High Court protection visa challenge delayed until May

Today the High Court was due to hear argument in  two proceedings commenced in the Court’s original jurisdiction challenging the validity of regulations made by the Commonwealth with respect to protection visas.  The challenge arose in the following way.  On 18 October 2013 the newly-elected Abbott Government introduced a new subclass of protection visa, the Subclass 785 temporary protection visa.  The Migration Amendment (Temporary Protection Visa) Regulation 2013inserted clause 866.222 which had the effect that “unauthorised maritime arrivals” could only obtain a temporary protection visa, not a permanent protection visa.  This regulation was disallowed by the Senate on 2 December 2013.  On 16 December 2013 the Government made Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 which again inserted a clause 866.222 which had the effect that a permanent protection visa could not be granted to an unauthorised maritime arrival.  In each case the plaintiffs claim that the second regulation is invalid, on the grounds that it is substantially the same as the earlier regulation that had within the previous 6 months been disallowed by the Senate (thereby invalid under section 48 of the Legislative Instruments Act 2003). They also claim it is invalid because, to the extent it deprives them of eligibility for a protection visa, it is inconsistent with section 36(2) of the Migration Act 1958. 

Yesterday, the hearing of this challenge was vacated, in order to allow a further disallowance motion in the Senate to run its course.  There are three possible outcomes of that disallowance motion.  One is that the disallowance motion is defeated, and the present challenge will need to continue.  A second possibility is that the disallowance motion will succeed, and a third possibility is that the disallowance motion will not be disposed of within 15 sitting days and the challenged regulation will automatically be deemed to be disallowed (under section 42 of the Legislative Instruments Act 2003).  In either case, the challenge to the validity of the regulation under section 48 of the Legislative Instruments Act 2003 will become moot, but the inconsistency argument would remain, and the there would be an issue as to the ongoing or interim effect of the regulation in the period prior to its disallowance. 

Apart from the issue of the outcome of the Senate disallowance motion, the proceedings are to be amended to add an additional challenge to the cap imposed on Tuesday on the number of protection visas that may be granted in the 2013/14 financial year.  It is clear from the explanatory memorandum that the limit of 2,773 protection visas reflects the number of protection visas that have already been granted in this financial year, and that (if valid) no further visas will be granted until 1 July 2015. If valid, this cap would effectively prevent the present applicants from being granted a protection visa whatever may be the outcome of the challenge to the regulations.