Kiefel J has dismissed an application made on behalf of two infants — the father of whom was an unauthorised maritime arrival under s 5(1) of the Migration Act 1958 (Cth) and the mother of whom had entered Australia via the mainland and was not a UMA — for an order requiring the Minister for Immigration and Border Protection to show cause why a writ of certiorari should not issue against his decision to refuse the plaintiffs protection visas, a declaration that s 46A of the Migration Act does not apply to them, and consequential orders. Due to ss 10 and 78 of the Migration Act, the plaintiffs are taken to be, at birth, lawful non-citizens and not UMAs. The Minister rejected the application made on their behalf for a protection visa due to the operation of s 46A, which bars a person from lodging a valid visa application if the person is a UMA and an unlawful non-citizen (the plaintiffs were neither).
Following amendments to the Migration Act made by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), the new s 5AA(1A) provides that if a person is born within the migration zone to a parent who is a UMA (regardless of the parent’s current location or visa status) and the person is not an Australian citizen at the time of birth, that person is a UMA, and another amendment states that s 46A(1) applies to persons who are lawful non-citizens if they hold that status only because of a bridging visa (see –). The central issue in the application is whether these provisions apply to the plaintiffs, who contend, first that the reference to ‘a parent’ should be read as ‘both parents’, and secondly that the plaintiffs’ applications were finally determined prior to the commencement of s 5AA(1A). Kiefel J rejected both of these arguments. ‘A parent’ allows the plural but does not exclude the singular, and is clearly framed to address a child born in Australia to a UMA; ‘It is addressed to the very position of the plaintiffs’ (at ). As to the determination issue, Kiefel J held that while the evidence presented on the procedural history did not expressly reject the possibility that the decision was made before 16 December 2014, it suggested the decision was made on 12 February 2015, and the father’s report of telephone conversations suggesting a decision was made in October 2014, though perhaps truly believed, was not cogent (at –). The evidence presented did not suggest there was enough material to create a controversy which should be resolved by a trial, and even if there were, there would be no purpose to that proceeding: if the decision to reject the application prior to s 5AA(1A)’s commencement were made it would be invalid and set aside, in which case the matter would not have been finally determined and would have to be re-determined now in light of s 5AA(1A), which would apply to the plaintiffs (see at ).
|Judgment, Kiefel J|| HCA 24||19 June 2015|
|High Court Documents||No documents available|
|Special Leave Hearing|| HCATrans 150|