By Patrick Emerton

The High Court’s most recent immigration decision reminds us that Australia’s system of immigration detention should not be regarded as just another tool of government policy. It is exceptional, not only politically but also legally. The decision also reminds us both of what the law can offer in pursuit of justice, and of the limits to what can be achieved by way of litigation.

Although the decision has been described in the media as casting doubt on temporary protection visas, it is really a decision about the legal nature and limits of immigration detention. Those limits arise because of a fundamental principle of Australian law: Australian governments have no general power to lock people up. This principle was affirmed by the High Court in the 1992 decision Chu Kheng Lim v Minister for Immigration. As Justices Brennan, Deane and Dawson put it, “the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention.” That same case, however, held that the Australian Parliament can enact laws that give the government the power to detain non-citizens as part of the process of regulating their entry to, or removal from, Australia. Section 189 of the Migration Act is such a law.

What the High Court has emphasised in Thursday’s judgment is that immigration detentions is, indeed, part of a process. As the Court unanimously expressed the point, “the [Migration] Act does not authorise detention at the unconstrained discretion of the Executive. Detention under the Act is not an end in itself.…[D]etention under and for the purposes of the Act is limited by the purposes for which the detention is being effected.” Therefore, for the government’s detention of any particular would-be immigrant to be lawful, that detention must be for a valid statutory purpose.

The Migration Act permits detention for two purposes. The first of these is determining whether or not a visa will be granted to a person who lacks one. In the case of those who have come to Australia by boat, the process of determining whether or not to grant a visa is somewhat complicated. The Act does not allow these people to apply for visas; but it does give the Immigration Minister the power to lift this bar on a case-by-case basis. Under a process called the Protection Obligation Determination process, which the government had put into place prior to adopting the current off-shore processing policy, the immigration department would investigate all boat arrivals to determine if they were, in principle, eligible to receive a protection visa. The outcome of this investigation would then be provided to the minister, who would use it to help in deciding whether or not to lift the bar on the making of an application for a visa.

The other permitted purpose for detaining a non-citizen is to facilitate his or her removal from Australia, in circumstances in which he or she has no right under the Migration Act to be in Australia. The Act requires that such removal take place as soon as reasonably practicable.

The two permitted purposes interact in this way: if a non-citizen is not granted a visa, then that person must be removed from Australia. Such removal must take place as soon as reasonably practicable. Therefore, the process of determining whether or not to grant a visa to a non-citizen must be undertaken and completed as soon as reasonably practicable. Otherwise, detention could be prolonged indefinitely at the will of the government, which would be contrary to the requirement that non-citizens may be detained only for a valid statutory purpose.

As UNSW’s Dr Joyce Chia told ABC Radio, this decision is, in effect, an invitation to current victims of immigration detention to go to court and argue that the government is not deciding their cases as quickly as is reasonably practicable, and hence that they are being unlawfully detained. In this way, the case can be seen as an important and very practical reminder that locking people up is not just another policy tool that governments are free to use as they see fit. It is an extreme and exceptional measure, which always stands in need of legal justification.

But the case also reminds us that such justifications can be given. The decision upholds the legality of immigration detention, provided that it is undertaken in accordance with the requirements of the Migration Act. Hence, for those seeking justice for asylum seekers, litigation is not a sufficient strategy: the ultimate goal must be amendments to the Act that will bring Australian law into conformity with the demands of justice and of human rights.

This lesson is also illustrated by that aspect of the High Court’s decision that touched upon temporary protection visas.

After more than two years of detention, the immigration department had determined that the plaintiff in the case was, in principle, eligible for a protection visa. However, the minister did not make a decision about whether or not to lift the bar on the making of an application. Instead, the minister used a different power to grant the plaintiff two sorts of temporary protection visas: a seven-day one, and a three-year one. Under section 91K of the Migration Act, the most significant consequence of granting the seven-day visa was that the plaintiff became ineligible to apply for any other visa until leaving Australia. The minister granted the seven-day visa precisely to activate this new bar upon the making of visa applications by the plaintiff.

It is because of this that the High Court struck down, as unlawful, the granting of these temporary visas. There was no problem with the fact that they were temporary. Rather, it was about the bar on applications. The Court held that, because the government had already detained the plaintiff for over two years in order to decide whether or not to let him make an application for a protection visa, it could not then render that detention pointless, and therefore retrospectively unlawful, by granting a different sort of visa that would prohibit him from making such an application.

This is a good outcome for the plaintiff in the case, who seems likely, now, to be granted a protection visa by the government. It may have a similar consequence for other detained asylum seekers in a similar situation, although that is not certain. But for those who oppose temporary protection visas on the principled basis that they are contrary to Australian’s obligations under the Refugee Convention and Protocol, the ultimate goal must be to change Australian law. There is only so far a strategy of litigation can take us.

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