Plaintiff S4/2014 v Minister for Immigration and Border Protection

The High Court of Australia considered a special case brought by the plaintiff, a stateless individual who arrived in Australia by boat and was detained as an unlawful non-citizen. The dispute concerned the Minister's decision to grant the plaintiff a temporary safe haven visa and a temporary humanitarian concern visa, which, under section 91K of the *Migration Act 1958* (Cth), precluded the plaintiff from making a valid application for a protection visa. The plaintiff argued that these visa grants were invalid and that the Minister was bound to determine whether to exercise his power under section 46A(2) of the Act to permit a valid application for a protection visa.

The central legal issues before the Full Court were whether the grants of the temporary safe haven visa and the temporary humanitarian concern visa were invalid, and if so, whether the Minister was then bound to determine whether to permit the plaintiff to apply for a protection visa under section 46A(1) or to determine how the power under section 46A(2) would be exercised. The Court was asked to consider if the Minister's power under section 195A(2) to grant a visa could be exercised in a way that prevented a valid application for a protection visa, particularly when the Minister had indicated an intention to consider exercising his personal intervention powers under section 46A(2).

The Court reasoned that the Minister's decision to consider exercising his power under section 46A(2) to allow a protection visa application meant that the plaintiff's detention was prolonged for the purpose of making necessary inquiries. Consequently, until the Minister made a decision under section 46A, section 195A did not empower the Minister to grant a visa that would preclude a valid protection visa application. The Court found that the decision to grant both the temporary safe haven visa and the temporary humanitarian concern visa was a single, indivisible decision, and therefore, the invalidity of the former rendered the latter invalid as well.

The Court answered the questions posed in the special case, finding that the grant of the temporary safe haven visa was invalid. It further determined that if the grant of the temporary safe haven visa was invalid, then the grant of the temporary humanitarian concern visa was also invalid. The Court ordered that certiorari issue to quash the Minister's decision to grant these visas to the plaintiff and ordered the defendants to pay the plaintiff's costs. The Court deemed it inappropriate to answer questions concerning the Minister's obligation to determine the exercise of his powers under section 46A.