Plaintiff M79/2012 v Minister for Immigration and Citizenship

The plaintiff, an unlawful non-citizen and an "offshore entry person" from Sri Lanka, sought judicial review of the Minister's decision to grant him a temporary safe haven visa. The dispute concerned the validity of this visa grant and, consequently, the validity of the plaintiff's subsequent application for a protection visa. The matter was brought before the Full Court of the High Court of Australia by way of a special case.

The court was required to determine whether the Minister had the power to grant the temporary safe haven visa under section 195A(2) of the *Migration Act 1958* (Cth), particularly when the Minister had not considered whether the plaintiff actually required temporary safe haven. A further issue was whether the decision to grant the visa was made for an improper purpose, and whether the plaintiff's application for a protection visa was valid, given the operation of sections 91J and 91K of the Act which impose bars on making such applications.

The court reasoned that the Minister's power under section 195A(2) to grant a visa in the public interest was not constrained by the specific purposes for which a particular class of visa was created. The court found that the Minister's decision to grant the temporary safe haven visa was a valid exercise of the power conferred by section 195A(2), as the purposes for which it was granted were not shown to be beyond the scope and purpose of the Act or the power itself, and therefore were not improper purposes. Consequently, the court held that the plaintiff's subsequent application for a protection visa was not valid due to the operation of sections 91J and 91K of the Act.

The court answered the questions posed in the special case as follows: the plaintiff was validly granted the temporary safe haven visa; the plaintiff's application for a protection visa was not valid; and the plaintiff was ordered to pay the costs of the special case.