1. 0 Judicial Review SOME KEY CASES IN:  DETENTION,  PROCEDURE, &  LOVE! Nicholas Poynder Frederick Jordan Chambers Sydney LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

2. 1 Detention of asylum seekers LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

3. 2 Detention of asylum seekers Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 [The detention provisions] will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch. III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates. Brennan, Deane and Dawson JJ at 33 LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

4. 3 Detention of asylum seekers Plaintiff M68/2015 v Minister for Immigration [2016] HCA 1  Bangladeshi woman, “unauthorised maritime arrival”; held in Nauru from 23 January to 2 August 2014 then moved to Australia when 20 weeks pregnant.  On 14 May 2015 the applicant lodged an Application for an order to show cause, in effect challenging the Constitutional power of the Commonwealth to participate in her detention on Nauru.  Alleged that that Commonwealth “funded, authorised, caused, procured and effectively controlled” her detention by Nauru. LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

5. 4 Detention of asylum seekers Migration Amendment (Regional Processing Arrangements) Bill 2015  Inserted on 30 June 2015 (one month after proceedings commenced)  Retrospective effect from 18 August 2012  Section 198AHA: (2) The Commonwealth may do all or any of the following: (a)take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country; (b)make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country; (c)do anything else that is incidental or conducive to the taking of such action or the making of such payments.  (5)In this section: action includes: (a) exercising restraint over the liberty of a person; LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

6. 5 Detention of asylum seekers Plaintiff M68/2015 v Minister for Immigration [2016] HCA 1  The plaintiff contended:  the involvement of the Commonwealth in her detention was not authorised by any Constitutional head of power, including s 51 (xix) (aliens power) and s 51 (xxix) (external affairs power) and s 51 (xxx) Pacific islands power); and  her detention on Nauru was beyond that which is reasonably capable of being seen as necessary for the purposes of investigating and assessing any protection claim and removal from Nauru, and it was avowedly punitive in character. LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

7. 6 Detention of asylum seekers Plaintiff M68/2015 v Minister for Immigration [2016] HCA 1  French CJ, Kiefel and Nettle JJ:  At [40]: accepted the general proposition that the Commonwealth has power to make laws for the expulsion and deportation of aliens and for their restraint and custody to the extent necessary to make their deportation effective.  However, the plaintiff’s reliance on Lim was misconceived, since Lim says nothing about the Commonwealth’s participation in the detention of an alien by another State.  At [42]: section 198AHA is supported by the aliens power in s 51 (xix) of the Constitution because it “concerns the functions of the place to which an alien is removed for the purpose of their claim to refugee status being determined”. LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

8. 7 Detention of asylum seekers Plaintiff M68/2015 v Minister for Immigration [2016] HCA 1  Bell J:  At [100]: It may be accepted that a purpose of the regional processing scheme for which Pt 2 Div 8 subdiv B of the Migration Act provides is to deter irregular migration to Australia…However, the requirement for transferees to be detained, while the administrative processes involved in the investigation, assessment and review of their claims take place, does not thereby take on the character of being punitive.  At [101]: If a transferee were to be detained for a period exceeding that which can be seen to be reasonably necessary for the performance of those functions, the Commonwealth parties' participation in the exercise of restraint over the transferee would cease to be lawful. LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

9. 8 Detention of asylum seekers Plaintiff M68/2015 v Minister for Immigration [2016] HCA 1  Gageler J:  At [185]: was satisfied that s 198AHA met the Lim conditions; although: The requisite connection…would be broken were the duration of the detention to extend beyond that reasonably necessary to effectuate that role or were that role to become incapable of fulfilment. LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

10. 9 Detention of asylum seekers Plaintiff M68/2015 v Minister for Immigration [2016] HCA 1  Keane J:  At [237]-[241]: With French CJ, Kiefel and Nettle JJ, found that Lim was not engaged because the plaintiff was not detained by the Commonwealth.  At [263]: A deterrent effect may be an intended consequence of the operation of regional processing arrangements, but the immediate purpose of s 198AHA is the facilitation of the removal of unauthorised maritime arrivals from Australia. LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

11. 10 Detention of asylum seekers Plaintiff M68/2015 v Minister for Immigration [2016] HCA 1  Gordon J (diss):  Closely considered the circumstances of the plaintiff’s removal to Nauru, including the Memorandum of Understanding between the Commonwealth and Nauru by which the Commonwealth bears all costs, the roles of the contractors on Nauru, including the “step in” provision under the Transfield contract, by which the Commonwealth could at any time take over the contractor’s functions at the detention centre.  Concluded, at [401], that the detention of the plaintiff was not validly authorised under any of the provisions in the Constitution since, once the plaintiff had been removed from Australia the Commonwealth had no need nor any right to detain her in a foreign state. LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

12. 11 Detention of asylum seekers Plaintiff M68/2015 v Minister for Immigration [2016] HCA 1  So…what are we left with??  The detaining authority is Nauru, not Australia (so Lim is not relevant): French CJ, Kiefel and Nettle JJ, Keane J.  Detention’s still all about the processing (stupid!): The Court, except Gordon J.  An explicit policy of deterrence appears to be “okay, guys”: Bell J, Keane J.  An unacceptable length of detention may render it unlawful: Bell J, Gageler J. LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

13. 12 Procedure Uelese v Minister for Immigration [2015] HCA 15  Migration Act s 500(6H): In character cases the AAT must not have regard to any information presented orally in support of the person's case unless the information has been set out in a written statement given to the Minister at least 2 business days before the hearing.  Once described as "designed to disadvantage an applicant for review“: Goldie v Minister for Immigration (2001) 111 FCR 378 at 391.  High Court fundamentally undermined this purpose by finding that:  answers given by an applicant in response to questions in cross ‑ examination were not precluded from evidence by s 500(6H) (French CJ, Kiefel, Bell and Keane JJ at [44]-[45] and [53]; Nettle J at [104]; and  s 500(6H) does not fetter the power of the Tribunal to grant an adjournment in order to ensure that its review is conducted thoroughly and fairly (French CJ, Kiefel, Bell and Keane JJ at [70]; Nettle J at [115]). LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

14. 13 Procedure Minister for Immigration v WZARH [2015] HCA 40; 90 ALJR 25  Independent Merits Reviewer (IMR) interviewed offshore applicant for protection visa, but was unable to complete the review, so the matter was passed on to a second IMR.  The second IMR did not interview the applicant, but nevertheless formed a strong adverse view of his credibility and rejected his claims.  Majority (Kiefel, Bell and Keane JJ) found two errors:  The second IMR failed to interview the applicant himself and, while there is no general rule that procedural fairness requires an oral hearing in every case (at [33]), where credibility is in issue an interview might be necessary (at [40]-[44]).  The second IMR had not provided the applicant with an opportunity to comment on the fundamental change to the decision-making process introduced by the second reviewer (at [45]-[46]). LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

15. 14 Procedure Minister for Immigration v WZARH [2015] HCA 40; 90 ALJR 25  This is potentially an important decision for the “fast track processing” regime under the Migration and Maritime Powers Legislative Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Section 473DB provides that the Immigration Assessment Authority is to make decisions “on the papers”, without accepting or requesting new information and without interviewing the applicant, although it has a discretion under s 473DC to invite a person to give new information in writing or at an interview. LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

16. 15 Procedure Ahmad v Minister for Immigration [2015] FCAFC 182  Interpretation of complex piece of legislation relating to jurisdiction of the MRT/AAT to consider applications for review of decisions of the Minister to refuse a subclass 457 visa. Starting point s 338(2)(d).  Problem arose where the Minister had refused to approve the accompanying nomination of the proposed occupation, which then led to the refusal of the application for the 457 visa.  The MRT had routinely listed applications for review of the nomination and visa decision together, so if the MRT approved the nomination, the review in relation to the 457 visa (which required there to be a valid nomination) was also successful.  However as a result of a decision of Judge Nicholls in Minister for Immigration v Lee [2014] FCCA 2881 in December 2014 the MRT (later the AAT) began to refuse jurisdiction to review subclass 457 visa refusals where the nomination had also been refused.  The Full Federal Court in Ahmad (Katzmann, Robertson and Griffiths JJ) put a stop to this – at [102] employing a construction which was consistent with the stated purpose of s 338(2)(d), to prevent applicants from making unmeritorious applications for review of subclass 457 visa refusals to the AAT at a time when they did not have an existing nomination. LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

17. 16 Procedure Shrestha v Minister for Immigration [2015] FCAFC 87  Purpose of First Court Date before the Federal Circuit Court (FCC).  Presiding Judge summarily dismissed application of his own motion at First Court Date, despite the representatives for the parties jointly asking for directions in an agreed timetable for the provision of evidence and submissions and a final hearing date.  Full Federal Court (Mansfield Tracey and Mortimer JJ) set aside the decision on the grounds that the primary judge did not accord procedural fairness to the applicant. The Court said, at [70]:  Legal representatives who are familiar with court processes, and commence to follow them in a regular way (as the appellant’s representatives in this appeal did) rightly will not expect that a judge would, without notice and of her or his own motion, deprive parties to a proceeding of any further time to regularise, refine and complete the case and contentions they wish to advance and instead summarily determine a claim at the first court date, especially where the Minister had accepted that was an appropriate course to follow. LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

18. 17 And Finally… LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

19. 18 Love! LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

20. 19 Love! LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

21. 20 Love! LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016

22. 21 Thank You! LAW COUNCIL OF AUSTRALIA: JUDICIAL REVIEW 5 MARCH 2016