Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND KEANE JJ

PLAINTIFF S4/2014 PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR DEFENDANTS

Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34 11 September 2014 S4/2014

ORDER

The questions asked by the parties in the special case dated 29 April 2014 and referred for consideration by the Full Court be answered as follows:

Question 1

Was the grant of the TSH visa [Subclass 449 Humanitarian Stay (Temporary) visa] to the plaintiff invalid?

Answer

Yes.

Question 2

If the answer to question 1 is "yes", was the grant of the THC visa [Subclass 786 Temporary (Humanitarian Concern) visa] to the plaintiff invalid?

Answer

Yes.

Question 3

If the answer to question 2 is "yes", is the Minister bound to determine that s 46A(1) of the Migration Act does not apply to an application by the plaintiff for a protection visa?

Answer

It is not appropriate to answer this question.

Question 4

If the answer to question 3 is "no", is the Minister bound to determine whether s 46A(1) of the Migration Act does not apply to an application by the plaintiff for a protection visa?

Answer

It is not appropriate to answer this question.

Question 5

What, if any, relief sought in the plaintiff's further proposed statement of claim filed 8 April 2014 should be granted to the plaintiff?

Answer

Certiorari to quash the decision of the Minister dated 4 February 2014 to grant to the plaintiff a Subclass 449 Humanitarian Stay (Temporary) visa and a Subclass 786 Temporary (Humanitarian Concern) visa together with an order that the defendants pay the plaintiff's costs of the proceeding in this Court including the costs of the special case.

Question 6

Who should pay the costs of the proceeding?

Answer

The defendants.

Representation

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