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CJJ19 v Minister for Home Affairs & Anor [ 2020] HCATrans 131  (8 September 2020)

Last Updated: 15 September 2020

 [2020] HCATrans 131 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S70 of 2020

B e t w e e n -

CJJ19

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 8 SEPTEMBER 2020, AT 9.30 AM

Copyright in the High Court of Australia
HER HONOUR: The plaintiff filed an application for constitutional or other writ on 7 May 2020. For the reasons to be given the application is dismissed with costs. I direct that the reasons be incorporated in the transcript.

The orders of the Court are:

Application dismissed under r 25.09.1 of the High Court Rules 2004 (Cth) with costs.

I publish those orders.

The plaintiff is in immigration detention. On 7 May 2020, the plaintiff commenced proceedings in this Court’s original jurisdiction against the Minister for Home Affairs, the first defendant, and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the second defendant. She makes the following claims for substantive relief: (1) habeas corpus to secure her release from the immigration detention centre; (2) an injunction preventing the defendants from continuing to detain her at an immigration detention centre; (3) an injunction preventing the defendants from restraining her from “exercising her residual liberty, including her human right to live with her husband and to start a family”; and (4) mandamus requiring the defendants to make a determination that she “reside in a community residence to be specified, whether as a residence determination or otherwise as a community based APOD”. The latter, an acronym for “alternative place of detention”, recognises that a person may be in immigration detention in a place approved by the Minister in writing^[1].

In their response, the defendants submit that the application does not disclose an arguable basis for any of the relief claimed and that it should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) (“the Rules”). A number of the claims for relief, and the arguments in support of them, are in like terms to claims that have been dismissed as untenable by Keane J and Edelman J respectively^[2]. For the reasons to be given, I have reached the same conclusion with respect to the plaintiff’s application.

The plaintiff is a citizen of Sri Lanka. On 16 June 2019, the plaintiff arrived in Australia. She was denied immigration clearance and taken into immigration detention. On 10 July 2019, the plaintiff applied for a Safe Haven Enterprise Visa. On 20 August 2019, a delegate of the Minister refused the application. On the same day, the plaintiff applied for merits review of the refusal in the Administrative Appeals Tribunal. The proceeding before the Tribunal is ongoing. It appears that the Department of Home Affairs is preparing a submission for referral to the defendants for consideration of whether to exercise the power under s 195A of the Act to grant a visa to the plaintiff.

In an affidavit filed in support of this application, the plaintiff states that she was raped while she was in detention in Sri Lanka. She describes her present detention as “triggering” her past trauma. On 26 February 2020, the plaintiff and her husband were married in Villawood Immigration Detention Centre. The husband is not in detention and the plaintiff has found that the separation from him has added to her trauma and anxiety. She also expresses her fear of contracting COVID‑19 in detention.

The plaintiff does not hold a visa that is in effect and she is thus an unlawful non‑citizen^[3]. She is required by force of s 189 of the Migration Act 1958 (Cth) (“the Act”) to be kept in immigration detention until the happening of one of the events specified in s 196(1). None of which, at the date of the filing of the defendants’ response, had occurred.

The first defendant, on behalf of the Commonwealth, has the power to cause detention centres to be established and maintained^[4]. Section 197AB(1) of the Act confers on the first defendant a power to make a determination that a person who is detained under s 189 is to reside at a specified place, instead of being detained at a place covered by the definition of “immigration detention” in s 5(1) of the Act (“residence determination”). On 29 March 2020, a referral was initiated for consideration of the plaintiff against the “s 197AB Ministerial Intervention Guidelines”. Assessment against those guidelines is subject to the outcome of the s 195A process referred to above.

The plaintiff submits that the introduction of the scheme for residence determinations^[5] evinces a legislative intention that immigration detainees be subject to the “least restraint possible”. She contends that the defendants have unreasonably failed to make a residence determination in her case and that this Court “has the power to make orders of Habeas Corpus in the nature of or identical to a residence determination”. The power to make a residence determination is a non‑compellable power^[6] conditioned on the first defendant thinking that it is in the public interest to do so. The plaintiff’s detention does not cease to be lawful because it is open to the first defendant to make a determination that she be detained in less restrictive conditions^[7]. No arguable basis for the relief claimed in prayers (1), (2) or (3) of the application is established.

The first defendant is not under a duty to consider whether to exercise his power to make a residence determination in any circumstances^[8]. It is well settled that the Court will not order mandamus requiring consideration, much less exercise, of such a power^[9]. No arguable basis is established for the relief claimed in prayer (4).

For these reasons there will be the following order:

Application dismissed under r 25.09.1 of the High Court Rules 2004 (Cth) with costs.

AT 9.31 AM THE MATTER WAS CONCLUDED

^[1] Migration Act 1958 (Cth), s 5(1) definition "immigration detention".

^[2] Sabanayagam v Minister for Home Affairs [2020] HCATrans 119 (26 August 2020); Pirkoohi v Minister for Home Affairs [2020] HCATrans 120 (26 August 2020); Palasingam v Minister for Home Affairs [2020] HCATrans 121 (26 August 2020); Kanhalingam v Minister for Home Affairs [2020] HCATrans 122 (26 August 2020); Mahamede v Minister for Home Affairs [2020] HCATrans 125 (1 September 2020); Khan v Minister for Home Affairs [2020] HCATrans 126 (1 September 2020); and Kazemi v Minister for Home Affairs [2020] HCATrans 124 (1 September 2020).

^[3] Migration Act, ss 13, 14.

^[4] Migration Act, s 273(1).

^[5] Migration Act, Pt 2 Div 7 Subdiv B, inserted by Migration Amendment (Detention Arrangements) Act 2005 (Cth).

^[6] Migration Act, s 197AE.

^[7] Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486 at 499 [21] per Gleeson CJ, 507 [53] per McHugh, Gummow and Heydon JJ, 561 [223] per Callinan J.

^[8] Migration Act, s 197AE.

^[9] Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at 358 [99]; Plaintiff M168/10 v The Commonwealth [2011] HCA 25; (2011) 85 ALJR 790 at 796 [37] per Crennan J.