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

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

The power conferred by s 85 of the Migration Act 1958 (Cth) does not extend to protection visas because s 65A expressly requires the Minister to make a decision on protection visa applications within 90 days, and this duty cannot be suspended by a ministerial capping determination. The conflicting operation is resolved by giving primacy to s 65A. The Minister's 4 March 2014 determination was therefore invalid to the extent it purported to set a maximum number of protection visas.

Parties
Plaintiff: Plaintiff S297/2013; First Defendant: Minister for Immigration and Border Protection; Second Defendant: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
20 June 2014
Procedural Posture
Special Case (original Jurisdiction of High Court) / Full Court Determination of Special Case Questions
Outcome
Minister's determination of 4 March 2014 under s 85 is invalid; relief by writ of mandamus is granted; costs ordered against defendants in respect of the special case, with balance of costs to be determined by a single Justice.
Legal Topics
Protection Visas, Ministerial Powers Under Migration Act, Statutory Interpretation, Jurisdiction of High Court (s 75(v) of the Constitution)
Migration Law Administrative Law Protection Visas Ministerial Powers Under Migration Act Statutory Interpretation Jurisdiction of High Court (s 75(v) of the Constitution)

Case Brief

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Parties

Plaintiff S297/2013

Plaintiff

Minister for Immigration and Border Protection

First Defendant

Commonwealth of Australia

Second Defendant

Procedural Posture

Special Case (original Jurisdiction of High Court) / Full Court Determination of Special Case Questions

Legal Issues

  1. 1 Whether the Minister's determination under s 85 of the Migration Act 1958 (Cth) is valid in relation to protection visas
  2. 2 Whether s 85 empowers the Minister to limit the number of protection visas granted per financial year
  3. 3 Whether the Minister's determination conflicted with s 65A mandating timeliness of decision for protection visas

Ratio Decidendi

The power conferred by s 85 of the Migration Act 1958 (Cth) does not extend to protection visas because s 65A expressly requires the Minister to make a decision on protection visa applications within 90 days, and this duty cannot be suspended by a ministerial capping determination. The conflicting operation is resolved by giving primacy to s 65A. The Minister's 4 March 2014 determination was therefore invalid to the extent it purported to set a maximum number of protection visas.

Court Disposition

Minister's determination of 4 March 2014 under s 85 is invalid; relief by writ of mandamus is granted; costs ordered against defendants in respect of the special case, with balance of costs to be determined by a single Justice.

Orders

  • Answer to Question 1: Yes, the Minister's determination made on 4 March 2014 pursuant to s 85 of the Migration Act is invalid.
  • Answer to Question 2: 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.