Minister for Immigration desperately clutching at all available straws

On 20 June 2014 the High Court ruled that a determination made by the Minister for Immigration and Border Protection on 4 March 2014, limiting the number of protection visas to be granted in the year ended 30 June 2014, was invalid.  Undeterred by recent defeats in the High Court, the Minister continues to thumb his nose at oversight by the Judiciary and Parliament, and is desperately clutching at every available straw to ensure that the plaintiffs’ success in the High Court is Pyrrhic.

In ruling in favour of the plaintiffs M150 and S297, the High Court proceeded by way of a Special Case, which asked the Court to answer particular questions of law on the basis of facts agreed between the parties. The facts agreed between the parties included that:

·      the plaintiffs were persons to whom Australia owed protection obligations.  In one case, it was agreed that the plaintiff faced a real chance of being seriously harmed or killed by extremist groups should he be returned to Pakistan. This engaged Australia’s complementary protection obligations.  In the other case, it was agreed that the plaintiff was a refugee within the meaning of the Refugees Convention.

·      the only criterion that prevented the plaintiffs from being granted a Protection Visa was criterion 866.222.  This criterion had the effect that a Protection Visa could not be granted to unauthorised maritime arrivals (who would instead, by virtue of other regulations, be granted a Temporary Protection Visa).

After the Special Case was referred to the High Court criterion 866.222 was disallowed by the Senate, and the regime of Temporary Protection Visas no longer provided a basis for refusing to grant the plaintiffs a Protection Visa.  With criterion 866.222 no longer relevant, it seemed to be implicit in the agreement between the parties that the plaintiffs otherwise satisfied the various criteria for the grant of a Protection Visa.

Based upon the agreed facts presented before the High Court, and the High Court ruling itself, it seemed that the plaintiffs were now assured of a grant of a Protection Visa.

Alas, the Minister had another card tucked away in his sleeve.  Undeterred by the High Court, on 30 June 2014 the Minister wrote to the plaintiffs inviting their comments on the possible adverse application of a different criterion for the grant of a Protection Visa, criterion 866.226.  This criterion says simply:  “The Minister is satisfied that the grant of the visa is in the national interest.”

The High Court transcript of the hearing last Friday does not reveal why the Minister considers that the grant of a Protection Visa to the plaintiffs might not be in the national interest.  However, recent media reports suggest that the Minister is considering an argument to the effect that it would not be in the national interest to grant the plaintiffs visas because to do so would undermine the Government’s stated policy of not granting Protection Visas to unauthorized maritime arrivals. 

Even more extraordinarily, the Minister has indicated that he will consider issuing a certificate under section 411(3) of the Migration Act (to the effect that it would be contrary to the national interest for the decision to be changed or reviewed) which would have the effect that any decision not to grant a Protection Visa in reliance upon criterion 866.226 could not be challenged in the Refugee Review Tribunal.

It appears that the Minister has so tightly wound himself up to prevent unauthorised maritime arrivals from obtaining Protection Visas that he is simply incapable of accepting defeat, and will try to exploit every conceivable loophole in the legislation to ensure Protection Visas are not issued, and that the implementation of the policy is beyond review.