The high court has ordered the immigration minister to grant a Pakistani asylum seeker a permanent protection visa after three years in immigration detention and sustained government efforts to refuse him.
The high court unanimously ruled that former immigration minister Scott Morrison’s decision to refuse the man a visa was unlawful.
The minister denied the visa simply because the man arrived by boat. The immigration department had found he had a genuine fear of persecution and Australia was legally obliged to protect him.
The Pakistani man arrived on Christmas Island by boat in May 2012. A member of the Hazara ethnic minority and a Shia Muslim, the man faced, the high court said, “a real chance of being seriously harmed or killed by extremist groups if he was returned to Pakistan”.
The man was initially permitted to apply for a visa by Labor immigration minister, Chris Bowen. His application was rejected. However, on appeal to the Refugee Review Tribunal, he was found to be a refugee requiring protection.
But the man was then denied a visa because the minister, by then the Coalition’s Morrison, unilaterally capped the number of visas to be issued.
The high court ruled that action invalid.
The minister then denied him a visa on grounds it would not serve the “national interest” to grant him protection, because he arrived by boat. The court ruled that while the government’s policy was that no unauthorised maritime arrival should be granted a visa to stay in Australia, the law required the minister to grant the visa within 90 days.
The minister’s efforts to “prolong the plaintiff’s detention” by simply refusing to grant the visa were unlawful too.
“The court found … the minister could not refuse an application for a visa only because the applicant was an unauthorised maritime arrival.”
Chief Justice Robert French “made an order commanding the minister to grant the plaintiff a permanent protection visa”.
The current immigration minister, Peter Dutton, has been contacted for comment.
The Greens senator Sarah Hanson-Young said the government’s actions showed its “arrogance” in dealing with asylum seekers and refugees.
“The immigration minister is not above the law, despite his consistent efforts to undermine the parliament and the high court,” she said.
“This man is a refugee, he came to Australia asking for help and it’s only after being dragged through the courts that the government will recognise its duty and offer him protection.
“There was no need for this. It was only the government’s own hubris that brought them to this loss.”
The government has been ordered to pay costs.
