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[2015] HCA 3
appellant. The Court held that the Minister’s refusal was not made according to law, ordered a peremptory writ of mandamus requiring the Minister to grant the plaintiff a permanent protection visa forthwith,...
The Minister had allowed the plaintiff to apply for a protection visa, but later refused it solely because the plaintiff had arrived in Australia by sea without authorisation. The High Court said the Migration Act had already specified the consequences of that status, and the visa criterion could not be used to add a further penalty by refusing the application on that basis alone. Because the Minister had identified no other reason for refusal and the other visa criteria were agreed to be met, the Court required the Minister to grant a permanent protection visa. It also held that the later conversion regulation did not turn the application into one for a temporary protection visa.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,192 words · generated 04/10/2026
Plaintiff S297/2013 concerned the relationship between a statutory restriction on visa applications by unauthorised maritime arrivals and a general visa criterion requiring the Minister to be satisfied that granting a protection visa was “in the national interest”. The High Court’s reasons were delivered by French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ.
4 cited instruments linked from this judgment.
The plaintiff entered Australia by sea at Christmas Island without a visa in May 2012 ([9]). At that time, he was described in the Migration Act 1958 (Cth) as an “offshore entry person”; after amendments commencing in June 2013, the relevant statutory term became “unauthorised maritime arrival” ([9]). His status meant he could not make a valid visa application unless the Minister lifted the statutory bar.
In September 2012, the Minister made a determination under s 46A(2) that it was in the public interest for the plaintiff to make a valid application for a protection visa ([10]). A delegate refused the application in February 2013. The Refugee Review Tribunal remitted it in May 2013, having found that the plaintiff satisfied s 36(2)(a), the criterion concerning Australia’s protection obligations to a person covered by the Refugees Convention as amended by the Refugees Protocol ([10]).
After further proceedings, a writ of mandamus issued by consent on 1 July 2014. It required the Minister to consider and determine the plaintiff’s application according to law ([12]). The Minister then refused the visa on 17 July 2014. The parties agreed that the only reason was that the Minister was not satisfied that granting the visa was in the national interest. In substance, the Minister treated the plaintiff’s status as an unauthorised maritime arrival as requiring refusal for every applicant in that position ([13]).
The plaintiff challenged the Minister’s return to the writ, saying it did not show compliance with the command. Meanwhile, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) had introduced a statutory category of permanent protection visas and a mechanism by which regulations could convert some existing applications into temporary protection visa applications ([26]-[29]). The defendants argued that the plaintiff’s application had been converted under reg 2.08F.
The Court rejected that argument. It held that the Minister’s refusal was not according to law, the application had not been converted, and the appropriate relief was a peremptory writ requiring the Minister to grant a permanent protection visa forthwith ([48]).
The central construction question was whether cl 866.226 allowed the Minister to treat the plaintiff’s unauthorised maritime arrival status as, by itself, enough to refuse the visa. The clause required the Minister to be satisfied that the grant of the visa “is in the national interest” ([3]). The Court accepted that this language could permit consideration of a wide range of matters. It referred to Hot Holdings Pty Ltd v Creasy for the proposition that a decision-maker applying a national-interest criterion may take account of broad considerations, including political ones ([18]).
But the breadth of the criterion did not resolve the statutory question. The Court asked whether the criterion could be applied so as to add an adverse consequence to the consequences Parliament had already attached to the applicant’s status ([20]-[21]). Under s 46A, an unauthorised maritime arrival could not make a valid visa application unless the Minister personally determined that the bar should not apply to an application for a specified class of visa. Here, the Minister had made such a determination for the plaintiff ([10]).
The Court read s 46A as exhaustively prescribing the visa consequences of being an unauthorised maritime arrival. It concluded that the general words of cl 866.226 could not be used to create an additional rule that any otherwise valid application by such a person must be refused ([21]). Because the Minister relied only on the plaintiff’s status, the refusal was legally wrong.
This approach also explains why the Court did not decide whether cl 866.226 was invalid. It construed the clause not to authorise the challenged decision. Since that construction resolved the case, deciding validity was unnecessary ([17], [21], [23]-[24]). The judgment should therefore not be described as holding cl 866.226 invalid.
The conversion issue turned on the terms of reg 2.08F(3). Paragraph (a) addressed cases where, before the regulation commenced, the Minister “had not made a decision” under s 65. The Court held this referred to whether a decision had in fact been made, not whether it was legally effective. Reading it otherwise would deprive para (b)(iii), which expressly deals with a court quashing a decision, of work ([31]-[33]). The Minister had in fact made a decision, so para (a) did not apply.
Nor did para (b)(iii) apply. The plaintiff was not seeking an order quashing the Minister’s decision and requiring reconsideration. He was seeking to enforce the existing writ of mandamus. The Court explained that a peremptory mandamus is not, in form or substance, an order quashing a decision and directing reconsideration ([35]-[39]). The application therefore remained one for a Protection (Class XA) visa and was not converted to a Temporary Protection (Class XD) visa ([30]).
Finally, the Court considered the proper remedy. The original writ required the Minister to consider and determine the application according to law. The Minister’s return was insufficient because the only reason for refusal was legally wrong ([35]-[40]). The Minister had not identified any other reason, and it was agreed that the other visa criteria had been satisfied ([45]). The Court considered that another opportunity to identify a new reason was not warranted on the facts before it ([40]-[41]). Relying on the remedial power in s 32 of the Judiciary Act 1903 (Cth), it ordered a peremptory mandamus requiring the grant of the permanent protection visa, thereby finally resolving the controversy ([44]-[47]).
Before this decision, s 46A established a bar on valid visa applications by unauthorised maritime arrivals, subject to a personal ministerial determination permitting an application for a specified visa class. In this case, that exception had been made for the plaintiff ([2], [10]). The visa regulations also included cl 866.226, requiring the Minister to be satisfied that a protection visa grant was in the national interest ([3]).
The judgment clarified how those provisions fitted together. The national-interest criterion was not a free-standing authority to impose a further status-based bar after the Minister had lifted the application bar under s 46A. The Court treated the Act’s specification of visa consequences as exhaustive and read the general criterion consistently with that scheme ([21]). The holding was about the construction and application of the provisions in this case. It did not decide that the clause was invalid, nor did it determine every circumstance in which unauthorised maritime arrival status might be relevant to a visa decision ([17], [23]).
The 2014 Amendment Act introduced the statutory categories of permanent and temporary protection visas and authorised conversion regulations for certain applications ([26]-[28]). The judgment established that, on the particular language of reg 2.08F(3), a legally ineffective decision could still be a decision “made” for para (a), where the Minister had in fact made it. It also distinguished the regulation’s quashing-and-reconsideration trigger from an application to enforce an earlier mandamus ([31]-[39]).
After the judgment, the operative order in this matter was that the Minister had to grant the plaintiff a permanent protection visa. The Court did not determine the validity of cl 866.226, whether the broader scheme raised the other inconsistencies argued by the plaintiff, or the effect of a relevant change in circumstances not present in the case ([23]-[24], [41]).
At [21], the Court said that s 46A “states exhaustively what visa consequences attach to being an unauthorised maritime arrival”. In plain English, the Act had already set the consequences of that status for visa applications. The Minister could not use a general criterion to add another consequence, namely automatic refusal of an application the Minister had permitted.
At [20], the Court explained that the issue was not whether a public policy existed or whether the Minister was bound by it in some general sense. The question was whether the statute permitted the policy to make the applicant’s status determinative. This mattered because the Court was not deciding the case through doctrines of bias, prejudgment or fettering of discretion ([20]).
At [32], the Court said the phrase “had not made a decision” in reg 2.08F(3)(a) referred to whether a decision had actually been made, “regardless of whether what had been done was legally effective”. In plain English, the regulation’s trigger was about whether the Minister had made a decision in fact, not whether that decision could withstand judicial review.
At [38]-[39], the Court distinguished a peremptory mandamus from an order quashing a decision. A peremptory mandamus enforces the original writ’s command where the return has not shown compliance. It is not equivalent to setting the decision aside and directing a fresh reconsideration.
At [45], the Court said the requirement to provide remedies that finally quell the controversy permitted, and in this case required, a mandamus that did not repeat the original writ’s wording. The practical point was that the original command was to decide according to law, but the Court’s final order specified the required result because the only reason given for refusal was wrong and the other criteria were agreed to be satisfied.
The central construction reasoning is most directly engaged where a statute creates a defined consequence for a person’s status, a decision-maker has lifted a statutory bar for an application, and a general regulatory criterion is then used to impose a further adverse consequence solely because of that same status. The key features here were the specific statutory scheme in s 46A, the Minister’s determination permitting the plaintiff to apply, and the sole reason given for refusal ([10], [13], [21]).
The remedy reasoning depended on additional features. The plaintiff already had an operative writ requiring lawful determination; the Minister returned it as complied with; the only stated refusal reason was legally insufficient; and the parties agreed the other prescribed criteria were satisfied ([35]-[46]). The Court expressly noted that no relevant change in circumstances was alleged apart from the 2014 Amendment Act ([41]). The judgment therefore does not establish what relief would be appropriate if another refusal ground remained available, if other visa criteria were contested, or if circumstances had materially changed.
The conversion analysis is relevant to the particular structure of reg 2.08F(3): a first trigger for cases where no decision had been made, and a second trigger involving a court order quashing a decision and requiring reconsideration. Its reasoning turns on those words and the relationship between the two paragraphs ([29]-[39]); it should not be detached from that text.
The supplied judgment contains no account of later judicial treatment of Plaintiff S297/2013. It identifies earlier authorities that it cited, including Hot Holdings Pty Ltd v Creasy, Jia Legeng, Bhardwaj, and authorities concerning mandamus and the Court’s remedial power. Those citations show the authorities the Court drew upon in its own reasoning, not how later courts applied this judgment.
Accordingly, no claim about subsequent treatment, approval, limitation or distinction can be grounded in the supplied text. A researcher would need to consult later judgments and legal sources to establish that history. Within this judgment itself, the Court’s key holding is the construction of s 46A and cl 866.226, and its application of reg 2.08F(3) to the particular procedural history ([21], [30]-[39]).
The Court expressly left unresolved whether cl 866.226 was invalid. The plaintiff had argued that the clause was inconsistent with ss 501(3) and 501C and departed from the Act’s protection visa scheme, but the Court did not decide those issues ([23]-[24]). Its reasoning instead relied on a construction that avoided the asserted conflict in the circumstances before it.
The Court also did not decide whether the regional processing provisions in ss 198AA-198AJ independently supported its conclusion. It said those provisions were at least consistent with its construction and did not detract from it, but found it unnecessary to decide their role ([22]).
The judgment did not determine the consequences of a relevant change in circumstances between the original writ and the decision on the return. It said no such change had been alleged, apart from the 2014 Amendment Act, and therefore did not need to examine that hypothetical ([41]). Nor did it set out how the remedy would differ if a separate, legally sufficient ground for refusal had been identified.
Finally, the decision does not resolve the full range of circumstances in which national-interest considerations may be relevant to visa decisions. It acknowledges the potentially broad range of considerations under such a criterion ([18]-[19]), but holds that, in this statutory setting, the applicant’s status could not alone be treated as determinative after the s 46A application bar had been lifted ([21]). This is general legal information, not legal advice. Zoe can make mistakes; before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, 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
[2015] HCA 3
11 February 2015
S297/2013
ORDER
The questions asked by the parties in the special case dated 22 September 2014 and referred for consideration by the Full Court be answered as follows:
Question 1
Is clause 866.226 of Sch 2 to the Migration Regulations invalid?
Answer
It is not necessary to answer this question.
Question 2
Was the decision made by the Minister on 17 July 2014 to refuse to grant a protection visa to the plaintiff made according to law?
Answer
No.
Question 3
What, if any, relief should be granted to the plaintiff?
Answer
A peremptory writ of mandamus should issue commanding the first defendant to grant the plaintiff a permanent protection visa forthwith.
Question 4
Who should pay the costs of this special case?
Answer
The defendants.
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 Sched 2, cl 866.226 of Migration Regulations 1994 (Cth) to decide application for protection visa if Minister satisfied that grant of visa "is in the national interest" – Whether cl 866.226 invalid – Whether cl 866.226 permitted Minister to refuse to grant protection visa solely on ground that application for visa made by unauthorised maritime arrival.
Administrative law – Judicial review – Mandamus – Return of writ insufficient – Plaintiff sought order issuing peremptory writ of mandamus – Reg 2.08F of Migration Regulations 1994 (Cth) applied where court quashed decision of Minister in relation to application for protection visa and ordered Minister to reconsider application in accordance with law – Whether reg 2.08F applied.
Words and phrases – "is in the national interest", "peremptory mandamus", "unauthorised maritime arrival".
Migration Act 1958 (Cth), ss 45AA, 46A.
Migration Regulations 1994 (Cth), reg 2.08F, Sched 2, cl 866.226.
The issues
The Migration Act 1958 (Cth) ("the Act") provides2 that an unauthorised maritime arrival3 may not make a valid application for a visa but that the Minister may determine4 that it is in the public interest to lift that bar and permit an unauthorised maritime arrival to apply for a visa of a class specified in the determination. The plaintiff is an unauthorised maritime arrival. In 2012, the Minister determined that it was in the public interest that the plaintiff be permitted to make a valid application for a Protection (Class XA) visa.
At relevant times, the Act and the Migration Regulations 1994 (Cth) ("the Regulations") prescribed criteria for the grant of a Protection (Class XA) visa which included5 that the Minister be satisfied that the grant of the visa "is in the national interest" ("the cl 866.226 criterion"). In 2014, in intended satisfaction of a writ of mandamus commanding the Minister "to consider and determine the Plaintiff's application for a Protection (Class XA) visa according to law or show cause why it has not been done", the Minister decided that he was not satisfied that it was in the national interest to grant the plaintiff the visa he sought. The only reason given for that conclusion was that the plaintiff was an unauthorised maritime arrival.
There are three issues. On its true construction, did the cl 866.226 criterion authorise a decision made by reference only to the plaintiff being an unauthorised maritime arrival? If it did, is the cl 866.226 criterion valid? Does the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) ("the 2014 Amendment Act") convert the plaintiff's application for a Protection (Class XA) visa into an application for a Temporary Protection (Class XD) visa?
A summary of the principal conclusions
The construction issue should be resolved in the plaintiff's favour. The Act prescribes consequences that follow from being an unauthorised maritime arrival. In particular, the Act provides that no unauthorised maritime arrival may make a valid application for any visa unless the Minister, acting personally, determines that it is in the public interest to permit the person to make a valid application for a visa of a class specified in the determination. The cl 866.226 criterion does not permit the Minister to attach an additional consequence to being an unauthorised maritime arrival beyond those fixed by the Act. It does not authorise application of a general rule that a valid application by an unauthorised maritime arrival for a visa of the class specified in the Minister's determination must be refused. This being so, the validity issue is not reached.
The 2014 Amendment Act does not convert the plaintiff's application for a Protection (Class XA) visa to an application for a Temporary Protection (Class XD) visa.
The Minister must grant the plaintiff what the Act now calls a permanent protection visa. A peremptory writ of mandamus to that effect should issue. The Minister and the Commonwealth should pay the plaintiff's costs.
The facts and procedural history
It is necessary to refer to the principal events in the factual and procedural history that yield the issues identified at the outset of these reasons.
In May 2012, the plaintiff entered Australia by sea at Christmas Island without a visa. He was what the Act then called6 an "offshore entry person". Because he had no valid visa, he was7 an "unlawful non‑citizen". With effect from June 2013 the Act was amended8, and an offshore entry person became an "unauthorised maritime arrival"9.
Because the plaintiff was an unlawful non‑citizen and an offshore entry person (and later, was an unauthorised maritime arrival), he could not make10 a valid application for a visa. But in September 2012, the Minister determined, under s 46A(2) of the Act, that it was in the public interest that the bar to the plaintiff making a valid application for a visa should not apply to an application by the plaintiff for a protection visa. (At that time this was a reference to what the Regulations identified as a Protection (Class XA) visa.) In February 2013, a delegate of the Minister refused to grant the plaintiff a Protection (Class XA) visa. The plaintiff sought the review of that decision by the Refugee Review Tribunal. In May 2013, the Tribunal remitted the plaintiff's visa application to the Minister for reconsideration in accordance with the Tribunal's direction that the plaintiff satisfied s 36(2)(a) of the Act. That is, the Tribunal was satisfied that the plaintiff was "a non‑citizen in Australia in respect of whom ... Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol".
The Minister did not decide the plaintiff's application. As this Court has previously explained11, various regulatory and other steps were taken between October 2013 and March 2014 which, it may be inferred, were thought to permit the Minister not to make a decision whether to grant or refuse the application. And in December 2013 the plaintiff began proceedings, in the original jurisdiction of this Court, seeking to have some of those steps declared invalid, or at least ineffective to prevent him being granted the visa for which he had applied. In June 2014, the Court answered questions reserved for its consideration in the form of a special case in the proceedings which the plaintiff had brought. (The argument in that special case was heard at the same time as argument in a special case in another proceeding brought by another plaintiff – Plaintiff M150 of 2013 – and the decisions in the two special cases were published at the same time.)
Construing the cl 866.226 criterion
Although the plaintiff commenced his argument by alleging that the cl 866.226 criterion is invalid, it is neither necessary nor desirable to enter upon that controversy. Nothing in these reasons should be understood as suggesting that the validity of the criterion is or is not open to doubt.
In Hot Holdings Pty Ltd v Creasy16 three members of this Court noted that "[i]t has been said that 'the whole object' of a statutory provision placing a power into the hands of the Minister 'is that he may exercise it according to government policy'17". And where, as here, the criterion to be applied by the Minister requires the Minister to be satisfied that the grant of the visa is "in the national interest", the decision‑maker "may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister's continuance in office"18.
Some of those considerations may admit of the formulation of rules of more or less general application which can be understood as expressing some aspect of the Minister's understanding of what may or may not be "in the national interest". This Court's decision in Minister for Immigration and Multicultural Affairs v Jia Legeng19 (about the Minister's application of "the character test" in the Act) illustrates how there may be "elements of the decision‑making process about which a decision‑maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case"20. But, as was pointed out in Jia Legeng21, those views cannot proceed from, or be based in, an error of law.
Hence, in the present matter, observing that the Minister applied a publicly stated government policy (that no unauthorised maritime arrival should be granted a Protection (Class XA) visa) when deciding that it was not in the national interest that the plaintiff be granted a visa of that class directs attention to how the cl 866.226 criterion should be construed. The application of the policy does not invoke, in this case, notions of prejudgment or bias22. Nor does the application of the policy invoke notions of fettering discretion. Rather, the application of the policy directs attention to whether, in applying the cl 866.226 criterion, the Minister could attach determinative and adverse significance to the plaintiff's status as an unauthorised maritime arrival in addition to those consequences which the Act expressly attributes to that status. That is, did the criterion permit the Minister to treat the plaintiff's status as an unauthorised maritime arrival as sufficient to justify the conclusion that it was not in the national interest to grant the plaintiff the visa which he sought?
The 2014 Amendment Act
The 2014 Amendment Act inserted25 in the Act a new s 35A, providing that there is to be a class of permanent visas to be known as "permanent protection visas" and a class of temporary visas to be known as "temporary protection visas". The notes to both the definition of "protection visa" inserted26 in s 5(1) and the newly inserted s 35A(2) record that, when those provisions commenced, permanent protection visas were classified by the Regulations as Protection (Class XA) visas. Amendments made27 to the Regulations by the 2014 Amendment Act provided that the new class of temporary protection visas was to be classified as Temporary Protection (Class XD) visas. The Regulations still provide for those classes of visa.
The 2014 Amendment Act also inserted28 in the Act a new s 45AA. That section provides for certain visa applications to be taken to be applications for a different visa. In particular, s 45AA(3) provides that a regulation, referred to as a "conversion regulation", may provide that, despite anything else in the Act, a "pre‑conversion application" for a "pre‑conversion visa":
"(a) is taken not to be, and never to have been, a valid application for the pre‑conversion visa; and
(b) is taken to be, and always to have been, a valid application (a converted application) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre‑conversion visa."
The 2014 Amendment Act inserted29 in the Regulations a new reg 2.08F. Regulation 2.08F(1) is a conversion regulation of the kind provided for by s 45AA(3). Regulation 2.08F(1) provides for converting certain applications for Protection (Class XA) visas into applications for Temporary Protection (Class XD) visas. This conversion is to be made with respect to an application "made before the commencement of this regulation by an applicant prescribed by subregulation (2)". One of the classes of prescribed applicants is30 unauthorised maritime arrivals.
Regulation 2.08F(3) provides for when the regulation starts to apply and it is this provision which is of central importance in the present matter. So far as relevant, it provides:
"This regulation starts to apply in relation to a pre‑conversion application immediately after the occurrence of whichever of the following events is applicable to the application:
(a) if, before the commencement of this regulation, the Minister had not made a decision in relation to the pre‑conversion application under section 65 of the Act—the commencement of this regulation;
(b) in a case in which the Minister had made such a decision before the commencement of this regulation—one of the following events, if the event occurs on or after the commencement of this regulation:
...
(iii) a court quashes a decision of the Minister in relation to the pre‑conversion application and orders the Minister to reconsider the application in accordance with the law."
The defendants submitted that, if the cl 866.226 criterion was invalid, or the Minister had made an error of law in applying the criterion, either or both of par (a) and par (b)(iii) of reg 2.08F(3) applied, and that, accordingly, the plaintiff's application for a Protection (Class XA) visa was converted to an application for a Temporary Protection (Class XD) visa. Both aspects of this submission should be rejected. Regulation 2.08F does not apply and the plaintiff's application for a Protection (Class XA) visa has not been converted to an application for a Temporary Protection (Class XD) visa.
Paragraph (a) of reg 2.08F(3) is not engaged in this case. Before the commencement of the regulation, the Minister had made a decision in relation to the plaintiff's application for a visa. For the reasons which have been given, the Minister's decision to refuse to grant the plaintiff the visa which he sought was legally infirm. Because of the error of law which the Minister made, the decision involved jurisdictional error and "is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all"31. But contrary to the defendants' submission, observing that the decision was legally ineffective presents rather than concludes the question about the application of par (a) of reg 2.08F(3).
The condition stated in par (a) for its application is: "if, before the commencement of this regulation, the Minister had not made a decision in relation to the pre‑conversion application under section 65 of the Act" (emphasis added). The words "had not made a decision" must be read in the context provided by the whole of reg 2.08F(3). And when it is observed that par (b)(iii) deals expressly with the quashing of a legally infirm decision, it becomes evident that the phrase "if ... the Minister had not made a decision" is to be construed as referring to whether the Minister had in fact made a decision, regardless of whether what had been done was legally effective. If the words are not read in that way, reg 2.08F(3)(b)(iii) has no work to do. The regulation should be read in a way which gives work for all of its provisions.
In this case, the Minister had in fact made a decision before the commencement of reg 2.08F. Paragraph (a) of reg 2.08F(3) was not engaged.
The defendants then submitted that, if that were so, par (b)(iii) of reg 2.08F(3) applied. That is, the defendants submitted that the plaintiff was seeking the quashing of the decision which the Minister had made (to refuse the grant of a visa) and an order that the Minister reconsider the application in accordance with the law. To explain why this submission must be rejected, it is necessary to say a little more about the nature of the proceedings.
It will be recalled that the plaintiff (by consent of the defendants) obtained an order for the issue of a writ of mandamus. The writ that issued commanded the Minister to consider and determine the plaintiff's application for a Protection (Class XA) visa according to law or show cause why it has not been done. The order which French CJ made by consent of the parties, that a writ of mandamus issue, finally determined the matter then before the Court. By their consent to the order, the defendants accepted that the Minister had not determined the plaintiff's application in accordance with law and that the Minister was bound to do so. In response to the writ, the Minister did consider and determine the plaintiff's application and made a return to the writ certifying that he had done what was commanded of him by the writ. But the plaintiff challenges the return and alleges that the Minister has not done what was commanded of him. And, as these reasons have shown, the plaintiff's submission should be accepted.
"1 Is clause 866.226 of Sch 2 to the Migration Regulations invalid?
Answer: It is not necessary to answer this question.
2 Was the decision made by the Minister on 17 July 2014 to refuse to grant a protection visa to the plaintiff made according to law?
Answer: No.
3 What, if any, relief should be granted to the plaintiff?
Answer: A peremptory writ of mandamus should issue commanding the first defendant to grant the plaintiff a permanent protection visa forthwith.
4 Who should pay the costs of this special case?
Answer: The defendants."
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 88 ALJR 722; 309 ALR 209; [2014] HCA 24. ↩
s 46A(1). ↩
s 5AA. ↩
s 46A(2). ↩
Regulations, Sched 2, cl 866.226. ↩
s 5(1). ↩
s 14. ↩
Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth). ↩
s 5AA(1). ↩
s 46A(1). ↩
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 88 ALJR 722 at 724 [3]‑[5], 725 [10]; 309 ALR 209 at 211, 212. ↩
See Plaintiff M150 of 2013 v Minister for Immigration and Border Protection (2014) 88 ALJR 735; 309 ALR 225; [2014] HCA 25. ↩
Plaintiff M150 of 2013 v Minister for Immigration and Border Protection (No 2) (2014) 88 ALJR 775; 311 ALR 154; [2014] HCA 27. ↩
Plaintiff S297-2013
Minister for Immigration and Border Protection [2015] HCA 3
(2014) 88 ALJR 722
(2014) 88 ALJR 735
(2014) 88 ALJR 775
(2002) 210 CLR 438
(2001) 205 CLR 507
(1956) 94 CLR 254
(2002) 209 CLR 597
(1981) 148 CLR 457
(2009) 239 CLR 175
The Court held that the Minister’s refusal was not made according to law, ordered a peremptory writ of mandamus requiring the Minister to grant the plaintiff a permanent protection visa forthwith, and ordered the defendants to pay the costs; it found it unnecessary to decide whether cl 866.226 was invalid.
The answers to the questions asked in the special case in the plaintiff's proceedings were treated by the parties as resolving the controversy between them. No trial was had. Instead, on 1 July 2014, French CJ ordered, by consent, that a writ of mandamus issue directing the Minister to consider and determine the plaintiff's application for a Protection (Class XA) visa according to law. On 3 July 2014, French CJ ordered13 that the writ should be returnable14 by 21 July 2014.
On 17 July 2014, the Minister decided to refuse to grant the plaintiff a Protection (Class XA) visa. The parties agree that the only reason the Minister refused to grant the plaintiff a protection visa was that the Minister was not satisfied that the cl 866.226 criterion was met. (It will be recalled that this criterion required the Minister to be satisfied that the grant of the visa "is in the national interest".) The Minister's decision record shows that he saw "the national interest" as requiring refusal of a Protection (Class XA) visa to any and every unauthorised maritime arrival. That is, even though the Act provided, at all times relevant to these proceedings, that the Minister could decide that it is "in the public interest" to permit an unauthorised maritime arrival to make a valid application for a permanent protection visa, the Minister's decision in this case was that the national interest required that no such application should be granted. (It will be observed that s 46A(2) referred to "the public interest" and the cl 866.226 criterion referred to "the national interest". No party suggested, however, that anything turns upon any distinction between "the public interest" and "the national interest".)
On 21 July 2014, the Minister filed a certificate stating that he had "done what was commanded of [him] by the Writ of Mandamus". The plaintiff pleaded to that return alleging, among other things, that the cl 866.226 criterion is invalid and claiming a peremptory writ of mandamus directing the Minister to grant the plaintiff the visa for which he had applied.
The parties agreed in stating questions of law in the form of a special case for the opinion of the Full Court.
Shortly before the special case came on for argument, the 2014 Amendment Act was passed by both Houses of the Parliament. The 2014 Amendment Act was given Royal Assent on 15 December 2014. Relevant provisions of the 2014 Amendment Act, to which it will be necessary to make further reference, came into operation15 on the day following the Royal Assent.
The cl 866.226 criterion should not be construed as permitting that course. A criterion operating in that manner would be inconsistent with the Act and invalid, at least to the extent to which it permitted the Minister to refuse to grant a valid application for a visa only because the applicant is an unauthorised maritime arrival. By providing in s 46A that an unauthorised maritime arrival may not make a valid application for any visa unless the Minister personally determines to lift that bar in respect of a class of visa specified in the determination, the Parliament has exhaustively prescribed the visa consequences which follow from the relevant status. Because s 46A states exhaustively what visa consequences attach to being an unauthorised maritime arrival, the general words of cl 866.226 may not be construed as permitting the Minister to add to the consequences which the Parliament has identified. The affirmative statements in s 46A of those visa consequences appoint or limit an order or form of things in a way which has a negative force24. More particularly, the status of unauthorised maritime arrival cannot be treated as a sufficient reason in itself for refusing to grant the visa which the plaintiff lawfully sought in accordance with an earlier ministerial determination under s 46A. Yet that is what the Minister did when he decided that it was not in the national interest to grant the plaintiff a Protection (Class XA) visa. The bare fact of the plaintiff being an unauthorised maritime arrival was treated as determinative of the issue.
It is unnecessary to decide whether other provisions of the Act dealing with unauthorised maritime arrivals, such as the regional processing provisions of subdiv B of Div 8 of Pt 2 (ss 198AA‑198AJ), support the conclusion that the cl 866.226 criterion cannot be applied by attaching determinative significance to the applicant's status as an unauthorised maritime arrival. Those other provisions of the Act are at least consistent with that conclusion and do not detract from it in any way.
The issues about the validity of the cl 866.226 criterion which were agitated by the plaintiff are not reached. It is not necessary, therefore, to decide whether, as the plaintiff submitted, cl 866.226 is inconsistent with ss 501(3) and 501C of the Act. Section 501(3) permits the Minister to refuse to grant or to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the refusal or cancellation "is in the national interest". Section 501C provides for the revocation of certain decisions, including a decision made under s 501(3).
Nor is it necessary to decide whether, as the plaintiff submitted, cl 866.226 "varies and departs from the scheme for protection visas provided for by ss 36, 500(1)(c), 501 and other provisions of the Act".
It is convenient to deal next with the 2014 Amendment Act.
What the plaintiff now seeks is compliance with the writ which the Court ordered to issue. If, as these reasons have shown, the Minister did not do what was commanded of him by the writ, the return to the writ is insufficient and the duty imposed by the writ remains unperformed. Performance of the writ's command at or before the time fixed for its return would have obliged the Minister to grant a Protection (Class XA) visa.
The plaintiff seeks to enforce compliance with the writ by having the Court issue a peremptory mandamus. Three points must be made in that regard.
First, and of critical importance to the application of reg 2.08F(3)(b)(iii), a peremptory mandamus is neither in form nor in substance an order which "quashes a decision of the Minister in relation to [the plaintiff's] pre‑conversion application"32 for a Protection (Class XA) visa.
Certiorari to quash the Minister's decision is not sought and is neither necessary nor appropriate. The issue of a peremptory mandamus is to enforce compliance with the writ which the Court had directed to issue in resolution of the matter then pending in the Court. A peremptory mandamus commands performance of the duty which was the subject of the writ but remains unperformed. What is important is that the Minister's return to the writ of mandamus was legally insufficient. It is that insufficiency which grounds33 the peremptory mandamus. As the editors of the first edition of Halsbury's Laws of England said34: "where the applicant obtains judgment upon the argument of a point of law raised in answer to a return or other pleading or after pleading to the return, the applicant is entitled forthwith to a peremptory writ of mandamus to enforce the command contained in the original writ" (emphasis added; footnotes omitted).
Second, the Minister should not be given a further opportunity to identify some reason for not granting the plaintiff the visa which is sought. In response to the writ, the Minister decided the application on the one basis that has been identified – that the national interest required that no unauthorised maritime arrival should be granted a Protection (Class XA) visa. That basis for the decision was legally wrong.
No other basis for the decision having been identified, the Minister cannot, and should not, now be given any further opportunity to consider the matter afresh. It is not suggested that, in the time between the issue of the writ of mandamus and this Court's determination of the present dispute about the sufficiency of the Minister's return to that writ, there has been any relevant change in any circumstances affecting the disposition of the plaintiff's application (apart from the 2014 Amendment Act). It is, therefore, not necessary to examine what consequences might follow if it were alleged that there had been some relevant change in circumstances. Rather, it is enough to observe that only one reason was given by the Minister for refusing the plaintiff's application. That reason was legally insufficient. And in his return to the writ, the Minister had the opportunity to identify any other reason for refusing the application. None was identified. The Minister should not now be given any further opportunity to identify a reason for refusing the plaintiff's application.
Third, nineteenth century practice required35 that a peremptory mandamus take the same form as the writ first granted, with the omission of the alternative permitting the person to whom the writ was directed to show cause why the command was not obeyed. Otherwise, the peremptory writ was not to differ from the original writ in any material particular. By directing performance of the duty in the terms of the original writ, it was made clear that the peremptory mandamus enforced36 the original writ. But the rule appears37 to have been adopted to ensure refusal of the peremptory writ in any case where the original writ was substantially defective. If the writ upon which it was founded was substantially defective a peremptory writ would be refused38; it would not be moulded to avoid the defect.
In this case, there is no suggestion that the writ of mandamus which issued was defective in any way. A peremptory mandamus commanding the Minister to grant the plaintiff the visa which he seeks would not seek to mould the command of the original writ in order to alter the effect of that original writ. It would be an order directing obedience to the command of the original writ.
By the end of the nineteenth century, the English practice of requiring a peremptory mandamus to follow the exact words of the original writ appears to have been treated as yielding, in at least some respects, to the provisions of the applicable rules of court39. Be this as it may, the practice to be adopted in this Court must accord with s 32 of the Judiciary Act 1903 (Cth)40 and its provision that this Court, in the exercise of its original jurisdiction, "shall have power to grant, and shall grant, either absolutely or on such terms and conditions as are just, all such remedies whatsoever as any of the parties thereto are entitled ... so that as far as possible all matters in controversy between the parties regarding the cause of action ... may be completely and finally determined" (emphasis added).
The requirement that the Court provide such remedies as will finally quell the controversy between the parties permits, and in this case requires, the issue of a peremptory mandamus that does not follow the wording of the original writ. That course is required because the Minister gave only the one (legally infirm) reason for his refusal of the visa which the plaintiff sought and it is agreed that, apart from the cl 866.226 criterion, the other criteria prescribed for the visa by the Act and the Regulations had been satisfied.
Enforcement of the command made by the writ which issued on 4 July 2014 requires that the Minister now do what he should have done before making his return to the writ. That is, the Minister must grant the plaintiff a permanent protection visa.
A peremptory mandamus commanding the Minister to grant the plaintiff a permanent protection visa (being the visa called, at all material times, a "Protection (Class XA) visa") should issue forthwith. The defendants should pay the plaintiff's costs of the special case.
The questions asked in the special case should be answered as follows:
High Court Rules 2004 (Cth), r 25.08.3. ↩
s 2. ↩
(2002) 210 CLR 438 at 455 [50] per Gaudron, Gummow and Hayne JJ; [2002] HCA 51. ↩
Wade and Forsyth, Administrative Law, 8th ed (2000) at 464. ↩
Hot Holdings (2002) 210 CLR 438 at 455 [50] per Gaudron, Gummow and Hayne JJ. ↩
(2001) 205 CLR 507 at 538 [100] per Gleeson CJ and Gummow J, 565-566 [188]‑[191] per Hayne J; [2001] HCA 17. ↩
Jia Legeng (2001) 205 CLR 507 at 566 [192]. ↩
(2001) 205 CLR 507 at 565 [188]‑[189]. ↩
See Jia Legeng (2001) 205 CLR 507 at 566 [190], [192]. ↩
See Jia Legeng (2001) 205 CLR 507 at 566 [191]. ↩
cf R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270; [1956] HCA 10. ↩
Sched 2, item 5. ↩
Sched 2, item 1. ↩
Sched 2, items 26, 30 and 31. ↩
Sched 2, item 20. ↩
Sched 2, item 38. ↩
reg 2.08F(2)(c). ↩
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ; [2002] HCA 11. ↩
reg 2.08F(3)(b)(iii). ↩
Foot v Prowse (1726) 2 Strange 697 at 698 [93 ER 791 at 792]; R v Fall (1842) 1 QB 653 at 656 [113 ER 1282 at 1283]. ↩
Halsbury's Laws of England, 1st ed, vol 10, par 245. See also Tapping, The Law and Practice of the High Prerogative Writ of Mandamus, (1853) ("Tapping") at 441, 443. ↩
See, for example, Shortt, Informations (Criminal and Quo Warranto), Mandamus and Prohibition, (1887) ("Shortt") at 422. ↩
R v The Church Trustees of St Pancras (1835) 3 Ad & E 535 at 542 [111 ER 517 at 520]. ↩
Tapping at 439. ↩
Tapping at 439. See also R v The Church Trustees of St Pancras (1835) 3 Ad & E 535 at 542 [111 ER 517 at 520]. ↩
See Crown Office Rules 1886 (Eng), r 71. See also Shortt at 422‑423. ↩
Derived from the Supreme Court of Judicature Act 1873 (Eng), s 24(7). See Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 489; [1981] HCA 7; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 184‑185 [11]‑[12]; [2009] HCA 27. ↩