Plaintiff M61/2010E v Commonwealth of Australia & Others Plaintiff M69 of 2010 v Commonwealth of Australia &Others [2010] HCA 41 Summary

On 11 November 2010, the High Court unanimously declared that errors of law had been made in the conduct of two refugee status assessments under Australia’s “offshore processing regime”. The principle errors of law were that the reviewers failed to treat the provisions of the Migration Act 1958 (Cth) (the Migration Act) and the decisions of Australian courts as binding. The Court also declared that the reviewers had failed to observe the requirements of procedural fairness. However, the Court rejected a constitutional challenge to the validity of the Minister’s discretionary power to decide whether offshore entry persons should be granted a visa to enter Australia. Background The Migration Act provides that Christmas Island is an “excised offshore place”.1 The plaintiffs claimed to be persons to whom “Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.” 2 Under the Migration Act, the plaintiffs became “unlawful non-citizens” by entering Australian territory at Christmas Island without a valid visa.3 They were detained there pursuant to a detention provision of the Migration Act. 4 According to the Migration Act,5 an unlawful non-citizen cannot make a valid application for a visa. Accordingly, the plaintiffs could not validly apply for protection visas in Australia unless the Minister personally thought that it would be in the public interest to grant the applicants a visa.6 This ministerial power may be colloquially referred to as “lifting the bar”.7 Therefore, rather than following a statutory visa application process under the Migration Act, DIAC officers undertook what was known as a “Refugee Status Assessment” (RSA) in respect of each plaintiff. The conclusions of the DIAC officers were that neither plaintiff was a person to whom Australia owed protection obligations. These conclusions were reviewed by a government contractor (Wizard People Pty Ltd.), pursuant to a procedure known as an “Independent Merits Review” (IMR). The reviews upheld the conclusions of the Commonwealth officers.

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Migration Act 1958 (Cth) s 5(1). Migration Act 1958 (Cth) s 36(2)(a). 3 Migration Act 1958 (Cth) ss 13 & 14. 4 Migration Act 1958 (Cth) s 189(3). 5 Migration Act 1958 (Cth) s 46A(1). 6 Migration Act 1958 (Cth) s 46A(2) & (3). 7 Migration Act 1958 (Cth) ss 46A & 195A.

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The lawfulness of the plaintiff’s detention during these processes was not challenged in the proceedings, however the Court made a particular point of noting that the arguments advanced by the Commonwealth and the plaintiffs as to the basis of the detention were ‘radically different’; the plaintiffs argued that detention was for the purposes of the Migration Act, whereas the Commonwealth submitted that the plaintiffs were detained while enquiries having no statutory foundation were carried out. The Court noted that the resolution of this issue was critical to the outcome of the litigation. The Proceedings Plaintiffs M61 and M69 instituted proceedings in the original jurisdiction of the High Court (the Commonwealth, the Minister and the reviewers being named as defendants)8. Both plaintiffs alleged that the IMR procedures involved errors of law and did not comply with the requirements of procedural fairness. Plaintiff M69 further alleged that the provision precluding him from making an application for a protection visa9 was constitutionally invalid. Each plaintiff claimed relief by way of injunction, certiorari, mandamus and declaration.10 Errors of law and procedural fairness Early in its reasons, the Court summarised the steps that led to its conclusions in the case:
(a) Because the Minister has decided to consider exercising power under [to lift the bar under] the Migration Act in every case where an offshore entry person claims to be a person to whom Australia owes protection obligations, the RSA and IMR processes taken in respect of each plaintiff were steps taken under and for the purposes of the Migration Act.

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The Constitution s 75(iii). Migration Act 1958 (Cth) s 46A(1). 10 Each of these forms of relief are defined as follows: Injunction: A court order of an equitable nature requiring a person to do, or refrain from doing, a particular action. Certiorari: A type of prerogative remedy issued by a court to bring before it the decision or determination of a tribunal or inferior court to quash it on the ground of non-jurisdictional error of law on the face of the record, or for jurisdictional error or denial of procedural fairness. Mandamus: An order issued by a court to compel a public official to perform a public duty or to exercise a statutory discretionary power. Declaration: An authoritative but non-coercive proclamation of the court made for the purpose of resolving some legal issue. A declaratory judgment is contrasted with court orders, which are coercive. However, a refusal to abide by a declaratory judgment may lead to a coercive order given against the defaulting party.

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Because making the inquiries prolonged the plaintiffs' detention, the rights and interests of the plaintiffs to freedom from detention at the behest of the Australian Executive were directly affected, and those who made the inquiries were bound to act according to law, affording procedural fairness to the plaintiffs whose liberty was thus constrained. The inquiries were not made according to law and were not procedurally fair. Because the Minister is not bound to consider exercising either of the relevant powers, mandamus will not issue to compel consideration, and certiorari would have no practical utility. But in the circumstances of each case, a declaration should be made …

(c) (d)

It is appropriate to consider each step. Firstly, the Court held that the effect of the Minister’s announcement on 29 July 2008 (that “asylum claims of future unauthorised boat arrivals would be processed on Christmas Island, rather than Nauru, under the “Pacific Solution”) was that the Minister had decided to consider exercising the power under the Migration Act to lift the bat in respect of every asylum-seeker on Christmas Island. The Court, after describing how the RSA and IMR processes were developed following this announcement, noted the repeated emphasis in the relevant RSA and IMR manuals to the effect that both processes were “non-statutory.” The manuals maintained, therefore, that the provisions of the Migration Act, Migration Regulations and Australian case law on refugee applications did not apply to decision-makers. Despite the emphasis in the manuals, the conclusion of the Court was that the announcement of the Minister should be understood as:
not just a direction to provide the Minister with advice about whether the powers under s 46A or s 195 A can or should be exercised, but as a decision by the Minister to consider whether to exercise either of those powers in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations (emphasis added).

The RSA and IMR procedures, therefore, had ‘particular statutory foundations’ – that is, as a consequence of a decision to consider the exercise of a power under the Migration Act. Because the processes had these statutory foundations, the detention of the plaintiffs was lawful (because detention was for the purposes of the Migration Act). Secondly, having found the relevant “non-statutory” procedures to have ‘particular statutory foundations’, the Court set out the well-settled propositions that:
when a statute confers power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, principles of natural justice generally regulate the exercise of that power and

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the principles of procedural fairness may be excluded only by “plain words of necessary intendment”

In this case, because of the prolonged detention of the plaintiffs under the offshore procedures, ‘the right of [the plaintiffs] to liberty from restraint at the behest of the Australian Executive [was] directly affected.’ As such, ‘consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And, likewise, the consideration must proceed by reference to correct legal principles, correctly applied.’ This includes reference to the correct legal principles set out in the Migration Act and the decisions of Australian courts. Thirdly, the Court determined that, because the IMR process did not treat these legal principles as binding, and because the reviewers failed to accord the plaintiffs procedural fairness, the decisions had not been made according to law, and were unfair. Fourthly, the Court determined that, because the Minister does not have a duty to consider exercising lifting the bar, mandamus will not compel the Minister to consider or reconsider exercising either power. Similarly, the unavailability of mandamus meant that granting certiorari to quash the outcomes of the IMR processes was inutile. Nor did the circumstances require the granting of an injunction (there being no present threat that either plaintiff would be removed from Australia before another RSA process). After setting out the reasons for denying the other forms of relief, the Court issued a declaration that in each case the processes undertaken were flawed. The Constitutional Challenge The Court rejected the constitutional challenge to the validity of the Minister’s power to lift the bar under the Migration Act. The plaintiff’s argument was founded on the on observations about the special significance of s 75(v) of the Constitution. Basically, the argument ran along the lines that, not only will the courts declare and enforce the limits of the powers of officers of the Commonwealth, but there must exist in every case limits on the power that can be enforced. The Court noted a number of the strands of this argument (including appeal to the notion of the rule of law) but ultimately concluded that the:
grant of power on the terms set out in [the Migration Act] does not clash with s 75(v), or with its place or purpose in the Constitution… the repository of power given […] does not determine the limits of the power. If the power is exercised, s 75(v) can be engaged to enforce those limits. No “island of power” is created.

Consequences of the decision The High Court did not declare the provisions of the Migration Act underpinning the offshore processing regime invalid. Nonetheless, the declaration that such a process must be conducted in accordance with law and in a procedurally fair manner has
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significant implications for the future of the regime and, perhaps, for any regional processing centre. One of the so-called “advantages” of the offshore processing regime on Nauru under the “Pacific Solution” was to insulate refugee status determination decisions from administrative and judicial review, by the Refugee Review Tribunal and superior courts respectively. This was also the aim of the RSA procedure on Christmas Island. However, given that the RSA procedure must now be conducted in accordance with Australian law (the Migration Act and relevant case law) the process will be exposed to judicial review (in certain circumstances). In relation to the government’s response the Minister for Immigration and Citizenship has said:
It's important that we recognise that this is a significant judgement; it has significant ramifications. It needs to be worked through in a methodical and calm manner …

It is important to note that the Court set out its reasons in a meticulous and careful way, leaving open the possibility that the High Court may play a role in reviewing decisions made pursuant to a regional processing regime where there is a connection to Australia and Australian law. Some commentators have suggested that ‘[a]s long as the status determination process is tied to the visa grant in some way, the judgment suggests that the process may be reviewable.’11 The High Courts reasons, in an effort to carefully guard its role in reviewing government action in Australia, has intentionally left this door open. It must also be recognised, however, that the High Court cannot definitively resolve the issue of the processing of offshore entry persons who seek asylum in this country. Under our Constitution, complete resolution via judicial review is impracticable. Ultimately, the Australian government must find a political and policy answer that is sensible, practical, humane and fair. Nonetheless, the decision in this case demonstrates that the Australian courts still have, and will have in future, a significant role to play in ensuring the lawfulness and fairness of any policy the government chooses to implement. That fact alone should lead to better government action. Sections 46A and 195A So far as relevant, s 46A provides: "(1) An application for a visa is not a valid application if it is made by an offshore entry person who: (a) (b) is in Australia; and is an unlawful non-citizen.


Mary Crock and Daniel Ghezelbash, ‘Due process and rule of law as human rights: The High Court and the “offshore” processing of asylum seekers’ (2011) 18 Australian Journal of Administrative Law 101.

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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. The power under subsection (2) may only be exercised by the Minister personally.

(3) ... (7)

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."

So far as presently relevant, s 195A provides: "Persons to whom section applies (1) This section applies to a person who is in detention under section 189. Minister may grant visa (2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa). In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act. Minister not under duty to consider whether to exercise power (4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances. Minister to exercise power personally (5) The power under subsection (2) may only be exercised by the Minister personally."


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