Plaintiff S297/2013 v Minister for Immigration and Border Protection; Plaintiff M150/2013 v Minister for Immigration and Border Protection

The High Court has issued a writ of peremptory mandamus commanding the Minister to grant the plaintiff a permanent protection visa. In June 2014, the High Court upheld a challenge to the validity of the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth), known as the PPV Regulation, in two related matters. The Court held the Minister’s determinations in relation to Plaintiffs S297/2013 and M150/2013 were invalid and issued a writ of mandamus in each instance directing the Minister to consider and determine each visa application according to law. The PPV Regulation prevents the Minister from granting a protection visa under s 36 of the Migration Act 1958 (Cth) to any person who did not arrive with a visa, has not been cleared by Australian Immigration, or is an unauthorised maritime arrival. The applicants, who were denied visas on these bases, claim that the regulations are invalid as being inconsistent with or repugnant to s 36 and s 198 of the Migration Act. On 4 March 2014, the Minister signed an instrument that purported to determine under s 85 of the Migration Act the maximum number of protection visas that may be granted from 1 July 2013 to 30 June 2014.

The Court unanimously held that the Minister’s determination made pursuant to s 85 of the Migration Act was invalid. The plurality of Crennan, Bell, Gageler and Keane JJ (joint in both matters) held that the instrument was beyond the substantive scope of power conferred by s 85 of the Act. Examining s 85 in the context of the rest of the Act, the plurality rejected the Minister’s arguments that ss 39(1) and 85 created separate and distinct powers to create different legislative instruments, and held that fixing the maximum number of visas is a power only and expressly conferred by s 85: ‘[t]here is no need to imply another [power]’ (at [56], [57]). There was, however, a different implication to be drawn from s 65A which relates to the period within which the Minister must make a decision on a protection visa. If an instrument under s 85 were capable of setting a maximum number, then s 65A would conflict with the Minister’s ability to delay the application (under s 89) and the ability to decide not to grant a protection visa under s 65(1)(a) once the limit was reached, ‘yet still to decide to refuse to grant a protection visa under s 65(1)(b)’. The plurality resolved that conflict by construing s 85’s reference to ‘visas of a specified class’ as not extending to protection visas which are covered by s 65A. As applied to these matters, the Minister had not made a decision to grant or refuse a visa within 90 days of application, and therefore failed to perform the duties imposed by ss 65 and 65A. A writ of mandamus directed the Minister to consider and determine the applications according to law. Hayne and Kiefel JJ (also joint in both cases) and French CJ also held that the instrument was invalid and that a writ of mandamus should be issued.

A new special case was brought after the Minister reconsidered the application and refused to grant the plaintiff a protection visa, leading to a unanimous High Court issuing a writ of peremptory mandamus that commands the Minister to grant the plaintiff a protection visa. The Minister’s refusal was made solely on the basis that the cl 866.226 criterion (requiring the Minister to be satisfied the grant was ‘in the national interest’) was not met because the Minister considered that the national interest required refusal of a protection visa to all unauthorised maritime arrivals (see [13]). While the Court did not rule on whether cl 866.226 itself was invalid, it construed the criterion as not permitting the approach taken by the Minister because Parliament had already indicated what visa consequences should result from being an unauthorised maritime arrival (at [21]):

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.

The Court issued a writ of peremptory mandamus requiring the Minister to grant the protection visa on the basis of the ‘legal insufficiency’ of the Minister’s response to the original mandamus writ: because the Minister incorrectly applied cl 866.226, he did not determine the application according to law as directed (see [39]). There was no need to allow the Minister a further opportunity to consider the application because the national interest criterion was the only basis offered for the decision, and there was no suggestion that any circumstances relevant to that decision might have changed ([40]–[41]).

Further Judgment [2015] HCA 3 11 February 2014
Order, French CJ [2014] HCA 27 8 September 2014
Further Hearing [2014] HCATrans 147 3 July 2014
High Court Judgments [2014] HCA 25 20 June 2014
[2014] HCA 24  20 June 2014
Result Determination invalid, writ of mandamus issued. Following Minister’s refusal to grant, writ of peremptory mandamus issued.
High Court Documents Plaintiff S297/2013
Plaintiff M150/2013
Full Court Hearings [2014] HCATrans 100 15 May 2014
[2014] HCATrans 99 14 May 2014
Hearings [2014] HCATrans 70 3 April 2014
[2014] HCATrans 40  7 March 2014
[2014] HCATrans 2 23 January 2014
[2013] HCATrans 329 20 December 2013