In Plaintiff S297/2013 v Minister for Immigration and Boarder Protection [2015] HCA 3 (S297 2015) the High Court issued a writ of peremptory mandamus ordering the Minister to grant a permanent protection visa to the plaintiff. This relief was granted following the Minister’s failure to make a decision according to law, which was attached to the High Court’s initial writ of mandamus in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24 (S297 2014).

The High Court did not consider that the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Amendment Act) retrospectively converted S297’s application for a permanent visa to a temporary visa to enable the Minister to make a decision on different grounds.

The case cautions decision makers determining matters on remittal from the court to adhere to the law. It is a timely reminder of the scope of relief available in judicial review. The case also represents something of an anomaly since the 2014 Amendment Act will now apply to all new applicants for permanent protection visas. The case demonstrates the robustness of the separation of powers in Australia whereby politically charged executive decisions, that are intimately linked to national security, continue to be dismantled by courts where decision-makers fail to adhere to the correct processes.

THE CASE OF S297 2014

On 19 May 2012 a Pakistani asylum seeker arrived at Christmas Island by boat. Without a valid visa, the man was an “unlawful non-citizen”[1] under the Migration Act1958 (Cth) (the Act) and was detained under its provisions.[2]  

Under section 46A of the Act, persons arriving illegally to Australia by boat are prohibited from applying for a visa. That is, unless the Minister exercises a non-compellable, personal discretion to allow otherwise. The Minister may determine that it is in “public interest” to lift the bar and permit an individual to apply for a visa of a class specified in the determination.[3]

It follows that Plaintiff S297 was an “unauthorised maritime arrival” (formally an “offshore entry person”), which under s 46A, rendered him incapable of making a valid application for a Protection (Class XA) visa. In September 2012 the Minister determined that he could apply for the visa, which was subsequently refused by a delegate of the Minister in February 2013.

On appeal, the Refugee Review Tribunal determined that S297 was a refugee entitled to protection under the Refugee Convention and referred the matter back to the Minister to be decided.

The Minister did not make a decision in respect to S297, as a limit on the number of protection visas, previously declared by him, had been exceeded that year. In June 2014, Plaintiff S297 advanced his case to the High Court to determine whether Minister’s declaration to limit the number of protection visa made under section 85 of the Act, was invalid at law.

After much deliberation the High Court interpreted the act to find that the Minister had no power to make the determination limiting the number of protection visas. The High Court held that the declaration was invalid and issued a writ of mandamus directing the Minister to make a decision according to law.

THE CASE OF S297 2015

On remittal from the High Court the Minister refused to grant S297 a permanent protection visa, as he was not satisfied that it was in the “national interest” pursuant to clause 866.226 of the Migration Regulations 1994 (Cth) (the Regulations).

The Minister made the determination with the sole reason that it was not in the national interest for unauthorised maritime arrivals to be granted visas. A real Catch 22, given that this was the reason S297 couldn’t apply for a visa in the first place.   

The High Court held that the Minister had incorrectly applied the national interest criterion at [21] stating that:

By providing in s 46A that an authorised 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 what 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 866.266 may not be construed as permitting the Minister to add to the consequences that the Parliament has identified.

As the Minister had failed to execute the writ of mandamus according to law, it was a “legally insufficient response” to the original mandamus. In deciding what would be the appropriate relief the High Court opted for a remedy that would “finally quell the controversy”. The High Court considered there was no alternative basis to warrant further consideration of a remittal; and that, if granted, the terms of a peremptory writ, ordering the Minister to grant a permanent protection visa to Plaintiff S297, would not affect the original writ. In plurality, the High Court granted the peremptory mandamus.

THE 2014 AMENDMENTS TO THE MIGRATION ACT

In S297 2015 the High Court considered the impact of the 2014 Amendment Act, which would have worked to retrospectively convert Plaintiff S297’s application for a permanent visa into an application for a temporary visa and would have enabled the Minister to make his decision with respect to Plaintiff S297 on different grounds. While the High Court rejected its effect on Plaintiff S297 it is interesting to consider how it would operate in future visa matters.

The 2014 Amendment Act inserted a new s 35A which specifies two classes of protections visas: permanent and temporary. This specification was made on what was previously just a “protection visa”. Amendments were also made to the Regulations by the 2014 Amendment Act which now provides that the new class of temporary protection visas are classified as Temporary Protection (Class XD) visas.

The practical utility of these amendments is realised with the insertion of s 45 AA coupled with Regulation 2.08F which allows the conversion of certain applications for Protection (Class XA) visa into applications for Temporary Protection (Class XD) visa.

In S297 2015 the High Court held, that the new provisions did not affect Plaintiff S297, as the Ministers could not retrospectively apply laws to an application that was already underway. An allowance of such would could prejudice the applicant and set a bad precedent.  

However, the 2014 amendments now stand to allow the Minister to convert applications for permanent visas to temporary visa in circumstances where the Minister has not made a decision (Regulation 2.08F(a)) and where a decision has already been quashed by the court (Regulation 2.08F(b)(iii)).

IMPACT OF THE 2014 AMENDMENT ACT ON CASES TO BE HEARD AFTER PLAINTIFF S279

The Minister is now no longer burdened with having to consider whether granting a protection visa will be in the public interest. For new unauthorised maritime arrivals, the 2014 Amendment allows the Minister to convert a Protection Visa to a Temporary Visa and refuse an application based on entirely different grounds.

Given the 2014 Amendment Act, a scenario such as S279 2015 will seldom arise again. It appears, however, that whatever amendments are made to the Act, the High Court has demonstrated its discretion in finding nuanced and innovative relief based upon judicial review in immigration matters.  The case of S297 exemplifies the scope of relief available in judicial review: the High Court cannot only quash a Minister’s decision and remit matters for further determination, but, in exceptional circumstances, may order a decision to be made when only one particular decision is available on the evidence and under the law.