Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

PLAINTIFF S297/2013 PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR DEFENDANTS

Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24 20 June 2014 S297/2013

ORDER

The questions asked by the parties in the special case dated 22 April 2014 and referred for consideration by the Full Court be answered as follows:

Question 1

Is the Minister's determination made on 4 March 2014 pursuant to s 85 of the Migration Act invalid?

Answer

Yes.

Question 2

What, if any, relief sought in the further amended writ of summons and further amended statement of claim, dated 1 April 2014, should be granted to the plaintiff?

Answer

A writ of mandamus directing the first defendant to consider and determine the plaintiff's application for a Protection (Class XA) visa according to law.

Question 3

Who should pay the costs of the proceeding?

Answer

The defendants should pay the costs of the special case. The costs of the balance of the proceeding should be determined by a single Justice.

Representation

S B Lloyd SC with J B King for the plaintiff (instructed by Fragomen)

S P Donaghue QC with P D Herzfeld for the defendants (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Plaintiff S297/2013 v Minister for Immigration and Border Protection

Migration – Refugees – Protection visas – Power of Minister under s 85 of Migration Act 1958 (Cth) to determine maximum number of visas of specified class granted in specified financial year, in circumstances where s 65A imposed time limit in which protection visa applications must be decided – Minister signed instrument limiting number of protection visas granted in current financial year – Plaintiff's protection visa application not determined by Minister pursuant to that determination – Whether power under s 85 extended to protection visas – Whether instrument valid.