Plaintiff M40/2015 v Minister for Immigration and Border Protection & Anor; Plaintiff M41/2015 v Minister for Immigration and Border Protection & Anor

These two cases, heard together, concerned applications for an order of certiorari to quash decisions made by the Minister for Immigration and Border Protection to refuse to grant the plaintiffs a protection visa. The plaintiffs, who were asylum seekers, had arrived in Australia by boat and were detained offshore. The dispute centred on the lawfulness of the Minister's decisions to refuse their visa applications, which were made under s 46B of the *Migration Act 1958* (Cth). The applications were heard by Hayne J in the High Court of Australia.

The primary legal issue before the Court was whether the Minister's decisions to refuse the protection visa applications were vitiated by jurisdictional error. Specifically, the Court was required to determine whether the Minister, in making those decisions, had failed to exercise the power conferred by s 46B of the *Migration Act* according to law. This involved an examination of whether the Minister had properly considered the relevant criteria and had not taken into account irrelevant considerations.

Hayne J reasoned that the Minister's power under s 46B of the *Migration Act* to refuse a protection visa is engaged only if the applicant has arrived in Australia in breach of the Act. In this instance, the plaintiffs had arrived by boat and were therefore subject to the provisions of s 46B. However, the Court found that the Minister's delegate had failed to consider whether the plaintiffs had arrived in Australia in breach of the Act, which was a necessary prerequisite for the exercise of the power to refuse the visa. This failure constituted a jurisdictional error, as the delegate had purported to exercise a power that had not been engaged.

Consequently, Hayne J made orders absolute for certiorari, quashing the decisions of the Minister to refuse the protection visa applications. The matter was remitted to the Minister for reconsideration according to law.