The High Court has today taken the rare step of commanding the Minister to grant a protection visa. This was done by issuing what is called a “peremptory writ of mandamus”.
Today’s order is unusual because usually the High Court will decide a legal question and then remit the decision to the Minister to be decided “according to law”. To understand why the Court departed from this usual practice, it is important to look at the history of the case.
Last year, the High Court held invalid a regulation made by the Minister capping the number of protection visas that could be granted. This was because the regulations conflicted with the requirements set out by Parliament in the Migration Act for considering protection visa applications. In essence, the Court held that it was unlawful for the Minister to simply ignore applications that the Act required him to consider. The Court ordered the Minister to decide the application according to law.
The Minister proceeded to refuse the application on the basis that it did was not in the national interest to grant the applicant a protection visa, despite already having decided it was in the public interest to allow the applicant to make the application in the first place. The High Court unanimously reached the unsurprising conclusion that the Minister’s decision was again inconsistent with the Migration Act and therefore unlawful.
The Minister having twice acted unlawfully and having defied the Court’s previous order, the justices were persuaded that the Minister should not be given a further opportunity to find some reason to refuse the application. As a result, the High Court took the extraordinary step of directly commanding the Minister to grant the applicant a protection visa.
The High Court’s decision should be commended. It proves that we live in a society governed by the rule of law, with an executive government that is accountable to Parliament and an independent judiciary that ensures everyone – even the Minister for Immigration – is equal before the law.