The High Court has decided a special case relating to a decision by the Minister for Immigration and Border Protection to deny a refugee and humanitarian visa to the family of an unaccompanied Afghan minor who was granted a protection visa in August 2011. The Minister’s delegate refused the ‘split family’ application on the basis that the delegate was not satisfied that there were compelling reasons for giving special consideration to granting the visa (as required by cl 202.222(2) of the Migration Regulations), and noted that only a small number of applicants could be successful under the government’s Special Humanitarian Programme and the ‘processing priorities’ of the policies associated with that programme. The plaintiff sought to argue that in applying the policy on ‘priorities’ the Minister’s delegate misconstrued the requirements of cl 202.222(2), specifically para (2)(d) which required the decision-maker to have regard to ‘the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia’, in referring to Australia’s capacity to resettle all applicants rather than persons such as the particular applicant, and by failing to give proper consideration to the individual circumstances of the applicants and the material relevant to community support for their resettlement. More generally, the plaintiff sought to show that the processing priorities are inconsistent with the Migration Act and its regulations, and that if the priorities are valid that nonetheless they were inflexibly applied in this case.

In answering the questions posed in the special case (see [22]), the Court unanimously held that the delegate appropriately construed cl 202.222(2), and did not fall into jurisdictional error by failing to consider the number of places, or by applying the government’s policy priorities either inconsistently with the Migration Act or inflexibly in the present case. The joint judges (French CJ, Bell, Keane and Gordon JJ) first noted that judicial review in this matter was limited only to whether the delegate’s decisions was one that he was legally authorised to make, and that the burden remained with the plaintiff to show that the decision was affected by jurisdictional error (see [23]–[28]). Turning to cl 202.222(2), the joint judges rejected the plaintiff’s argument that the requirements in the clause were four separate criteria to be individually and cumulatively considered, holding instead that the clause raises only one criterion: whether the Minister or delegate is ‘satisfied’ that there are ‘compelling reasons for giving special consideration to granting the applicant a permanent visa’ (at [29]–[32]).

The joint judges also rejected the plaintiff’s submission that the delegate’s letter referring to para (2)(d) demonstrated a misunderstanding of that requirement: the letter was not a comprehensive statement of reasons and it is apparent that the delegate took into account each of the criteria (see [36]). As to whether the delegate misconstrued para (2)(d) in referencing Australia’s capacity to resettle all applicants, rather than the community’s ability to resettle persons such as the particular applicant, the joint judges rejected that that contradistinction had been made (at [37]), that para (2)(d)’s focus on ‘special considerations’ will naturally include all persons who might qualify for that visa (at [38]) and that the plaintiff’s urged community capacity focus is not supported by the language of the paragraph (at [39]–[40]). The joint judges then rejected the plaintiffs arguments that the number of places in the SHP program was an irrelevant consideration: rather the delegate’s consideration of ‘special consideration’ may validly be affected by the number of places (at [41]–[44]).

Finally, the joint judges also rejected the plaintiff’s arguments on inconsistency and irrationality. The government’s policy of not giving priority to unauthorised maritime arrivals (see details at [14]–[18]) was neither inconsistent with the text or purpose of cl 202.222(2) nor an irrational, unreasonable or punitive (at [48]–[51]). Nor was this policy inflexibly applied here as failing to take into account the particular circumstances and merits of the case: the inquiry focuses on the open-textured ‘special consideration’ criterion precisely seeks to avoid giving individual predilections or creating inconsistencies in decision making, which is important for ‘high volume decision making’ as in this case (see at [54]ff). Gageler J agreed with the answers given by the joint judges substantially for the reasons their Honours gave.