Examples of Important Immigration Cases

Most major immigration cases that reach the High Court of Australia involve those seeking asylum, their refugee status and subsequent detention, and the question of the human rights of those concerned.

The following case again highlights the difficulties surrounding indefinite detention of those seeking asylum and protection visas, and Australia’s commitment to human rights.

 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53

Facts

The plaintiff was a woman from Sri Lanka who arrived in Australia by boat on 8 May 2010 without a visa and sought protection. She was detained pursuant to the Migration Act as an ‘unlawful non-citizen’. She was processed according to the then Refugee Status Assessment process and was found to be a refugee and therefore a person to whom Australia had protection obligations (as a signatory to United Nations Charters).

Subsequently, she received an adverse security assessment rom ASIO.

 She was notified of this assessment by the Immigration Department in April 2012.

The Department as a result decided she did not meet the criteria to be entitled to receive a protection visa

For this reason, the Department did not refer her case to the Minister to consider whether to allow her to make an application for a protection visa.

She was subsequently detained in anticipation of her removal from Australia.

The Issues involved

Did the Department have the power in these circumstances to not refer the matter to the Minister for consideration?

By a majority, the High Court held in deciding not to refer the plaintiff’s case to the Minister for consideration of whether to allow her to make an application for a protection visa, was an error of law.

Parliament has since amended the Migration Act, introducing section 36(1B) that provides that a criteria for the grant of a protection visa, is that the applicant is not assessed by ASIO to be directly or indirectly a risk to security.

Indefinite Detention

The Migration Act requires that an unlawful non-citizen is to be detained even if their removal from Australia is not reasonably practicable in the foreseeable future.

The question in Al-Kateb was whether a law authorising indefinite administrative detention would be consistent with the powers of the Constitution of Australia.

The majority found that the detention authorised by the Migration Act did not breach any part of the Australian Constitution.

The Department, in rejecting the woman’s visa application acknowledged that she could not be returned to Sri Lanka because she was likely to face persecution. Their approaches to alternative countries to accept her for resettlement were also unsuccessful. She therefore remained in detention under section 196 of the Migration Act.

In deciding whether her detention was consistent with the ruling in Al-Kateb, the High Court ultimately decided that it was so.