On 20 June 2014 the High Court unanimously upheld separate challenges by two asylum seekers who questioned the ability of the Minister to limit or cap the number of protection visas that can be granted. On 4 March 2014 Immigration Minister, Scott Morrison, made a determination limiting the number of permanent protection visas that could be granted during the 2013/14 financial year. The limit of 2773 was reached only three weeks after the cap had been set. The principle question before the Court was whether section 85 of the Migration Act 1958 (the Act), which enables the number of visas to be granted in a financial year to be capped, was capable of applying to protection visas when the Act simultaneously obligated the Minister to make a decision on a protection visa application within 90 days.
As explained in a previous Flagpost, the Government originally began capping the number of protection visas that could be granted in direct response to Parliament’s disallowance on 2 December 2013 of the Regulation that would have re-introduced temporary protection visas. The Government subsequently made another Regulation on 12 December 2013 (UMA Regulation), which introduced a new visa criterion to expressly make unauthorised maritime arrivals (UMAs) ineligible for grant of permanent protection visas. Proceedings were commenced in the High Court to challenge its validity on the basis that it was the same in substance to the previously disallowed TPV regulation. Section 48 of the Legislative Instruments Act 2003 prohibits the making of a legislative instrument that is the ‘same in substance’ as a previously disallowed instrument within six months of the disallowance. When the UMA Regulation was subsequently disallowed by Parliament, the High Court was no longer required to determine its validity. This ‘legal minuet between the Minister and the Parliament’, as Chief Justice French called it, meant the High Court was only required to consider whether the power given by section 85 of the Act permitted the Minister to limit the number of protection visas that could be granted.
The High Court unanimously ruled in both matters that the Minister’s cap under section 85 of the Act was invalid and ordered that the Minister consider and determine both applications for protection visa according to law. In reaching this conclusion, the High Court recognised that the obligation on the Minister under section 65A to make a decision on protection visas within 90 days was incompatible with the capping power in section 85 of the Act. To resolve this conflict within the Act, the Court found that the obligation to process within 90 days was superior to the general capping power in section 85 and thus superseded it.
This ‘tension’ within the Act arose out of the introduction of processing time frames for protection visas by the former Howard Government in 2005. This amendment was part of a suite of changes driven by some Liberal Party backbenchers (led by Petro Georgiou) who challenged a number of the Howard Government’s policies on asylum seekers and refugees. The aim of the amendment was to ensure decisions on protection visa applications could be made in a timely and efficient manner. However, as of February this year, there were more than 10, 000 protection visa applications that had exceeded the Department’s 90 day decision-making target in the preceding quarter.
Though the Minister has acknowledged the cap was a tactical measure to deny permanent protection to UMAs, it also contributed to the processing back-log that was in existence when the Coalition came to power. This was created when the former Labor Government implemented the ‘no advantage’ policy to thousands of UMAs that had arrived after August 2012 by delaying the processing of their applications and the granting of their visas. In this program year alone, there have been more than 7,000 new protection visa applications lodged by non-UMAs and more than 800 applications lodged by UMAs.
Ironically, this ruling is unlikely to have much impact on the 24,000 UMAs currently in Australia on bridging visas. The majority of these people cannot apply for protection visas because the Minister has declined to exercise his public interest powers under section 46A of the Act to permit them to do so.
Five days after the High Court delivered these judgments, the Government has responded by introducing the Migration Amendment (Protection and Other Measures) Bill 2014. Amongst other things, this Bill will introduce new processing efficiency measures and expand the operation of section 46A of the Act, which places the statutory bar on UMAs applying for visas. Notwithstanding, the High Court will again convene in August to hear two new challenges brought by UMAs. The first will challenge the Minister’s obligations under section 46A while the second will challenge the validity of the UMA Regulation during its period of operation. Thus it appears on the issue UMAs, the ‘legal minuet between the Minister and the Parliament’ continues.