Plaintiff S297/2013 v Minister for Immigration and Border Protection

The plaintiff, an unlawful non-citizen who had entered Australia without a visa and subsequently applied for a protection visa, brought proceedings against the Minister for Immigration and Border Protection. The dispute concerned the validity of an instrument signed by the Minister on 4 March 2014, which purported to limit the number of protection visas that could be granted in the financial year ending 30 June 2014. The plaintiff argued that this determination was invalid and prevented the consideration of his protection visa application. The matter was heard by the Full Court of the High Court of Australia as a special case.

The central legal issue before the Full Court was whether the Minister possessed the power under section 85 of the *Migration Act 1958* (Cth) to make a determination limiting the number of protection visas granted in a financial year. The plaintiff contended that section 85 did not extend to protection visas, and further argued that even if it did, the instrument was invalid for other reasons, including improper purpose and failure to comply with gazettal requirements.

The Full Court, in answering the questions posed in the special case, determined that the Minister's determination made on 4 March 2014 was invalid. The Court found that the power conferred by section 85 of the *Migration Act* did not extend to making determinations in relation to protection visas. Consequently, it was unnecessary to consider the plaintiff's further submissions regarding improper purpose or procedural defects.

The High Court ordered that the Minister's determination of 4 March 2014 was invalid. It further ordered that a writ of mandamus should be granted, directing the Minister to consider and determine the plaintiff's application for a Protection (Class XA) visa according to law. The defendants were ordered to pay the costs of the special case, with the costs of the remainder of the proceeding to be determined by a single Justice.