On June 23, 2021, the High Court of Australia, the highest court in Australia’s court hierarchy, issued a decision in Commonwealth of Australia v AJL20 [2021] HCA 21 (Decision).
The question for the High Court was whether the detention of an unlawful noncitizen remained lawful in circumstances in which that detention should have come to an end. (Decision para. 81.) The High Court held that the detention was lawful under sections 189(1) and 196(1) of the Migration Act 1958 (Cth) (Act) and valid under chapter III of the Australian Constitution, which establishes the powers of the judicial branch of government.
Background to the Case
The Commonwealth Parliament has the power under section 51(xix) of the Constitution to make laws with respect to the entry into and removal of aliens in Australia. The act sets out the criteria for the grant of a visa as well as provisions relating to the treatment of unlawful noncitizens. Sections 189(1) and 196(1) specify that unlawful noncitizens, being persons who do not hold a valid visa to enter or remain in Australia, are to be placed in immigration detention until such time as a visa can be granted or the individual can be removed.
Under section 198 of the act, an unlawful noncitizen must be removed from Australia as soon as reasonably practicable if there is no other visa option available. Section 197C states that in considering whether to remove the individual, the government should not consider whether removal would constitute a breach of Australia’s non-refoulement obligations under international law.
In this case, the respondent was a Syrian national who arrived in Australia on a child visa in May 2005. On October 2, 2014, the minister for immigration and border protection cancelled the respondent’s visa on the basis that the respondent no longer passed the character test set out in section 501 of the act. The respondent was placed in immigration detention on October 8, 2014, under section 189(1) of the act. (Decision ¶¶ 1–6.)
While in detention, the respondent applied for a protection visa to remain in Australia. The minister refused the application on the basis that the respondent did not satisfy the character test. Accordingly, the only option available to the respondent under the act was his removal from Australia. In considering whether to remove the respondent, the government determined that the respondent’s removal to Syria would constitute a breach of Australia’s non-refoulement obligations. As such, the respondent remained in immigration detention for 14 months after the time his detention was to end. (¶ 81.)
The respondent brought an action against the Commonwealth arguing that section 196(1) of the act did not authorize the government to detain an unlawful noncitizen in circumstances in which it had failed to “remove the unlawful non-citizen from Australia as soon as practicable.” (¶ 3.) In essence, the respondent’s detention was not in accordance with the purposes of the act, and the government’s power to detain the respondent was limited by chapter III of the Constitution. The Commonwealth argued that the respondent’s detention was authorized under the act, as the relevant sections rendered the respondent’s detention lawful until such time as his removal could actually occur. (¶ 82.)
The Decision of the Federal Court
In determining whether the respondent’s detention was lawful, the primary judge of the Federal Court considered that the relevant issue was whether removal would take place after all other options under the act had been exhausted. (AJL20 v The Commonwealth [2020] FCA 1305.)
The primary judge held that the respondent’s detention was unlawful as his detention was no longer for the purposes set out in the act. On that basis, the primary judge ordered that the respondent be released from detention.
The High Court’s Decision
In a 4–3 decision, the majority of the High Court found that the respondent’s detention was lawful under the act and valid under chapter III of the Constitution.
In its decision, the High Court noted that the object and purpose of the act was to regulate “the coming into, and presence in, Australia of non-citizens.” (¶ 12.) As part of this objective, noncitizens who were granted visas were allowed to enter or remain in Australia. For those individuals who were found to be unlawful, the act provided the authority to detain unlawful noncitizens for the purposes of removal or deportation.
The High Court then noted that the detention of unlawful noncitizens was not invalid under chapter III of the Constitution. While chapter III of the Constitution provided only the judiciary with the power to involuntarily detain individuals, detention for the purposes of immigration was permitted so long as the object and purpose of the act was being fulfilled. If this purpose was being fulfilled, the detention was not punitive in nature and therefore not incompatible with chapter IIII of the Constitution. (¶ 25.)
Section 197C requires that unlawful noncitizens be removed as soon as reasonably practicable. The High Court considered that the words “reasonably practicable” did not ultimately place a time limit on detention, as the relevant consideration was whether the unlawful noncitizen’s detention was in accordance with the object and purpose of the act.
Accordingly, the High Court considered that, because an unlawful noncitizen did not have a right to remain in Australia or enter the country, detention of that noncitizen to prevent entry was a function of the act. (¶ 28.) On that basis, the respondent could be detained until such time as the purpose for detention could be fulfilled.
While the majority of the High Court found that the failure to remove the unlawful noncitizen was not unlawful or unconstitutional, the majority did note that an appropriate remedy in this case would have been to order the executive to discharge its duty, which could have included the grant of a visa in light of Australia’s non-refoulement obligations. (¶ 74.)
Dissenting Judgments
A minority of the High Court agreed with the orders of the primary judge of the Federal Court, concluding that the government took into consideration matters that were contrary to the act such that the respondent’s detention was prolonged for “longer than the Executive was lawfully entitled to detain him.” (¶ 102.)
In a separate dissent, Justice Edelman considered that the government could have fulfilled its purpose under the act by granting a Bridging (Removal Pending) visa under section 195A of the act, which would have allowed the respondent to enter the community until such time as removal could be arranged. (¶ 150.) Justice Edelman concluded that the respondent was entitled to the remedy of habeas corpus for “so long as the Executive persisted with its purpose of removing him in a manner contrary to the terms of s 197C.” (¶ 157.)
Reactions to the Decision
In response to the Federal Court decision in AJL20, the Australian government introduced the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 on March 25, 2021. The bill, which was passed on May 24, 2021, sought to “modify section 197C” such that “the duty to remove … should not be enlivened” when doing so would result in a breach of Australia’s non-refoulement obligations under international law. The government indicated that the changes in the bill were intended to operate “in relation to the very small cohort of serious character/national security concern detainees.” Human rights groups in Australia denounced the bill, which was not considered in the High Court’s decision, as indicative of the Australian government’s willingness to leave refugees in immigration detention indefinitely.
In response to the High Court’s decision, the lawyer for the respondent labeled the decision as “worrying,” noting that the respondent’s liberty was in jeopardy. A spokesperson for the Refugee Action Collective, an advocacy group in Australia, described the decision as one that “entrenches indefinite detention as part of the Migration Act, and, in that respect, as part of Australian law,” referencing the fact that there are around 100 unlawful noncitizens presently in detention who have been detained for a period of over five years.
Prepared by Nabila Buhary, Law Library intern, under the supervision of Kelly Buchanan, Chief, Foreign, Comparative, and International Law Division II