High Court of Australia
HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
Matter No M61/2010
PLAINTIFF M61/2010E PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS
Matter No M69/2010
PLAINTIFF M69 OF 2010 PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS
Plaintiff M61/2010E v Commonwealth of Australia
Plaintiff M69 of 2010 v Commonwealth of Australia
[2010] HCA 41
11 November 2010
M61/2010 and M69/2010
ORDER
In each matter:
1. Declare that, in recommending to the second defendant that the plaintiff was not a person to whom Australia has protection obligations, the third defendant made an error of law, in that the third defendant did not treat the provisions of the Migration Act 1958 (Cth) and the decisions of Australian courts as binding, and, further, failed to observe the requirements of procedural fairness.
2. Application otherwise dismissed.
3. First and second defendants to pay the plaintiff's costs.
Representation
D S Mortimer SC with R M Niall and K E Foley for the plaintiff in M61/2010 (instructed by Allens Arthur Robinson Lawyers)
S G E McLeish SC with L G De Ferrari and P D Herzfeld for the plaintiff in M69/2010 (instructed by Holding Redlich)
S J Gageler SC, Solicitor-General of the Commonwealth with S P Donaghue and D F O'Leary for the first and second defendants in both matters (instructed by Australian Government Solicitor)
S P Donaghue for the third and fourth defendants in both matters (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Plaintiff M61/2010E v Commonwealth of Australia
Plaintiff M69 of 2010 v Commonwealth of Australia
Administrative law – Procedural fairness – Error of law – Refugees – Migration – Offshore processing – Plaintiffs were "offshore entry persons" under Migration Act 1958 (Cth) ("Migration Act") – Plaintiffs detained under s 189(3) of Migration Act – Each claimed Australia owed him protection obligations under Refugees Convention as amended by Refugees Protocol – Each plaintiff precluded from making valid visa application unless Minister decided in public interest to allow: s 46A of Migration Act – Minister had power to grant visa in absence of valid application: s 195A of Migration Act – Each plaintiff subject to "Refugee Status Assessment" by departmental officer and subsequent "Independent Merits Review" by independent contractor – Each departmental officer and independent reviewer concluded plaintiff not a person to whom Australia had protection obligations – Powers under ss 46A and 195A "may only be exercised by the Minister personally" – Minister not under duty to consider whether to exercise power under s 46A or s 195A – Whether continuing detention lawful because assessment and review were steps taken under and for purposes of Migration Act – Whether Minister had decided to consider exercising power under s 46A or s 195A of Migration Act in every case where an offshore entry person claimed to be owed protection obligations – Whether those who conducted assessment and review bound to afford procedural fairness to plaintiffs and act according to law – Whether each review procedurally fair and undertaken in accordance with law.
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