Plaintiff M61/2010E v Commonwealth

Facts

Two asylum seekers, Sri Lankan nationals, arrived in Australia's excised migration zone and were detained offshore on Christmas Island. They were assessed by officers under the Migration Act 1958 (Cth) as not being persons to whom Australia owed protection obligations, and their requests for ministerial intervention under ss 46A and 195A were refused without any opportunity to respond to adverse information.

Issues

1. Whether the officers conducting refugee status assessments and complementary protection assessments for offshore entry persons were exercising statutory powers subject to the requirements of the Migration Act 1958 (Cth). 2. Whether the plaintiffs were entitled to procedural fairness (natural justice) in the conduct of those assessments. 3. Whether the privative clause in s 474 of the Migration Act shielded the assessments from judicial review.

Holding

The High Court held unanimously that the assessments were conducted under statutory authority conferred by the Migration Act 1958 (Cth), that the duty to accord procedural fairness applied to those assessments, and that the privative clause did not protect decisions made in breach of natural justice.

Ratio decidendi

Where officers exercise a power conferred or regulated by statute in making assessments that are a practical prerequisite to a person obtaining ministerial consideration of their claims, that power is a statutory power to which the obligation to afford procedural fairness attaches, and a privative clause will not protect a decision made in breach of that obligation.

Obiter dicta

The Court noted that the scheme of the Act did not clearly indicate an intention to exclude natural justice, and that even in the context of offshore processing the legislature must use clear and unambiguous language to abrogate fundamental common law rights of procedural fairness.

Significance

The decision established that offshore asylum seekers subject to Australia's excised migration zone framework retain entitlements to procedural fairness when statutory powers are exercised in assessing their protection claims, significantly constraining the Commonwealth's ability to conduct assessments outside the requirements of natural justice.

Key authorities

• Plaintiff S157/2002 v Commonwealth Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476applied
• Re Minister for Immigration and Multicultural Affairs; Ex parte Miah Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57applied
• Kioa v West Kioa v West (1985) 159 CLR 550applied
• Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1considered
• Minister for Immigration and Multicultural Affairs v Bhardwaj Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597considered
• Annetts v McCann Annetts v McCann (1990) 170 CLR 596applied