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Immigration Minister Scott Morrison.

Immigration Minister Scott Morrison. Photo: Ben Rushton

Refugee lawyers who helped defeat the Gillard government's Malaysia Solution are challenging Immigration Minister Scott Morrison's cap on protection visas in the High Court.

Mr Morrison limited the number of protection visas to be issued earlier this month, after the Senate rejected a regulation to reintroduce temporary protection visas. This prevents any new visas from being issued to onshore asylum seekers before next July.

The legal team – including lawyers at the Refugee and Immigration Legal Centre and barrister Richard Niall, SC, who successfully challenged former prime minister Julia Gillard's 2011 people-swap policy in the High Court – are acting for an Ethiopian they say was "on the verge" of being granted a protection visa before the freeze. The 15-year-old stowed away on a ship leaving Djibouti and arrived in Queensland in February without a visa.

A delegate for Mr Morrison initially refused his application for a protection visa. The Refugee Review Tribunal later found the boy to be a refugee and sent his application back to be finalised in October.

The teenager's lawyers asked the High Court on Thursday to declare Mr Morrison's cap invalid because they argued it was inconsistent with his legal duty to make a decision on his application within 90 days.

While the federal government has the legal power to cap certain visas in some circumstances, it is believed this has never been used for protection visas.

The Refugee and Immigration Legal Centre's executive director, David Manne, said the new laws had "deeply distressed" his client. "We say that the government is under a duty to promptly complete the processing of our client refugee case as laid down by Australian law . . . which should have led to him being granted a protection visa, so he can get on with rebuilding his life," he said.

A spokesman for Mr Morrison said it would be inappropriate to comment on a specific matter before the courts.