No Right to Limit Protection Visa Numbers: [2014] HCA 24 and [2014] HCA 25

The High Court late today (20 June 2014) handed down two judgments on the maximum number of visas allowed to be issued by the Minister for offshore processed refugees in the cases of Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24 and Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25.

Facts

In both cases, the refugees in question were processed as  an "offshore entry person" within the meaning of s 5(1) of the Migration Act 1958 (Cth) as it then stood.  From 1 June 2013, both applicants fell within the statutory definition of an "unauthorised maritime arrival".  They were also,  originally, "unlawful non-citizens" within the meaning of ss 5 and 14 of the Migration Act 1958 (Cth) and, accordingly, were held in and the first applicant remains in immigration detention on Manus Island.

Issues in Case

Both applicants were refused Protection Visas for differing reasons but had those decisions overturned at the Refugee Review Tribunal. Their applications for protection visas remain undetermined.

Section 85 of the Migration Act 1958 (Cth) provides that the Minister may, by notice in the Commonwealth of Australia Gazette, determine the maximum number of visas of a specified class that may be granted in a specified financial year.  Protection visas are a class of visa provided for by s 36.  Under s 65, the Minister has a duty, after considering a valid application for a visa, to grant the visa if satisfied that certain conditions are met and to refuse to grant the visa if not so satisfied.  Section 65A imposes a duty on the Minister to make a decision on protection visa applications within 90 days.

In proceedings initiated in the High Court, the plaintiff claimed that the instrument limiting the number of protection visas which may be granted was invalid and that the Minister was bound to consider and determine his application and grant him a protection visa.  A special case stated questions of law for determination by the Full Court.

Decision of the High Court

The High Court held that the instrument was invalid.  In light of the time limit imposed by s 65A on the determination of protection visa applications, s 85 did not empower the Minister to determine the maximum number of protection visas that may be granted in a financial year.  The Court ordered that the Minister consider and determine the plaintiff's application for a protection visa according to law.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

High Court Cases - Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25