Case notes

This casenote provides an overview of the key facts and findings of the High Court of Australia in three refugee status determination cases on appeal from the Supreme Court of Nauru: CRI026 v The Republic of Nauru [2018] HCA 19; DWN027 v The Republic of Nauru [2018] HCA 20; and EMP144 v The Republic of Nauru [2018] HCA 21.

This case was a class action claim in negligence and false imprisonment bought against the Commonwealth and its contracted service providers on behalf of Manus Island detainees.Following a process of mediation, the proceeding was settled by the parties in July 2017 for a payment of AUD $70 million to group members.

The case concerns the Commonwealth’s detention of asylum seekers transferred to Australia from Nauru to receive medical treatment.The plaintiffs are a mother and daughter from Iran. They arrived in Australia at Christmas Island by boat in August 2013, and thereby became ‘unauthorised maritime arrivals’ under s 5AA of the Migration Act 1958 (Cth) (‘the Act’). They were detained in Australia and subsequently taken to Nauru for regional processing. The plaintiffs were brought to Australia as ‘transitory persons’ under the Act, so that they could both receive medical treatment. The plaintiffs’ sole claim was that, during the time that they were in Australia for the temporary purpose of receiving medical treatment, there was no legal basis for their detention.  

This case challenges the legality of the ‘Fast Track’ review process based on a claim that it is procedurally unfair. The court found that the delegate of the Minister made the original decision in compliance with s 57 of the Act. It found that the information failed to meet the critical condition for it to be characterised as relevant information within the meaning of s57(1).  To be ‘relevant information’, the information must of such significance as necessary to have led the delegate to consider in advance of reasoning on the facts of the case that the information of itself ‘would’, as distinct from ‘might’, be the reason or part of the reason for refusing to grant the protection visa. 

This case note provides an overview of the High Court challenge to The Australian Border Force Act 2015 (Cth) (“the Act”) commenced by Doctors for Refugees in July 2016. The case sought to test whether secrecy provisions in the Act create an impermissible burden on the implied freedom of political communication in the Australian Constitution. In September 2016, the Department issued a determination expressly exempting health practitioners performing services for the Department from the definition of ‘Immigration and Border Protection worker’.9 The case by Doctors for Refugees was withdrawn. In October 2017, the Australian Border Force Amendment (Protected Information) Bill 2017 was enacted. The amendment limited the scope of the offence by replacing the broad definition of ‘protected information’ with specific categories of prohibited information.

The case considers whether the applicants were owed procedural fairness in the International Treaties Obligations Assessment process that followed the data breach. On 10 February  2014, the Department of Immigration and Border Protection published statistics on its website which included embedded information disclosing the identities of 9,258 applicants for protection visas who were then held in immigration detention. The disclosed personal information was protected from unauthorised access and disclosure under Pt 4A of the Migration Act 1958 (Cth). It remained on the website for two weeks, and was accessed 123 times in this period. This incident came to be known as ‘the Data Breach’.

The Data Breach resulted in a risk that people would become aware of the identities of applicants for protection visas in Australia, particularly people residing in the countries of origin from which the visa applicants feared persecution or other harm. The Department completed International Treaties Obligations Assessments (ITOAs) to ‘assess the effect of the Data Breach with respect to affected applicants’, and in particular ‘Australia's non-refoulement obligations under the Refugees Convention, the Torture Convention and the International Covenant on Civil and Political Rights’. 

The information of both respondents was disclosed in the Data Breach. After completion of the ITOAs, the Minister chose not to consider whether to exercise the non-compellable duties to grant visas under s195A, 417, or to remove a statutory bar to making a visa application, under s48B. The applicants challenged this decision claiming that they were denied procedural fairness.

The case was started as a class action to challenge the legality of the detention of asylum seekers on Manus Island following a judgment by the Supreme Court of PNG that the detention of the asylum seekers in the Regional Processing Centre is unconstitutional.

The proceedings on 31 May 2016 highlighted a problem with the form in which the case was brought. The case was originally filed as a class action brought on behalf of multiple plaintiffs. However, Bell J found that there was enough ‘difference in the situation of [the plaintiffs]’ to ‘raise a question about the appropriateness’ of the ‘global’ action. As such, Bell J suggested that new proceedings may be brought by a single plaintiff with the intention that it would provide guidance as to the circumstances of all the other plaintiffs. The proceedings were stood over. It was expected that the next steps would be for lawyers for the plaintiff to file a notice of discontinuance and commence fresh proceedings with a single plaintiff.

The case concerned the transfer of a refugee on Nauru to PNG for the purpose of an abortion and raised questions about the Australian government's duty of care.

The applicant in this case was a young African woman who arrived in Australia by boat on 17 October 2013. The applicant had a history of trauma. She was transferred to Nauru by Australian authorities pursuant to Australia’s agreement with Nauru, against her will. On Nauru the applicant was detained at the Regional Processing Centre (RPC) until she was found to be a refugee. In November 2014 the applicant was granted a Temporary Settlement Visa and moved into a residence in the Nauruan community. On 31 January 2016 the applicant submitted that she went outside her room to make a phone call, had a seizure and fell unconscious. She became pregnant as a result.

The applicant received medical support on Nauru for her pregnancy and psychological and/or neurological conditions from International Health and Medical Services, a private company contracted by the Australian Government to provide health services to asylum seekers and refugees on Nauru. The applicant submitted that she told an IHMS doctor on Nauru that she wished to have an abortion ([101]). The fact that the applicant required an abortion was not in contest between the parties. However this procedure was not expected to be straightforward, due to the applicant’s neurological and psychological conditions, poor mental health and physical complications.

The applicant was taken to PNG on 6 April 2016. While the exact circumstances of her transfer were unclear, Bromberg J held that the evidence supported a finding that the Australian Minister for Immigration and Border Protection (Minister) ‘offered and the applicant agreed to be taken to another country so that her pregnancy could be terminated’. However she was not offered a choice of destinations and ‘whilst the applicant gave her consent to be taken to another country, she did not give her approval to having an abortion in the medical and legal setting in relation to which she now complains’ ([111]). IHMS recommended the applicant be transferred to Australia for the procedure, however the Minister instead arranged for the applicant to be taken to PNG for the procedure. The applicant argued that it would be neither safe nor legal for her to undergo the termination procedure in PNG.

The case concerned the transfer of a refugee on Nauru to PNG for the purpose of an abortion and raised questions about the Australian government's duty of care.

The plaintiff, an asylum seeker from Bangladesh, had been detained in Nauru at one of Australia’s two regional processing centres before being brought to Australia for medical treatment in 2014. She brought this case against the Australian Minister for Immigration and Border Protection, the Commonwealth of Australia and Transfield Services (Australia) Pty Ltd in an effort to prevent her return to Nauru. The main question in the case was whether the Australian government had the power, either in the form of a statutory or non-statutory executive power, to contract for and control the detention of asylum seekers in the offshore detention centre in Nauru. The majority of the court (French CJ, Kiefel, Nettle, Bell, Gageler and Keane JJ) held – in four separate judgments – that the government did have the necessary legal authority to be involved in the detention of asylum seekers in Nauru, although they were divided about whether the Australian government was actually in control of this detention and the basis on which it was lawful. Gordon J was in dissent, finding that the government had significant control over the detention of the plaintiff and had acted beyond its power in doing so. 

This case was one of a series of challenges launched on behalf of 267 people, many of whom had been brought back to Australia from offshore detention centres for urgent medical treatment. This group also included 37 babies born in Australia. Following the Court’s judgment, the #LetThemStay public campaign was launched in an attempt to keep the group in Australia.

By a narrow 4:3 majority, the High Court of Australia has held that Australia’s detention of 157 Tamil asylum seekers at sea was not contrary to Australian law. The decision turned on the scope of powers conferred on Australian officials under the Maritime Powers Act, and the legality of their actions under that statute. The judges did not engage in any detailed analysis of international refugee law. Instead, they focused squarely on the construction of an Australian statute, and the Australian government’s powers pursuant to it.

The Court found that the Minister’s granting of temporary protection visas in a manner that precluded the plaintiff from applying for permanent protection was an invalid exercise of the Minister’s powers under the Migration Act 1958 (Cth). Significantly, the Court also delivered obiter which strengthened the constitutional limitations on immigration detention and reaffirmed the Lim principle.

The case considers 1F(b) of the Refugee Convention, which relevantly provides that a person who otherwise meets the refugee definition is excluded from refugee status where there are ‘serious reasons for considering’ that he or she has committed a ‘serious non-political crime’ outside the country of refuge.

The High Court allowed an appeal against a decision by the Administrative Appeals Tribunal (AAT) to refuse a Chinese national a protection visa. The AAT had applied the exclusion clause in the Refugee Convention (in this case, article 1F(b)) because it was satisfied that there were ‘serious reasons for considering’ that the man had committed a ‘serious non-political crime’ while in China. The High Court held unanimously that the AAT had relied on evidence which was not logically probative of whether the alleged crimes had been committed, and therefore had fallen into jurisdictional error by misconstruing the test it was bound to apply. The court also observed that the question of whether there are ‘serious reasons’ in this context cannot be equated to either the civil or criminal standard of proof, as understood by domestic courts.

The case considers the constitutional validity of the offshore processing

High Court unanimously dismissed a challenge to the legality of the legislation underpinning offshore processing. The High Court upheld the constitutionality of the legislation, the validity of the Minister’s designation of Papua New Guinea (PNG) as a regional processing country, and the Minister’s direction as to where asylum seekers were to be transferred (Nauru and PNG). 

The High Court found that the Department of Immigration acted on the basis of an error of law when it refused to refer the plaintiff’s case to the Minister for Immigration for consideration of whether to allow her to make a protection visa application. The department did not make the referral because it believed, erroneously, that because the plaintiff had received an adverse security assessment from the Australian Security Intelligence Organisation (ASIO) she would be precluded from obtaining a protection visa.

The case concerned the Commonwealth’s ability to detain in custody non-citizens who arrived in Australia by boat without a visa or valid entry permit until they were either removed from Australia or granted an entry permit. The Court held that the Commonwealth’s power to compulsorily detain non-citizens in such circumstances was valid, but in so doing established a broader principle that the involuntary detention of a citizen is punitive and therefore can only be implemented as a result of a finding of criminal guilt by the judicial branch and not by the executive.