The Abbott government will try to use a new “national interest test” to deny permanent protection visas to refugees who have arrived “illegally” by boat or plane in an attempt to circumvent its stunning loss in the high court last month and implement its policy to refuse permanent settlement to all boat arrivals.

The extraordinary move – revealed by the government to stakeholders on Thursday – says immigration minister Scott Morrison will personally decide the new “national interest test”, which will take into account whether giving a permanent visa would:

Provide a product for people smugglers to market now or in the future, when it is in Australia’s national interest to combat people smuggling whether by sea or by air, and to prevent deaths at sea arising from people being put on dangerous journeys to Australia by sea by people smugglers.



Erode the community’s confidence in the effective and orderly management of Australia’s migration program, and undermine the integrity of Australia’s visa systems and its sovereign right to protect its borders.



Reward people who arrive illegally with the same permanent visa outcomes available to people who abide by Australia’s visa requirements. If a person who arrives illegally is found to engage Australia’s protection obligations, their protection needs can be met through the grant of a temporary visa.



Impact negatively on Australia’s international relationships with partner nations.

The wording of the conditions makes it clear the intention is to refuse permanent visas in almost all cases.

“The minister will decide whether to grant a permanent protection visa to illegal arrivals on a case-by-case basis, after personally considering their individual circumstances,” an information sheet on the new system states.



In two unanimous decisions last month, the high court struck down Morrison’s imposition of a cap on the number of permanent protection visas issued to asylum seekers already in Australia, a policy which had been designed to effectively ensure that no permanent protection visas would be issued.

The “cap” was itself imposed as an attempt to get around the Senate’s refusal to allow the government to implement its policy to offer only temporary protection visas, and to refuse any permanent visa.



The government is now drawing on a regulation in the Migration Regulations 1994 to give the minister the power to argue that it is against the national interest for any refugee to be granted a permanent visa – as the high court decision would require.



The move aims to circumvent the high court as well as the Senate, and sets the stage for a high court battle, with refugee lawyers returning to the high court Thursday to argue that the government was planning to unlawfully breach the court’s earlier ruling. Chief justice Robert French ruled that the case would be heard in two weeks.

“The government is now trying to use yet another device to defy the clear will of the parliament and the rule of law,” said David Manne, executive director of the Refugee and Immigration Legal Centre, who brought the successful high court challenge that the government is now seeking to circumvent.

“The minister has foreshadowed in a letter to us that he is considering refusing our client claim on national interest grounds,” Manne said. He represents a 16-year old Ethiopian boy who came to Australia after stowing away on a ship.

“To refuse would be an extraordinary and most serious defiance of the rule of law in this country ... the government never raised these ‘national interest’ grounds during our high court challenge.”

The Greens asylum spokeswoman, Sarah Hanson-Young, said it was clear Morrison "thinks he is above the law and above the parliament".

"I would have thought it was in the national interest to be a fair and decent country that abided by the rule of law," she said.

The government is now saying the new ministerial decisions will be final, and not subject to appeal or review by the Refugee Review Tribunal. The asylum seekers denied permanent visas will be able to apply for temporary visas, as per the government’s policy.



Asylum seekers are being told that once they accept a temporary visa they will be eligible to access Medicare, unemployment benefits and counselling for trauma and torture where required.



Despite having achieved its aim of stopping asylum seekers arriving in Australia by boat by turning around vessels and processing all new arrivals offshore with no prospect of settlement in Australia, the government claims it must also refuse permanent settlement to the 20,000 or more asylum seekers already in the country as an act of “deterrence”.

Morrison says the government will take ''every step necessary to ensure that people who arrive illegally by boat are not rewarded with permanent visas''.

In both cases the court said Morrison had to decide their case under the existing law (which provides for permanent visas), a decision that had flow-on implications for more than 1,400 other asylum seekers already in Australia and were at a similar stage in the application process when the law changed before the election.

A spokesman for Morrison was contacted for comment.

