High Court Finds Protection Visa Could Not Be Refused Due To Arrival By Boat: [2015] HCA 3
Wednesday 11 February 2015 @ 12.04 p.m. | Immigration
The High Court has unanimously held that the Minister for Immigration and Border Protection unlawfully refused a protection visa on the sole basis that the applicant was an unauthorised maritime arrival in Plaintiff S297-2013 v Minister for Immigration and Border Protection [2015] HCA 3. Their Honours also made an order “commanding the Minister to grant the plaintiff a permanent protection visa.” This was partially due to the fact that the plaintiff had been successful in an earlier case that was also brought before the High Court (Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24), and the Court found:
“only one reason was given by the Minister for refusing the plaintiff's application. That reason was legally insufficient. And in his return to the writ, the Minister had the opportunity to identify any other reason for refusing the application. None was identified. The Minister should not now be given any further opportunity to identify a reason for refusing the plaintiff's application.” [at 41]
Facts & Procedural History
The plaintiff, a national of Pakistan, landed at Christmas Island on 19 May 2012, without a visa, which made him an “offshore entry person” and later an “unauthorised maritime arrival” under the Migration Act 1958 (Cth) (“the Act”). The plaintiff was unable to make a valid application for a Protection (Class XA) visa under s 46A of the Act, unless the Minister exercised the appropriate discretion. This occurred on 23 September 2012, and the plaintiff lodged a valid application, which was refused on 11 February 2013. The plaintiff then appealed this decision to the Refugee Review Tribunal, who found that the plaintiff was a refugee. The Tribunal remitted the matter to the Minister on 17 May 2013, however the Minister never made a decision. This was due to an amendment made to the Act which set a cap on the number of visas that could be granted in a specified financial year. The plaintiff was successful in the resulting High Court case which found that the instrument introducing these changes was invalid (see TimeBase’s case summary for further details). The Minister was required as a result of this case to consider and determine the plaintiff’s application according to law by 21 July 2014.
On 17 July 2014, the Minister decided to refuse to grant the plaintiff a Protection (Class XA) visa, on the basis that it was not in the national interest under cl 866.226 of Schedule 2 of the Migration Regulations 1994 (Cth). According to the Court:
“The Minister's decision record shows that he saw "the national interest" as requiring refusal of a Protection (Class XA) visa to any and every unauthorised maritime arrival.” [at 13]
The plaintiff challenged this decision in the High Court, arguing that the clause was invalid and that the Minister’s decision was contrary to law.
Decision
The Court declined to make any statements on the overall validity or otherwise of clause 866.226. Rather, they considered how the clause interacted with section 46A (which prevents unauthorised maritime arrivals from applying for visas unless the Minister intervenes). The Court found:
“By providing in s 46A that an unauthorised maritime arrival may not make a valid application for any visa unless the Minister personally determines to lift that bar in respect of a class of visa specified in the determination, the Parliament has exhaustively prescribed the visa consequences which follow from the relevant status. Because s 46A states exhaustively what visa consequences attach to being an unauthorised maritime arrival, the general words of cl 866.226 may not be construed as permitting the Minister to add to the consequences which the Parliament has identified... More particularly, the status of unauthorised maritime arrival cannot be treated as a sufficient reason in itself for refusing to grant the visa which the plaintiff lawfully sought in accordance with an earlier ministerial determination under s 46A.” [at 21]
The Court also considered the impact of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) upon the plaintiff’s case. The Act purported to convert certain visa applications into other types of applications. This included provisions for converting certain applications for Protection (Class XA) visas into applications for Temporary Protection (Class XD) visas. The defendants argued that the plaintiff’s visa application had been converted into an application for a Temporary Protection (Class XD) visa. However, their Honours rejected this argument, as the application on foot in the High Court was not one that fell into the categories set out in the 2014 Amendment Act.
The High Court issued a peremptory mandamus commanding the Minister to grant the plaintiff a permanent protection visa without delay.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Sources:
Plaintiff S297-2013 v Minister for Immigration and Border Protection [2015] HCA 3 (11 February 2015) & judgement summary
