High Court holds that arrival by boat is not a ground for refusing a protection visa

Plaintiff S297-2013 v Minister for Immigration and Border Protection [2015] HCA 3 (11 February 2015)

The High Court of Australia has unanimously held that the Minister cannot refuse to grant a protection visa to an individual who has validly applied for a visa on the sole basis that the individual is an “unauthorised maritime arrival”. In this case, as the Minister had refused to grant a protection visa to the plaintiff on this basis, and therefore failed to consider the plaintiff's visa application according to law as he had been directed to do by the Court, the Court issued a writ of peremptory mandamus requiring the Minister to grant the plaintiff a protection visa.


The plaintiff, a Pakistani national, arrived on Christmas Island by sea in May 2012 without a visa. He is therefore an “unauthorised maritime arrival” (formerly an “offshore entry person”) within the meaning of section 5AA of the Migration Act 1958 (Cth). The Minister exercised his discretion under section 46A(2) of the Act permitting the plaintiff to apply for a Protection (Class XA) visa under the Act, despite the plaintiff being an “unauthorised maritime arrival”.

The plaintiff made an application for a Protection (Class XA) visa in February 2013, which was rejected by a delegate of the Minister. The plaintiff sought review of this decision in the Refugee Review Tribunal which. Upon finding that the plaintiff was a refugee, the Tribunal remitted his application to the Minister for reconsideration.

The Minister did not make a decision regarding the plaintiff's application. This was because a series of regulatory steps were taken by the Minister to purportedly enable the Minister to not make decisions in relation to applications for visas by “unauthorised maritime arrivals”. One such regulatory step was a purported determination under section 85 of the Act placing a cap the number of protection visas that could be granted in a year (which was not limited to unauthorised maritime arrivals). As the cap had already been reached, the plaintiff's application did not need to be considered.

The plaintiff brought proceedings in the High Court of Australia in June 2014 challenging the validity of some of these regulatory steps that were preventing him from being granted the visa. The High Court found in favour of the plaintiff and granted a writ of mandamus directing the Minister to consider and determine the plaintiff's application according to law (see Plaintiff M150 of 2013 v Minister for Immigration and Border Protection (2014) 88 ALJR 735).

On 17 July 2014, the Minister refused to grant the plaintiff a Protection (Class XA) visa on the basis that the grant was not in the “national interest”. This was a criterion requiring the Minister's satisfaction for the granting of a visa, found in cl 866.226 of Schedule 2 of the Migration Regulations 1994 (Cth). The Minister's decision record showed that he had rejected the plaintiff's visa application on the sole basis that he considered it in the “national interest” to refuse Protection (Class XA) visas to all “unauthorised maritime arrivals”.

On 21 July 2014, the Minister filed a certificate stating that he had fulfilled the requirements of the writ of mandamus and made a decision about the plaintiff's application according to law. The plaintiff brought proceedings in the High Court alleging that the cl 866.226 criterion was invalid and claimed a peremptory writ of mandamus directing the Minister to grant him the Protection (Class XA) visa for which he applied.


The Court declined to consider the validity of the cl 866.226 criterion, but rather considered its operation in the context of the Act as a whole. The question before the Court was whether the cl 866.226 criterion permitted the Minister to conclude that it was not in the “national interest” to grant the plaintiff a Protection (Class XA) visa, wholly on the basis that he was an “unauthorised maritime arrival”. The Court found that it did not.

The Court held that section 46A of the Act exhaustively states the visa consequences for “unauthorised maritime arrivals” (that they may not apply for Protection (Class XA) visas unless the Minister considers it is in the public interest that they make such an application). Therefore, the Minister could not attribute further consequences to that status beyond what Parliament had expressly intended.

The Court found that as the Minister had incorrectly exercised his discretion under cl 866.226, he did not consider and determine the plaintiff's application according to the law. It was not appropriate to allow the Minister a further opportunity to consider the plaintiff's application because the only basis for the Minister's decision was the cl 866.266 criterion, which was legally wrong. Further, there had been no relevant change in the plaintiff's circumstances which warranted his application being reconsidered.

One further issue before the Court was the effect of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The amending Act came into operation after the plaintiff had made his application for a visa and sought to convert certain applications for Protection (Class XA) visas into applications for Temporary (Class XD) visas. The Court rejected the defendant's argument that the plaintiff's application had been converted into an application for a Temporary (Class XD) visa because the plaintiff's application fell outside the circumstances in which an application was to be converted under the amending Act. 

The Court issued a writ of peremptory mandamus requiring the Minister to grant the Plaintiff a Protection (Class XA) visa.


In this case the High Court has stated that the consequences for individuals who are given “unauthorised maritime arrival” status under the Act have been exhaustively defined in the Act. This means that the consequences cannot extend to the refusal of a valid application for a protection visa on the basis (either wholly or partially) of the applicant's status as an “unauthorised maritime arrival”.

The full decision can be found online here: http://www.austlii.edu.au/au/cases/cth/HCA/2015/3.html

Michela Agnoletti is a lawyer at Allens.