Plaintiff M47/2012 v Director-General of Security

The High Court of Australia considered the case of Plaintiff M47/2012, who sought a protection visa. The plaintiff, a national of Sri Lanka and a former member of the LTTE, was found to be a refugee with a well-founded fear of persecution if returned to his home country. However, his application for a protection visa was refused because the Australian Security Intelligence Organisation (ASIO) had assessed him as posing a risk to security. The plaintiff had been held in immigration detention since his visa expired upon arrival in Australia.

The legal issues before the Court included whether ASIO had denied the plaintiff procedural fairness in its assessment, whether the plaintiff's continued detention under sections 189 and 196 of the *Migration Act 1958* (Cth) was authorised, and crucially, whether clause 866.225(a) of Schedule 2 to the *Migration Regulations 1994* (Cth), which prescribed the public interest criterion 4002 (requiring an applicant not to be assessed as a risk to security by ASIO), was validly made under section 31(3) of the *Migration Act*.

The Court reasoned that ASIO had not denied the plaintiff procedural fairness in its assessment, as the nature of procedural fairness in this context depended on how the assessment was used and the decision ultimately made. The Court also found that the plaintiff was validly detained for the purpose of determining his protection visa application. However, the Court held that the prescription of public interest criterion 4002 as a criterion for the grant of a protection visa was beyond the power conferred by section 31(3) of the *Migration Act* and was therefore invalid.

Consequently, the Court amended Question 2A of the Special Case and answered it by declaring the relevant clause of the Regulations invalid. The Court also answered that the plaintiff was not denied procedural fairness and that his detention was authorised. The defendants were ordered to pay the costs of the special case.