empowered the Minister to grant a visa which precluded the person from making a valid application for a protection visa in circumstances where the Minister had already commenced considering exercising the personal non-compellable power under s 46A(2) to permit the person to make a valid application for a protection visa. As the majority explained in AJL20 High Court at [70], Plaintiff S4 is properly understood as emphasising:
… why administrative steps that prolonged detention must be taken within the framework of the Act and subject to its implicit temporal limits. Their Honours were not expressing a conclusion that failure to comply with a duty to bring about one of the terminating events in s 196(1) had the consequence that, ipso facto, detention became unlawful.
35 Secondly, as the Commonwealth contended, Plaintiff S4 does not support the primary judge's reasoning to the effect that, because his Honour held that the Commonwealth was taking insufficient steps to secure or attempt to secure the removal of MZZHL and had "abandoned any attempt to undertake such steps", this meant that the detention was unlawful. Plaintiff S4 supports the Commonwealth's contention in the present proceeding that the circumstances here did not establish that there were no enforceable limits on the respondent's detention. Where the Executive has failed to comply with its statutory duty of removal under s 198, it is open to someone in MZZHL's circumstances to enforce that obligation through mandamus. As the majority said in AJL20 High Court at [68]:
… Plaintiff S4 does not authorise reasoning from a finding of want of proper diligence in the performance of the duty to remove to a conclusion that some unauthorised punitive purpose is being pursued by the Executive.
And, as noted above, the majority referred earlier at [52] to the remedy of mandamus being available to compel the proper performance of the "hedging duties", including the duty of removal.
36 The related cases to Plaintiff S4 upon which the respondent relies take the matter no further. First, while reliance was sought to be placed on Hayne J's dissenting judgment in Plaintiff M79 as providing "context" for his Honour's views in Plaintiff M76 and the Court's view in Plaintiff S4, the reasons of the majority in AJL20 High Court proceed on the basis that Plaintiff M76 adds nothing to what was said by the majority in Plaintiff S4 (see at [27] and fn 24).
37 Secondly, although the majority in AJL20 High Court made no express reference to Plaintiff M61, that decision does not support the respondent's case. In Plaintiff M61, the Court rejected the proposition that immigration detention could be prolonged by the Executive absent a statutory authorisation. The rejection of that proposition occurred with reference to the period prior to the Minister deciding whether or not to consider the exercise of any of his or her non-compellable powers. The Court found, however, that in the circumstances in Plaintiff M61 the process of consideration had in fact begun when the Minister announced the implementation of the Refugee Status Assessment and Independent Merits Review procedures regarding a particular group of unlawful non-citizens (see at [66] and [67]).
38 We accept the Commonwealth's submission that Plaintiff M61 does not assist in determining whether MZZHL's detention was authorised and required by ss 189 and 196 of the Migration Act. Rather, Plaintiff M61 stands for the proposition that immigration detention is not authorised for an indeterminate period whilst consideration is given to whether an unlawful non-citizen meets ministerial guidelines for referral regarding the exercise of relevant non-compellable powers.
39 It is desirable now to address another issue raised by the respondent in the appeal in seeking to distinguish AJL20 High Court from Plaintiff S4 and related cases. In his written outline of submissions in response, the respondent appeared to contend that AJL20 High Court did not apply to a case where the Minister had commenced to consider whether to exercise a non-compellable power such as that contained in s 195A. The respondent sought to draw a distinction between what he described as the "default operation" of the Migration Act as opposed to a separate operation where "the Minister chooses to administer the Act in respect of particular detainees using administrative processes established personally by the Minister in pursuance of his non-compellable personal power". The respondent's counsel appeared to contend that the evidence below disclosed that such consideration had commenced in October and December 2017 and was ongoing. In October and December 2017, the Department proposed that the Minister grant MZZHL a s 195A bridging visa as long as MZZHL attended a migration office for the purpose of him being "administratively detained" so as to trigger the Minister's power to grant a visa under that provision.
40 There are several difficulties with this argument. First, the argument was not run below. It is notable that the primary judge's otherwise comprehensive findings of fact do not include any findings regarding the question as to whether a process of considering the exercise of any personal non-compellable powers (including s 195A) had commenced prior to any of the three relevant periods.
41 Secondly, the respondent did not seek leave to file a notice of contention relating to this matter notwithstanding that the Court raised the possibility of such a requirement at the hearing.
42 Thirdly, and in any event, the evidence reveals that MZZHL failed to attend any immigration office so that he could be taken into administrative detention and be granted a s 195A visa. Moreover, his name was subsequently removed from a s 195A "group submission" by the Department in favour of granting some people a final departure bridging visa in order to resolve their unlawful status. Accordingly, any process of consideration had come to an end.
43 Fourthly, it is difficult to understand how a process of commencing consideration of the exercise of a non-compellable power in late 2017 could advance the respondent's case, particularly when regard is had to the primary judge's findings that the respondent was lawfully detained during the first two relevant periods, both of which occurred after 2017.
44 Fifthly, the respondent's argument suggested that the process of consideration which was commenced in October and December 2017 was ongoing during the third relevant period (i.e. March 2019 to May 2021). Any such contention sits most uncomfortably with the evidence described immediately above which indicates that no further consideration was given to granting MZZHL a s 195A bridging visa when he failed to present himself for administrative detention and his name was removed from the list of persons in the s 195A "group list". Nor did the respondent explain how his argument could be reconciled with the fact that on 19 January 2021 the then Minister determined not to consider exercising his s 195A powers in relation to MZZHL.
45 Finally, with all appropriate respect to the respondent's counsel, this part of the argument was not presented with optimal clarity. After several exchanges with the Court with a view to having the argument expressed more clearly, the respondent's counsel said that he wished to reformulate the argument so as to express it "as a procedural point about the Commonwealth appeal". The respondent contended that for the Commonwealth to succeed on appeal, they "must show that the primary judge erred in finding that the respondent's detention was contrary to Plaintiff S4". He said that the issue of the timing of the Minister's decision to give consideration under s 195A as a "factual point of distinction" from Plaintiff S4 had not been put by the Commonwealth below and that, if it had, it could have been met by evidence. Counsel identified that evidence as being the Department's submission dated 21 August 2020 to the Minister prior to the Minister's decision dated 19 January 2021 to not consider intervening under s 195A. The submission referred to the events which occurred in October and December 2017 (as explained above). The respondent's counsel also referred to several screenshots relating to the respondent's migration history which were in evidence below and which also made reference to the events which occurred in October and December 2017.
46 For the reasons given above at [34]-[36], we accept the Commonwealth's submission that Plaintiff S4 does not assist the respondent's case and in light of the subsequent reasoning of the majority in AJL20 High Court, the primary judge erred in holding to the contrary. As such, this submission does not affect our primary conclusion that grounds 1 and 2 of the appeal must be upheld in the light of the majority's reasoning in AJL20 High Court.