CPCF v Minister for Immigration and Border Protection [2015] HCA 1

ON 28 JANUARY 2015, the High Court of Australia delivered CPCF v Minister for Immigration and Border Protection [2015] HCA 1.

http://www.austlii.edu.au/au/cases/cth/HCA/2015/1.html

The plaintiff and 156 other passengers were on an unseaworthy Indian flagged vessel which was intercepted by an Australian border protection vessel in Australia’s contiguous zone in the Indian Ocean. The plaintiff claimed to be a refugee fleeing persecution in Sri Lanka for being a Tamil. The plaintiff and the other passengers were detained by the Australian maritime officers and first taken to India and then to the Australian Territory of the Cocos (Keeling) Islands where they were placed into immigration detention.

The plaintiff claimed damages for wrongful imprisonment, alleging that the detention was unlawful under the Maritime Powers Act because he was not afforded procedural fairness in that he was not asked whether or not he was a person in respect of whom Australia owed non-refoulement obligations.

The High Court dismissed the claim, holding that the detention was not unlawful under the Maritime Powers Act 2013 (Cth). The court held that:

 

    • The Maritime Powers Act was not subject to an obligation to afford procedural fairness.
    • The detention was lawful even though it was the implementation of a decision of the Australian Government, without independent consideration of whether or not the detention should have taken place.
    • The decision to take the plaintiff to India was not unlawful despite no arrangement between India and Australia existing at the time.

    The High Court decided that it was unnecessary to determine whether or not the detention could be authorised under the Commonwealth’s non-statutory executive power.

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