CPCF v Minister for Immigration and Border Protection [2015] HCA 1

HIGH COURT OF AUSTRALIA

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

CPCF PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR DEFENDANTS

CPCF v Minister for Immigration and Border Protection [2015] HCA 1 28 January 2015 S169/2014

ORDER

The questions asked by the parties in the special case dated 21 August 2014 and referred for consideration by the Full Court be answered as follows:

Question 1

Did s 72(4) of the Maritime Powers Act authorise a maritime officer to detain the plaintiff for the purpose of taking him, or causing him to be taken, to a place outside Australia, being India:

(a) whether or not the plaintiff would be entitled by the law applicable in India to the benefit of the non-refoulement obligations;

(b) in implementation of a decision by the Australian Government that the plaintiff (and others on the Indian vessel) should be taken to India without independent consideration by the maritime officer of whether that should be so; and

(c) whether or not, prior to the commencement of the taking of the plaintiff to India, an agreement or arrangement existed between Australia and India concerning the reception of the plaintiff in India?

Answer

(a) Section 72(4) of the Maritime Powers Act 2013 (Cth) authorised the plaintiff's detention at all times from 1 July 2014 to 27 July 2014. This question is not otherwise answered.

(b) Yes.

(c) Yes.

Question 2

Did s 72(4) of the Maritime Powers Act authorise a maritime officer to:

(a) take the steps set out in paragraph 20 in implementing the decision to take the plaintiff to India;

(b) detain the plaintiff for the purposes of taking the plaintiff to India?

Answer

(a) Yes.

(b) Yes.

Question 3

Did the non-statutory executive power of the Commonwealth authorise an officer of the Commonwealth to:

(a) take the steps set out in paragraph 20 for the purpose of preventing the plaintiff from entering Australia;