On 11 November 2010 the High Court delivered its much anticipated judgment in the cases of
 HCA 41. The plaintiffs were asylum seekers intercepted and initially detained on Christmas Island. Although subsection 46A(1) of the Migration Act bars visa applications by such asylum seekers (known as ‘offshore entry persons’ under the Migration Act), the Minister for Immigration and Citizenship has the personal discretion to lift the bar under that provision, or to grant a visa under section 195A, if in the public interest. However, neither section imposes a duty on the Minister to consider exercising the discretion.
This judgment is significant for a number of reasons. Firstly, this was the first time that offshore entry persons had fundamentally challenged the offshore processing regime, introduced in the aftermath of the Tampa
affair in 2001, in an Australian court. In doing so, the plaintiffs relied on the original jurisdiction of the High Court under section 75 of the Commonwealth Constitution. This avenue of appeal is expressly recognised in the Migration Act but had not previously been tested in this context.
Secondly, the High Court clarified the legal character of the offshore processing regime. In this respect, commentators have heralded the judgment as a victory for the rule of law. Under the regime, which was enhanced following an announcement by the Minister in July 2008, officers of the Department of Immigration and Citizenship (DIAC) conduct what is called a Refugee Status Assessment (RSA) for every offshore entry person to determine whether Australia’s protection obligations are engaged under the 1951 Convention Relating to the Status of Refugees (and accompanying Protocol). If they are, officers prepare a submission to the Minister seeking his/her agreement allowing the offshore entry person to make a valid visa application. If an asylum seeker receives an adverse RSA they can seek an Independent Merits Review (IMR) by an ‘independent contractor’ engaged on behalf of DIAC.
Under these assessment and review processes, both plaintiffs were found not to be persons to whom Australia owed protection obligations. In arguing their cases before the High Court, both claimed a lack of procedural fairness and error of law during the RSA and IMR processes. One also argued that section 46A of the Act was invalid.
The Commonwealth and the Minister argued in response that both the RSA and the IMR were undertaken in exercise of non-statutory executive power under section 61 of the Constitution. Accordingly, there was no obligation to afford procedural fairness in the conduct of those reviews, and it did not matter if those who undertook those inquiries misunderstood or misapplied the law. The High Court strongly disagreed. In a succinct unanimous judgment the full bench of the High Court found that because the Minister decided to consider exercising power under sections 46A and 195A of 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 are ‘steps taken under and for the purposes of the Migration Act’. As these inquiries directly impacted on the plaintiffs’ rights and interests to freedom from detention, those making the inquiries were bound to act according to law, affording procedural fairness to the plaintiffs. The High Court found neither of these requirements to have been met.
The High Court found that those who conduct an RSA or an IMR are bound by the Migration Act and the decisions of Australian courts. It was an error of law to treat the Migration Act and decided cases as no more than guides to decision making. Their Honours said that ‘if the legislation and case law were treated as no more than aids to interpretation, the assessment or review would not address the question that the Minister had to consider when deciding to lift the bar under s 46A'. The fundamental question to be determined by the RSA and IMR was essentially whether the criterion for the grant of a protection visa in subsection 36(2) of the Migration Act was met. ‘Necessarily, that question had to be understood by reference to other relevant provisions of the Migration Act, and the decided cases that bear upon those provisions’. This suggests that provisions in the Migration Act such as those defining ‘persecution’ and ‘membership of a particular social group’ etc (as interpreted by Australian courts), must be applied in conducting an RSA or an IMR for an offshore entry person.
The High Court further found that those conducting an RSA or an IMR must afford offshore entry persons procedural fairness. In this case, they found that one plaintiff was denied procedural fairness when the reviewer failed to address one of the claimed bases for the plaintiff’s fear of persecution. Both plaintiffs were also denied procedural fairness when the reviewer in each case failed to put to them the substance of country information adverse to their case and to provide them an opportunity to comment. The High Court pointed out that although review applicants appearing before the Refugee Review Tribunal need not be provided with an opportunity to comment on general country information under paragraph 424A(3)(a) of the Migration Act, that particular limitation did not apply to an IMR.
The third reason this judgment is significant is because the plaintiffs challenge to the validity of section 46A of the Migration Act which, as previously mentioned, precludes an offshore entry person from lodging a valid visa application unless the Minister ‘lifts the bar’, was rejected. The High Court held that the fact that the Minister could not be compelled to exercise his discretion under section 46A did not render the provision invalid. In commenting on this aspect of the decision, Professor George Williams reportedly said
‘on one side there are people who claim this [the High Court decision] is a massive victory—it’s not...it will lead to more claims and it may lead to people succeeding in claims when there is a genuine problem in the way their application is assessed. But it doesn’t lead to anything because the Minister still retains his discretion’. In the immediate aftermath Minister for Immigration and Citizenship, Chris Bowen agreed
, noting that ‘they [the High Court] explicitly did not find that my power to lift the bar, to make an application was unconstitutional; they explicitly did not find that the excision was unconstitutional...it was open to them to find that today and they didn’t find that’.
Because the High Court found that the Minister could not be compelled to exercise his discretion under section 46A (or section 195A), the High Court held that writs could not be issued to compel the Minister to exercise either power. Therefore, though the two Sri Lankan asylum seekers who brought these proceedings technically ‘won’, the court issued them only declaratory relief which essentially means the court only resolved a dispute about the law. Nonetheless, their Honours noted that there was no present threat that either plaintiff would be removed from Australia without a further RSA being undertaken in which the law would be correctly applied and procedural fairness afforded. Both plaintiffs may still therefore end up being removed from Australia.
This judgment will impact upon all offshore entry persons currently undergoing refugee assessments under the offshore processing regime. In fact, the Government has already reportedly
undertaken to re-assess at least 150 adverse assessments that were made prior to the High Court’s judgment. However, it is not clear whether it will have broader implications for the Government’s proposed regional processing framework. Much will depend on whether refugee status assessments will be conducted by Australian or third country government officials/international agencies. It also remains to be seen whether the Government will attempt to introduce legislation to curb the impact of this judgment which will inevitably lead to longer processing times, prolonged detention, and an increased workload for the High Court and/or the Federal Magistrates Court—though in the end presumably also better decision making.