The Chief Justice of the High Court of Australia supported by a unanimous decision has made an unusual order “commanding” the Minister to grant an asylum seeker a protection visa within seven days.
The recent High Court decision which ordered Immigration Minister Peter Dutton to grant a permanent protection visa to a Pakistani asylum-seeker is a timely reminder of the power of the third arm of government – the judiciary. It takes politics out of the matter and addresses the intent of the law, rules on it and enforces it with orders, which sometimes need to be phrased strongly to get its message across.
This time, the wording of the orders, which essentially commanded the minister to act within 7 days, indicated a disdain at the disregard shown by former Minister of Immigration, Scott Morrison, to Australia’s protection obligations enshrined in the s65A of the Migration Act.
After the Tribunal had found the asylum seeker, known as “S297” was a genuine refugee and overturned DIBPs original 2012 refusal decision, former Immigration Minister Scott Morrison decided, with a determination to discourage boat arrivals, that it was “not in the national interest” to protect an unauthorised boat arrival. He then refused to grant a protection visa to “S297”. What is in the “National interest” is of course largely a political question.
DIBP originally denied a protection visa due to regulations capping the number of visas granted. DIBP relied on s85 of the Act, which allowed for the capping of visa numbers.
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