High Court considers the Government’s refugees processing priorities policy

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 (17 December 2015)

The High Court declined to overturn a decision of a Delegate of the Minister for Immigration and Border Protection, which refused the grant of a permanent visa to the family of an Iranian man, who was already in Australia on a protection visa. The Court held that despite the persuasive evidence put forward by the plaintiff in advancement of the application, it was open to the Delegate to decline the grant of the visa, as the evidence was not so compelling, when factoring in the limited capacity of Australia to accommodate refugees, as to warrant special consideration by the Delegate. 

Influential in the Court’s decision was the low priority status accorded to the application because of the man’s status as an “illegal maritime arrival”, as designated by the Government’s refugee processing policy.


The plaintiff (M64) had entered Australia in 2010 as an unaccompanied minor by boat and was thus classified as an “irregular maritime arrival”.  He was later granted a protection visa (subclass 866). His mother and three younger brothers had remained in Iran during this time, but subsequently applied for Refugee and Humanitarian visas (subclass 202) under the Australian Government’s Special Humanitarian Programme (“SHP”). Their application, proposed by the plaintiff, was refused by a Delegate of the Minister.

The case centred on the proper interpretation of clause 202.222(2) of Schedule 2 to the Migrations Regulations 1994 (Cth) (“the Regulations”). The Regulations provided for the grant of a visa if “the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa”, having regard to four factors:

  1. the degree of discrimination to which the applicant is subject in the applicant’s home country;
  2. the extent of the applicant’s connection with Australia;
  3. whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from discrimination; and
  4. the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.

In a letter informing them of the decision, the Delegate acknowledged that the applicants “have strong links to Australia and that there is no other suitable country available for resettlement”. The Delegate further noted that the applicants were “subject to a significant degree of discrimination” in their home country. However, the Delegate found that Australia did not “have the capacity to resettle all applicants who apply for a humanitarian visa at this time”, and refused the grant of a visa because the application was not of the “highest priority”.

The plaintiff sought to quash the Delegate’s decision, and also to require the Minister to determine the application according to law.

The plaintiff argued that the Delegate misinterpreted and misapplied the Regulations under which the application was to be determined, and also that the Delegate unlawfully applied a departmental policy which was inconsistent with the requirements of the Migration Act 1958 (Cth) (“the Act”) and the Regulations.


The majority judgment of French CJ, Bell, Keane and Gordon JJ, along with the single judgment of Gageler J, declined to overturn the decision of the Delegate, for several reasons.

First, the Court found that clause 202.222(2) of the Regulations raises only one criterion for the grant of the relevant visa, being that the Minister (or Delegate) is “satisfied” that there are compelling reasons for giving special consideration to granting the applicant a visa. While that Court noted that the state of satisfaction “must be informed by the factors mentioned in paras (a) to (d)” of the clause, their Honours found that it is incorrect to speak of each individual factor as requiring a separate finding by the Minister. Thus, the Court found that it was open for the Delegate to decide against the applicants because of a lack of capacity for Australia to settle all refugees who met the criteria in paras (a) to (c).

Secondly, the Court held that the Government’s SHP processing policy, which accorded the application of the plaintiff’s family the lowest priority due to the plaintiff’s status as an “irregular maritime arrival”, was not inconsistent with the text of clause 202.222(2). The majority judgment reasoned as follows:

“If numerous applications are otherwise compelling in terms of the criteria in cl 202.222(2), it is not irrational, or unreasonable, or punitive to prefer an application from the family of a proposer who came to Australia by regular means over an application from the family of a proposer who came to Australia as an irregular maritime arrival. It is not irrational that the former application might be regarded as of a kind which should be encouraged in preference to others.”

Therefore, although the applicants’ claim had substantial merit, the Court held that it was not so unusual as to usurp those applications with similarly compelling evidence, but whose proposer came to Australia other than via boat. 

The Court further noted that there was nothing to suggest the Delegate so rigidly applied the processing policy as to unlawfully refuse the grant of the visa.

Finally, the Court held that although the Delegate did not expressly refer to each piece of supporting material which accompanied the application, this did not amount to a failure to take into account information that would have materially affected the decision, as there was no error in the Delegate’s reasoning or decision-making process on the face of the letter.


The Court provided a useful reminder of what it considers to be the “policy” aspects of Australia’s refugee laws.

The Court did not second-guess the immigration quota designated by the Government under the SHP, noting that the rationale for requiring “compelling reasons” for giving special consideration to an application is based on the fact that the Government judges that more applicants satisfy the basic criteria described in pars (a), (b) and (c) of clause 202.222(2) than can be settled in Australia.

The Court also did not challenge the Government’s processing priority categories, noting that the fact that a policy exists at all should be encouraged, as it diminishes inconsistencies and subjectivity in administrative decision-making.

The full text of the decision can be found here.

Antony Freeman is a Solicitor at King & Wood Mallesons.