Plaintiff S297/2013 v Minister for Immigration and Border Protection

This case concerned an application for a permanent protection visa by the plaintiff, an unauthorised maritime arrival who entered Australia by sea in May 2012. The plaintiff had been granted permission to apply for a protection visa under s 46A(2) of the Migration Act 1958 (Cth) despite being an unauthorised maritime arrival. A delegate of the Minister initially refused the visa, but the Refugee Review Tribunal remitted the application for reconsideration. The Minister subsequently refused to grant the visa on 17 July 2014. The matter came before the Full Court of the High Court of Australia by way of a special case.

The legal issues before the Court were whether clause 866.226 of Schedule 2 to the Migration Regulations 1994 (Cth) was invalid, and if so, whether the Minister's decision to refuse the visa was made according to law. The Court was also asked to consider whether the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) converted the plaintiff's application into one for a temporary protection visa.

The Court determined that clause 866.226 of the Migration Regulations did not permit the Minister to refuse a visa application solely on the ground that the applicant was an unauthorised maritime arrival, beyond the consequences already prescribed by the Act. The Act itself provided specific consequences for unauthorised maritime arrivals, including the requirement for a public interest determination to allow them to make a valid visa application. The Court found that the clause did not authorise the imposition of an additional, general rule of refusal based on this status. Consequently, the validity of the clause was not reached, and the Court held that the Minister's decision to refuse the visa was not made according to law. The Court also found that the 2014 Amendment Act did not convert the plaintiff's application to one for a temporary protection visa.

The Court ordered that a peremptory writ of mandamus should issue commanding the Minister to grant the plaintiff a permanent protection visa forthwith. The defendants were ordered to pay the plaintiff's costs of the special case.