Last month, the boy's lawyer, David Manne, successfully challenged the Immigration Minister's decision to impose a cap on permanent protection visas for this financial year.
The Minister is now indicating he'll personally intervene in some protection applications, and apply what David Manne describes as an "extraordinary, desperate and unlawful" national interest test.
Reporter: Naomi Woodley
Speaker: David Manne, Refugee & Immigration Legal Centre; Greens Senator Sarah Hanson Young
NAOMI WOODLEY: When the Senate disallowed the Government's attempt to reintroduce temporary protection visas, the Immigration Minister Scott Morrison responded by capping the number of permanent protection visas for this financial year.
That was ruled invalid by the High Court, which ordered the Minister to reconsider the applications of two refugees not granted a visa because of the cap.
The lawyer for one, an unaccompanied 16 year old Ethiopian stowaway, says they've now been notified of a new test to be applied.
DAVID MANNE: It appears to be yet another desperate and we say unlawful device to subvert parliamentary process and the rule of law in this country.
NAOMI WOODLEY: The executive director of the Refugee and Immigration Legal Centre David Manne says they've been given examples of why granting a visa may not be in the national interest.
DAVID MANNE: For reasons which include that this could erode the community's confidence in the effective and orderly management of Australia's migration program, that it could undermine the integrity of Australia's visa systems and also Australia's sovereign right to protect its borders.
It also outlines another reason and that is that people like our client should not be rewarded with the same permanent visa outcomes that people who, it said, abide by Australia's visa requirements may be entitled to.
NAOMI WOODLEY: The national interest test exists in regulations, but David Manne says it hasn't been raised in this case before.
DAVID MANNE: It also stands to reason that over the years tens of thousands of people have been granted protection visas in this country without the national interest regulation being invoked to refuse their applications for visas. And certainly if any steps are taken to refuse our client's application, we certainly intend to launch a further challenge to that in the High Court.
NAOMI WOODLEY: Can you think of any reason an applicant could give as to why it would be in Australia's national interest to grant them a permanent visa?
DAVID MANNE: Look, it is clearly in the national interest for the Government to grant a protection visa to a person who's been found to be a refugee and has met all of the other relevant criteria. And that has been the longstanding practice under successive Australian governments.
NAOMI WOODLEY: That's a view echoed by the Greens Senator Sarah Hanson-Young.
SARAH HANSON-YOUNG: This is clearly an act of desperation by Mr Morrison. It is him, his department, acting in a way that seems to be not just above the law but above the Parliament.
NAOMI WOODLEY: David Manne says it's also profoundly concerning that the Refugee Review Tribunal would not be able to review the Minister's decision. And he says refusing his client a visa on national interest grounds would have far reaching consequences.
DAVID MANNE: This is not a question about a person not being granted a temporary protection visa. This is about refusing a protection visa altogether and leaving our client, a 16 year old boy who's been found to be a refugee, and potentially thousands of other people found to be refugees in limbo in the community or in indefinite detention.
NAOMI WOODLEY: The Ethiopian boy's case will return to the High Court later this month.
And the Immigration Minister Scott Morrison says the Government's policy is that those who arrive illegally by boat or plane will only be given temporary visas, and he says the Government will continue to implement this policy.