The High Court has issued a stunning rebuke to the Abbott
government's border protection policy, striking down its decision to
refuse to give refugees who arrive by boat permanent protection visas.




In two unanimous decisions, with implications for thousands
of boats arrivals, the full court ruled that Immigration Minister Scott
Morrison's decision to impose a cap on the number of places in
Australia's refugee intake for boat arrivals was invalid.





David Manne led the legal team that took action against the government's cap on refugee intake.
David Manne led the legal team that took action against the government's cap on refugee intake. Photo: Paul Rovere


The government's determination to deny permanent protection
visas will now rest with the Senate, where the Palmer United Party will
control the balance of power from next month.




The party's leader, Clive Palmer, has spoken out strongly in
support of refugees, but told Fairfax Media the party would study the
High Court judgment and any decision on allowing temporary protection
visas would be made by his party room.



Mr Morrison re-imposed the refugee intake cap in March after
the Senate voted down his attempt to re-introduce temporary protection
visas (TPVs) for boat arrivals, declaring that the Coalition would "not
give an inch when it comes to protecting our borders".



He vowed then to take "every step necessary to ensure that
people who arrive illegally by boat are not rewarded with permanent
visas". Mr Morrison, who has presided as minister over six months
without a boat arrival, was travelling when the judgment was handed down
and was unavailable for comment.



His March decision effectively imposed a freeze on the grant
of permanent protection visas to about 1400 asylum seekers who had
already been found to be refugees and has implications for many
thousands more whose claims have not yet been decided.



"This is a very significant victory for the rule of law being
brought to bear on the plight of refugees in our country," said lawyer
David Manne, who led the legal team representing an Ethiopian teenager
who arrived in Australia without a visa last year, after stowing away on
a cargo ship.



A second decision upheld a challenge on behalf of a Pakistani national who arrived by boat at Christmas Island in 2012.



In both cases, the court ordered Mr Morrison as minister to
consider and determine the asylum seekers' applications for a protection
visa according the law as it stands.



Labor and the Greens welcomed the decision, with Labor's
immigration spokesman, Richard Marles, saying: "Putting a freeze on the
issuing of protection visas just because the Senate rejected the
government's TPVs was always an act of petulance which caused great
misery."



Greens senator Sarah Hanson-Young described the ruling as "a
win for fairness and decency", saying: "The court has ruled that the
Abbott government's cruelty for cruelty sake is illegal. This decision
will allow refugees to start rebuilding their lives here in Australia."



Sister Brigid Arthur, who acted as "litigation guardian" for
the Ethiopian boy, said it was "very good that he will now have some
certainty about his future".



Mr Manne, who also led the legal team that successfully
challenged the Labor government's "Malaysian solution", said the latest
decision had "potentially major implications" for thousands of refugees
who arrived by boat.



"The law of Australia is that there is only one protection
visa, and that's a permanent protection visa for refugees. What this
means is that the government must get on with the grant of a visa which
our client is entitled to as a refugee," he said.



He said the life of the boy had been in limbo since Mr Morrison imposed the freeze.



In their written judgment, justices Hayne and Kiefel said
they had taken into account the consequences for the detention of those
who came unlawfully and the time limits for determining protection
visas.