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Assignment Task

Relevant Legal Issue(s)
This question asks you to identify what were the legal issues for the parties. Identify the problem and what has gone wrong for whom. Name each party and describe their individual issues. What area of law may govern these issues? Identify any conflicting facts. Listing the issues means avoiding a ‘scatter gun’ approach to analysing and answering the question.
You are encouraged to examine the secondary resources around this decision or commentary on the Federal Court decision that preceded it. This will help you distil the main issues.
By way of example of an outline, the below outline comes from Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28.
On 23 July 2013, Plaintiff S156, an Iranian citizen, arrived at Christmas Island via sea claiming to be a refugee. He was detained pursuant to s 189(3) of the Migration Act 1958 (Cth). He was advised he would be transferred to a regional processing country, Manus Island in Papua New Guinea (PNG) and that he would not be resettled in Australia. Plaintiff S156 was both an unlawful non-citizen and an unauthorised maritime arrival as defined by the Act, and claimed to be a refugee.
Brought in the original jurisdiction, the Plaintiff argued in the High Court of Australia (HCA) the following;
1. S 198AB and 198AD of the Migration Act 1958 (Cth) is invalid because it is not supported with sufficient head of power in s 51 of the Constitution in particular s 51 (xix), (xxvii) and (xxix);
2. The minister designating PNG as a regional processing country was invalid and the ministers direction to send the plaintiff to PNG was invalid because he failed to acknowledge relevant considerations which he was obliged to do; and
3. Those implied obligations were to consider:
i. Australia’s international law obligations;
ii. Consultation with the Office of the United Nations High Commissioner for Refugees (UNHCR) prior to PNG being designated;
iii. PNG’s international obligations;
iv. PNG’s domestic law;
v. PNG’s capacity to implement its obligations;
vi. Any framework for processing refugee claims in PNG;
vii. Possibility of indefinite detention; and
viii. Detention conditions in PNG.

The High Court was tasked with considering the constitutional validity of provisions under the subdiv B of Div 8 of Pt 2 of the Migration Act 1958. The High Court was also required to adjudicate what matters the Minister had to consider under s 198AB(2).

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