By Floyd Alexander-Hunt -
Farid Varess is an Accredited Specialist in immigration law, is featured on the Best Lawyers List for Australia, and the Doyle’s Guide list of leading immigration lawyers in NSW. Varess talks about a particular immigration matter that was twice considered by the High Court of Australia.
This proceeding concerned a Pakistani client who arrived in Australia by boat in May 2012. In May 2013, he remained in detention but had been found to be a refugee eligible for a permanent protection visa. In September 2013, he still hadn’t obtained a visa and there was a change of government.
A well-publicised and clear policy of the new government was that asylum seekers who come to Australia by boat without a visa, known as unauthorised maritime arrivals (UMAs), would not be granted permanent protection visas. At best, they could hope for a temporary protection visa. In terms of achieving that policy outcome, the government implemented a number of measures to prevent UMAs from getting permanent protection visas. One of these measures was the imposition of caps on the number of protection visas which could be granted in a particular financial year.
Our client challenged this measure in the High Court of Australia. In June 2014, he was successful. The High Court found the second cap on protection visa grant numbers to be invalid (with the first cap having earlier been revoked). In doing so, the court issued a writ of mandamus requiring the Minister to decide our client’s permanent protection visa application according to the law. These types of matters are commonly seen to be strategic litigation, where you seek an outcome for an individual which may also create broader change for other people in similar situations.
The removal of the cap meant it was no longer an impediment in terms of granting permanent protection visas to UMAs. However, one thing this case showed me was that the government’s response to strategic litigation can also be very strategic. The government has an array of measures in their arsenal which they can deploy in order to seek to achieve the outcomes that they’re looking for. In this case, it was to not grant permanent protection visas to UMAs until they were able to get legislative changes through Parliament.
Our client’s application for a permanent protection visa was subsequently refused on the basis that it wasn’t in the national interest. That gave rise to a second trip to Canberra for this client and, in February 2015, that decision was found to be unlawful in terms of refusing it on national interest grounds. The High Court granted our client a form of relief, called a peremptory writ of mandamus, that had essentially not been granted since the nineteenth century. Such relief serves as an order requiring compliance with a previous order, without the ability for the person to whom it is directed to show cause why the command should not be obeyed. The Minister was given seven days to grant our client a permanent protection visa.
After almost three years in detention, my client was finally granted his visa. Due to the legislative changes, he is actually the last UMA to have gotten a permanent protection visa. It was a great win, and the case received a lot of publicity. It was an interesting case in terms of strategy. Obviously, we had a lot of clients who were impacted by these government measures, so selecting the right plaintiff was an important step.
I have specialised in immigration law since 2003. Migration to another country represents a significant and emotional milestone in a migrant’s life. The opportunity to be part of such milestones is what attracted me to this area of law.
