This week in the High Court of Australia

The High Court will hear argument in three cases this week.

Today sees the continuation of the argument in Plaintiff S156/2013 v Minister for Immigration and Border Protection, in which the plaintiff challenges amendments to the Migration Act 1958 purporting to authorise the removal of Unauthorised Maritime Arrivals to designated regional processing countries (in this particular case, Papua New Guinea).

On Wednesday the Court will hear argument in two related cases, Plaintiff S297/2013 v Minister for Immigration and Border Protection and Plaintiff M150/2013 v Minister for Immigration and Border Protection.  On 18 October 2013 the newly-elected Abbott Government made the Migration Amendment (Temporary Protection Visa) Regulation 2013.  This regulation inserted clause 866.222, which had the effect that “unauthorized maritime arrivals” could only obtain a temporary protection visa, not a permanent protection visa.  The 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 unauthorized maritime arrival.  The cases were originally listed for hearing by the High Court on 7 Mach 2014.  At that stage, the plaintiffs claimed that the second regulation was invalid, on the grounds that it was 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 claimed it was invalid because, to the extent it deprived them of eligibility for a protection visa, it was inconsistent with section 36(2) of the Migration Act 1958. 

On 6 March 2014, the day before the hearing was due to commence,  a motion was pending before the senate to disallow the second regulation.  Accordingly, the hearing was vacated because the issues raised by the case would become moot if the regulation were ultimately disallowed.  The Senate in fact disallowed the second regulation on 27 March 2014.  However, on 5 March 2014 the Minister purported to exercise his power under section 85 of the Migration Act 1958 which provides that the Minister may, by notice in the Gazette, determine the maximum number of the visas of a specified class that may be granted in a specified financial year.  The determination purported to limit the number of protections visas that could be granted in the 2013/4 financial year, a limit that was reached on 24 March 2014.  Accordingly, the present proceedings raise different issues to those raised when they were first commenced.

The plaintiffs collectively now raise a number of different challenges to their inability to be granted a Protection Visa because of the March 2014 Determination.  Firstly, it is asserted that as a matter of statutory construction the power under section 85 does not extend to protection visas.  This is because it is inconsistent with the operation of section 65A, which imposes a 90-day time limit for the making of a decision under section 65 to grant (or not to grant, as the case may be) a protection visa.  Secondly, it is asserted that the registration of the instrument by which the Minister made the March 2014 Determination (in the Federal Register of Legislative Instruments, pursuant to section 56(1) of the Legislative Instruments Act 2003) did not satisfy the requirement that the determination be by “notice in the Gazette”.  Thirdly, it is asserted that the March 2014 Determination was made for an improper purpose.