HAYNE J. The Migration Act 1958 (Cth) ("the Act") provides that a non‑citizen in the "migration zone" is either a "lawful non‑citizen" or an "unlawful non‑citizen" according to whether he or she holds a visa that is in effect. An officer who knows or reasonably suspects that a person in the migration zone is an unlawful non‑citizen must detain that person under s 189(1) or (3). An unlawful non‑citizen detained under s 189 must be kept in immigration detention until the occurrence of one of four terminating events: removal from Australia, deportation, grant of a visa, or an officer beginning to deal with the non‑citizen for the purpose of taking that person to a regional processing country. An officer must remove from Australia an unlawful non‑citizen detained under s 189(3) "as soon as reasonably practicable".
Once again, this Court must decide whether these provisions of the Act mean what they say and, if they do, whether they are valid.
This Court decided both the construction and the constitutional question in Al‑Kateb v Godwin, deciding that ss 189, 196 and 198 had to be construed as meaning what they say, and that those provisions were not beyond the legislative powers of the Parliament. As I said in Al‑Kateb, by reference to the words of Judge Learned Hand:
"Think what one may of a statute ... when passed by a society which professes to put its faith in [freedom], a court has no warrant for refusing to enforce it. If that society chooses to flinch when its principles are put to the test, courts are not set up to give it derring‑do."
No good reason was proffered for revisiting the conclusions reached in Al‑Kateb about the construction of the relevant provisions and their validity. Despite making numerous amendments to the Act in the intervening years, the Parliament has taken no step to amend these provisions in any relevant way. The provisions are valid laws of the Parliament. No matter what one may think of the provisions, this Court has no warrant for refusing to enforce them.
Behind the issues of construction and validity that have been mentioned, there lies a third issue in this case: whether the Minister must decide whether to make a determination under s 46A(2) which would permit the plaintiff to make a valid application for a visa. These reasons will show that, having decided to consider whether to exercise this power, the Minister must decide whether to make a determination under s 46A(2). And the Minister must decide whether to make the determination only by reference to the one consideration which the Minister decided was relevant to the exercise of the power, namely whether Australia owes the plaintiff protection obligations under the Refugees Convention as amended by the Refugees Protocol ("the Convention").
Consideration of this third issue requires brief reference to the facts.
The facts
The plaintiff is a Sri Lankan national. She arrived by boat in Australia in May 2010. She then held, and now holds, no visa permitting her to travel to and enter Australia or permitting her to remain in Australia. She is, therefore, an unlawful non‑citizen. Having first arrived in Australia in the Territory of Christmas Island (an "excised offshore place") she is an "offshore entry person".
It is not now disputed that the plaintiff has a well‑founded fear of persecution for reasons of race and political opinion if she returns to Sri Lanka. She is a "refugee" within the meaning of the Convention, but the Act provides that, because she is an offshore entry person, she cannot make a valid application for any visa. She has been in immigration detention since her arrival in 2010.
In April 2012, the Australian Security Intelligence Organisation ("ASIO") gave the Department of Immigration and Citizenship an "adverse security assessment" with respect to the plaintiff. That assessment recorded that ASIO assessed the plaintiff to be directly or indirectly a risk to "security" within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"). The ASIO Act definition of "security" required reference to "the carrying out of Australia's responsibilities to any foreign country" in relation to certain matters.
ASIO later summarised its reasons for making the adverse security assessment in four points. ASIO had concluded that the plaintiff (a) had been a voluntary member of the Liberation Tigers of Tamil Eelam ("LTTE") who had engaged in armed combat, training and administrative support; (b) remained "strongly ideologically supportive of the LTTE and its aim to achieve Tamil Eelam through the use of violence"; (c) was likely to continue to support the LTTE in Australia; and (d) was "likely to engage in acts prejudicial to Australia's security" if she were to be granted a visa. On their face, the first three points relate only to the past conduct and present beliefs of the plaintiff. The real sting of the assessment appears to lie in the last point made but neither its content nor its basis has been revealed, whether in the course of these proceedings or otherwise. It is not a point which necessarily follows from any one or more of the first three points.
In April 2012, when ASIO gave its adverse security assessment, regulations made under the Act provided that a criterion for the grant of a protection visa ("PIC 4002") was, in effect, that ASIO not have provided an adverse security assessment in respect of the visa applicant. In October 2012, this Court held, in Plaintiff M47/2012 v Director‑General of Security, that PIC 4002 was invalid because its making was inconsistent with the Act. Sections 500(1) and 501(6) prescribed character requirements for the grant of a protection visa and made special provision for the review of decisions refusing to grant a protection visa relying on Art 1F, 32 or 33(2) of the Convention or on the ground (among others) that there is a significant risk that a person would represent a danger to the Australian community or to a segment of that community. None of those grounds permitted consideration of foreign country security obligations of the kind referred to in par (b) of the ASIO Act definition of "security". Hence, PIC 4002 prescribed a criterion which went beyond those expressly provided by the Act, was inconsistent with the Act and was invalid.
The plaintiff has no right to enter and remain in any country other than Sri Lanka. The Minister does not propose to remove the plaintiff to Sri Lanka against her will. Despite efforts to resettle the plaintiff in another country, no country has agreed to take the plaintiff and it is agreed that no country appears likely to do so. The defendants ("the Commonwealth parties") accepted that, in the circumstances, it would be open to conclude that there is no real likelihood or prospect that the plaintiff will be removed from Australia in the reasonably foreseeable future.
The plaintiff commenced proceedings in the original jurisdiction of this Court alleging that her continued detention was unlawful. The parties agreed in stating questions of law in the form of a special case for the consideration of the Full Court.
It is convenient to deal first with whether the Minister decided to consider whether to make a s 46A(2) determination (permitting the plaintiff to make a valid application for a visa).
Did the Minister decide to consider whether to make a s 46A(2) determination?
At all times relevant to this matter, s 46A(1) of the Act has provided that an application for a visa is not a valid application if it is made by an offshore entry person who is in Australia and is an unlawful non‑citizen. Section 46A(2) provided:
"If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination."
This power (often referred to as the power to "lift the bar") may only be exercised by the Minister personally. Section 46A(7) provided that:
"The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances."
The effect of s 46A(7) is often referred to as making the power "non‑compellable".
Before the plaintiff arrived and was detained at Christmas Island, the Minister had established administrative processes for determining whether, as a matter of international law, Australia's obligations under the Convention were engaged in respect of particular offshore entry persons. These administrative processes were described in a "Refugee Status Assessment Procedures Manual" ("the RSA Manual").
This Court considered some aspects of the nature and effect of those administrative processes ("the RSA process") in Plaintiff M61/2010E v The Commonwealth ("the Offshore Processing Case"). In particular, this Court held that assessments made under the RSA process had to be made according to law and in a manner that afforded procedural fairness to the person whose claim was being assessed.
The central premise for the decision in the Offshore Processing Case was that offshore entry persons who were detained while the RSA process was conducted were detained under and for the purposes of the Act. More particularly, those persons were detained for the purpose of the Minister considering whether to exercise power under the Act. And argument of the present matter proceeded on the undisputed footing that the RSA process was engaged in the plaintiff's case for that purpose. Having regard, however, to the course taken in argument of the present matter, it is necessary to identify more precisely why the plaintiff's detention for the purpose of considering whether to lift the bar was detention under and for the purposes of the Act.
It will be recalled that one of the terminating events prescribed by s 196(1) as fixing the duration of immigration detention is that the unlawful non‑citizen detained under s 189 "is granted a visa". When the obligation under s 198(2) to remove an unlawful non‑citizen "as soon as reasonably practicable" is read with both the inability of an offshore entry person to make a valid application for a visa and the Minister's power under s 46A(2) to lift the bar, it is evident that the Act authorises detention of an unlawful non‑citizen for so long as is reasonably necessary for the Minister first, to decide whether to consider exercising the power to lift the bar and second, to decide whether to lift the bar.
In the case of this plaintiff, like other offshore entry persons to whom the RSA process was applied, the Minister had determined (by establishing the RSA process and detaining the plaintiff and others while that process was conducted) to consider whether to lift the bar. The Minister could not have been compelled to embark upon that consideration. But the following observations require the conclusion that the Minister did embark upon that consideration.
The Minister decided that the RSA process would be followed for every offshore entry person who claimed that Australia owed protection obligations to him or her. The plaintiff made such a claim. The RSA process began and she was not removed from Australia as soon as reasonably practicable as would otherwise have been required by s 198(2). But the plaintiff was still detained and her continued detention was justifiable only if it was under and for the purposes of the Act. The only possible statutory purpose for detaining an offshore entry person, other than for removal, was for consideration of whether to permit that person (under s 46A(2)) to make a valid application for a visa. And if detention was for that purpose, consideration of whether to exercise the power given by s 46A(2) must have begun.
That is, by detaining an offshore entry person to follow the RSA process, the Minister necessarily decided to consider exercising the power given by s 46A(2) in respect of that person. To put the same point another way, the operation of s 46A(7) was exhausted once the RSA process was engaged in respect of an offshore entry person who was detained.
Relevant contextual considerations
The steps that were taken in respect of the plaintiff for the purposes of the Minister's consideration of whether to lift the bar must be understood having regard to the policy which was then being pursued. That, in turn, requires reference to some matters of history. Those matters are described in some detail in the Offshore Processing Case. It is sufficient for present purposes to notice only the following features.
In 2001, the Parliament enacted six Acts, one after the other, which affected the entry into and remaining in Australia by non‑citizens. The changes made by those Acts included provision for excising certain Australian territory, including the Territory of Christmas Island, from the migration zone and the insertion into the Act of various sections, including ss 46A and 198A.
Section 198A(1) provided that offshore entry persons might be taken from Australia to a country declared under that section. The Republic of Nauru and the Independent State of Papua New Guinea were declared countries and persons were removed from Australia to those places in exercise of the power given by s 198A(1). This procedure came to be called the "Pacific Strategy".
As noted in the Offshore Processing Case, the changes to the Act "that were worked by inserting s 46A and, in consequence, inserting s 198A, are to be seen as reflecting a legislative intention to adhere to that understanding of Australia's obligations under the [Convention] that informed other provisions made by the Act".
Following a change of government in 2007, offshore entry persons were no longer taken to Nauru or Papua New Guinea. The Government decided that all offshore entry persons would be "processed" on Christmas Island and that the RSA process would be followed in respect of offshore entry persons who claimed to be refugees. As was said in the Offshore Processing Case, the adoption of the RSA process and its application to offshore entry persons could only be understood as implementing the decision no longer to follow the Pacific Strategy but instead to undertake the RSA process as the means of meeting Australia's obligations under the Convention.
The purpose and content of the RSA process
The RSA Manual recorded, under the heading "Background", that offshore entry persons "who raise claims or information which prima facie may engage Australia's protection obligations [will] have such claims examined under a separate RSA process so that the Minister can be advised whether Australia's protection obligations under the Refugees Convention are engaged" (emphasis added).
Not only did the RSA Manual show that the RSA process was directed to determining whether Australia owed protection obligations to any offshore entry person who made a claim to protection, offshore entry persons were told that this was what the process was deciding. Offshore entry persons to whom the RSA process was applied were told, at the start of the process, that what was being done was to "assess and process" their claims to be refugees.
The RSA Manual required that an offshore entry person who raised "claims or information that may engage Australia's protection obligations" was to be provided with an information sheet outlining the RSA process. That information sheet (available in a number of languages) told the offshore entry person that:
"If a finding is made that you are a refugee, the department will write to the Minister for Immigration and Citizenship (the minister) asking him to allow you to make a visa application to stay in Australia.
If the minister allows you to lodge a visa application, you will be asked to complete and sign a form asking for a visa to stay in Australia. Your agent can help you with this.
If you are successful with your application for a visa, you will be given a permanent visa to live in mainland Australia. You will be moved to mainland Australia and will receive help with settlement into the Australian community."
The information sheet also described what would happen if a finding was made that the person concerned was not a refugee and what would happen if that person sought review of the decision by an independent reviewer. It is not necessary, in this case, to refer to the review processes.
Although the special case does not state expressly that the plaintiff was given such an information sheet, it should be inferred that she was.
The RSA Manual provided that the assessment of claims made by an offshore entry person would be made by an "RSA officer": "a departmental employee tasked by the Minister ... to identify refugees according to the definition of a refugee as set out in the Refugees Convention". The RSA Manual required the RSA officer to consider eight issues:
(a) what the claimant's country of nationality or former habitual residence was;
(b) whether the claimant had the right to enter and reside in a safe third country;
(c) whether Art 1C of the Convention (providing for the cessation of protection obligations) applied;
(d) whether any of the exclusion clauses of Art 1D, 1E or 1F of the Convention applied;
(e) whether Art 33(2) of the Convention (providing, among other things, that the benefit of the obligation not to expel or return a refugee to the borders of a country where he or she fears persecution for a Convention reason "may not ... be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he [or she] is") applied;
(f) whether the claimant feared harm for a Convention reason;
(g) whether the harm feared amounted to persecution; and
(h) whether the claimant's fear was well‑founded.
The RSA Manual required the RSA officer, for each issue, to "set out, evaluate and weigh evidence", "set out, discuss and consider the relevant articles of the Refugees Convention", "state and explain the overall conclusion reached in relation to each issue" and "record a finding" for each of the issues considered.
Once an RSA officer completed the assessment of the claims made by an offshore entry person, the officer was "to record [his or her] finding on the claimant's claims and determine whether the claimant is or is not a refugee under Article 1 of the Convention".
As would be expected, the information set out in the information sheet provided to offshore entry persons was consistent with the RSA Manual's description of the way in which cases should be finalised by RSA officers. A "[p]ositive RSA outcome" was described in the following terms:
"When an [offshore entry person] is found to be owed protection through the RSA process, and is not subject to exclusion clauses under Articles 1F and 33(2) of the Refugees Convention, Australia's protection obligations under the Convention are enlivened.
A submission will be provided to the Minister for [his or her] consideration of whether to exercise [his or her] power under section 46A(2) of the Migration Act and lift the section 46A(1) bar to allow a protection (or other) visa application to be made. If the Minister decides to lift the bar, the [offshore entry person] will be invited to lodge a Protection visa application using Form 866. This application will be assessed with reference to the claims made during the RSA process. Subject to health and character requirements being met, a Protection visa will then be granted to the [offshore entry person]. Following grant, the [offshore entry person] will be resettled in Australia." (emphasis added)
The RSA Manual shows that the RSA process was directed to advising the Minister whether Australia's international obligations under the Convention were engaged. The RSA process had no wider purpose. In particular, the RSA process was not directed to determining whether a protection visa would be granted if a valid application could be made. The RSA Manual acknowledged, more than once, that if the Minister lifted the bar, the person concerned had to make an application for a protection visa and meet necessary health and character requirements as part of the process of consideration of the visa application.
The assessment of the plaintiff's claims
The RSA officer who assessed the plaintiff's claims under the RSA process determined that she was a refugee as defined by the Convention. The RSA officer found that Art 1F of the Convention was not engaged, there being "no serious reasons for considering that the [plaintiff] was complicit in any war crime or crimes against humanity". The RSA officer further found that the plaintiff did not come within the express exception provided by Art 33(2) of the Convention to the obligation not to expel or return a refugee to the borders of a country in which that person had a well‑founded fear of persecution for a Convention reason. That is, the RSA officer found that there were not "reasonable grounds for regarding [the plaintiff] as a danger to the security" of Australia.
The decision made under the RSA process was communicated by the Department to the plaintiff. The plaintiff was told that she was "still subject to health, identity, security and character checking processes", as were family members who had made protection claims dependent on hers.
Steps following the adverse security assessment
As has already been noted, ASIO gave the Department an adverse security assessment in respect of the plaintiff in April 2012. The Department treated the adverse security assessment as requiring that it not refer the plaintiff's case to the Minister and it did not.
The Department's decision not to refer the plaintiff's case to the Minister was based upon two different ministerial communications, one in 2009 and the other in 2012. It is necessary to say something about each.
The 2009 ministerial comments
In 2009, well before the plaintiff had arrived at Christmas Island, the Department had made a submission to the Minister seeking what was described as "your decision on whether you wish to exercise your section 46A(2) power in the case of thirty two people" who had arrived on a particular boat.
Twenty‑nine of the persons concerned had had health, character and security clearances finalised; three had outstanding security clearances. The Department's submission said that protection visa applications by those three persons would "remain undecided until all clearances have been finalised". It went on to point out that:
"once the three clients are in the [protection visa] stream, and if they happen to receive a negative finding, they will have access to both merits and judicial review. Alternatively you may decide to defer your decision to exercise your section 46A(2) power for the three individuals until all mandatory checks have been completed."
The Minister declined to determine that any of the three persons awaiting a security clearance should be entitled to make a valid application for a visa. The Minister said that government policy was for health, identity and security checks to be completed prior to release from detention and that, unless there were extenuating or special circumstances, those requirements should be applied before seeking to lift the bar under s 46A(2).
The Minister's reference to completing health and security checks before release from detention assumed, wrongly, that deciding to permit the making of a valid application for a visa would release the plaintiff from detention. Permitting the making of a valid application for a visa would not have had that effect. The Act required continuing detention of every unlawful non‑citizen until a visa was granted or one of the other terminating events specified in s 196(1) occurred. The plaintiff did not submit that anything turned upon this error and it may be put aside from further consideration.
The comments made by the Minister were treated by the Department as a general direction to be followed in later cases in which there was a question about seeking the Minister's exercise of power under s 46A(2). That is, they were treated as identifying when the Minister wished not to embark upon the task of deciding whether to lift the bar. But as has been demonstrated, the Minister had already taken that step. Whatever may have been the effect of the Minister's comments in the particular cases then under consideration, they were not comments which bore at all on whether the Minister should decide to lift the bar in the plaintiff's case. The comments which the Minister made in his 2009 decision were irrelevant to the plaintiff's case and the Department was wrong to treat them as applicable.
The 2012 direction
In 2012, one month before ASIO gave the adverse security assessment in respect of the plaintiff, the Minister gave directions about the circumstances in which he may wish to consider exercising his power under s 46A(2), and in which the Department should draw particular cases to his attention. One kind of case which the directions said should not be referred for the Minister's consideration was where an offshore entry person was found to engage Australia's protection obligations as provided by s 36(2) of the Act but had received an adverse security assessment.
Like the 2009 ministerial comments, the directions given in 2012 were, and are, irrelevant to the plaintiff's case. They were, and are, irrelevant because the Minister had already decided to consider exercising power under s 46A(2) in respect of the plaintiff. The directions given in 2012 dealt only with whether the Minister would consider exercising the power. Contrary to the premise for some of the submissions advanced by the Commonwealth parties, once the RSA process had begun, there was no further occasion upon which s 46A(7) could be applied in the plaintiff's case.
The s 46A(2) power remains unperformed
Having decided to consider exercising power under s 46A(2), the Minister has never done so. The Minister has never made a decision whether to permit the plaintiff to make a valid application for a visa. The power under s 46A(2) remains unperformed.
What consequences follow must be determined by first identifying the relationship between the RSA process and the power given by s 46A(2).
The RSA process and the power given by s 46A(2)
It is unsurprising that, in considering whether to permit making an application for a protection visa, the only question considered in the RSA process was whether Australia's international obligations were engaged, leaving for later determination, in accordance with the requirements of the Act, whether a visa should be granted. It is unsurprising, in other words, that the process which the Minister directed should be followed when an offshore entry person claimed to be owed protection obligations was not a process directed to informing the Minister whether he would be obliged to grant or refuse a visa if a valid application were to be made. It is unsurprising because whether to permit the making of a valid application for a protection visa was to be understood as a threshold question governed only by the need to avoid breaching Australia's international obligations. The Act would be left to do its work in respect of domestic requirements (including security requirements) after the making of an application.
It is to be recalled that the power given by s 46A(2), if exercised, would only permit an offshore entry person to make a valid application for a visa. If a valid application were made, it would have to be dealt with in accordance with the Act. After considering the application, the Minister would be bound to grant the visa if satisfied that the health and other criteria for the visa had been met and if satisfied that the grant of the visa was not prevented by (among other provisions) s 501. If not satisfied of these matters, the Minister would be bound to refuse to grant the visa sought.
Section 46A(2) did not provide for, or permit, the establishment of a system for the grant of visas to offshore entry persons. The power under s 46A(2) concerned only the making of a valid application for a visa. Section 195A(2) of the Act gave the Minister discretionary power to grant a visa to any person in detention under s 189, including an offshore entry person. The fields of operation of ss 46A and 195A were distinct. There is no basis for reading them as overlapping in any way.
It may be that consideration of whether a visa would have to be granted could be said to be always irrelevant to the exercise of the power to determine whether a valid application could be made. It is not necessary to decide whether that is so. If consideration of whether a visa would have to be granted could be relevant to the exercise of the power given by s 46A(2), only lawfully made criteria for the grant of a visa could properly be taken into account. And this Court held in Plaintiff M47/2012 that PIC 4002 was not a valid criterion for the grant of a protection visa. But there are more fundamental reasons for concluding that the particular steps which the Minister has taken in administering the Act have limited the considerations which can now be taken into account in exercising the power given by s 46A(2) in respect of the plaintiff. It is necessary to explain why that is so.
A power exercisable in "the public interest"
The power given by s 46A(2) (to permit the making of a valid application for a visa) might be exercised by the Minister "[i]f the Minister thinks that it is in the public interest to do so". The discretion thus given to the Minister is very wide. Like the provision considered in Water Conservation and Irrigation Commission (NSW) v Browning, s 46A(2) granted a discretion that, "though ... neither arbitrary nor completely unlimited ... is certainly undefined". That is, "there is no positive indication of the considerations upon which it is intended that the grant or refusal of [the determination] shall depend". Accordingly, as Dixon J pointed out in Swan Hill Corporation v Bradbury:
"only a negative definition of the grounds governing the discretion may be given. It may be possible to say that this or that consideration is extraneous to the power, but it must always be impracticable in such cases to make more than the most general positive statement of the permissible limits within which the discretion is exercisable and is beyond legal control."
The resolution of this case, however, does not depend upon attempting some a priori statement of the grounds which might fall outside the public interest. The questions to be considered are more particular. The Minister identified only one issue which bore upon the decision whether to lift the bar: is the plaintiff a refugee within the meaning of the Convention? Having decided that the plaintiff should be detained for consideration of whether to lift the bar by reference to the outcome of the RSA process, can the Minister now make no decision at all? If the Minister does make a decision, can any other consideration be taken into account?
The plaintiff's detention was under and for the purposes of the Act because (and only because) it was for the purpose of the Minister considering whether to make a determination that it is in the public interest to permit the plaintiff to make a valid application for a visa. The RSA officer who assessed the plaintiff's claims resolved the only issue which the Minister had identified as relevant to the exercise of the power in the plaintiff's favour.
The Commonwealth parties submitted, in this Court, that the Minister could refuse at any time to make a decision under s 46A(2). The Commonwealth parties further submitted that, if the Minister were to make a decision about whether he would permit the plaintiff to make a valid application for a visa, he could lawfully take any consideration relevant to the public interest into account and treat any public interest consideration as determinative, no matter what inquiries may have been made while the plaintiff was detained.
Both of these submissions should be rejected. Having decided to consider whether to make a determination under s 46A(2), the Minister had to conclude that consideration. Having identified only one issue as relevant to the decision to lift the bar, the Minister could not make that decision by reference to any other consideration.
The Minister must decide
Having decided that he would consider whether to make a determination under s 46A(2), the Minister must decide whether or not to lift the bar for the plaintiff.
As was said in the Offshore Processing Case, "[i]t is not readily to be supposed that a statutory power to detain a person permits continuation of that detention at the unconstrained discretion of the Executive." But there would be detention at the unconstrained discretion of the Executive if the Commonwealth parties were right to submit that the Minister could decide, at any time, to refuse to conclude, or to stop, consideration of whether to lift the bar. If the Minister, having decided to consider whether to exercise the power to lift the bar, had no duty to conclude that consideration, the Act would authorise detention at the will of the Minister. That construction of the Act should not be adopted. Rather, having decided to determine whether or not to lift the bar, the Minister should be held to be bound to make that decision and to do so within a reasonable time.
Section 46A(7) makes plain that the Minister has no duty, and may not be compelled, to consider whether to exercise the power given by s 46A(2). But once the Minister has decided to consider whether to exercise the power, neither s 46A(7) nor any other provision of the Act permits or requires the conclusion that the Minister may, at will, decline to make any decision under s 46A(2) even though the subject of consideration has been detained for the purposes of the Minister having inquiries made which are relevant to the exercise of the power given by that provision.
What may be considered?
Can the Minister now act on any matter which he considers relevant to the public interest?
Again, this question must be answered recognising the legal foundation for the plaintiff's detention. The Executive detained the plaintiff under and for the purposes of the Act. The detention was under and for the purposes of the Act, and lawful, only because the Minister had decided two things: first, to consider whether to make a determination under s 46A(2) to lift the bar and second, to have his Department inquire into and advise him, for the purposes of his making that decision, whether the plaintiff was a refugee to whom Australia owed protection obligations under the Convention.
The Minister could have left the Act to operate according to its terms in respect of the plaintiff, or in respect of offshore entry persons generally. He did not. That is, the Minister could have left the plaintiff (or other offshore entry persons detained in accordance with s 189 of the Act) to be removed from Australia in accordance with s 198(2) as soon after their arrival at an excised offshore place as was reasonably practicable. Carrying out the RSA process thus directly affected the liberty of those to whom it was applied. Those persons were detained for longer than whatever may have been the time to effect their removal from Australia as soon as reasonably practicable.
The power to detain unlawful non‑citizens given by the Act should not be construed as unbounded. Nor are the applicable provisions of the Act to be construed as authorising detention for whatever period of time the Minister may choose.
The primary temporal limitation on the power to detain is provided by the imposition of the statutory duty to remove as soon as reasonably practicable. Further detention is authorised only if the detention is under and for the purposes of the Act. The bounds of that further detention must be ascertainable, and enforceable, at all times during its continuance. The lawfulness of the detention (as to both its purpose and its duration) must be capable of being fixed, and be fixed, by a criterion or criteria determined at the start of the detention. Fixing the lawful boundaries for the detention at its outset is essential because only if that is done can the lawfulness of the detention be adjudged and enforced by a court, including this Court in exercise of its jurisdiction under s 75(v) of the Constitution, at any time during its continuance.
The plaintiff was detained for the purpose of the Minister considering whether to make a determination under s 46A(2) to lift the bar. That purpose was being fulfilled, and the plaintiff's detention was lawful, only because the RSA process was engaged in respect of the plaintiff. But the purpose (the Minister considering whether to make a determination) could not be fulfilled by a means other than the means in virtue of which the purpose was first satisfied. That is, the means of pursuing the purpose were set according to the sole issue which was considered in the RSA process. By setting those means, the duration of the detention was set as the time reasonably necessary to carry out those means in order to decide whether to lift the bar.
The administrative choice which the Minister made by detaining the plaintiff on the basis described, rather than allowing performance of the duty to remove her from Australia "as soon as reasonably practicable", once made, could not be undone. It could not be undone because of the effect it had on the plaintiff's liberty. The administrative choice which the Minister made was a choice which prolonged the plaintiff's detention.
The administrative decision to detain the plaintiff for the purpose of deciding whether to lift the bar, once made, limited the purpose of detention by identifying at its outset only one consideration which the Minister would take into account in exercising power under s 46A(2). And by taking these steps the Minister fixed not only the means of pursuing the purpose of the detention but also the duration of the detention.
The Act does not authorise detention of an offshore entry person for whatever number of successive periods of detention would be necessary for the Minister to obtain information and advice about a series of disconnected inquiries said to relate to questions of public interest governing the exercise of the power under s 46A(2). To read the Act as permitting that to occur would be to read the Act as permitting detention at the will of the Executive. That construction should be rejected.
As it happens, nothing the Minister or the Department said or did in the course of the detention of the plaintiff departed from the operation of the Act that has been described. The Minister decided that those offshore entry persons who made claims to protection should have their claims investigated, assessed and, if need be, reviewed. The Minister established the RSA process for these purposes. One step in that process was to tell offshore entry persons, in the information sheet issued at the start of the process, what issue would be investigated.
Neither the RSA Manual nor the information sheet suggested that security criteria wider than those presented by the Convention, or any health criteria, would be investigated before a decision was made whether or not to lift the bar. The RSA Manual expressly stated, more than once, that these were issues that would be considered in the course of determining an application for a protection visa.
The Minister was not bound to limit the inquiry in the way he did. The Minister could have established less confined inquiries about any matters which could be thought to bear upon the relevant public interest criterion. But the Minister did not do that. And in light of the contextual considerations set out earlier in these reasons, it is unsurprising that the Minister did not. The policy then being pursued (by establishing and implementing the RSA process) was directed to ensuring that, using the then structures of the Act, Australia adhered to its international obligations. As the arguments advanced by the Commonwealth parties in the Offshore Processing Case showed, the intention was that this should be done by a "non‑statutory" administrative process. But compliance with Australia's international obligations was the driving force for all of the procedures that were established.
The Act having been administered as it was, and the plaintiff having been detained as she was, the Minister may not now make the decision whether to make a determination under s 46A(2) by reference to any consideration except the outcome of the RSA process.
It is important, however, to emphasise two points. First, as already explained, the Minister could lawfully have administered the Act in other ways. He did not. Second, the conclusion that the Minister may not now take account of the adverse security assessment which ASIO has provided in respect of the plaintiff, when deciding whether to make a determination under s 46A(2) to lift the bar, leaves the relevant security issues to be determined in the course of deciding whether a visa must be granted. Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. A person fails that test if, among other things, there is a significant risk that the person, if allowed to enter or to remain in Australia, would "represent a danger to the Australian community or to a segment of that community".
The consequences of the s 46A(2) power being unperformed
What follows from the Minister's failure to decide whether to exercise the power given by s 46A(2)? The plaintiff has made no claim for mandamus. She claims a declaration that the Minister's power remains unperformed and a declaration to that effect should be made. Before turning to consider the construction and constitutional issues, however, it is convenient to consider the argument advanced by the Commonwealth parties that mandamus could not be granted in this matter.
The Commonwealth parties submitted that the Offshore Processing Case decided that mandamus will not go to compel consideration of the exercise of power under s 46A. In that case, the Court said:
"Because ss 46A and 195A both state, in terms, that the Minister does not have a duty to consider whether to exercise the power given by the section, mandamus will not issue to compel the Minister to consider or reconsider exercising either power. That the Minister decided to consider exercising the powers and, for that purpose, directed the making of Refugee Status Assessments and Independent Merits Reviews does not entail that, if the process of inquiry miscarried, the Minister can be compelled again to consider exercising the power."
It is important to notice, however, that the complaints made in the Offshore Processing Case were about steps taken in the course of conducting the inquiries which the Minister had directed be undertaken. The complaints that were made and considered in that case were not complaints about the Minister failing to exercise power under s 46A(2) or s 195A(2). Rather, the issue was whether the Minister could be required, by mandamus, to make fresh inquiries about matters which had been examined imperfectly. Neither the argument in that case, nor the reasons for judgment, focused directly upon whether mandamus could issue to compel the Minister, having already embarked upon consideration of whether to exercise the power given by s 46A(2), to decide whether to exercise that power. And, as was made plain in the Court's reasons, it was not necessary for the Court to examine whether submissions then made by the Commonwealth parties "might permit or require modification to accommodate cases ... where the right that is affected by conducting the impugned process of decision making is a right to liberty".
In this matter, the special case prepared by the parties recorded that, if the Court declared "that the Minister erred in failing to decide whether to exercise his power under s 46A(2) ... or that an officer of the Department erred in failing to refer the Plaintiff's case to the Minister for him to exercise his power under s 46A(2), consideration would be given by the Department" to whether the plaintiff's case should be referred to the Minister. Although this was expressed in terms of the Department giving consideration to taking action, the Solicitor‑General of the Commonwealth accepted that, as would be expected, the Department and the Minister would give effect to any declaration the Court made.
If some controversy were later to emerge about what the Minister had or had not done in response to this Court's decision, that controversy would fall for consideration on the facts and in the circumstances as they then existed. Whether, or to what extent, that controversy would require examination of the availability of mandamus as a remedy which will go "[w]here there is no specific remedy and by reason of the want of that specific remedy justice cannot be done unless a mandamus is to go" need not be decided.
The construction and constitutional issues
It is nonetheless desirable to deal with the construction and constitutional issues which were argued. The construction issue must be determined in light of the scheme which is revealed by the relevant provisions of the Act.
The scheme of the Act
Sections 189, 196 and 198 of the Act are the central provisions regulating detention of unlawful non‑citizens. The relevant text of those sections is set out in the reasons of other members of the Court and need not be repeated here. The questions which arise in this matter about the construction and application of those provisions cannot be answered without first identifying the place of those provisions in the overall scheme of the Act.
As I have previously pointed out, the Act has a binary structure. Its central provisions posit a choice between two outcomes for non‑citizens within Australia's migration zone. The Act divides non‑citizens into "lawful non‑citizens" and "unlawful non‑citizens" according to whether the non‑citizen in question holds a visa that is in effect. If a non‑citizen can make a valid application for a visa, the Minister must decide either to grant or refuse to grant that application according to whether the Minister is satisfied that the requirements stated within the Act or regulations are met.
Subject to some presently irrelevant exceptions, an officer is bound to detain a person whom the officer knows or reasonably suspects to be an unlawful non‑citizen. An unlawful non‑citizen who has been detained under s 189 must be kept in immigration detention until the occurrence of one of the terminating events prescribed by s 196(1). Section 198(2) obliges an officer to remove an unlawful non‑citizen from Australia "as soon as reasonably practicable".
These provisions of the Act are directed to the regulation of persons entering and remaining in Australia. Those whom the Act classifies as "unlawful non‑citizens" are persons who have no permission to travel to and enter Australia or to remain in Australia. Sections 189, 196 and 198 provide powers of detention and removal in aid of effecting a fundamental purpose of the Act, namely, providing that those who are not citizens of Australia may travel to and enter Australia and may remain in Australia only if they have permission to do so. No provision of the Act countenances any middle ground between being a lawful non‑citizen (who is entitled to remain in Australia in accordance with any applicable visa requirements) and being an unlawful non‑citizen (who may, and who usually must, be detained and who, assuming no other relevant provision or procedure under the Act remains unperformed, must be removed from Australia as soon as reasonably practicable).
An unlawful non‑citizen cannot be removed from Australia unless he or she will be received at the place to which he or she is taken. Removal means removal to a place. Ordinarily, the country of which the person concerned is a national is bound to receive that person and there may be other countries that are willing to do so. But the Act is silent on these matters. And it says nothing about the case of the unlawful non‑citizen who is stateless and thus without a country of nationality that is bound to receive that person.
Likewise, the Act does not deal expressly with the case of an unlawful non‑citizen who has a well‑founded fear of persecution for a Convention reason in his or her country of nationality but who is not entitled to a protection visa. But, as the decision in Plaintiff M47/2012 demonstrates, the Act does recognise expressly that persons with a well‑founded fear of persecution for a Convention reason may validly be refused a protection visa under the Act. The Act recognises expressly that a person who is a refugee may be and remain an unlawful non‑citizen whom an officer is bound to remove from Australia as soon as reasonably practicable.
The plaintiff and the Commonwealth parties submitted that s 198(2) should be construed as not permitting removal from Australia of a person found to have a well‑founded fear of persecution for a Convention reason in his or her country of origin to that country. It is not necessary to examine whether that is right. The plaintiff has not asked to be returned to Sri Lanka and the Minister does not propose to remove her there.
The plaintiff's detention is authorised
The parties in this case agreed that the plaintiff has no present right to enter and remain in any country other than Sri Lanka. They agreed that "[a]t present" there is no other country to which the plaintiff can be sent and that efforts made by the Department to resettle persons to whom Australia owes protection obligations but who are the subject of adverse security assessments have been unavailing. The Court must decide the questions reserved on the footing that the plaintiff cannot and will not be removed from Australia unless or until circumstances change. There is no basis for saying whether or when that might occur.
The plaintiff submitted that, in these circumstances, the Act does not authorise her detention even though she has no permission to enter Australia or remain in Australia. That is, the effect of the plaintiff's submissions was that, the plaintiff having come within the international boundaries of Australia, the Act does not, or at least does not validly, prevent her entering and remaining in Australia free from any form of detention. That submission must be rejected.
Construing the Act
In Al‑Kateb, this Court decided, by majority, that ss 189, 196 and 198 authorised and required the detention of an unlawful non‑citizen, even if his or her removal from Australia was not reasonably practicable in the foreseeable future. In Plaintiff M47/2012, two members of the Court concluded that the dissenting opinion about the construction of those provisions expressed by Gleeson CJ in Al‑Kateb was to be preferred. But Al‑Kateb has not been overruled.
Fundamental principle requires that this Court not now depart from the construction of the relevant provisions which was adopted by the majority in Al‑Kateb. All that has changed since Al‑Kateb was decided is the composition of the Bench. That is not reason enough to revisit the decision. And when the Parliament has had repeated opportunities to amend the effect of the decision in that case, but has not done so, this Court should not depart from what was then held to be the proper construction of the relevant provisions.
The Act fixes the end of immigration detention by reference to the occurrence of one of the four terminating events prescribed by s 196(1) and referred to at the start of these reasons: removal from Australia, deportation, grant of a visa, or an officer beginning to deal with the non‑citizen for the purpose of taking that person to a regional processing country. The requirement of s 196(1) that an unlawful non‑citizen detained under s 189 must be kept in immigration detention "until" the happening of one of those events cannot be construed as using the word "until" in some purposive sense. One of the terminating events is the grant of a visa and it is not to be supposed that detention could be for the purpose of granting the person detained a visa. It thus follows that the word "until" must be read in s 196(1) as fixing the end of detention, not as fixing the purpose or purposes for which detention is or may be effected.
Understood in that way, s 196 (when read with ss 189 and 198) takes its place as a provision which is central to effecting the overall purpose of the whole of Pt 2 (ss 213‑274) of the Act. That purpose is to control the arrival and presence of non‑citizens in Australia. Mandatory detention under and for the purposes of the Act is the means which the Parliament has adopted to assert control over the arrival and presence of such persons. Sections 189, 196 and 198 do that by preventing those who have no permission to travel to and enter Australia and no permission to remain in Australia from doing so. Detention under and for the purposes of the Act in accordance with those provisions serves the purpose of controlling the arrival and presence of non‑citizens in Australia.
Validity of the provisions
The Court decided, in Al‑Kateb, that ss 189, 196 and 198 of the Act, construed in the manner that has been described, are valid. Again, this conclusion should not now be revisited. It may be accepted that this Court may more readily reconsider constitutional issues than it should reconsider questions of statutory construction. Nonetheless, the conclusion reached by the majority in Al‑Kateb should be affirmed.
For the reasons which I gave in Al‑Kateb, I consider that the provisions of ss 189, 196 and 198, when construed in the manner I have described, are valid laws of the Commonwealth. Nothing is to be gained by my rehearsing what I said there.
Chapter III of the Constitution does not limit the powers given by s 51(xix) and (xxvii) in a way which precludes the enactment of those provisions or, in the events that have happened, their continued valid application to the plaintiff. A law which requires the detention of a person who has no permission to travel to and enter Australia and no permission to remain in Australia until that person is removed from Australia does not constitute any exercise of the judicial power of the Commonwealth, regardless of whether removal can be seen to be reasonably practicable in the foreseeable future. It is a law within the legislative powers of the Parliament and is valid. Whether it is thought to be a good law or a bad law, a fair law or an unfair law, or a law that is consistent with basic tenets of common humanity is a matter for the Parliament and "the people of the Commonwealth", not for the courts.
Conclusion and orders
For these reasons, the plaintiff fails in her challenge to the construction of ss 189, 196 and 198 of the Act. She fails in her challenge to the validity of those provisions in their application to her. She succeeds in her arguments that the Minister's power under s 46A(2) remains unperformed and a declaration to that effect should be made. She should have one half of her costs of the special case.
I would answer the questions stated for the opinion of the Full Court as follows: