Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship

HIGH COURT OF AUSTRALIAFRENCH CJ,HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJPLAINTIFF M76/2013  PLAINTIFFANDMINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP & ORS  DEFENDANTSPlaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 5312 December 2013M76/2013ORDERThe questions asked by the parties in the amended Special Case dated 13 August 2013 and referred for consideration by the Full Court be answered as follows:Question 1Do ss 189, 196 and 198 of the Migration Act 1958 (Cth) authorise the detention of the Plaintiff?AnswerThe plaintiff's present detention is authorised by ss 189 and 196 of the Act.Question 2If the answer to question 1 is "yes", are these provisions beyond the legislative power of the Commonwealth insofar as they apply to the Plaintiff?AnswerSave that the plaintiff's present detention is validly authorised by ss 189 and 196 of the Act, it is not necessary to answer this question.Question 3Does the fact that the Plaintiff's case was not referred to the Minister for him to consider whether to exercise his power under s 46A(2) reveal an error of law?AnswerYes.Question 4What relief, if any, should issue?AnswerIt should be declared that the exercise of the Minister's power was affected by an error of law in that, in deciding whether to refer the plaintiff's application to the Minister, an officer of the Commonwealth acted upon PIC 4002 as a consideration relevant to the decision.Question 5Who should pay the costs of and incidental to this Special Case?AnswerThe defendants.RepresentationR M Niall SC with K L Walker, C L Lenehan and A...