Last Thursday the High Court published a decision which not only overturns the interim temporary visa plans of the Government for refugees but also reminds Government that asylum seekers are not ‘outlaws’ and that immigration detention can only be for limited purposes. The decision is timely because the Minister is still negotiating his re-introduction of the Temporary Protection Visa through the Senate and he has also flagged the partial winding back of the harsh offshore processing policy reintroduced under Labor.
The case, Plaintiff S4 v Minster for Immigration and Border Protection [2014] HCA 34 considered the case of a stateless asylum seeker who spent two years in detention.
On arrival in late 2011 at Christmas Island, the applicant was an ‘excised offshore person’, a term replaced in June 2013 with ‘unauthorised maritime arrival’. Such a linguistically unpleasant description has serious legal implications because if you were an ‘excised offshore person’, or an ‘unauthorised maritime arrival’, you are prevented from lodging any visa application onshore by s46A unless the Minister personally intervenes and lets you make the application.
Despite being assessed as meeting the refugee definition (grant ready was the term used by Immigration) the refugee in the case was not granted a protection visa but he was released from detention after the grant of two temporary visas. The first was a temporary safe haven visa (TSHV) for seven days, and a temporary humanitarian concern visa (THCV) for three years.
The grant of the TSHV meant that a legislative bar then prevented the applicant from applying for a protection visa. Section 91K prevents further applications for any visa onshore unless the Minister personally intervenes and permits the applications.
The High Court held that immigration detention can only be done for three purposes:
1. removal from Australia
2. investigating if the person can remain in Australia
3. determining whether to permit a valid application for a visa
Here, it was the third category as Plaintiff S4’s case as a refugee was being considered. The Court held that in those circumstances, it was not lawful for the Minister then to grant different visas under another section (s195A) which effectively prevented an applicant from making a protection visa application. This was because the only reason he was lawfully detained was the assessment under s46A whether this refugee could even make that very application.
The High Court also held that the duration of detention must be ‘fixed by reference to what is both necessary and