Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24

In the case of Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24, a majority of the High Court has this week held that the Minister for Immigration and Citizenship's decision to grant the plaintiff a temporary safe haven visa was valid, and that the plaintiff's application for a protection visa was not valid.

Background

In February of 2010, the plaintiff arrived at Christmas Island without a visa and was placed in immigration detention. Under the Migration Act 1958 (Cth), Christmas island is an excised offshore place, and so the plaintiff was prevented by s46A(1) from making a valid application for a protection visa. 

S 195A of the Act grants the Minister the ability to grant a visa of a particular class to a person in immigration detention if the Minister thinks that it is in the public interest to do so. Exercising this power, the Minister granted the plaintiff and other people in similar circumstances two visas. These were, firstly, a temporary safe haven visa (permitting a stay of seven days), and a bridging visa (in the plaintiff's case, permitting a stay of six months). 

S 46A(1) of the Act, preventing the making of a valid protection visa application, ceased to apply to the plaintiff upon his release from detention. However, s 91K imposed a similar statutory bar due to the granting of the safe haven visa. The Minister claimed that he would not have exercised his power to grant the bridging visa if it had not been possible to simultaneously grant the temporary safe haven visa - his reasoning being that the bridging visa alone would have allowed the plaintiff to lodge a valid application for a protection visa when his protection claim was already being dealt with under existing alternative processes. 

Proceedings

When the plaintiff applied for a protection visa, the Minister treated this application as invalid. The plaintiff then applied to the High Court for an order to overturn the Minister's decision to issue the temporary safe haven visa. He also sought an order requiring the Minister to consider the plaintiff's application for a protection visa according to law. The plaintiff reasoned that the the Minister's decision to grant the safe haven visa was invalid, as s 195A did not authorise a temporary safe haven visa to be granted, except to afford temporary safe haven, and because the decision was made primarily to prevent the plaintiff from making other visa applications (an improper purpose).

Decision

The High Court rejected the plaintiff's arguments. By majority, it was held that the Minister's purpose in granting the visa was not beyond the power conferred by s 195A(2) of the Act. It was open to the Minister to grant a temporary safe haven visa by reference to its legal characteristics and consequences, and the Minister need not be constrained by the purpose for which that class of visa was created under the Act. Therefore, the Minister's decision to grant the temporary safe haven visa was valid, and the plaintiff's application for a protection visa was invalid. 

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