High Court Orders Grant of Permanent Protection Visa Within Seven Days
February 28, 2015
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Plaintiff S297/2013 v MIBP
This week the High Court granted our client a form of relief (peremptory writ of mandamus) that has essentially not been granted since the 19th century.
Since being elected in September 2013 the Government's policy has been to not grant a permanent protection visa to any unauthorised maritime arrival (UMA) (wishing to instead grant temporary protection visas to eligible UMAs).
On Wednesday the High Court gave the Minister for Immigration and Border Protection seven days to grant our UMA client a permanent protection visa.
This will be the first such permanent protection visa granted since the Government's election in 2013.
In light of legislative amendments which were finally passed at the end of last year (Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)), it is unlikely that any other UMA will be granted a permanent protection visa in the foreseeable future (perhaps other than the small number of other UMAs who have also been denied permanent protection visas on national interest grounds).
That said, the fact that the Court has made an order requiring the grant of a visa may have important ramifications.
Other visa applicants might now ask a Court for an order that they be granted a particular visa, if they can show that a decision-maker considered their visa application and was satisfied that all criteria for the grant of that visa had been met. Of course, this will not be an easy task.
Brief background and reasons for decision
Following their election the Government took various regulatory and other steps to prevent the grant of permanent protection visas to UMAs.
One such measure was imposing a cap on the number of protection visas that could be granted in a financial year.
We originally commenced this proceeding in December 2013, challenging this measure.
In June 2014 the High Court found this measure invalid and issued a mandamus, requiring the Minister to decide our client's protection visa application according to law.
Thereafter the Minister refused to grant our client a protection visa because, and only because, he considered it was not in the national interest to grant permanent protection visa to UMAs: relying on cl 866.226 of Schedule 2 to the Migration Regulation 1994 (Cth).
On Wednesday, 11 February 2015, the High Court held this unlawful.
The primary basis for the Court's decision was that the consequences which flow from being an UMA were separately dealt with by s 46A of the Migration Act 1958 (Cth). That section prevents UMAs from applying for a visa unless the Minister first grants permission in the public interest to the person to apply, which the Minister had done in this case. That being so, the Court held that cl 866.226 does not then permit the Minister to attach an additional adverse consequence to being an UMA beyond that fixed by s 46A.
Our client is naturally thrilled by this result.
The decision has been widely reported including in The Australian and by News Limited.
Advice to people in financial hardship
Fragomen’s Litigation and Review practice provides advice to eligible people in financial hardship regarding their prospects of challenging migration decisions without an up-front fee.
For more information, email Farid Varess, [email protected].
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