Plaintiff S297/2013 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: French CJ,Hayne,Kiefel,Bell,Gageler,Keane JJ
• Judgment Date: 11 February 2015
• Neutral Citation: [2015] HCA 3
• Docket Number: S297/2013
• Court: High Court
• Date: 11 February 2015

[2015] HCA 3

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ

S297/2013

Plaintiff S297/2013

Plaintiff

and

Minister for Immigration and Border Protection & Anor

Defendants

Representation

S B Lloyd SC with J B King for the plaintiff (instructed by Fragomen)

S P Donaghue QC with P D Herzfeld for the defendants (instructed by Australian Government Solicitor)

Migration Act 1958 (Cth), ss 45AA, 46A.

Migration Regulations 1994 (Cth), reg 2.08F, Sched 2, cl 866.226.

Plaintiff S297/2013 v Minister for Immigration and Border Protection

Migration — Refugees — Protection visas — Power of Minister under Sched 2, cl 866.226 of Migration Regulations 1994 (Cth) to decide application for protection visa if Minister satisfied that grant of visa ‘is in the national interest’ — Whether cl 866.226 invalid — Whether cl 866.226 permitted Minister to refuse to grant protection visa solely on ground that application for visa made by unauthorised maritime arrival.

Administrative law — Judicial review — Mandamus — Return of writ insufficient — Plaintiff sought order issuing peremptory writ of mandamus — Reg 2.08F of Migration Regulations 1994 (Cth) applied where court quashed decision of Minister in relation to application for protection visa and ordered Minister to reconsider application in accordance with law — Whether reg 2.08F applied.

Words and phrases — ‘is in the national interest’, ‘peremptory mandamus’, ‘unauthorised maritime arrival’.

ORDER

The questions asked by the parties in the special case dated 22 September 2014 and referred for consideration by the Full Court be answered as follows:

Question 1

Is clause 866.226 of Sch 2 to the Migration Regulations invalid?

Answer

It is not necessary to answer this question.

Question 2

Was the decision made by the Minister on 17 July 2014 to refuse to grant a protection visa to the plaintiff made according to law?

Answer

No.

Question 3

What, if any, relief should be granted to the plaintiff?

Answer

A peremptory writ of mandamus should issue commanding the first defendant to grant the plaintiff a permanent protection visa forthwith.

Question 4

Who should pay the costs of this special case?

Answer

The defendants.

1 French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ The issues which this Court must now decide arise out of the return which the Minister made to a writ of mandamus directed to the Minister. The writ issued by consent after this Court's decision 1 of questions which the parties had stated for the opinion of the Full Court in the form of a special case.

The issues

2 The Migration Act 1958 (Cth) (‘the Act’) provides 2 that an unauthorised maritime arrival 3 may not make a valid application for a visa but that the Minister may determine 4 that it is in the public interest to lift that bar and permit an unauthorised maritime arrival to apply for a visa of a class specified in the determination. The plaintiff is an unauthorised maritime arrival. In 2012, the Minister determined that it was in the public interest that the plaintiff be permitted to make a valid application for a Protection (Class XA) visa.

3 At relevant times, the Act and the Migration Regulations 1994 (Cth) (‘the Regulations’) prescribed criteria for the grant of a Protection (Class XA) visa which included 5 that the Minister be satisfied that the grant of the visa ‘is in the national interest’ (‘the cl 866.226 criterion’). In 2014, in intended satisfaction of a writ of mandamus commanding the Minister ‘to consider and determine the Plaintiff's application for a Protection (Class XA) visa according to law or show cause why it has not been done’, the Minister decided that he was not satisfied that it was in the national interest to grant the plaintiff the visa he sought. The only reason given for that conclusion was that the plaintiff was an unauthorised maritime arrival.

4 There are three issues. On its true construction, did the cl 866.226 criterion authorise a decision made by reference only to the plaintiff being an

unauthorised maritime arrival? If it did, is the cl 866.226 criterion valid? Does the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (‘the 2014 Amendment Act’) convert the plaintiff's application for a Protection (Class XA) visa into an application for a Temporary Protection (Class XD) visa?

A summary of the principal conclusions

5 The construction issue should be resolved in the plaintiff's favour. The Act prescribes consequences that follow from being an unauthorised maritime arrival. In particular, the Act provides that no unauthorised maritime arrival may make a valid application for any visa unless the Minister, acting personally, determines that it is in the public interest to permit the person to make a valid application for a visa of a class specified in the determination. The cl 866.226 criterion does not permit the Minister to attach an additional consequence to being an unauthorised maritime arrival beyond those fixed by the Act. It does not authorise application of a general rule that a valid application by an unauthorised maritime arrival for a visa of the class specified in the Minister's determination must be refused. This being so, the validity issue is not reached.

6 The 2014 Amendment Act does not convert the plaintiff's application for a Protection (Class XA) visa to an application for a Temporary Protection (Class XD) visa.

7 The Minister must grant the plaintiff what the Act now calls a permanent protection visa. A peremptory writ of mandamus to that effect should issue. The Minister and the Commonwealth should pay the plaintiff's costs.

The facts and procedural history

8 It is necessary to refer to the principal events in the factual and procedural history that yield the issues identified at the outset of these reasons.

9 In May 2012, the plaintiff entered Australia by sea at Christmas Island without a visa. He was what the Act then called 6 an ‘offshore entry person’. Because he had no valid visa, he was 7 an ‘unlawful non-citizen’. With effect

from June 2013 the Act was amended 8, and an offshore entry person became an ‘unauthorised maritime arrival’ 9.

10 Because the plaintiff was an unlawful non-citizen and an offshore entry person (and later, was an unauthorised maritime arrival), he could not make 10 a valid application for a visa. But in September 2012, the Minister determined, under s 46A(2) of the Act, that it was in the public interest that the bar to the plaintiff making a valid application for a visa should not apply to an application by the plaintiff for a protection visa. (At that time this was a reference to what the Regulations identified as a Protection (Class XA) visa.) In February 2013, a delegate of the Minister refused to grant the plaintiff a Protection (Class XA) visa. The plaintiff sought the review of that decision by the Refugee Review Tribunal. In May 2013, the Tribunal remitted the plaintiff's visa application to the Minister for reconsideration in accordance with the Tribunal's direction that the plaintiff satisfied s 36(2)(a) of the Act. That is, the Tribunal was satisfied that the plaintiff was ‘a non-citizen in Australia in respect of whom … Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’.

11 The Minister did not decide the plaintiff's application. As this Court has previously explained 11, various regulatory and other steps were taken between October 2013 and March 2014 which, it may be inferred, were thought to permit the Minister not to make a decision whether to grant or refuse the application. And in December 2013 the plaintiff began proceedings, in the original jurisdiction of this Court, seeking to have some of those steps declared invalid, or at least ineffective to prevent him being granted the visa for which he had applied. In June 2014, the Court answered questions reserved for its consideration in the form of a special case in the proceedings which the plaintiff had brought. (The argument in that special case was heard at the same time as argument in a special case in another proceeding brought by another plaintiff —

Plaintiff M150 of 2013 — and the decisions in the two special cases were published at the same time 12.)

12 The answers to the questions asked in the special case in the plaintiff's proceedings were treated by the parties as resolving the controversy between them. No trial was had. Instead, on 1 July 2014, French CJ ordered, by consent, that a writ of mandamus issue directing the Minister to consider and determine the plaintiff's application for a Protection (Class XA) visa according to law. On 3 July 2014, French CJ ordered 13 that the writ should be returnable 14 by 21 July 2014.

13 On 17 July 2014, the Minister decided to refuse to grant the plaintiff a Protection (Class XA) visa. The parties agree that the only reason the Minister refused to grant the plaintiff a protection visa was that the Minister was not satisfied that the cl 866.226 criterion was met. (It will be recalled that this criterion required the Minister to be satisfied that the grant of the visa ‘is in the national interest’.) 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. That is, even though the Act provided, at all times relevant to these proceedings, that the Minister could decide that it is ‘in the public interest’ to permit an unauthorised maritime arrival to make a valid application for a permanent protection visa, the Minister's decision in this case was that the national interest required that no such application should be granted. (It will be observed that s 46A(2) referred...