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

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

PLAINTIFF M76/2013 PLAINTIFF

AND

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP & ORS DEFENDANTS

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53 12 December 2013 M76/2013

ORDER

The questions asked by the parties in the amended Special Case dated 13 August 2013 and referred for consideration by the Full Court be answered as follows:

Question 1

Do ss 189, 196 and 198 of the Migration Act 1958 (Cth) authorise the detention of the Plaintiff?

Answer

The plaintiff's present detention is authorised by ss 189 and 196 of the Act.

Question 2

If the answer to question 1 is "yes", are these provisions beyond the legislative power of the Commonwealth insofar as they apply to the Plaintiff?

Answer

Save that the plaintiff's present detention is validly authorised by ss 189 and 196 of the Act, it is not necessary to answer this question.

Question 3

Does the fact that the Plaintiff's case was not referred to the Minister for him to consider whether to exercise his power under s 46A(2) reveal an error of law?

Answer

Yes.

Question 4

What relief, if any, should issue?

Answer

It should be declared that the exercise of the Minister's power was affected by an error of law in that, in deciding whether to refer the plaintiff's application to the Minister, an officer of the Commonwealth acted upon PIC 4002 as a consideration relevant to the decision.

Question 5

Who should pay the costs of and incidental to this Special Case?

Answer

The defendants.

Representation

R M Niall SC with K L Walker, C L Lenehan and A Rao for the plaintiff (instructed by Allens)

J T Gleeson SC, Solicitor-General of the Commonwealth and S P Donaghue SC with N M Wood for the defendants (instructed by Australian Government Solicitor)