FEDERAL COURT OF AUSTRALIA

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The parties are to confer on the question of costs and are to file and serve agreed orders on that issue within 14 days hereof, or failing agreement, written submissions of no more than two pages in length confined to that issue.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

introDuction

1    The appellant appeals from a decision of a judge this Court, where the primary judge determined to uphold the Respondent’s (“Minister”) decision pursuant to s 501A(2) of the Migration Act 1958 (Cth) (“Act”) to refuse the appellant’s application for a Safe Haven Enterprise (Class XE) Visa (“visa”). As will become apparent, a visa of that class is a “protection” visa within the meaning of the Act.

2    The appellant initially applied for the visa in August 2016. That application was refused by a delegate of the Minister on 21 July 2017 on character grounds under s 501 of the Act. Although the delegate’s decision was not in evidence, it was not in contest that the basis for the refusal was that the appellant had a “substantial criminal record” as defined by s 501(7)(d) of the Act and thereby did not pass the “character test” as defined by s 501(6). The delegate’s refusal decision was set aside by the Administrative Appeals Tribunal (“AAT”) on 12 October 2017 (“AAT decision”). Approximately 18 months later, on 18 April 2019 and pursuant to s 501A(2) of the Act, the Minister personally set aside the AAT decision and decided to refuse to grant the visa. An application for judicial review of that decision was dismissed by the primary judge on 5 August 2019. The appellant appeals that decision.

3    As will become apparent, the grounds of appeal raise two important issues. They are as follows:

(1)    Is the exercise of the power in s 501A(2) to refuse a visa time limited and, if so, did the Minister fail to exercise that power within a reasonable time?

(2)    Is the power to refuse the grant of a visa in s 501 available to be exercised by the Minister in relation to an application for a protection visa?

4    The Australian Human Rights Commission (“AHRC”) was granted leave to intervene in the proceeding and made submissions in support of the appellant on the second issue.

5    The second issue was not raised before the primary judge but leave to raise it on the appeal has been granted. It is convenient to deal with that issue first.

The BAL19 Ground – Is the s 501 refusal power available to be exercised by the Minister in relation to a protection visa?

6    In BAL19 v Minister for Home Affairs [2019] FCA 2189, Rares J determined that s 36(1C) of that Act, being a specific criterion applicable only to an applicant for a protection visa, precluded the Minister using s 501 or its analogues as a basis to refuse to grant a protection visa (see at [88]). His Honour’s judgment is under appeal but that appeal has not yet been determined. Four judgments this Court have determined that the holding in BAL19 is not “plainly wrong”: AEM20 v Minister for Home Affairs [2020] FCA 623 at [139] (Katzmann J); AFX17 v Minister for Home Affairs [2020] FCA 807 at [61] (Flick J); AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858 (Flick J) at [4]); and BFW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562 at [132] (Colvin J).

7    It is necessary to explain how the holding in BAL19 arises on this appeal given that the decision of the Minister which the appellant seeks to impugn is a decision made under s 501A(2) and not s 501.

8    Section 501A(2) of the Act relevantly provides that the Minister may set aside the “original decision” and refuse to grant a visa if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

For the purposes of s 501A of the Act, the AAT decision was here relevantly the “original decision”.

9    The appellant sought to impugn the decision made by the Minister under s 501A(2) contending that the power under s 501A(2) is not exercisable in the absence of an “original decision”. The appellant contended that the AAT decision was a nullity as it was made without power. That was so because the delegate’s decision, which the AAT purported to review, was itself made without power. This contention was made on the basis of the reasoning of Rares J in BAL19, that the power to refuse the grant of a visa in s 501 on character grounds is not available to be exercised in relation to an application for a protection visa.

10    Relying on SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487, the Minister did not concede that if the decision of the delegate was made without power (on the BAL19 basis), then the AAT also lacked power to review that decision. The Minister noted that BAL19 concerned a decision of the Minister pursuant to s 501(1) and submitted that the appellant appears to contend that the reasoning in BAL19 applies to s 501A(2). However, the Minister accepted in his submissions that “the power conferred by s 501A(2) is governed directly by the decision in BAL19 because it is exercisable by reference to criteria that are indistinguishable from those in s 501(1)” and that s 501A(2) was therefore an analogue of s 501(1) in the sense identified by Rares J in BAL19.

11    This aspect of the appeal therefore proceeded on an acceptance by the parties that if the refusal power provided by s 501(1) was not available to be exercised in relation to an application for a protection visa, the substantive relief the appellant seeks – that the Minister’s s 501A(2) decision be quashed – should be granted.

12    A useful overall summary of the decision in BAL19 is provided by Colvin J in BFW20 at [76]-[81]:

[76]    At the heart of the reasoning in BAL19 are four matters. First, Parliament has enacted the protection visa provisions of the Migration Act in order to codify and give effect to Australia’s obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (Convention).

[77]    Second, the protection visa provisions have within them provisions that deal with the circumstances in which matters of character may mean that a person is not entitled to a protection visa and those provisions overlap as to their subject matter and terms with the ‘character test’ that defines the extent of the general power conferred by s 501(1) to refuse or cancel a visa.

[78]    Third, the circumstances in which matters of character may mean that an applicant fails to satisfy the criteria for a protection visa are considerably narrower than the circumstances in which the character test that applies to s 501(1) may not be satisfied.

[79]    Fourth, under the protection visa provisions, if a person fails to satisfy the Minister that they meet the relevant character requirements then the person does not meet the criteria to qualify for the grant of a visa (and the application must be refused) whereas, under s 501(1), a failure by a person to satisfy the Minister that they pass the character test enlivens a broad discretion to refuse to grant the visa (and the application may still be granted).

[80]    Therefore, if the general discretionary power conferred by s 501(1) was to apply to an application for a protection visa then the effect would be that even though a person qualified for a protection visa according to the provisions in the Migration Act that codify the obligations under the Convention, the person could be refused a protection visa in the exercise of the general discretionary power. The result would be a substantial undermining of the protections afforded by the Convention in circumstances where Parliament had manifested a clear intention to give effect to the Convention in the codified form of the protection visa provisions.

[81]    In those contextual circumstances, by the particular reasoning expressed in BAL19, the general terms of s 501(1) were found not to empower the Minister to refuse to grant a protection visa. Instead, in effect, the general power was to be read down as being subject to the more specific protection visa provisions as to the circumstances in which the grant of a protection visa may be refused.

13    To explain the conclusion I have arrived at requires that reference be made to those provisions of the Act of primary relevance. I will commence by locating both s 36(1C) and s 501 within the scheme of the Act.

14    The stated object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: s 4(1). To advance its object, the Act provides for visas permitting non-citizens to enter or remain in Australia on the basis that “the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain”: s 4(2).

15    A “visa” is a grant of permission to a non-citizen to either travel to and enter Australia, to remain in Australia or to do both: s 29(1). A visa to remain in Australia may be a permanent visa or it may be a temporary visa: s 30. The Act provides for different classes of visas. A visa can be of a class provided for by the regulations made under the Act (s 31(1)) or be provided for by a section of the Act (s 31(2)). The Act directly provides for permanent protection visas (s 35A(2)), temporary protection visas (s 35A(3)) and safe haven enterprise visas (s 35A(3A)). Each of those classes of visa is defined by s 35A to be a “protection visa”. That provision also identifies that the criteria for a protection visa is that set out in s 36 together with any relevant criteria prescribed by the regulations for the purposes of s 31 (s 35A(6)). Section 36 then sets out the criteria for a protection visa.

16    It is of some importance to note that the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (“2014 Amending Act”) made substantial changes to the criteria for a protection visa. As the Explanatory Memorandum to the 2014 Amending Act (“Explanatory Memorandum”) stated in its “Outline” (at p 10), the 2014 Amending Act removed most references to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (“Refugees Convention”) from the Act and instead “creates a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention”. The Explanatory Memorandum went on to explain that it was not the intention of the Government to resile from Australia’s protection obligations under the Refugees Convention “but rather to codify Australia’s interpretation of these obligations within certain sections of the [Act]”.

17    Relevantly, s 36 of the Act provides:

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note:    For paragraph (b), see section 5M.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

18    The term “refugee” utilised in s 36(2)(a) is defined in s 5H. It is not necessary to set out that definition nor the definition of “well-founded fear of persecution” used therein. It is sufficient to say, as the Explanatory Memorandum said (at [1167]), that the statutory definition of “refugee” is “intended to codify Article 1A(2) of the Refugees Convention”.

19    The term “particularly serious crime” used in s 36(1C) is defined in s 5M as a “serious Australian offence” or a “serious foreign offence” which in turn is defined by s 5 as:

serious Australian offence means an offence against a law in force in Australia, where:

(a)    the offence:

(i)    involves violence against a person; or

(ii)    is a serious drug offence; or

(iii)    involves serious damage to property; or

(iv)    is an offence against section 197A or 197B (offences relating to immigration detention); and

(b)  the offence is punishable by:

(i)    imprisonment for life; or

(ii)    imprisonment for a fixed term of not less than 3 years; or

(iii)    imprisonment for a maximum term of not less than 3 years.

serious foreign offence means an offence against a law in force in a foreign country, where:

(a)    the offence:

(i)    involves violence against a person; or

(ii)    is a serious drug offence; or

(iii)    involves serious damage to property; and

(b)    if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:

(i)    imprisonment for life; or

(ii)    imprisonment for a fixed term of not less than 3 years; or

(iii)    imprisonment for a maximum term of not less than 3 years.

20    Subject to the Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class: s 45(1). The requirements for a valid application are set out in s 46 and include that it be an application for a visa of a class specified in the application: s 46(1)(a).

21    As Crennan, Bell, Gageler and Keane JJ stated in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at [32]:

Section 47 of the Act imposes on the Minister a duty to consider a valid application for a visa (s 47(1)), and a corresponding duty not to consider an application for a visa that is not a valid application (s 47(3)). The duty to consider a valid application continues, subject to exceptions, until the Minister grants or refuses to grant the visa (s 47(2)(b)) in the performance of a complementary duty imposed by s 65.

22    Section 65(1) relevantly provides:

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

   (i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

23    It has often been said that satisfaction of the criteria prescribed by s 36 of the Act is a necessary but not a sufficient condition for the grant of a protection visa: see Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [25] (French CJ) and at [270] (Heydon J); Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [107] (Gummow J). So much is apparent from the terms of s 65(1). It can be seen that the grant of a visa requires not merely satisfaction of any criteria for that visa that may be prescribed by the Act, but also satisfaction of any criteria that may be prescribed by the regulations: s 65(1)(a)(ii). Any “health criteria” applicable to the visa in question must also be satisfied: s 65(1)(a)(i). The visa application charge must be paid: s 65(1)(a)(iv) and, relevantly for present purposes, the “grant of the visa is not prevented” by the provisions of the Act specified in s 65(1)(a)(iii) or any other provision of the Act or of any law of the Commonwealth. Of the provisions specified by s 65(1)(a)(iii), ss 91W, 91WA and 91WB apply only to protection visas. The other provisions specified including, relevantly, s 501 are not specific to protection visas.

24    Section 501(1) provides the Minister with a power to refuse to grant a visa to a person if the person does not satisfy the “character test” defined by s 501(6). The Minister is also empowered to refuse to grant a visa to a person if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the refusal is in the national interest: s 501(3)(a). There is nothing in s 501 which expressly limits its operation in relation to protection visas. Note 1 to s 501 provides “Visa is defined by section 5 and includes, but is not limited to, a protection visa”. On its face, s 501 operates without restriction to all classes of visa. I will say more shortly about the function or purpose of s 501 which is largely revealed by, or implicit from, the “character test” specified in s 501(6). It is necessary to set out s 501(6):

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

   (aa)    the person has been convicted of an offence that was committed:

   (i)    while the person was in immigration detention; or

(ii)    during an escape by the person from immigration detention; or

(iii)    after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab)    the person has been convicted of an offence against section 197A; or

(b)    the Minister reasonably suspects:

(i)    that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii)    that the group, organisation or person has been or is involved in criminal conduct; or

(ba)    the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i)    an offence under one or more of sections 233A to 234A (people smuggling);

   (ii)    an offence of trafficking in persons;

(iii)    the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; or

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

   (i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

   (iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f)    the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i)    the crime of genocide;

(ii)    a crime against humanity;

(iii)    a war crime;

(iv)    a crime involving torture or slavery;

(v)    a crime that is otherwise of serious international concern; or

(g)    the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(h)    an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test.

25    The expression “substantial criminal record” used in para (a) of the “character test” is defined in s 501(7) as follows:

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

  (a)    the person has been sentenced to death; or

  (b)    the person has been sentenced to imprisonment for life; or

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)    the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

(e)    the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

(f)    the person has:

(i)    been found by a court to not be fit to plead, in relation to an offence; and

(ii)    the court has nonetheless found that on the evidence available the person committed the offence; and

(iii)    as a result, the person has been detained in a facility or institution.

26    It is not s 501 in and of itself which operates to “prevent” the grant of a visa pursuant to s 65(1)(a)(iii) but rather the exercise of the power to refuse to grant a visa under s 501: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [82] (Rares J) and BAL19 at [69] (Rares J). The power conferred by s 501 to refuse to grant a visa to a person is exercised in the performance of the duty imposed by s 65(1)(b) to refuse to grant the visa for the reason that the grant of the visa is prevented by s 501.

27    As the majority said in Plaintiff S297 at [34], the decision to be made by the Minister in the performance of the duty imposed by s 65 is “binary” requiring one or other of two mutually exclusive legally operative acts. Their Honours explained (at [34]) that (emphasis added):

the Minister is to do one or other of two mutually exclusive legally operative acts – to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) – depending on the existence of one or other of two mutually exclusive states of affairs (or ‘jurisdictional facts’) – the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters. The decision is not made, the duty is not performed, and the application is not determined, unless and until one or other of those legally operative acts occurs: that is to say, unless and until the Minister either grants the visa under s 65(1)(a) or refuses to grant the visa under s 65(1)(b).

28    A refusal to grant a visa is, as their Honours explained, a single legally operative act. That act must be based upon the Minister’s non-satisfaction of any one or more of the matters set out in the subparagraphs of s 65(1)(a). Insofar as they are applicable to the visa in question, each of those matters provides a ground (or perhaps a number of grounds) for the state of non-satisfaction required to justify the act of refusal. It may be seen therefore that the duty imposed by s 65 provides for a single process to be exercised under a single duty but permits several exit points by “refusal”.

29    In that context, it may be surprising if s 65(1) was intended to provide the same basis or ground twice for a single act of refusal available in the process for determining whether a visa ought be granted or refused. In the absence of some apparent purpose, such a circumstance may create discord and incoherence. It may be even more surprising if the same ground of refusal was intended to be available under s 65(1) twice but in circumstances where the Minister’s satisfaction of the existence of that same ground is to be assessed by reference to one or other of two different sets of considerations. A statutory duty or task with that feature may well result in incoherence. As Hayne J said in Plaintiff M47 at [180], the requirements in s 65(1) “cannot be contradictory or otherwise inconsistent”.

30    In SAS Trustee Corp v Miles (2018) 265 CLR 137 at [41], Gageler J observed that “statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means”. For that principle, his Honour relied on (what he had earlier referred to in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1 at [98] as) the “principle of harmonious construction”, a principle described in the following observations made by McHugh, Gummow, Kirby and Hayne JJ at [70]-[71] of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355:

[70]    A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71]    Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.

31    Referring to [70] of Project Blue Sky, French CJ, Hayne, Crennan, Kiefel and Keane JJ in Plaintiff S4/2014 v Minister for Immigration and Broder Protection (2014) 253 CLR 219 at [42] said “[c]onstruction should favour coherence in the law”. To similar effect and also with a focus on coherence with the statutory scheme, in SAS Trustee Corp, Kiefel CJ, Bell and Nettle JJ said this at [20]:

Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.

32    The appellant and the AHRC relied upon those authorities in support of their contention that s 36(1C) and s 501 essentially raised the same ground of refusal and that incoherence and disharmony would result if both were available pursuant to s 65(1)(b) as a ground for the refusal of an application for a protection visa. It was contended that the tension between s 36(1C) and s 501 is alleviated when it is recognised that s 501 was not intended to operate as a ground of refusal in relation to an application for a protection visa. The appellant went further still and contended that s 501 was inapplicable in relation to both the power to refuse an application for a protection visa and the power to cancel a protection visa.

33    That s 501 gives way to s 36(1C) was supported by a number of considerations in the submissions put by both the appellant and the AHRC. I will deal with those shortly.

34    One of those considerations, in relation to which reference to further authority needs to be made, was that as a specific provision, s 36(1C), prevails over s 501, a general provision. That proposition was based on the principle that where there is a conflict between general and specific provisions in a statute, the specific provision displaces the general, unless there is a contrary intention – a rule embodied in the Latin maxim “generalia specialibus non derogant”.

35    Addressing that maxim in Smith v The Queen (1994) 181 CLR 338, Mason CJ, Dawson, Gaudron and McHugh JJ (at 348) said that:

where there is a conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant). That principle is based upon the presumed intention of Parliament and has, we think, a particular application where the conflict arises from different sections in the same Act…It is but common sense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect.

36    In BAL19, Rares J relied upon the principle in Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J) to hold that s 36(1C) prevails over s 501. As the Minister correctly contended, the principle in Anthony Hordern is directly concerned with a conflict between two statutory powers, and as the Minister further contended, s 36(1C) is not a “power” but rather a “criterion” that feeds into s 65. Whether, however, Rares J was wrong to consider that s 36(1C) was a source of power is really beside the point. The Anthony Hordern principle is an application of the broader maxim described above. Accepting that s 36(1C) is not a source of power does not deny its character as a specific provision, nor the character of s 501 as a general provision. Unless there is a reason for concluding otherwise, if s 36(1C) and s 501 are in conflict, the presumption that the general provision (s 501) was not intended to deprive the specific provision (s 36(1C)) of its effect may be given effect. Conformably with the principle of harmonious construction, the applicability of that presumption would provide a basis for concluding that, in relation to an application for a protection visa, s 36(1C) is “the leading provision” and s 501 “must give way” to it: Project Blue Sky at [70] (McHugh, Gummow, Kirby and Hayne JJ).

37    In light of its various amendments, the Act must be read together as a statement of the will of the legislature; the timing of amendments might assist in determining the “hierarchy” of apparently conflicting provisions of the Act as amended, but notions of “implied repeal” have no place: Plaintiff S297 at [25] (Crennan, Bell, Gageler and Keane JJ).

38    At the end of the day, it is important to keep in mind that all of the applicable principles of statutory construction are not “masters” but rather “tools of analysis” helpful in the task of discerning Parliament’s intention: see Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union (2018) 268 FCR 128 at [78] (Allsop CJ, Griffiths and O’Callaghan JJ). The presumption that a specific provision ought not be deprived of its effect by a general provision may be rebutted and possible incoherence may be denied once Parliament’s purpose is properly revealed.

39    The Minister accepted that the character test in s 501 is broader than the criterion in s 36(1C). Implicit in that acceptance is an acceptance of an overlap between the subject matter dealt with by both s 36(1C) and s 501. The existence of an overlap does not, however, of itself demonstrate conflict or disharmony which must be alleviated. There may be good reason for the Act to contemplate two overlapping statutory inquiries or assessments or for one such inquiry to subsume the second and thus deprive it of effect. Whether good reason is demonstrated can only be properly assessed once the nature and extent of any overlap is properly identified. It is to that matter that I turn next.

40    The terms of s 36(1C) reflect the terms of Art 33(2) of the Refugees Convention.

41    Like the definition of “refugee” in s 5H, and its use in s 36(2)(a) as part of the criteria for a protection visa for a person who is a “refugee”, s 36(1C) was inserted by the 2014 Amending Act. Its insertion was “intended to codify Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention”: Explanatory Memorandum at [1236].

42    The outline to the Explanatory Memorandum (at 12) stated:

The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement, to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa. The statutory implementation of Article 33(2) of the Refugees Convention is through the new subsection 36(1C). Where a person is found to meet the definition of ‘refugee’ but does not meet the criterion under subsection 36(1C) they will be ineligible for grant of a Protection visa.

43    Article 33 of the Refugees Convention provides:

Prohibition of expulsion or return (‘refoulement’)

1.    No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2.    The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

44    Articles 32 and 33 provide the non-refoulement obligations of a Contracting State under the Refugees Convention. As Allsop CJ and Katzmann J said in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [12], Art 33(1) of the Refugees Convention “is central to the protection to be afforded to a refugee” and “is the cornerstone of the protection of refugees and those seeking asylum”.

45    The non-refoulement obligation in Art 33(1) of the Refugees Convention is provided with respect to a person who is a refugee within the meaning of that Convention. However, Art 33(2) operates to exclude a refugee from claiming the benefit of Art 33(1) where the disqualifying criteria there specified is applicable. The scheme of Art 33 of the Refugees Convention is reflected in the criteria for a protection visa in s 36 of the Act. Thus, where a person is a refugee because the criterion in s 36(2)(a) is satisfied, s 36(1A) requires that the person is not excluded by the disqualifying criteria specified in s 36(1C) (as well as the disqualifying criteria in s 36(1B)). The disqualifying criteria in para (a) and para (b) of s 36(1C) mirror the criteria in Art 33(2). The scheme, as reflected in observations made in the Explanatory Memorandum at [1235] and [1237], is to the effect that, when read together with s 36(1A), the effect of s 36(1C) not being satisfied is to exclude a person who meets the statutory definition of a “refugee” from the grant of a protection visa.

46    Of some importance to the analysis which I make, is what Allsop CJ and Katzmann J identified in NBMZ as the function or purpose of Art 33(2). At [21] their Honours said this (emphasis added):

It is important to recognise not only the place of Art 33(1), but also of Art 33(2) in the contextual fabric for decision-making about those who have been recognised as refugees. It describes the serious conditions that justify the return of a refugee to a place where he or she may face persecution. Article 33(2) and the circumstances within it reflect the balance contained within the Refugees Convention between protection of those who need it, and the legitimate entitlement of Contracting States not to be required to give protection to those who pose a danger to the host State and its people.

47    That observation identifies the purpose of Art 33(2) of the Refugees Convention as the protection of the host State and its people from the danger that may be posed by requiring the host State not to refouler a refugee.

48    The operation of s 36(1C) is not, however, confined to a non-citizen in respect of whom Australia has protection obligations because the person is a refugee under s 36(2)(a). As s 36(1A) makes clear, its operation extends to the complementary protection regime provided for (in part) by the criterion specified in s 36(2)(aa). That provision applies in respect of a non-citizen in Australia (other than a non-citizen mentioned in s 36(2)(a), ie a refugee). It applies to a non-citizen in respect of whom “Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.

49    The complementary protection regime was inserted into the Act by the Migration Amendment (Complementary Protection) Act 2011 (Cth) (“2011 Amending Act”). In so doing, the 2011 Amending Act first introduced into the Act a provision in a form almost identical to that of the current s 36(1C) but operative only in relation to the complementary protection regime. That provision, then s 36(2C), relevantly provided:

(2C)    A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

…

(b)    the Minister considers, on reasonable grounds, that:

(i)    the non‑citizen is a danger to Australia’s security; or

(ii)    the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

50    The Explanatory Memorandum that accompanied the Bill which became the 2011 Amending Act (at [88]) stated that the “purpose of new paragraph 36(2C)(b) is to provide when a non-citizen is taken not to satisfy the protection visa criterion in new paragraph 36(2)(aa) on grounds which mirror Article 33(2) of the Refugees Convention”. Reminiscent of the “balance” referred to by Allsop CJ and Katzmann J in NBMZ at [21], the 2011 Amending Act Explanatory Memorandum (at [90]) said:

Australia must, however, balance the delivery of its humanitarian program with protecting the Australian community and prevent Australia from becoming a safe haven for, for example, persons who have committed war crimes, and others of serious character concern.

51    It is clear then that the purpose of s 36(1C) is the same irrespective of whether the visa applicant is a person to whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). Given the terms and the provenance of s 36(1C), the description of the purpose of Art 33(2) of the Refugees Convention as stated by Allsop CJ and Katzmann J in NBMZ (at [21]) can also be said to accurately describe the function or purpose of s 36(1C). In the context of the Act’s scheme for the grant of a protection visa – a scheme which (at least in part) is designed to facilitate Australia meeting its protection obligations to persons who satisfy the criterion in s 36(2)(a) or s 36(2)(aa) – s 36(1C) serves to enable Australia to refuse a visa to such a person because the person poses a danger to Australia and its people.

52    That is the mischief or subject dealt with by s 36(1C) – the protection of Australia and the Australian community from persons who by reason of their past criminality pose a danger to the Australian community or alternatively are a danger to Australia’s security. Each of those mischiefs provides a ground of refusal for an application for a protection visa.

53    Whether or not either of those mischiefs exist requires the Minister to make an assessment and to be satisfied of the existence of each mischief “on reasonable grounds”. The criterion for determining whether either of the mischiefs exist is specific and mirrors the criterion in Art 33(2). It reflects the specific calibration adopted by Art 33(2) in the “balance” that Art 33 strikes between providing protection from refoulement to those who need it and protection to the host State and its people.

54    Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]). Nor is any past criminality sufficient to engage s 36(1C)(b). To engage that subsection a person must have been convicted by a final judgment of a “particularly serious crime” (as defined by s 5M) and therefore be a “danger to the Australian community”.

55    That a stringent level or standard is required by s 36(1C) in relation to the prerequisites that must exist to engage its operation is explained by the nature of the balancing exercise by which those standards have been formed. A host State’s tolerance of the risk of harm is understandably higher in relation to people who are in need of protection and who, in the absence of being provided protection, may face significant harm.

56    I turn then to consider the nature and purpose of s 501.

57    The mischief at which s 501 is directed is the risk of harm to the Australian community from criminal or other undesirable conduct by non-citizens who may engage in such conduct. Relying on observations made in O’Keefe v Calwell (1949) 77 CLR 261 at 278 (Latham CJ) and Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 668-669 (Smithers J), the Full Court (Tamberlin, Sackville and Stone JJ) in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 (at [68]) said that “the authorities recognise that the protection of the Australian community lies at the heart of the discretionary power to cancel the visa of, or deport a non-citizen convicted of serious criminal offences”. At [71] and having referred to observations made by the Full Court in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 at [104]-[105] (Lander J with Carr and Sundberg JJ in agreement), Tamberlin, Sackville and Stone JJ said that the Full Court’s analysis in Akpata of the Parliamentary intention underlying s 501 “reinforces the view that the section aims to protect the Australian community from those who have committed or might commit serious criminal offences.” Their Honours went on to say (at [71]) that:

the matters identified in s 501(6) show that the legislation is designed to protect the community from criminal or other undesirable conduct and to permit the Minister to give effect to what might loosely be described as community expectations that perpetrators of such conduct, should not be permitted to remain in Australia.

Those observations about the function or purpose of s 501 have been followed or applied by many judges of this Court including several Full Courts: see Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [50] (Rangiah J with North J in agreement); Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [43] (Moore, Branson and Emmett JJ); and Minister for Immigration and Citizenship v Makasa (2012) 207 FCR 488 at [62] (Jacobson, Siopis and Murphy JJ).

58    In Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, Mortimer J held (at [154]) that the risk of harm to the Australian community is a matter that a decision-maker, including the Minister personally, is bound to take into account in the exercise of the discretion under s 501(2). Her Honour came to that view because, as Rangiah J (with North J in agreement) observed at [47] of Moana, “an assessment of such a risk is a necessary part of exercising the power for the purpose for which it has been conferred, namely, protection of the Australian community”. At [48], Rangiah J (with North J in agreement) agreed with Mortimer J’s view in Tanielu that the “risk to the Australian community posed by the continued presence of the visa holder in Australia is a consideration that the Minister is bound to take into account in the exercise of the discretion to cancel the visa under s 501(2).” At [56], Rangiah J stated that each of the criteria in the “character test” in s 501(6) “involves a risk of harm of some kind to the Australian community posed by a person entering or remaining in Australia”. At [58] his Honour said this:

The common thread that underlies each of the criteria in s 501(6) is the risk of harm posed by a person coming into or remaining in the Australian community. In every case, the Minister’s consideration of the character test necessarily involves consideration of the risk of harm, whether that consideration is undertaken by actively assessing the risk under paras (b), (c) and (d) or is implicit in the making of a finding that para (a) or para (aa) or para (ab) is satisfied. The discretion to cancel a person’s visa is enlivened because the person will or may place the Australian community at risk of harm. I do not think that s 501(2) can be interpreted as requiring the Minister to consider the risk of harm at the threshold stage, but leaving it to the Minister to decide whether to take that same risk of harm into account when exercising the discretion.

59    The threshold of criminality necessary to engage s 501 is relatively low. Section 501 will be engaged if the Minister or his or her delegate is of the view that a person is not of good character and is therefore a risk to the Australian community. For example, character can be assessed merely by reference to a person’s past and present criminal or general conduct (s 501(6)(c)), to whether a person has been convicted of any offence whatsoever while in immigration detention (s 501(6)(aa)(i)), or whether a person has been sentenced to a single or cumulative period/s of imprisonment totalling 12 months or more (s 501(7)(c) and s 501(7)(d)). Further, s 501 will be engaged if the Minister “reasonably suspects” that a person has had or has an association with a group, organisation or person that has been or is involved in criminal conduct (s 501(6)(b)). Section 501 can also be engaged if there is a risk that if the person were allowed to enter or remain in Australia that they would engage in criminal conduct (s 501(6)(d)(i)), or “represent a danger to the Australian community or to a segment of that community” (s 501(6)(d)(v)).

60    In BAL19, Rares J characterised (at [61]) s 36(1C) as a specific provision and s 501(1) as a general provision and I respectfully consider that he was right to do so. Whether a statutory provision is specific or general is a question of characterisation which depends upon context and on the understanding that specificity and generality are relative rather than absolute concepts. For the purposes of the maxim “generalia specialibus non derogant”, it seems tolerably clear that s 36(1C) is the specific provision and that s 501 is the general provision. Section 36(1C) is concerned only with applications for protection visas, whereas s 501 is not confined to any particular class of visa. Whilst both address essentially the same kind of mischief, s 36(1C) is only concerned with the mischief that may be occasioned by non-citizens to whom Australia has protection obligations (and members of the family unit of such persons), whilst s 501 is not so limited.

61    On the basis of the discussion above, it seems evident that both s 36(1C) and s 501 are dealing with essentially the same mischief – protecting Australia and the Australian community from the risk that may be posed by reason of the presence in Australia of a non-citizen with criminal tendencies and/or who poses a risk to Australia’s security. Each address that mischief by providing a ground for the refusal of a visa applied for by such a person. In addition to a ground for the refusal of a visa, s 501(2) also provides a ground for the cancellation of a visa.

62    The engagement of s 36(1C) and the “character test” in s 501 are each contingent upon the Minister’s consideration as to whether certain prerequisites exist. Importantly and particularly in relation to the prior criminality of the visa applicant, different and less stringent standards apply to the prerequisites for the engagement of the refusal power under s 501 than those applicable to the engagement of s 36(1C).

63    On the basis of the matters discussed to this point, it may be said that there is some force to the conclusion reached by Rares J in BAL19 at [67] that:

There would be no intelligible statutory purpose for the mandatory criterion for a grant of a protection visa in s 36(1C), reflecting as it does the Parliament’s interpretation of Art 33(2) of the Refugees Convention, if the Minister were free to apply a less stringent criterion under s 501(1) and its analogues, involving his exercising a very broad discretion, to refuse to grant the very same visa: Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.

64    Further, there is I think some force in the observation made by Rares J at [71], that if a protection visa could be refused under s 501(1), “the specific and narrow criteria in s 36(1B) and (1C) that gives statutory effect to Australia’s non-refoulement obligations would have no useful function since these could be overridden in every protection visa application by the use of the general power in s 501(1), regardless of the fact that the different criteria in s 36(1B) and (1C) had been met”.

65    That a specific provision like s 36(1C) can be deprived, or largely deprived, of its effect by a general provision like s 501 is a circumstance that does tend to suggest legislative tension or incoherence. As the appellant said in his written submissions in reply:

Rhetorically, why would Parliament have intended for the Minister to be mandated to form a state of mind with regard to the graver matters in s 36(1C), if the Minister could always refuse the grant of a protection visa, in the exercise of discretion, on a state of mind formed upon the lesser basis in the ‘character test’?

66    The Minister denied the existence of tension or conflict. He contended that Rares J was wrong to hold that there would be no intelligible statutory purpose for s 36(1C) if s 501 extended to protection visas. The Minister contended that s 36(1C) specified a mandatory criterion going to “eligibility” for a visa and that the purpose of s 501 was to provide a more general discretionary power to refuse the visa on wider character grounds. In this respect, s 501 was suggested to be additional and s 36(1C) and s 501 to be cumulative requirements.

67    It must be accepted, as the Minister contended, that s 501 uses the term “visa” without qualification or limitation. That language (unassisted by context or purpose) suggests that s 501 is applicable to all classes of visa in relation to both the grant and cancellation of a visa. The term is used in s 501(1) and s 501(3)(a) dealing with the refusal of a visa. It is also used in s 501(2) and s 501(3)(b) which deals with the cancellation of a visa. As, in my view, there is no basis for the appellant’s contention that s 501 is inapplicable to the cancellation of a protection visa, the appellant faces the constructional difficulty that the same expression has been used differently in the same provision.

68    Section 501 does not (as is done in s 84 and s 85) say in the body of the provision that the term “visa” includes protection visas. There is, however, Note 1 to s 501. The Note confirms what is already apparent, that grammatically, “visa” is used in s 501 without limitation. The Note, however, does assist the Minister’s contention a little further because it exemplifies the absence of limitation by reference to a “protection visa”.

69    All of those considerations demonstrate that the term “visa” is used in a manner apparently applicable to all classes of “visa”. That so much flows from the language utilised must be accepted.

70    However, that acceptance is not determinative of how the word “visa” in s 501 is to be construed. It would ordinarily be the case that the text of a general provision (read without the assistance of context and purpose) will provide support for the proposition that the scope of that provision covers the subject matter of the specific provision. The apparent applicability of the general provision to that subject matter does not mean that its applicability is not confined by reference to the specific provision: Minister for Immigration and Multicultural Affairs v Nystrom (2006) 228 CLR 566 at [59] (Gummow and Hayne JJ). If that textual indication was of itself determinative, the maxim “generalia specialibus non derogant” would have little or no operation.

71    That is not to say that the text of the general provision is to be denied the weight that it deserves. But it is to say that despite the grammatical meaning of the text, the principle of harmonious construction may require the word “visa” in s 501(1) and s 501(3)(a) to be construed as not extending to a protection visa, as the High Court did in relation to the term “visa” in Plaintiff S297.

72    In Plaintiff S297 the principle of harmonious construction in [70] of Project Blue Sky was relied upon in each of the judgments of the Court (read with the related decision in Plaintiff M150 of 2013 v Minister for Immigration and Border Protection (2014) 255 CLR 199). The majority judgment of Crennan, Bell, Gageler and Keane JJ found a conflict between the fixing of a maximum number of visas pursuant to the former s 85 of the Act and the requirement that decisions under the former s 65 be made within 90 days pursuant to s 65A (see Plaintiff S297 at [64]-[65]). The conflict was resolved by giving primacy to s 65A and construing the reference to “visas” in s 85 as not applying to protection visas.

73    Beyond the text of s 501, the Minister also relied on the definition of “fast track decision” found in s 5 of the Act. The definition and its consequence for construction does not appear to have been a matter considered by Rares J in BAL19. The definition was introduced by the 2014 Amending Act, a matter of some importance. It provides (emphasis added):

fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:

(a)    because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or

(b)    relying on:

(i)    subsection 5H(2); or

(ii)    subsection 36(1B) or (1C); or

(iii)    paragraph 36(2C)(a) or (b).

Note:    Some decisions made in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500.

74    The definition expressly contemplates that a decision to refuse to grant a protection visa can be made “because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under s 501”, or (relevantly) “relying on” s 36(1C).

75    With some exception not necessary to here detail, the definition of “fast track decision” forms part of the scheme of provisions which, among other things provide that a decision made to refuse the grant of a visa under s 501 is reviewable by the AAT. Section 500(1)(b) provides that an application may be made to the AAT for review of a decision of the delegate of the Minister under s 501. The Note to that section confirms that whilst decisions to refuse to grant a protection visa to fast track applicants are generally not reviewable by the AAT, some decisions including those mentioned in para (a) or subpara (b)(i) or (iii) of the definition of “fast track decision” are reviewable by the AAT.

76    The appellant sought, but in my view failed, to diminish the significance of the express statement made in the definition that a protection visa may be refused under s 501. The appellant contended that “fast track decision” is a definition and that it therefore does not have a substantive effect. However, the significance of the definition to the exercise of construction here being addressed is not minimised by the fact that it is not a substantive enactment.

77    The AHRC contended that by reason of the definition of “fast track applicant”, which is directed to a person “who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country”, that the applicability of the definition of “fast track decision” should be understood as being confined to visa applications made prior to the commencement Sch 4 of the 2014 Amending Act on 18 April 2015. That submission is, however, denied by Item 27 of Sch 4 of the 2014 Amending Act which states that the relevant amendments made by Sch 4 (which included both the definition of “fast track decision” and “fast track applicant”) apply prospectively – that is “in relation to an application for a protection visa made by a fast track applicant on or after the commencement of [Sch 4]”.

78    I appreciate that Item 28 of Sch 4, directed at applications made pursuant to the complementary protection criterion in the Act, may be said to introduce some ambiguity. However, if it does, that ambiguity would only serve to suggest that the amendments in question had prospective operation as well as some retrospective operation in relation to some applications for protection visas made prior to the commencement of Sch 4. The potential ambiguity does not deny the clear statement made by Item 27 of Sch 4 that the amendments apply prospectively.

79    That being so, it seems to me that the incorporation into the Act of the definition of “fast track decision” in s 5 of the Act (a provision introduced by the 2014 Amendment Act itself), recognises that protection visa applications can be refused under s 501, or alternatively, under s 36(1C). That recognition is not only a direct statement of the applicability of s 501 to the refusal of protection visa applications, it also supports an underlying proposition that the Act treats the two provisions as independent of each other, each providing an alternative basis upon which a protection visa may be refused.

80    There are other textual considerations upon which the Minister relied which are less persuasive. Section 65 of the Act refers to s 501 as a source of prevention of a visa being granted and s 501H relevantly states that a power under s 501 to refuse the grant of a visa or cancel a visa “is in addition to any other power under this Act”. Both s 65 and s 501H operate as general provisions and, as Colvin J said in BFW20 (at [113]) in relation to s 501H, these provisions do not enlarge the powers conferred by the provisions to which they refer. If those provisions (and relevantly s 501) are confined in their operation, then s 65 and s 501H pick up those provisions and apply them accordingly. Neither provision, of itself, assists in determining whether s 501 is confined in its operation and therefore inapplicable to the refusal of a protection visa.

81    The Minister also relied on s 500(4)(b) which provides that a decision under s 501 is not reviewable under Pt 5 or Pt 7 of the Act. Because Pt 7 only applies to protection visas, and s 500(4) was amended by the 2014 Amending Act (although s 500(4)(b) was not amended) the Minister contended that excluding s 501 decisions from Pt 7 would only have been worth keeping in the Act if the class of decisions reviewable under Pt 7 might include a s 501 decision. Although this textual consideration points in favour of the Minister’s contention, when considered on its own, it offers only limited persuasion.

82    The Minister referred to prior authority to the effect that s 501 could be exercised to refuse an application for a protection visa. Aside from BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [44]-[45] (Bromberg and Mortimer JJ), where oblique reference was made to that possibility, the authorities relied on predate the enactment of s 36(1C). Those authorities were Akpata at [114]-[115] (Lander J with Carr and Sundberg JJ in agreement), Plaintiff M47 at [39] and [42] (French CJ), at [136] (Gummow J), at [180] and [188] (Hayne J), at [266] (Heydon J), at [389] (Crennan J) and at [423] and [427] (Kiefel J), VWOK v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 135 (Heerey, Finkelstein and Allsop JJ) and SZLDG v Minister for Immigration and Citizenship (2008) 166 FCR 230 (Lindgren J).

83    In Plaintiff M47 the weight of opinion supported the proposition that, at least as the Act relevantly stood prior to the amendments made by the 2014 Amending Act, s 501 had application to the refusal and cancellation of protection visas. It was not necessary for the Court to assess the extent of the applicability of s 501 to protection visas. Insofar as French CJ, Hayne and Crennan JJ identified the extent of that operation, their Honours held that s 501 was applicable to the refusal of a protection visa when such a refusal relied on Art 32 and Art 33(2) of the Refugees Convention: see at [42] (French CJ), at [191]-[192] (Hayne J) and at [389] (Crennan J). The other member of the Court who formed the majority, Kiefel J, did not consider that the Art 32 and Art 33(2) grounds were located in s 501. However, it is implicit from her Honour’s judgment that her Honour regarded s 501 as applicable to protection visas. At [428] Kiefel J described s 501(1) as providing a power “additional to and separate from” a power of refusal reliant on Art 32 and Art 33(2). It is implicit that the “additional” and “separate” power referred to, was a power which extended to the refusal of a protection visa.

84    Historical considerations are also relevant. At the time Plaintiff M47 was decided, the High Court in NAGV v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 had determined that Art 32 and Art 33 of the Refugees Convention did not qualify the reach of Art 1 and “therefore do not play a part in the application of the criterion in s 36(2)(a)”: see Plaintiff M47 at [38] (French CJ). Although, as Kiefel J pointed out in Plaintiff M47 at [441], while the “obvious candidate” for the repository of a ground of refusal of a protection visa relying on Arts 1F, 32 and 33(2) was s 36(2), that conclusion was denied by NAGV.

85    NAGV was followed by the High Court in SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577, where the High Court directly rejected the proposition that the terms of Art 33(2) had been imported into s 36(2)(a) of the Act by the former s 91U of the Act, which defined the term “particularly serious crime”, a term used in Art 33(2): at [31] (Keane J, all members agreeing). That conclusion confirmed that the contents of Art 33(2) were not part of the criterion for the existence of protection obligations under s 36(2)(a).

86    As the Minister contended, the enactment of s 36(1C) may be regarded as responsive to the decision in SZOQQ. The enactment of s 36(1C) makes the content of Art 33(2) an additional criterion for the existence of protection obligations under s 36(2)(a), thus reversing the conclusion in SZOQQ and so much of NAGV upon which SZOQQ relied. In so doing, the enactment of s 36(1C) decoupled the association of s 501 with Art 33(2) insofar as that association had been thought to rest (as it had by French CJ, Hayne and Crennan JJ in Plaintiff M47) on an Art 33(2) ground of refusal being reposed in s 501.

87    That then brings me to the Explanatory Memorandum. It is surprising that the Explanatory Memorandum does not acknowledge that the enactment of s 36(1C) is responsive to the judicial determinations made in SZOQQ and NAGV. That failure somewhat undermines the usefulness of the Explanatory Memorandum as an aide to construction of the relationship between s 36(1C) and s 501. The Explanatory Memorandum is silent on both the historical interaction between applications for protection visas and s 501 and the intended interaction (if any) put in place by the enactment of s 36(1C) in the context of the “new statutory framework relating to refugees” which the 2014 Amending Act was said to enact. Those failures somewhat diminish what I nevertheless consider to be a weighty consideration supportive of the Minister’s construction. Given the historical applicability of s 501 to the refusal of protection visas, the construction contended for by the appellant and the AHRC requires an acceptance that by the 2014 amendments substantial reform was intended. Namely, that the prior applicability of s 501 to the refusal of a protection visa was reversed and thereby negated. The consequences of such a reversal are large, including because of the flow on effects upon ss 501A, 501B, 501C, 501BA and 501CA which each provide the Minister with a personal override power to refuse the grant of a visa where the visa applicant fails to pass the character test in s 501.

88    That is not to say that the Explanatory Memorandum provides no support for the appellant’s position. In BAL19, Rares J considered (at [84]) that the position after the 2014 Amending Act “is substantively different”. His Honour considered that the amendments made by the 2014 Amending Act “changed the Act in significant respects in relation to the powers and criteria under which a protection visa may be granted or cancelled”. It was largely on that basis that his Honour regarded the judicial construction of provisions of the Act (which have supported the applicability of s 501 to protection visas) as not binding or applicable (at [84]). His Honour extensively relied upon the Second Reading Speech to the 2014 Amending Act (“Second Reading Speech”) and the Explanatory Memorandum. The following excerpts from that extrinsic material were referred to and emphasised:

    “Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes”: Second Reading Speech at 10547;

    “Schedule 5 of the bill will also create a new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention”: Second Reading Speech at 10547;

    “The new framework will also clarify those grounds which exclude a person from meeting the definition of a refugee or which, upon a person satisfying the definition of a refugee, render them ineligible for the grant of a protection visa”: Second Reading Speech at 10548

    “Let me be clear, the government is not changing the risk threshold required for assessing whether a person has a well-founded fear of persecution”: Second Reading Speech at 10547

    “The new framework will also clarify those grounds which exclude a person from meeting the definition of a refugee or which, upon a person satisfying the definition of a refugee, render them ineligible for the grant of a protection visa”: Second Reading Speech at 10548

89    I have referred already (at [16] and also [41]) above, to similar statements made by the Explanatory Memorandum including statements which confirm an intention to create “a new, independent and self-contained statutory framework” articulating Australia’s interpretation of its protection obligations under the Refugees Convention. The Explanatory Memorandum makes extensive use of the term “codify” (see at 2, 10, [1167], [1169], [1172], [1173] and [1236]. Further, as earlier stated, the Explanatory Memorandum confirms that s 36(1C) is an intended codification of Art 33(2).

90    Important to the analysis made by Rares J was this conclusion at [85]:

However, the 2014 Amendments carefully codified the criteria for a protection visa in ss 35A(6) and 36 in order to divorce other parts of the Act and the Refugees Convention. In my opinion, those criteria deal exhaustively with the criminal history and behaviours of an applicant for (or holder of) a protection visa so as now to exclude the availability or operation of s 501 and its analogues, including the pre-existing s 501H, as a basis to refuse to grant a protection visa: Nystrom 228 CLR at 571-572 [2].

91    As the discussion above suggests, there are strong considerations both for and against the proposition that s 501 has no application to the refusal of a protection visa.

92    It must be presumed that s 36(1C) was intended to be operative and effective in relation to applications for protection visas. Its criteria mirrors Art 33(2) of the Refugees Convention and must be seen to be responsive to Australia's international obligations and enacted to facilitate Australia's discharge of those obligations. As Allsop CJ stated in FCS17 v Minister for Home Affairs [2020] FCAFC 68 at [17], the legislative text is construed “against the background of the Refugees Convention which is still the matter of international concern to which the legislation is directed and the obligations which the codification seeks to embody”. As a reflection of Art 33(2), the controlling criteria in s 36(1C) for making the assessment of character and consequent risk must be seen to have been carefully tailored to take into account not only the needs of the Australian community but, importantly, also the need of the visa applicant for protection. Having enacted specific criteria to deal with specific circumstances and done so in order to reflect Australia’s international obligations to address a specific circumstance by specific measures, in the absence of good reason to the contrary, Parliament should be taken to have intended that its chosen criteria would be effective and would govern the specific subject matter with which it deals.

93    It is also apparent that the capacity for s 36(1C) to have effect may be substantially curtailed if a protection visa may be refused under s 501. That is so because of the overlapping nature of the subject matter which each of s 36(1C) and s 501 address. As I have said, both s 36(1C) and s 501 deal with essentially the same mischief and each requires an assessment of essentially the same subject – the risk to the Australian community posed by the non-citizen remaining in Australia which is to be assessed by reference to the non-citizen’s character. It is not that s 501 provides an additional hurdle that would circumvent the operative effect of s 36(1C). Section 36(1C) may be circumvented because the lower bar for exclusion set by s 501 means that the higher bar provided for by s 36(1C) may be rendered otiose. If s 36(1C) was able to be circumvented, the basis or standard for exclusion from protection under the Act’s processes for the grant of a visa for those persons who satisfy the criteria in s 36(2), would not be governed or controlled by provisions which comply with Australia’s non-refoulement obligations under Art 33 of the Refugees Convention.

94    Those observations identify a discord, conflict or tension which would be resolvable if s 36(1C) were to be construed as intended to be exhaustive of the circumstances in which an applicant for a protection visa, who otherwise meets the protection criterion in s 36(2), may be refused a visa on the ground of character and consequent risk to the Australian community.

95    Those observations suggest that the issue should be determined in favour of the appellant. They are, however, not reliant upon the appellant’s contention that the profuse use of the terms “codify” and “codification” in the extrinsic material to the 2014 Amending Act support the proposition that s 36(1C) was intended to be exhaustive over the subject matter with which it deals.

96    A code is a systematic collection or digest of laws. To codify is to create that collection or digest. The subject of the codification referred to by the extrinsic material was the Refugees Convention or, more particularly, those Articles of the Refugees Convention that were to be reflected in and embodied by the criteria in s 36 of the Act. Whilst the process of codification may suggest an intent to be exhaustive of the law (in this case the Refugees Convention), it does not necessarily suggest an intent that the subject matter of that law dealt with by the digest which embodies the codification (in this case s 36 of the Act) is exhaustively dealt with by the instrument in which that digest is found.

97    Turning then to those features supportive of the Minister’s case, there are strong textual indications that s 501 was intended to have effect in relation to the refusal of protection visas. Those indications, particularly those given by the definition of “fast track decision” and the unqualified use of the word “visa” in s 501, as confirmed by Note 1 to that provision, support the proposition that, although s 501 and s 36(1C) are dealing with the same subject, the Minister may address that subject under s 36(1C) or alternatively under s 501.

98    The historical association of s 501 with that subject tends to confirm that proposition, as does the realisation that the enactment of s 36(1C) was responsive to the decision in SZOQQ. By enacting s 36(1C), the Minister was provided with a capacity to address the same mischief addressed by s 501 when refusing a visa under the mandatory protection criterion in s 36(2)(a). That a higher bar for exclusion was prescribed for addressing that subject is explained by the evident intent that s 36(1C) should reflect Art 33(2) of the Refugees Convention.

99    There is no tension or conflict between s 36(1C) and s 501 if they are true alternatives – that is two paths through which the Minister may address the same subject: see Plaintiff M47 at [321] (Heydon J).

100    It is somewhat surprising that a statute should provide two paths for dealing with the same subject matter in the one process under a single duty and do so differentially by requiring that subject to be addressed by different considerations. However, that is what I consider the Act does. That is done, in my view, because the Act intends to provide a path by which Australia’s protection obligations may be discharged by the grant of a protection visa and a separate path in which the Minister is given the capacity not to discharge those obligations by the grant of a protection visa despite the visa applicant being a person in respect of whom Australia owes protection obligations.

101    Via the processes for obtaining a visa provided for under the Act, the Act seeks to facilitate, but not mandate, compliance with Australia’s protection obligations. The Act provides the Minister with a means by which compliance with those obligations (as reflected in the Act) may be effectuated. A valid assessment of a protection visa application by reference to the criteria in s 36 (including s 36(1C)) will effectuate that option. The Act does not, however, require the Minister to take that path and therefore does not mandate that Australia’s protection obligations (as referred to in s 36) be discharged through the process for obtaining a visa provided for by the Act. An alternative path is provided for by s 501. Australia’s protection obligations including its non-refoulement obligations are not irrelevant to that path because, in the exercise of the discretion conferred by s 501, the Minister must take into account the statutory framework in which any refusal decision is made and (where relevant) the legal consequences which flow from Australia’s protection obligations: NBMZ [6]-[10] and [17]-[18] (Allsop CJ and Katzmann J); DLJ18 v Minister for Home Affairs [2019] FCAFC 236 at [5] (Flick J) at [20] (Bromberg J) and at [81] (Snaden J). However, under this path in the process for obtaining a visa provided for by the Act, Australia’s protection obligations including its non-refoulement obligations need not be discharged despite the visa applicant being a person in respect of whom Australia owes protection obligations.

102    That is what the Minister here did. As the Minister’s decision states, the appellant is a national of Afghanistan and is of Hazara ethnicity and of the Shia religion. The appellant fears harm including death at the hands of the Taliban because he assisted international organisations and foreigners in Afghanistan. The Minister accepted that the appellant is a person in respect of whom Australia has non-refoulement obligations. Despite that acceptance, and by using the discretionary refusal power in s 501A(2) (an analogue of s 501(1)), the Minister did not utilise the process provided by the Act for obtaining a protection visa as a means of discharging Australia’s non-refoulement obligations in respect of the appellant.

103    To the extent that either the Second Reading Speech or the Explanatory Memorandum suggested that the Act does not merely facilitate the discharge of Australia’s protection obligation but mandates the discharge of those obligations, that suggestion is inaccurate.

104    For those reasons, I respectfully disagree with the holding in BAL19 that s 501 is not available or applicable in relation to a decision to refuse a protection visa. The appellant’s second ground must be rejected.

Is the power under s 501A(2) time limited and if so did the available time lapse?

105    By his first and original ground of review, the appellant contended that the lawful exercise of the power under s 501A(2) of the Act is constrained by an implied time limit, being that the power must be exercised within a reasonable period of time. The source of this time limit was submitted to be the “ordinary rule” that powers must be exercised within a reasonable time as expressed by Dixon J in Koon Wing Lau v Calwell (1949) 80 CLR 533. Several grounds were relied upon to support the appellant’s contention that the statutory scheme suggested that a time limit on the exercise of the refusal power in s 501A(2) is to be implied.

106    The appellant contended, referring to Plaintiff S4 and Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 that s 65 is subject to the restriction that it be exercised within a reasonable time due to the mandatory detention consequences of a failure to exercise that power. Consequently it was submitted that s 501A, as part of the s 65 duty or when considered independently, must also be subject to such a time restriction due to the mandatory detention implications of a failure to exercise the power under s 501A. Further, it was submitted that the so called “fall back mechanisms” which grant the Minister a later power to cancel a visa after it has been granted, such as s 501A(4A), 501(2) and 501(3), point towards the s 501(2) power being governed by a reasonable time limit. The mandatory detention consequences of the failure to exercise the power within a reasonable time were said to invoke the principle that in relation to provisions which affect rights or liberties any ambiguity should be resolved in favour of preserving those rights and liberties and similar reliance was placed upon the principle of legality. The 84-day rule in relation to a inter partes contest on a character cancellation or refusal under s 501 was contended to be indicative of a time limit. Lastly, although not developed, the appellant further contended that after the expiry of a reasonable time period any exercise of the discretion under s 501A(2) will be without power because it would be a legally unreasonable exercise.

107    The appellant contended that the period of approximately 18 months that it took the Minister to set aside the AAT decision pursuant to s 501A(2) was an unreasonable period. The appellant submitted that attention should be paid to the overall delay, and that it would be wrong to simply split up the total 18 months into separate time periods and ask whether some or all of those periods were supported by a reasonable explanation.

108    The primary judge found that the facts of the case did not reveal that there was any unreasonable delay on the part of Minister Dutton or Minister Coleman (see at [69]). Having come to this conclusion the primary judge determined that it was not necessary to decide the question as to whether or not an unreasonable delay would mean that the power in s 501A(2) was no longer available for exercise (see at [66]-[70]).

109    The appellant’s challenge to the primary judge’s holding that there was not unreasonable delay is twofold. First, the appellant submitted that the primary judge was wrong to find that various factors relied upon by the Minister to explain delay were substantiated with evidence. Second, the appellant contended that the primary judge fell into error by relying on explanations that were not relevant.

110    The Minister made three responses. First, the Minister submitted that the primary judge made no error in her assessment of the evidence as to delay and was correct in finding that no reasonable delay occurred. Second, that there is no authority to support the proposition that s 501A(2) is conditioned by a requirement that it be exercised within a reasonable time, and nothing in the statutory text or context of s 501A points to such a legislative intention. Third, that in any event, the appellant is not entitled to the relief which he seeks on appeal, in particular, an order quashing the Minister’s decision and a declaration that the Minister’s power pursuant to s 501A(2) had lapsed by the time of the purported decision.

111    In respect of his second response, the Minister contended that Koon Wing Lau does not stand for the proposition that all statutory powers are subject to an implied condition that they be exercised within a reasonable time limit, submitting that that case was concerned with the construction of a particular statutory provision. The Minister submitted that given the express words of s 501A(2) do not impose a time limit, no time limit is imposed, nor is there any language indicative of an implied time limit in the provision; whether such a time limit exists must be implied from the structure and context of s 501A(2), and such an implication should not be lightly made.

112    Moreover, the Minister referred to contrary indications that such a time limit was intended to be imposed. First, the Minister noted the relationship between s 501 and s 501A and referred to the reasoning of Allsop CJ, Kenny and Banks-Smith JJ in Minister for Home Affairs v Brown [2020] FCAFC 21 at [115] which was said to suggest that no time limit applied to the exercise of power under s 501. Second, the Minister referred to s 501A(4A) which provides that the Minister may cancel a visa that has been granted under s 501A(2) even if the original decision was not to exercise the power conferred by s 501(1) to refuse to grant a visa. The Minister submitted that s 501A(4A) rendered any time limit under s 501A(2)(a) otiose because s 501A(2)(b) becomes exercisable as soon as the visa is granted. Lastly, the Minister submitted that it is unlikely that Parliament intended the uncertainty that would be brought about on the appellant’s construction.

113    The appellant’s complaint that there was unreasonable delay in the Minister exercising the s 501A(2) power to refuse the appellant’s application for a protection visa is not without some merit. However, I need not address that argument because I do not accept that there is an implied time limitation on the refusal power in s 501A(2) which causes the power to lapse if it so not exercised within a reasonable period of time.

114    To explain my conclusion it is necessary first to locate the s 501A(2) power to refuse to grant a visa within the scheme of the Act. As the exercise of that power is directed to an application for a visa, attention is drawn to ss 47 and 65 of the Act which impose a duty on the Minister to consider a valid application for a visa and a complementary duty to grant or refuse to grant the visa: Plaintiff S297 at [32] (Crennan, Bell, Gageler and Keane JJ). As the majority in Plaintiff S297 stated at [34] (see [27] above) the performance of the duty imposed by s 65 is binary, requiring one or other of two mutually exclusive legal acts. In simple terms, the Minister must either grant or refuse the application for a visa, there being no other available option. That the Minister is statutorily obliged to do that within a reasonable time is confirmed by Plaintiff S297 at [37]. There can be no doubt that the performance by the Minister of the duty imposed by s 65 is susceptible to an order for mandamus.

115    The refusal power provided in s 501A(2) is a non-compellable personal discretionary power of the Minister (s 501A(5) and (6)). It may or may not be exercised. However, where it is exercised, it is a step in the performance of the duty imposed by s 65. Although not expressly referred to in s 65(1)(a)(iii) as a provision by which the grant of a visa may be prevented, in that sub-para, s 501A(2) falls within the expression “any other provision of this Act”.

116    It is in that context that, the appellant’s contention that the lawful exercise of the power in s 501A(2) of the Act is constrained by an implied time limit, must be considered.

117    The appellant contended that the power in s 501A(2) is not ‘at large’ and must be constrained by the “ordinary rule” referred to by Dixon J in Koon Wing Lau. That case concerned challenges to the validity of both the Immigration Act 1901-1949 (Cth) (“Immigration Act”) and the War-time Refugees Removal Act 1949 (Cth), which provided for certain schemes allowing the Minister to deport persons from Australia. Section 4(4) of the Immigration Act relevantly provided:

Upon the expiration or cancellation of any such certificate, the Minister may declare the person named in the certificate to be a prohibited immigrant and that person may thereupon be deported from the Commonwealth in pursuance of an order of the Minister.

118    Dealing with the power provided under s 4(4), Dixon J at 573 posed the following relevant question:

… whether after the expiration or cancellation of a certificate the Minister may, without any limitation of the time that elapses, at any date, however distant, act under sub-s. (4) and make a declaration that the person is a prohibited immigrant and order his deportation.

119    His Honour answered that question at 573 as follows (emphasis added):

The word “upon,” in the expression “upon the expiration or cancellation” does not, I think, mean immediately upon and, as the Supreme Court of New South Wales has decided, it does mean “after”: Ex -parte Lesiputty; Re Murphy.

But, in accordance with the ordinary rule, that must be taken to mean within a reasonable time after the expiration and cancellation of the certificate of exemption. What is a reasonable time will depend upon all the facts, including the conduct of the person named in the certificate. It does not necessarily mean that by successfully evading the authorities for a long period of time, he can escape from the operation of sub-s. (4). But the operation of sub-s. (4) is limited to a reasonable time after the expiry or cancellation of the certificate.

120    The Minister disputed that the reference made by Dixon to “the ordinary rule” was intended as a statement of general application, but it is not necessary to determine whether the observation made was intended to be applicable generally to the exercise of all powers. There is one contextual aspect in relation to the s 501A(2) power which supports the application of a temporal limitation consistently with the approach taken by Dixon J in Koon Wing Lau, however, there is another that does not.

121    Just like s 4(4) of the Immigration Act, the s 501A(2) refusal power is a power the exercise of which is dependent upon an earlier event. In the case of s 4(4), the earlier event was the expiration or cancellation of a certificate and the word “Upon” signified that the power was not exercisable until after the occurrence of that event. Section 501(A) is structured differently but in this respect is essentially analogous. The earlier event or specified prerequisite upon which the exercise of the refusal power in s 501A(2) depends is set out in s 501A(1). That provides that the prerequisite for the application of s 501A and therefore the exercise of the power in s 501A(2), is the making of the “original decision” by the AAT. It is upon that event occurring that the s 501A(2) power becomes exercisable. Both the powers in s 4(4) of the Immigration Act and s 501A(2) of the Act are discretionary. That the s 501A(2) power is not a compellable power is of no apparent significance to the question here being addressed.

122    Accordingly, Dixon J’s analysis in Koon Wing Lau is apposite. The s 501A(2) refusal power is a power exercisable “after” the making of the “original decision” and, on the reasoning of Dixon J, a temporal limitation of the kind his Honour identified may be implied.

123    However, unlike s 4(4) of the Immigration Act, which was a standalone power, the exercise of the refusal power in s 501A(2) is, as I have said, a step in the performance of the duty imposed by s 65. The act of refusal is one of the two available legal acts required to discharge the duty in s 65 of the Act. Whilst the source of the power for the performance of that act of refusal may be located in other provisions of the Act, it is also located in s 501A(2).

124    The appellant accepted that s 501A was an “element” of the discharge of the duty under s 65. The appellant contended that because the non-performance of the duty under s 65 is susceptible to mandamus it should follow that a time limit applies to the exercise of the power in s 501A.

125    However, the difficulty for the appellant’s construction is that whilst the duty imposed by s 65 is to be performed within a reasonable time, the obligation upon the Minister to perform that duty does not lapse by the effluxion of time. The Minister must either grant the visa or refuse to do so.

126    The idea that it was intended that whilst the obligation to perform the s 65 duty does not lapse by the effluxion of time but an available source of power for the discharge of that obligation does, is unattractive. There is nothing to support such an implication either in the text of the Act or by reason of any discernible legislative policy.

127    Such an implication may well have been available, if a person in the position of the appellant (whether or not such a person is in detention) had no capacity to obtain relief. However, an order of mandamus is available to rectify the failure of the Minister to discharge the s 65 duty within a reasonable time. The making of such an order would not only require the exercise of the s 501A(2) refusal power (if it is to be exercised) but would also address the primary source of the prejudice caused by any unreasonable delay – the failure of the Minister to either grant or refuse the visa.

128    The power in s 501A(2) to cancel a visa raises very different contextual considerations but those need not be here considered. Nor is it necessary to consider the Minister’s submission that the appellant would not, in any event, be entitled to the relief he seeks.

129    For those reasons, the appellant’s first ground must be rejected.

Conclusion

130    As both of the appellant’s grounds should be rejected, the appeal should be dismissed. The parties should agree costs or, alternatively, make further submissions so that any dispute as to costs may be determined on the papers.

Associate:

Dated:    23 June 2020

REASONS FOR JUDGMENT

O’CALLAGHAN AND STEWARD JJ.:

131    The appellant arrived in Australia from the Islamic Republic of Afghanistan as an unauthorised maritime arrival in 2013. He was granted a temporary visa. In 2015 he was convicted of two counts of common assault and one count of breaching an apprehended violence order. He was sentenced to 10 months’ imprisonment on each count. The appellant then applied for the grant of a safe haven enterprise visa. This was refused by the respondent (the “Minister”) pursuant to s. 501(1) of the Migration Act 1958 (Cth.) (the “Act”). That decision was in turn set aside by the Administrative Appeals Tribunal (the “A.A.T.”) when on 12 October 2017 it made the following order:

For the reasons given orally at the conclusion of the hearing of this matter, the decision under review made on 21 July 2017 is set aside and in substitution it is decided that the discretion under s 501(1) of the Migration Act 1958 is not exercised to refuse the applicant’s application for a Safe Haven Enterprise (Class XE) visa.

132    Pursuant to s. 501A of the Act, the Minister, about 18 months later (on 18 April 2019), personally decided to refuse to grant the visa. An application for judicial review of that decision was dismissed by a judge of this Court on 5 August 2019. The appellant now appeals that decision. As will become apparent, the appeal raises two important issues. They are as follows:

(a)    did the learned primary judge err by failing to find that the Minister’s decision was attended by unreasonable delay, and was thus invalid; and

(b)    does s. 501A of the Act give the Minister the power to refuse the grant of a protection visa? A very similar issue was recently considered by a single judge of this Court in BAL19 v. Minister for Home Affairs [2019] FCA 2189.

APPLICABLE LEGISLATION

133    A number of provisions of the Act need to be set out. One commences with s. 501A which is in the following form:

Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)    This section applies if:

  (a)    a delegate of the Minister; or

  (b)    the Administrative Appeals Tribunal;

  makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister—natural justice applies

(2)    The Minister may set aside the original decision and:

  (a)    refuse to grant a visa to the person; or

  (b)    cancel a visa that has been granted to the person;

  if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

Action by Minister—natural justice does not apply

(3)    The Minister may set aside the original decision and:

  (a)    refuse to grant a visa to the person; or

  (b)    cancel a visa that has been granted to the person;

  if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(4)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(4A)    Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister’s exercise of power

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7)    A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.

134    Section 501(1) of the Act provides:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

135    The “character test” is defined in s. 501(6) of the Act as follows:

Character test

For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

(aa)    the person has been convicted of an offence that was committed:

  (i)    while the person was in immigration detention; or

  (ii)    during an escape by the person from immigration detention; or

(iii)    after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab)    the person has been convicted of an offence against section 197A; or

(b)    the Minister reasonably suspects:

(i)    that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii)    that the group, organisation or person has been or is involved in criminal conduct; or

(ba)    the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i)    an offence under one or more of sections 233A to 234A (people smuggling);

   (ii)    an offence of trafficking in persons;

(iii)    the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; or

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

  (i)    engage in criminal conduct in Australia; or

  (ii)    harass, molest, intimidate or stalk another person in Australia; or

  (iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f)    the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i)    the crime of genocide;

(ii)    a crime against humanity;

(iii)    a war crime;

(iv)    a crime involving torture or slavery;

(v)    a crime that is otherwise of serious international concern; or

(g)    the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(h)    an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test.

136    Section 501(7) of the Act provides:

Substantial criminal record

For the purposes of the character test, a person has a substantial criminal record if:

  (a)    the person has been sentenced to death; or

  (b)    the person has been sentenced to imprisonment for life; or

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)    the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

(e)    the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

  (f)    the person has:

(i)    been found by a court to not be fit to plead, in relation to an offence; and

(ii)    the court has nonetheless found that on the evidence available the person committed the offence; and

(iii)    as a result, the person has been detained in a facility or institution.

137    At the end of s. 501 there appear a series of “notes”, one of which the Minister relies upon. It states as follows:

Note 1:    Visa is defined by section 5 and includes, but is not limited to, a protection visa.

138    Section 501H(1) of the Act provides:

Refusal or cancellation of visa—miscellaneous provisions

Additional powers

A power under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.

139    Section 5 of the Act relevantly defines the word “visa” by stating that it has the meaning given by s. 29 of the Act. Section 29 relevantly provides:

Visas

(1)    Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

(a)    travel to and enter Australia;

(b)    remain in Australia.

140    Section 31 of the Act prescribes the classes of visa that may be granted. They include a safe haven enterprise visa.

141    Section 35A deals with protection visas. Subsection (6) provides:

Protection visas—classes of visas

The criteria for a class of protection visas are:

 (a)    the criteria set out in section 36; and

(b)    any other relevant criteria prescribed by regulation for the purposes of section 31.

142    Relevant provisions of s. 36 of the Act are as follows:

Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

  (a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

143    As will be seen, s. 36(1C), introduced into the Act in 2014 by Sch. 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth.) (the “2014 Amending Act”), is a key provision in the determination of this appeal. It is expressed to be one of a number of “criteria” that must be satisfied in order for an applicant to be eligible for the grant of a protection visa. It is a negative criterion in the sense that it will be passed if the Minister is not satisfied that the applicant is a danger to Australia’s security or has been convicted of a serious crime and is a danger to the community. The term “particularly serious crime” is defined by s. 5M of the Act as follows:

Particularly serious crime

For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:

(a)    a serious Australian offence; or

(b)    a serious foreign offence.

144    The terms “serious Australian offence” and “serious foreign offence” are defined in s. 5 of the Act. Relevantly, the term “serious Australian offence” is defined as follows:

serious Australian offence means an offence against a law in force in Australia, where:

(a)    the offence:

  (i)    involves violence against a person; or

  (ii)    is a serious drug offence; or

  (iii)    involves serious damage to property; or

(iv)    is an offence against section 197A or 197B (offences relating to immigration detention); and

(b)    the offence is punishable by:

  (i)    imprisonment for life; or

  (ii)    imprisonment for a fixed term of not less than 3 years; or

  (iii)    imprisonment for a maximum term of not less than 3 years.

145    For reasons which will become clear, the following definition of “fast track decision” in s. 5 of the Act, also introduced into the Act by the 2014 Amending Act, is important:

fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:

(a)    because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or

(b)    relying on:

(i)    subsection 5H(2); or

(ii)    subsection 36(1B) or (1C); or

(iii)    paragraph 36(2C)(a) or (b).

146    The definition of a “fast track applicant” should also be set out:

fast track applicant means:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

(ii)    to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

(iii)    who has made a valid application for a protection visa in accordance with the determination; or

(b)    a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).

147    Section 65(1) of the Act relevantly confers upon the Minister the power to grant or to refuse to grant a visa. It provides as follows:

Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

   (i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

148    Section 116(1) of the Act gives the Minister the power to cancel a visa where, for example, the factual basis for the Minister’s state of satisfaction under s. 65(1) has changed. It provides:

Power to cancel

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)    the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

(aa)    the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

   (b)    its holder has not complied with a condition of the visa; or

 (c)    another person required to comply with a condition of the visa has not complied with that condition; or

(d)    if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

(e)    the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i)    the health, safety or good order of the Australian community or a segment of the Australian community; or

   (ii)    the health or safety of an individual or individuals; or

(f)    the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

(fa)    in the case of a student visa:

   (i)    its holder is not, or is likely not to be, a genuine student; or

(ii)    its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

(g)    a prescribed ground for cancelling a visa applies to the holder.

149    Three further provisions of the Act should be set out. In general terms, s. 91WA permits the Minister to refuse to grant a protection visa where the applicant has relied upon a bogus document or has destroyed evidence of the applicant’s nationality. It provides:

Providing bogus documents or destroying identity documents

(1)    The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

(a)    the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or

   (b)    the Minister is satisfied that the applicant:

(i)    has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or

(ii)    has caused such documentary evidence to be destroyed or disposed of.

(2)    Subsection (1) does not apply if the Minister is satisfied that the applicant:

(a)    has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

   (b)    either:

(i)    provides documentary evidence of his or her identity, nationality or citizenship; or

   (ii)    has taken reasonable steps to provide such evidence.

(3)    For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

150    Next, s. 91WB is in the following terms:

Application for protection visa by member of same family unit

(1)    This section applies to a non-citizen in Australia (the family applicant):

  (a)    who applies for a protection visa; and

(b)    who is a member of the same family unit as a person (the family visa holder) who has been granted a protection visa.

(2)    Despite anything else in this Act, the Minister must not grant the protection visa to the family applicant on the basis of a criterion mentioned in paragraph 36(2)(b) or (c) unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa.

151    Finally, s. 500(4) of the Act, relied upon by both the appellant and the Minister, is in the following terms:

Review of decision

The following decisions are not reviewable under Part 5 or 7:

 (a)    a decision under section 200 because of circumstances specified in section 201;

 (b)    a decision under section 501;

(c)    a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on:

(i)    subsection 5H(2) or 36(1C); or

(ii)    paragraph 36(2C)(a) or (b) of this Act.

The Act before the 2014 Amending Act

152    Something should be said about the legislative history of the Act. Before the 2014 Amending Act, the scheme of the Act relied upon the terms of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (the “Convention”) to delineate Australia’s obligations to potential refugees. Thus, immediately before that Amending Act, former s. 36(2)(a) of the Act was in these terms:

Protection visas

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

153    In NAGV v. Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 C.L.R. 161, a slightly different and earlier version of this provision was considered by the High Court; it was in the following terms:

Protection visas

 (1)    There is a class of visas to be known as protection visas.

(2)    A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under [the Convention].

154    In NAGV it was explained that Australia had protection obligations pursuant to s. 36(2) if the relevant non-citizen was a refugee within the meaning of Art. 1 (headed “Definition of the Term “Refugee””) of the Convention. It is unnecessary to set out the terms of Art. 1. However, and importantly, the plurality also decided that whilst Art. 1 of the Convention was adopted domestically into the test prescribed by s. 36(2), that was not the case with respect to Art. 33 (and perhaps Art. 32 of the Convention).

155    Several Articles of the Convention should be set out. Relevantly, Art. 1F is in the following terms:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)    he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)    he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)    he has been guilty of acts contrary to the purposes and principles of the United Nations.

156    Article 32 (headed “Expulsion”) is in the following terms:

(1)    The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

(2)    The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before [a] competent authority or a person or persons specially designated by the competent authority.

(3)    The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

157    Article 33 (headed “Prohibition of Expulsion or Return (“Refoulement”)” is in the following terms:

(1)    No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

(2)    The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

158    Whilst Arts. 32 and 33 did not form part of the refugee test contained in former s. 36(2), other provisions of the Act prior to 2014 assumed that the content of those Articles, at least to some extent, nonetheless formed part of the Act. For example, the Act operated on the basis that the Minister had a power to refoul a non-citizen on grounds that satisfied Art. 33(2). This was confirmed by the High Court in Plaintiff M47/2012 v. Director-General of Security (2012) 251 C.L.R. 1, at least with respect to Art. 33(2), even though no provision of the Act expressly adopted the language of that Article or otherwise incorporated its language for domestic legal purposes.

159    The provisions of the Act which at the time proceeded on the footing that the Minister had powers to act in accordance with Arts. 32 and 33 included former s. 500(1)(c), which was relevantly in the following terms:

Review of decision

(1)    Applications may be made to the Administrative Appeals Tribunal for review of:

…

(c)    a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on:

(i)    one or more of the following Articles of the Refugees Convention, namely Article 1F, 32 or 33(2);

…

160    Other provisions in the Act which, prior to 2014, expressly referred either to Arts. 32 and/or 33 were described by Kiefel J. (as her Honour then was) in Plaintiff M47/2012 at 160 [424]-[425] as follows:

The Migration Act contains further references to a decision to refuse to grant a protection visa based upon Arts 1F, 32 or 33(2). Section 502(1) provides that when the Minister intends to refuse to grant or to cancel a protection visa, relying on one or more of the Articles, and the Minister decides it is in the national interest that the person be declared an excluded person, the Minister may personally so certify. Section 503(1)(c) provides that a person who has been refused a protection visa, or whose protection visa has been cancelled, based on a decision relying on one or more of the Articles is not entitled to enter Australia or to be in Australia at any time during the period determined under the regulations.

Mention may also be made of s 91T, which clarifies the meaning of the term “non-political crime” appearing in Art 1F, for the purposes of the Migration Act. Section 91U likewise clarifies the meaning of a “particularly serious crime”, which appears in Art 33(2).

We shall return to Plaintiff M47/2012.

161    The 2014 Amending Act removed the Act’s reliance upon the Convention by enacting provisions which codified Australia’s interpretation of its international obligations arising under that Convention. This is explained in the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth.) (the “2014 Explanatory Memorandum”) where the following appears on page 2:

The Bill fundamentally changes Australia’s approach to managing asylum seekers by:

...

codifying in the Migration Act Australia’s interpretation of its protection obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention).

162    The applicable provisions were contained in Sch. 5 to the 2014 Amending Act. That Schedule included a re-write of s. 36(2) and the insertion of a definition of “refugee” in new s. 5H. References in the Act to Arts. 32 and 33 in provisions, such as s. 500, were removed. That is because, in the case of Art. 33(2), Parliament inserted new s. 36(1C) to give domestic force to Australia’s interpretation of that Article. This was explained in the 2014 Explanatory Memorandum at page 12 in the following terms:

The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement, to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa. The statutory implementation of Article 33(2) of the Refugees Convention is through the new subsection 36(1C). Where a person is found to meet the definition of refugee but does not meet the criterion under subsection 36(1C) they will be ineligible for grant of a Protection visa. This criterion is consistent with the ineligibility criteria under paragraph 36(2C)(b) in relation to the complementary protection provisions in the Migration Act.

163    Section 500 of the Act was also amended to reflect the presence of s. 36(1C) as the new legal source of Australia’s Art. 33(2) power of refoulement. Section 500(1)(c), for example, now relevantly provides as follows:

Review of decision

(1)    Applications may be made to the Administrative Appeals Tribunal for review of:

…

(c)    a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa, relying on:

(i)    subsection 5H(2) or 36(1C);

…

164    The only reference now in the Act to the non-refoulement obligations in the Convention is in the definition of “non-refoulement obligations” in s. 5. That definition has significance for the purposes of one provision only, namely s. 197C of the Act (set out below). Both that section and the definition were inserted into the Act by the 2014 Amending Act. The definition is in the following terms:

non-refoulement obligations includes, but is not limited to:

(a)    non-refoulement obligations that may arise because Australia is a party to:

(i)    the Refugees Convention; or

(ii)    the Covenant; or

(iii)    the Convention Against Torture; and

(b)    any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

165    Section 197C is in the following terms:

Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

THE PRIMARY DECISION

166    Before the learned primary judge the only issue for consideration was whether the Minister’s decision was invalid because it was attended by unreasonable delay. Her Honour was not satisfied that there had been unreasonable delay and accordingly dismissed the application with costs.

167    The learned primary judge did not ultimately decide whether, properly construed, it should be implied from the terms of s. 501A of the Act that the power conferred on the Minister by that provision must be exercised within a reasonable time. If such a duty existed, her Honour noted that the parties agreed upon the relevant test for determining whether there has been unreasonable delay. Her Honour said at [67] below:

... Even if there were such [a] duty, there was no real issue between the parties as to the test for determining whether there has been unreasonable delay. The applicant referred to BMF16 at [27]. Bromberg J in that decision cites, amongst other cases, Thornton v Repatriation Commission (1981) 52 FLR 285 at 292 and relies upon the same passage relied upon by the Minister:

The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is on the evidence a delay for a considered reason and not in consequence of neglect, oversight or perversity.

168    The learned primary judge noted that the facts were not really in dispute and had earlier lucidly summarised the chronology of events. We reproduce that chronology from [11]-[41] of the reasons below. There are references to a Ms. Pfeiffer in that chronology. She had sworn two affidavits on behalf of the Minister and was, at the time of the trial below, Assistant Secretary of the Humanitarian Program Capability Branch within the Minister’s Department. The reference to the “C.C.B.” in the chronology, is to the Character and Cancellation Branch of the Minister’s Department, which was responsible for processing identified or referred cases for assessment under the character cancellation or refusal provisions in s. 501 of the Act. The chronology is as follows:

11.    In August 2016 the applicant applied for a safe haven enterprise visa. On 18 November 2016 a delegate of the Minister decided that the applicant faced a real risk of significant harm if he was returned to Afghanistan, but the applicant’s visa application was referred for character consideration under s 501. In February 2017 the applicant was issued with a Notice of Intention to Consider Refusal and invited to provide a response. After requesting and receiving an extension of time, he responded through his representative. In July 2017 a delegate of the Minister refused to grant the visa.

12.    The applicant sought review of that decision from the Administrative Appeals Tribunal. On 12 October 2017 the Tribunal set aside the delegate’s decision to refuse the visa. It published reasons on 8 November 2017. In summary, the Tribunal did not consider the applicant posed a risk of reoffending or engaging in serious conduct in the future. Further, it considered the Australian community would not assume the applicant would reoffend, would have regard to the fact that the applicant had served his sentence and has been held in detention since that time, and would be accepting of providing the applicant with an opportunity to stay in Australia on a limited stay visa.

13.    On 26 October 2017 the applicant referred the Tribunal remittal letters to the Department.

14.    Within the Department the Tribunal decision came to the attention of the ‘Complex and Controversial Cases’ branch of the CCB which on or about 7 November 2017 provided a submission to Minister Dutton’s office to seek an indication as to whether he wished to exercise his personal power under s 501A(2) of the Act to set aside the Tribunal’s decision and substitute his own decision. A copy of the redacted submission was before the Court.

….

16.    On 5 December 2017, Minister Dutton indicated that he wanted to personally consider the applicant’s case.

17.    On 6 December 2017, the applicant’s representative requested an update as to whether the remittal had been processed, a request which was repeated on 21 December 2017.

18.    On 28 December 2017, the Department’s National Character Consideration Centre (NCCC) informed the representative by email that the processing of the applicant’s case remained ongoing. By email of 3 January 2018 the representative was also informed by the Humanitarian Program Operations Branch that the applicant’s visa application was being considered following the Tribunal’s decision.

19.    On 16 January 2018 the applicant’s case was allocated a case officer within the NCCC to issue a Notice of Intention to Consider Refusal and to in due course prepare a s 501A submission.

20.    On 26 March 2018, the Department sent the applicant’s then representative a Notice of Intention to Consider Refusal of the applicant’s visa application under s 501A(2).

21.    On 23 April 2018, the applicant’s representative responded to the Notice of Intention to Consider Refusal, providing written submissions and supporting documents.

22.    On 21 June 2018, the Federal Court delivered judgment in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944. According to Ms Pfeiffer, the NCCC was required to consider the impact of this decision on the affected caseload, which included the applicant’s case.

…

24.    On 15 August 2018 (according to the particulars of the application) an NCCC officer emailed the applicant’s representative indicating that he or she anticipated forwarding a submission to the Minister ‘by early next week’.

25.    However, on 24 August 2018 and after a leadership challenge, Mr Scott Morrison replaced Mr Malcolm Turnbull as Prime Minister of Australia. Mr David Coleman was then sworn in as the Minister for Immigration, Citizenship and Multicultural Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), and assumed responsibility for consideration of cases such as the applicant’s.

26.    As the exercise of power under s 501A is personal to the Minister, following Minister Coleman’s appointment the CCB engaged in a process of consulting and drafting revised referral arrangements for Tribunal cases that were referred to the Minister’s office for consideration of the exercise of his personal powers.

27.    Further, after Minister Coleman was appointed, all submissions that had been forwarded to Minister Dutton were returned to the Department to be re‑edited before they were considered by Minister Coleman personally. Ms Pfeiffer said that all of the submissions, including the applicant’s, were reviewed to update information and consider any new information concerning the health, welfare and status of the applicants, as it was necessary to ensure the document was current before it was resubmitted.

28.    On 3 September 2018 the proposed submission to the Minister was completed by the Department and assigned to the NCCC director for clearance.

29.    Ms Pfeiffer was not able to identify all drafting changes made to the submission between when it was prepared (after receipt of the submission and information from the applicant) and 3 September 2018. However, she was able to compare two versions of the submission, dated 9 July 2018 and 17 December 2018 respectively. On that basis she was able to say that the s 501A submission was substantially prepared by the NCCC case officer by 9 July 2018, but was not finalised. By comparing the drafts, she was able to say that changes were made to the submission after 9 July 2018 that addressed the decision in AQM18 relating to the interpretation of s 198 of the Act and Australia’s non‑refoulement obligations.

30.    On 17 December 2018, a submission proposing a revised referral arrangement was sent to the office of Minister Coleman.

31.    On 3 January 2019, the applicant commenced this proceeding in the Federal Court. By that date no decision had been made by the Minister and the relief originally sought by the applicant included an order that the Minister make a decision to grant or refuse the applicant’s protection visa within two weeks.

32.    On 13 February 2019, the NCCC sent its brief in relation to the applicant to the Minister’s office.

33.    On 19 February 2019 the Minister informed the NCCC that he wanted to personally consider the applicant’s case.

34.    On 20 February 2019, the s 501A submission was assigned to Ms Pfeiffer for review and clearance. Ms Pfeiffer cleared the submission the following day and it was assigned to the Minister’s office.

35.    Ministerial Direction 79 (given by Minister Coleman) came into effect on 28 February 2019.

36.    As the submission to the Minister relating to the applicant had not been finally addressed by the Minister prior to Direction 79 coming into effect, it was returned to the NCCC for consideration. This was done on 1 March 2019.

37.    On 5 March 2019 the Department wrote to the applicant, inviting him to comment on Direction 79. [It is unnecessary to reproduce the terms of this letter.]

38.    I note that in light of the reference in Direction 79 to crimes of violence against women and children and the nature of the applicant’s offences, it is not surprising that this step was taken.

39.    The applicant provided additional letters of support to the NCCC in response, the last being provided on 18 March 2019.

40.    On 21 March 2019, the submission was again assigned to Ms Pfeiffer. It appears from a PDMS extract that Ms Pfeiffer was informed that the matter required priority. On 8 April 2019 it was cleared and assigned to Minister Coleman’s office.

41.    On 18 April 2019, the Minister refused to grant the applicant a visa under s 501A(2), and on 23 April 2019 the applicant was notified of the Minister’s decision.

169    The chronology of events between the appellant’s referral of the A.A.T. remittal letters to the Department on 26 October 2017 and the Minister’s decision to refuse to grant the appellant a visa on 18 April 2019 spanned a time period of approximately 18 months, in respect of which her Honour said at [43]:

That time period of approximately 18 months provides context to the particular complaint. There are objectively some key matters to note that led to delay with respect to the applicant’s case: the delivery of a relevant decision by this Court that required consideration; the appointment of a new Prime Minister and a new Minister with the immigration portfolio; the return of submissions that had been before Minister Dutton to the Department; the need to consider and put in place a regime in accordance with the new Minister’s requirements for such applications; and the publication of Direction 79 (which does not bind the Minister but to which it is apparent that the Minister has regard).

170    Notwithstanding that the chronology spanned a time period of approximately 18 months, the appellant grounded his claim of unreasonable delay before the learned primary judge on the alleged period of inactivity between 3 September 2018 and 19 February 2019.

171    On the assumption that the power in s. 501A needed to be exercised within a time that was not legally unreasonable, the learned primary judge considered the foregoing chronology of events, focusing on the period of delay between 3 September 2018 and 19 February 2019, and found that there were reasonable explanations for that period of delay. Those included some time to consider a decision of this Court in AQM18 v. Minister for Immigration and Border Protection [2018] FCA 944, and a change of Minister. Her Honour thus concluded at [86]:

Treatment of the applicant’s case coincided with some unusual events (as summarised at [43] above). Their accumulation led to delays that have been explained adequately by the Minister. The time taken was explicable having regard to those events. There were no lengthy periods of unexplained inactivity. There is no indication that the Minister or the officers of his Department acted with neglect, oversight or perversity towards the applicant’s case.

GROUNDS OF APPEAL

172    The appellant was given leave to rely upon an amended Notice of Appeal, which in the second paragraph raised an entirely new ground of appeal relying upon the decision of Rares J. in BAL19. The two grounds of appeal were as follows:

1.    The learned primary judge erred by failing to find that the making of the decision by the Minister was attended by unreasonable delay.

2.    The decision of the Minister is affected by jurisdictional error in that, on the proper construction of the Migration Act 1958 (Cth) (the Act) it was not open for a delegate to refuse the Appellant’s protection visa application under s 501(1) of the Act, and so the Tribunal had no power to substitute the delegate’s decision with a decision that the s 501(1) discretion to refuse not be exercised, which in turn meant there was no decision which the Minister could set aside pursuant to s 501A(2).

173    Two observations should be made:

(1)    first, this proceeding had been commenced below before the Minister had made his decision under s. 501A. At that point in time, the appellant originally had sought an order in the nature of mandamus requiring the Minister to make a decision to grant or refuse the appellant’s visa application within two weeks. The Minister then made his decision pursuant to s. 501A and the appellant consequently amended his originating application for review to seek an order quashing the decision; and

(2)    secondly, the appeal was due to be heard by the Court on 18 March 2020. However, the hearing was adjourned due to the COVID-19 pandemic. As the appellant remained in detention, the parties wished the matter to proceed and were content for it to be heard and determined on the papers, with the Court reserving to itself the option of a telephone or other hearing, if needed. Because of the importance of the issues raised in this appeal an oral hearing then took place in May 2020 by way of “Microsoft Teams”.

The First Ground

174    The appellant submitted that there is an implied duty on the Minister to exercise the power under s. 501A(2) of the Act within a reasonable time, and that the consequence of a decision being made after the expiry of the “reasonable time” limit is that it is beyond the power of the decision-maker, and therefore invalid. The Minister submitted that there is no such implied duty.

175    It is not necessary to consider that question here, or to recite the submissions (set out at [48] of the reasons of the primary judge) concerning it. That is because, for reasons given below, it was not established that there was a failure to exercise the power under s. 501A(2) within a reasonable time, assuming there to be such a duty: c.f. AQM18 v. Minister for Immigration and Border Protection (2019) 268 F.C.R. 424 at 431-432 [36] (Besanko and Thawley JJ.). In so finding, we have approached the question of onus consistently with the reasons of Besanko and Thawley JJ. in AQM18 at 434 [59], namely:

As to onus, it was for the appellant to show that there was unreasonable delay affecting the jurisdiction to make the decision. If the appellant established a delay which called for explanation, then the persuasive onus might shift to the Minister to establish what that explanation was. In considering whether the appellant discharged her onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969. That is a principle which authorises a particular form of reasoning.

176    Like the primary judge, in determining whether there has been an unreasonable delay, we have applied the test, about which there was no issue between the parties, in Thornton v. Repatriation Commission [1981] FCA 71; (1981) 52 F.L.R. 285 at 292 (Fisher J.) (cited with approval by Bromberg J. in BMF16 v. Minister for Immigration and Border Protection [2016] FCA 1530 at [27] and the Full Court (Robertson, Griffiths and Bromwich JJ.) in ASP15 v. Commonwealth of Australia (2016) 248 F.C.R. 372 at 379 [21]-[23]), viz:

The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is on the evidence a delay for a considered reason and not in consequence of neglect, oversight or perversity.

177    We turn now to the question as to whether on the facts the making of the Minister’s decision was attended by unreasonable delay.

178    The relevant facts are set out in the reasons of the learned primary judge that are extracted at [168]-[169] above.

179    The appellant submitted that it would be wrong to split the total period of delay into parts, and then determine whether each delay was reasonable. One must direct at least some attention as to whether the total period of delay (about 18 months) was legally reasonable.

180    The appellant also attacked what he said were a number of gaps in the Minister’s account of what had occurred. Thus, he submitted in his written submissions:

By way of summary, the Minister did not lead any evidence, or cogent probative evidence, to explain:

a.    why it took approximately 28 days (approx. 7 November 2017 to 5 December 2017) for Minister Dutton to merely respond to the submission requesting an indication from him as to whether he wished to consider s 501A;

b.    why it took 43 days (to 16 January 2018) for the Appellant matter to be ‘allocated to a case officer … to prepare a s 501A submission’;

c.    why it took 70 days (to 26 March 2018) for the Department to inform the Appellant that s 501A was being considered, and to invite comment;

d.    what precisely was done in the 78 days (23 April 2018 to 9 July 2018) as part of the ‘consideration’ given to the Appellant’s response, and why it needed to take this long;

e.    why, following the end of the consideration of the Appellant’s response, it took a further 56 days (to 3 September 2018) for a Departmental submission to be ‘assigned to the NCCC Director for clearance’—and, remembering that it is the Minister’s onus, noting that it is not clear from the evidence whether this was a submission that had already been prepared when Minister Dutton was still in office, and noting no evidence was led as to the content of any alleged consideration of AQM18 or why it took as long as it apparently did;

f.    why a further 184 days (to 5 March 2019) elapsed at the end of which the Department invited the Appellant to comment on new Direction 79, when that Direction did not come into force until after 179 days (28 February 2019), and when there was no evidence as to when in this period the prospect of a new direction became apparent to Department bureaucrats;

g.    why it took 19 days (21 March 2019 to 8 April 2019) for Ms Pfeiffer to merely ‘clear’ the submission, there not being any evidence as to what ‘clearing’ involved or why it needed to take as long as it apparently did.

181    Certain other explanations proffered by the Minister were rejected by the appellant as legally irrelevant. The change in the person who occupied the Minister’s office, for example, was said to be an irrelevant reason for delay because, whilst s. 501A(5) provides that the s. 501A(2) power must be exercised “personally” by the Minister, this did not mean that there can be a “resetting of the clock” whenever a new Minister is appointed. In any event, and amongst other things, it was said that by the time of the Cabinet “reshuffle” here, there already existed unreasonable delay (a period of 321 days). Nor had the Minister ever explained why he had subjected the appellant to the Minister’s revised referral processes. It was said that there was no reason why the appellant’s application could not have been completed under the old process.

182    The appellant took issue with the learned primary judge’s taking judicial notice of the Minister’s workload, when her Honour found at [75] that it could “be assumed safely that the new Minister had many other matters to address during that time in addition to his preferred regime for s 501A(2) matters and that his workload encompassed tasks beyond dealing with only the ten (or so) other matters of that nature that were before him at the time”. No evidence about any such workload had been adduced.

183    The appellant made other complaints about the sufficiency of the other reasons for delay. He alleged, for example, that the evidence given about the impact of this Court’s decision in AQM18 was insufficiently detailed; that consideration of the “national interest” explained no more than 11 days of the delay; that it was no excuse if public servants had acted too slowly; that the evidence concerning the time taken to consider the appellant’s submissions was too vague; that the appellant’s personal interest outweighed the Minister’s vague evidence, as he had been kept in detention; and that Ms. Pfeiffer was an inadequate witness because she only became personally involved in the decision making process from 20 February 2019 and even then that involvement was limited. With respect, some of these complaints and others like it, should have been raised with Ms. Pfeiffer at trial. Instead, she was barely cross-examined. Nor, it would appear, did the appellant seek any of the documentary material from the Minister which Ms. Pfeiffer had referred to in her evidence, but which had not been exhibited to her affidavit.

184    The appellant also relied on a “Timeline of Events” document which was given to the Court during the oral hearing. We have not placed great reliance on that timeline because it leaves out many events identified by the learned primary judge in her Honour’s chronology of what happened. For example, the document records a delay of 184 days from 3 September 2018 to 5 March 2019 during which time it was said nothing had occurred (aside from Ministerial Direction 79 coming into effect on 28 February 2019). However, a number of events happened during this period which had been left out. They are recorded in her Honour’s chronology at [30]-[34] (reproduced for convenience):

On 17 December 2018, a submission proposing a revised referral arrangement was sent to the office of Minister Coleman.

On 3 January 2019, the applicant commenced this proceeding in the Federal Court. By that date no decision had been made by the Minister and the relief originally sought by the applicant included an order that the Minister make a decision to grant or refuse the applicant’s protection visa within two weeks.

On 13 February 2019, the NCCC sent its brief in relation to the applicant to the Minister’s office.

On 19 February 2019 the Minister informed the NCCC that he wanted to personally consider the applicant’s case.

On 20 February 2019, the s 501A submission was assigned to Ms Pfeiffer for review and clearance. Ms Pfeiffer cleared the submission the following day and it was assigned to the Minister’s office.

185    Based on the chronology of the learned primary judge, which we prefer, the applicable delay was only about three and a half months. We shall return to that delay.

186    The appellant also relied upon the statutory scheme. It was submitted that there were “multiple fall-back mechanisms in s 501A(4A), s 501(2), and s 501(3) under which the Minister may cancel the visa after it is granted on substantially the same if not identical considerations.” This meant that the scheme of the Act required the Minister to grant the protection visa promptly, and then consider the national interest in determining whether to cancel that visa. We doubt whether this is a correct statement of the scheme of the Act. The presence of a cancellation power and a refusal power within the one provision, does not mean that the refusal power should be rarely exercised. An accurate description of the power conferred by s. 501A(2) is found at 435-436 [66] in the judgment of Besanko and Thawley JJ. in AQM18 as follows:

The power is one vested personally in the Minister and can be exercised in limited circumstances. In particular, if the Minister “reasonably suspects” a person does not pass the character test and the person “does not satisfy” the Minister that he or she does, then the Minister may refuse (or cancel) the visa only if he is satisfied that it is in the national interest. The power requires natural justice to be afforded and this requires time sufficient to afford it (on the facts here, until 13 April 2017). The power is one directly connected to considerations of national interest. This might involve complex questions not susceptible of speedy resolution or considerations which affect a series of particular cases. Decisions under s 501A(2) affect individuals, but the power to make such decisions – involving as it does broad questions of national interest – is quite different to the power to make decisions concerned with purely private or commercial matters. It is a power which should be exercised after careful consideration given its potential impact on both national interest and the relevant individual.

We gratefully agree with the foregoing expression of principle. It supports, in our view, the need for the Minister to take considerable care in exercising the power in s. 501A(2). In some cases, that may take some time to complete.

187    The Minister submitted that, in essence, the appellant’s complaints were expressions of disagreement with the facts found by the learned primary judge; yet, it was said, the primary judge had made no error in making those findings which were open to her Honour to make. Nor had the appellant acknowledged that, before the learned primary judge, his Counsel had focused on one period of alleged delay only, namely that from September 2018 to February 2019 (a point not pressed at the hearing of the appeal). Notwithstanding that contention, it was said that the primary judge had, in any event, considered the “overarching chronology of events.”

188    In response to the appellant’s specific complaints (set out above), the Minister in his written submissions in chief said as follows:

(a)    In respect of Minister Dutton’s consideration in November 2017 as to whether he wished to exercise his personal power under s.501A, 28 days is not a ‘delay’ that required specific explanation. The evidence appears at [16]-[17] of the Pfeiffer Affidavit. Having regard to the evidence, Minister Dutton did not ‘merely respond to the submissions’ but was required to read and consider the submission with sufficient care to determine whether he wished to exercise his power under s.501A.

(b)    In respect of the allocation on 16 January 2018 of the matter to a case officer within the NCCC, whilst some time elapsed from 5 December 2017 when Minister Dutton decided that he wished to exercise his personal powers in this case, again, and taking into account the Christmas break, the period was not unreasonable delay.

(c)    The evidence showed that the relevant activity between 16 January 2018 and 26 March 2018 was the preparation of a notice of intention to consider refusing a visa (the ‘NOICR’). As is evident from the letter itself, numerous annexures were required to be identified and attached to the letter. A period of approximately 10 weeks was not an unreasonable period of time for the preparation and sending of such a letter.

(d)    The evidence did not need to prove why it needed to take 78 days for the Department to consider the appellant’s response to the NOICR. Rather, the evidence needed to provide an explanation for the delay. Relevantly, whilst the appellant initially responded to the NOICR by providing on 23 April 2018 approximately 40 pages of material, including written submissions, additional letters of support were received in March 2019. Ms Pfeiffer’s evidence in her second affidavit was that by 9 July 2018 a s.501A submission was substantially prepared.

(e)    The evidence in the Pfeiffer Affidavit clearly discloses that from 21 June 2018 the NCCC was considering the impact of this Court’s decision in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944. Changes were subsequently made to the s.501A submission relating to the interpretation of s.198 of the Act and Australia’s international non-refoulement obligations: Ms Pfeiffer’s second affidavit at [7]. The Minister was not required to adduce evidence of the ‘content of any alleged consideration of AQM18’ or justify (somehow) the days taken.

(f)    The Pfeiffer Affidavit details the events that took place between December 2018 and March 2019. This included, but was not limited to, the introduction of Direction 79. As the primary judge properly found, it was unsurprising that the appellant was invited to comment on Direction 79 in light of his criminal background. It was important for the appellant to be given procedural fairness and the opportunity to comment prior to a decision being made. Whilst not bound by the Direction, it was open to the Minister to take into account such matters as were set out in the Direction. The appellant also appears to overlook the significance, and the time taken, in advancing changes to the referral arrangement: [29] of the Pfeiffer Affidavit.

(g)    Lastly, there is no confusion arising from Ms Pfeiffer’s evidence that she cleared the submission and assigned it to the Minister’s office. One can assume that Ms Pfeiffer read carefully that submission. The evidence did not need to explain why it took Ms Pfeiffer 19 days to undertake this task. The evidence simply needed to give an explanation of what occurred. The appellant bore the onus to show that there was unreasonable delay affecting the jurisdiction to make the decision: AQM18, [59].

(Appeal book references removed.)

189    The Minister disagreed with the submission that the change in office that had taken place was legally irrelevant to an explanation of delay. He relied upon the following expression of principle by Moshinsky J. at first instance in AQM18 at [68], as approved by Besanko and Thawley JJ. (at 434 [56]) on appeal:

... It is not to the point that that material had previously been considered by a delegate of the Minister and by the Tribunal. The Minister was exercising his discretion personally and therefore was required to bring an independent mind to consideration of whether to exercise his discretion pursuant to s 501A(2). Further, the Minister had to consider whether it was in the national interest to exercise his discretion (s 501A(2)(e)); that criterion did not apply to the Tribunal.

We also respectfully agree with the foregoing, which emphasises the serious and personal decision making process a Minister must undertake before exercising the discretionary powers conferred by s. 501A(2). If there is a change in the person who is appointed Minister, then the new Minister must not merely rubberstamp the work of her or his predecessor; she or he must undertake the necessary work afresh.

190    The Minister also submitted that it was proper for the learned primary judge to assume that the Minister had other duties when he considered the appellant’s visa application. We respectfully agree with that proposition. A judge may take judicial notice of the undoubted fact that the Queen’s Ministers of State for the Commonwealth, and their delegates and officers, are obliged to undertake multiple complex tasks on a daily basis.

191    The Minister otherwise, and more generally, contended that the explanations for delay associated with consideration of the national interest, the need to consider the impact of AQM18, and the need to consider the appellant’s submissions, demonstrated that the delay here had not been capricious or perverse.

Disposition of the First Ground

192    As the learned primary judge observed (at [43]) from her Honour’s summary of the chronology (the accuracy of which the appellant never seriously challenged) five key objective events took place, some beyond the control of the Department, which led to the delay here. They were:

(a)    the delivery of a relevant decision by this Court (AQM18) that required consideration;

(b)    the appointment of a new Prime Minister and a new Minister for the immigration portfolio;

(c)    the return of submissions that had been before Minister Dutton to the Department;

(d)    the need to consider and put in place a regime in accordance with the new Minister’s requirements for such applications; and

(e)    the publication of Direction 79 (which does not bind the Minister but to which it is apparent that the Minister has regard).

193    As best as we can tell, the delay between key events in the chronology of the learned primary judge amounted usually to about a month, or perhaps on occasion, two months. The biggest delay was caused when on 3 September 2018 the proposed submission to the Minister was completed and then assigned to the N.C.C. director for clearance. The Minister was then sent that submission on 17 December 2018. As already mentioned, this was a delay of about three and a half months. However, on each occasion, the appellant’s matter was progressed in some way. In our view there is no evidence of oversight or neglect. There is no evidence of perversity or capriciousness. Rather, by happenstance, events beyond the control of the Minister’s Department (the change of Minister and the delivery of AQM18) combined with events that it did control, albeit progressed at perhaps a bureaucratic pace, explain the delay here. That is very much less than an adequate outcome, especially with an appellant in detention. But, in our view, what occurred did not amount to the abuse of a power, in the required sense. In that respect, criticisms directed at showing that the Minister’s staff were too slow, or took steps that another person might consider were unnecessary (such as the new Minister’s revised referral arrangement) are not to the point, unless they show the presence of perversity, capriciousness, intentional oversight or neglect. As to the appellant’s submission that the total period of delay should not be broken up into distinct periods, but rather the total period should be considered, in our respectful view that seeks to avoid giving due weight to the varying reasons for delay that were applicable to various periods.

194    We otherwise generally agree with the submissions made by the Minister that there was no abuse of power because of the delay in the Minister exercising his power under s. 501A(2). We also respectfully agree with the reasons of the learned primary judge.

195    It follows that the first ground of appeal should be dismissed.

The Second Ground

196    The second ground of appeal turns upon the application of BAL19.

The Decision in BAL19

197    In BAL19, a Sri Lankan man of Tamil ethnicity sought the grant of a temporary protection (class 785) visa. This was personally refused by the Minister pursuant to s. 501 of the Act. The Minister decided that he was not satisfied that the applicant had passed the character test by reason of s. 501(6)(d)(v) of the Act. The Minister had otherwise been satisfied that the applicant was a refugee within the meaning of ss. 5H and 36(2)(a) of the Act but had not addressed in any way the criterion set out in s. 36(1C).

198    Amongst other things, Rares J. decided that s. 501 could not be invoked to refuse the grant of a protection visa. That was because s. 501, being a provision of general application for all visas, was inconsistent with s. 36(1C), which was a specific provision applicable only to applications for protection visas (called the “inconsistency issue”). It followed that the Minister’s decision was quashed.

199    Before us, the Minister contended that this aspect of BAL19 had been wrongly decided. In contrast, the appellant defended the correctness of the decision. Because of the importance of this issue, the Australian Human Rights Commission (the “Human Rights Commission”) sought leave to intervene in support of the appellant. Leave was granted by the Court. All parties filed written submissions which have been of very great assistance.

200    Rares J. described the scope of s. 36(1C) in the following terms (at [31]):

Section 36(1C) creates a specific, objective criterion for a protection visa that an applicant for such a visa must satisfy. That criterion is that he or she is not a person whom the Minister considers, on reasonable grounds, relevantly is either a danger to Australia’s security or, because of a final judgment convicting him or her of a particularly serious crime (as defined in s 5M), a danger to the Australian community.

201    His Honour, with respect, correctly observed that this provision “was a reasonably precise reflection of Australia’s international non-refoulement obligations in accordance with Art 33(2)” of the Convention. His Honour also referred at [35] to the following passages from the Second Reading Speech for the Bill that became the 2014 Amending Act (with emphasised passages marked in bold by his Honour):

Schedule 5 of the bill will make clear that the removal power is available independent of assessments of Australia’s non-refoulement obligations, which are addressed in the broader assessment process where a noncitizen meets the circumstances specified in the express provisions of section 198 of the Migration Act. This change is in response to a series of court decisions which have found that the Migration Act as a whole is designed to address Australia’s non-refoulement obligations, which has had the effect of limiting the availability of the removal powers. Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations, rather it seeks to be able to effect removals in a timely manner once the assessment of the applicant’s protection claims has been concluded.

Schedule 5 of the bill will also create a new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention. The government remains committed to ensuring it abides by its obligations in respect to the refugees convention and this change does not in any way compromise this commitment. The new statutory framework will enable parliament to legislate its understanding of these obligations within certain sections of the Migration Act without referring directly to the refugees convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope of the refugees convention well beyond what was ever intended by this country or this parliament. This parliament should decide what our obligations are under these conventions—not those who seek to direct us otherwise from places outside this country. The new framework clearly sets out the criteria to be satisfied in order to meet the new statutory definition of a ‘refugee’ and the circumstances required for a person to be found to have a ‘well-founded fear of persecution’, including where they could take reasonable steps to modify their behaviour to avoid the persecution.

Let me be clear, the government is not changing the risk threshold required for assessing whether a person has a well-founded fear of persecution. Under the new framework, refugee claims will continue to be assessed against the ‘real chance’ test, which has been the test adopted by successive governments, in line with the High Court’s decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62.

The bill also clarifies the interpretation of various protection related concepts such as:

the standard of effective state and non-state protection;

the test for assessing whether a person can relocate to another area of the receiving country; and

the definition of ‘membership of a particular social group’.

The new framework will also clarify those grounds which exclude a person from meeting the definition of a refugee or which, upon a person satisfying the definition of a refugee, render them ineligible for the grant of a protection visa.

202    A key attribute of the reasoning of Rares J. is the recognition that the criterion set out in s. 36(1C) is substantively narrower than the discretion conferred by s. 501. In particular, Rares J. observed that, whilst circumstances that would cause one to fail the “character test” in s. 501 could include those amounting to a “particularly serious offence” for the purposes of s. 36(1C), it also included “much less serious situations” (at [62]). For example, and perhaps most relevantly, one can fail to pass the character test if an applicant has a “substantial criminal record.” That term is defined by s. 501(7) of the Act, amongst other things, to refer to a person who has been sentenced to a term of imprisonment of 12 months or more. In contrast, a “particularly serious offence” for the purposes of s. 36(1C) must be one which is punishable by imprisonment for life, or imprisonment for a fixed or maximum term “of not less than three years.”

203    The difference in the tests stipulated by s. 36(1C) and the relevant parts of s. 501 was important because Rares J. was of the view that the legislative scheme, following the changes made to the Act by the 2014 Amending Act, was that a person could not be refouled because she or he represented a danger to the community, save on the criterion specified in s. 36(1B) or (1C). As his Honour said at [65]:

The particular importance of s 36(1C)(b) is that it gives effect to the Parliament’s stipulation that a person whom the Minister does not have reasonable grounds to consider had been convicted of a particularly serious crime, was eligible to be granted a protection visa, regardless of the danger he or she may be to the Australian community. The legislative purpose of that stipulation was to ensure that such a person would not be refouled (subject, of course, to other protective criteria in s 36(1B), (1C)(a) and (2)), despite the danger he or she may be to the Australian community, because that person, in those prescribed circumstances, consistently with Art 33(2) of the Refugees Convention, was not to be exposed to the real chance of persecution of which he or she had a well-founded fear.

204    It followed that this legislative scheme would be relevantly defeated if a person, found to be a “refugee” as defined, could be refouled under the less stringent tests set out in s. 501. As Rares J. wrote at [67]:

There would be no intelligible statutory purpose for the mandatory criterion for a grant of a protection visa in s 36(1C), reflecting as it does the Parliament’s interpretation of Art 33(2) of the Refugees Convention, if the Minister were free to apply a less stringent criterion under s 501(1) and its analogues, involving his exercising a very broad discretion, to refuse to grant the very same visa: Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.

205    Rares J. referred at [68] to the proposition that “general provisions conferring a power in an Act will not apply to another power that the Act confers that also prescribes the conditions for its exercise”. For that purpose, his Honour cited Anthony Horden & Sons Ltd v. The Amalgamated Clothing and Allied Trade Union of Australia (1932) 47 C.L.R. 1. In his Honour’s view, that proposition applied to s. 36(1C) and to s. 501. It compelled the conclusion that Parliament did not intend for the Minister to continue to retain under s. 501 a discretionary power to refuse the grant of a protection visa, given the introduction of the specific criterion in s. 36(1C). In his Honour’s view, the test set out in s. 36(1C) deals exhaustively “with the criminal history and behaviours” of an applicant for a protection visa (at [85]).

206    At [71] Rares J. reasoned at follows:

Importantly, s 36 does not provide that an applicant for a protection visa who satisfies the criteria in s 36(1B), (1C) and (2) may nevertheless be refused the visa under s 501(1). If that were the intention of the Parliament, then the specific and narrow criteria in s 36(1B) and (1C) that give statutory effect to Australia’s non-refoulement obligations would have no useful function since these could be overridden in every protection visa application by the use of the general power in s 501(1), regardless that the different criteria in s 36(1B) and (1C) had been met. And, equally, s 197C could then apply to a person who actually met the criteria in s 36(1B) and (1C) that the Parliament specifically enacted as objective preconditions for the grant of a protection visa, if the Minister were free to use a different power with different and less stringent standards (namely, that in s 501(1) or an analogue) in a manner that would put Australia in breach of its international obligations under Arts 32 and 33(2) of the Refugees Convention.

207    Rares J. was also of the view that s. 36(1C) did not merely stipulate a criterion to be met, but conferred a power both to deny as well as to cancel a protection visa. That was because, amongst other provisions, s. 500(4)(c) refers to a decision “to cancel” or “to refuse” a protection visa “relying on” s. 5H(2) or s. 36(1C). As Rares J. said at [82], since s. 500(4)(c) provides “that a visa can be cancelled … “relying on” ss 5H(2) and 36(1C) and the Act regulates the rights to seek review of such a decision, the Minister had power to cancel an existing protection visa” (see also s. 411(1)(d)(i) of the Act).

208    Rares J. finally distinguished the decision of the High Court in Plaintiff M47/2012 (discussed below) on the basis that as the Act stood before 2014 neither Arts. 1F, 32 or 33 were part of the “statutory” criteria for the grant of a protection visa. At [87], his Honour said:

I also reject the Minister’s argument that the general provisions in s 501, even in light of s 501H, still confer, after the 2014 Amendments, a discretion on the Minister to refuse to grant or cancel a protection visa. As the majority held in Plaintiff M47 251 CLR 1, prior to the 2014 Amendments, s 501 gave power to the Minister that was consistent with Arts 1F, 32 and 33 of the Refugees Convention because those articles were not statutory criteria for the grant of a protection visa. But that position is no longer the case, as I have explained. Now, for the reasons I have given, s 501(6)(d)(v) (and PIC 4001 for that matter) is inconsistent with the specific criteria for a protection visa in s 36(1C).

(Emphasis in original.)

209    Rares J. concluded at [88] as follows:

I am of [the] opinion that, since the 2014 Amendments, s 501(1) is not, and is not intended or expressed to be, relevant to determining whether or not a person, in accordance with ss 35A(6) and 36, is entitled to (or may be refused) under s 65(1) a protection visa as a refugee (as now defined in the Act) or to whom Australia otherwise owes protection obligations. Rather, s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to refuse to grant a protection visa: Anthony Hordern 47 CLR at 7; Nystrom 228 CLR at 571-572 [2].

Five Earlier Decisions

210    Before turning to the submissions of the parties, it is useful to refer to a number of previous authorities that have considered potential conflicts or inconsistencies between provisions contained in the Act.

211    The first is the decision of this Court in VWOK v. Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 F.C.R. 135. At that time cl. 866.222A of the Migration Regulations 1994 (Cth.) (the “Regulations”) prescribed that a requirement for the grant of a protection visa was that the applicant had not, during the previous four years, been convicted of an offence for which the maximum penalty was imprisonment for at least 12 months. The appellant in that case had been convicted of two offences which fell within the terms of cl. 866.222A. It was, nonetheless, contended that the regulation was necessarily invalid because of its supposed “repugnance” to s. 501 of the Act. The argument was summarised by the Court as follows at 139 [15] and [17]:

The appellant submitted that cl 866.222A was invalid as inconsistent with, and repugnant to, the Migration Act, and in particular s 501 thereof. This was brought about, it was said, because it invaded the field which the Parliament had given to s 501 – refusal of visas for character grounds. Both s 501(6)(c) and (7)(c) dealt with the subject matter of convictions for criminal offences to which cl 866.222A was directed. The effect of a failure of the appellant to satisfy the Minister of the criterion in cl 866.222A for a permanent protection visa was that the Minister was obliged under s 65 to refuse to grant that visa. Thus, it was said, there was denied a role for the operation of s 501 in the possible refusal of that visa. That is, the Minister was denied an opportunity to consider whether she was satisfied that the character test had been passed, and, if she were not so satisfied, she was denied an opportunity to exercise the discretion in s 501 to refuse to grant the visa.

…

Thus, it was said that, in practical terms, cl 866.222A and s 501 both seek to operate on the same subject matter (a conviction) and in the same context (whether or not to refuse a visa). They cannot, it was said, do so consistently, because cl 866.222A detracts from the operation of s 501 by precluding the exercise of a discretion not to refuse a visa notwithstanding the existence of a conviction. This was said to be a direct inconsistency and an encroachment on the area carved out by the legislature in s 501.

212    At first instance ([2005] FCA 336), Crennan J. (in her Honour’s capacity as a judge of this Court) rejected the argument. Her Honour decided that the existence of other powers to cancel a visa in the Act, meant that it could not be said that s. 501 was intended to cover all of the circumstances in which a criminal record might be taken into account. At [32] her Honour said:

There are other powers to cancel a visa (see s 118). The terms of s 501 do not evince any intention to exhaustively cover the circumstances in which a criminal record may be taken into account. Other sections of the Act, such as 91T and 91U also deal with criminal conduct.

213    Her Honour went on to observe that cl. 866.222A and s. 501 served different purposes. Clause 866.222A formed part of the criterion for the grant of a protection visa. In contrast, s. 501 did not supply any criterion for the grant or refusal of such a visa, but rather conferred a discretionary power to cancel or refuse a visa. No real inconsistency arose from the fact that the operation of both provisions turned on the presence of criminal convictions. Crennan J. thus concluded at [33]:

There is nothing clearly inconsistent or clearly lacking in harmony in the coexistence of a power to refuse a particular class of visa for failure to satisfy certain criteria set out in subordinate legislation and a power to refuse to grant a visa on character grounds under the Act. The fact that each of s 501 of the Act and the Regulation in question refers to convictions, but deals with them differently, one from the other, reflects no more than their different purposes. Section 501 may be exercised independently of the satisfaction of criteria for a visa of a specified class. Clause 866.222A does not diminish, add to or derogate from the regime in s 501.

214    Crennan J. was upheld on appeal. The Court (Heerey, Finkelstein and Allsop JJ.) placed considerable reliance upon the presence of s. 501H (set out above) as demonstrating that s. 501 was intended to confer a power to cancel or refuse the grant of a visa which was in addition to “all other bases to refuse a visa”. As their Honours said at 141 [21]:

Section 65, of course, requires the grant or refusal of a visa, depending upon whether the Minister is satisfied of all relevant criteria. The grant or refusal of the visa nevertheless answers the description of the exercise of a power under the Migration Act notwithstanding the mandatory nature of its exercise, depending upon the relevant state of satisfaction. Thus, s 501H can be seen as making clear, what can otherwise be gleaned from s 501 and the structure of the Migration Act, that s 501 is additional to all other bases to refuse a visa, and is not intended to restrict, by the terms of its field of operation, the fields of operation of other sections of the Migration Act, whether by reference to their own terms or the delegated legislation upon which they work.

Rares J. in BAL19 did not refer to VWOK.

215    The second decision is that of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v. Nystrom (2006) 228 C.L.R. 566. In that case, the Minister had exercised his power to cancel the respondent’s visa on character grounds pursuant to s. 501(2) of the Act. It was contended that ss. 200 and 201 of the Act conflicted with s. 501 because they respectively supplied different tests concerning the one subject matter, namely, the removal of persons from Australia who had been convicted of offences. The argument was rejected by all of the justices of the Court.

216    In essence, the suggested conflict arose from the fact that the power of deportation conferred by ss. 200 and 201 was limited to an offender who, when the offence had been committed, had been in Australia for a period of less than 10 years. In the respondent’s case, his offending had taken place more than 10 years after he had arrived in Australia. He said that he was therefore “protected” from the reach of s. 501(2) of the Act. Section 200 is in the following terms:

Deportation of certain non-citizens

The Minister may order the deportation of a non-citizen to whom [Div 9 of Pt 2 of the Act] applies.

217    Section 201 relevantly provides:

Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes

Where:

(a)    a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

 (b)    when the offence was committed the person was a non-citizen who:

(i)    had been in Australia as a permanent resident:

   (A)    for a period of less than 10 years; or

(B)    for periods that, when added together, total less than 10 years; or

...

(c)    the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;

section 200 applies to the person.

218    Heydon and Crennan JJ. (with whom Gleeson C.J. agreed) decided that the powers conferred by ss. 200 and 201 and by s. 501 were distinct and cumulative. At 615 [162] their Honours said:

Mr Nystrom’s argument that the power to deport and the power to cancel a visa, which will result in removal, deal with the same subject matter is wrong. The power under s 200, as restricted by s 201, to deport non-citizens is a power in respect of the continuing presence in Australia of non-citizens convicted of certain crimes. The power under s 501(2) to cancel a visa of a non-citizen on character grounds (based on a “substantial criminal record”) and thereby remove that non-citizen is a much wider power, although it is also for the protection of the Australian community. The powers are distinct and cumulative.

219    In reaching the foregoing conclusion, Heydon and Crennan JJ. accepted (at 616 [165]) that there was some degree of overlap between the two sets of powers, and that s. 501 had a “wider field of operation.” However, their Honours also concluded that the powers had different purposes, used different criteria and, when exercised, led to different consequences. They were “consonant with each other.” In that respect, and importantly, in the context of a submission made in reliance upon the Anthony Hordern decision, their Honours held that s. 501 is “not a vague or general power.”

220    Gummow and Hayne JJ. agreed with the foregoing conclusion. Their Honours observed that the flaw in the appellant’s submission was to focus on only one practical consequence of the exercise of each power, namely removal from Australia. At 589-590 [61], their Honours thus said:

The defect in that submission is that it fixes upon only one practical consequence of the respective orders. It does not address whether the subject-matter of the power is in law substantially the same. However, for the reasons which follow, the two powers do not deal with the same subject-matter so as to attract the operation of the maxim expressum facit cessare tacitum and the reasoning which underpins Anthony Hordern and other decisions. The scheme of the Principal Act does not treat as having the one identity deportation and cancellation of a visa. This is so notwithstanding that, by reason of other provisions of the Principal Act, the exercise of both powers may well result in the same practical outcome. The ambit of the power to deport is not wholly subsumed within the ambit of the power to cancel a visa by reference to the character test in s 501(2).

221    At 591 [65]-[66], Gummow and Hayne JJ. described the origin and purposes of s. 501 in the following terms:

The particular cancellation power under consideration, s 501, was originally a special power of cancellation introduced by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth). Its life began on 24 December 1992 as s 180A of the Principal Act. It applied to both visas and entry permits, and it entered into force before the amendments made by the 1992 Reform Act which set up the universal visa system. Those amendments made the now universal visas generally susceptible of cancellation (Pt 2, Div 3, Subdivs C-H), so depriving s 180A (now renumbered to be s 501) of its exceptional nature. Critically, it was only after these reforms that persons whose visas were cancelled (under any of the various powers of cancellation) became unlawful non-citizens liable to mandatory removal pursuant to Pt 2, Div 8 of the Principal Act. It was only that amendment which caused the cancellation powers generally to attain broader scope for removing persons from Australia than the deportation power.

However s 501 only assumed its current form after the amendments made by the 1998 Strengthening Amendment Act. Prior to the commencement of that Act, s 501 had required the Minister to be “satisfied” that a person was not of good character, having regard to a number of factors (including past criminal conduct) and be satisfied that the person would engage in further undesirable conduct. The 1998 Strengthening Amendment Act introduced the character test in a more absolute form. In its present form, s 501(6)(a) provides that a person automatically fails the character test if he or she has a “substantial criminal record”. But the definition of “substantial criminal record” in s 501(7) is broader than the concept of offence seen in s 200(c).

222    At 589 [59] Gummow and Hayne JJ. described the Anthony Hordern principle as follows:

Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”, or are with respect to the same subject-matter, or whether the general power encroaches upon the subject-matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.

(Footnotes omitted.)

223    Gleeson C.J. also agreed that ss. 200 and 201 and s. 501 did not contain conflicting commands which could not both be obeyed at the same time and did not produce irreconcilable legal rights or obligations. However, in a passage cited by Rares J. in BAL19, at 571-572 [2] Gleeson C.J. also said the following:

If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent’s contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said.

(Footnotes omitted.)

224    The third case is SZLDG v. Minister for Immigration and Citizenship (2008) 166 F.C.R. 230. It is mentioned in BAL19 as having been raised by the Minister in argument before Rares J. The applicant in that case sought an order in the nature of mandamus after the Minister had failed to decide whether to grant a protection visa after a delay of 16 months. For reasons we need not set out, Lindgren J. was required to consider the relationship between Arts. 1F and 33(2) of the Convention and s. 501 of the Act (in the form it then was in). It had been submitted that s. 501 could not apply to the applicant in that case, because a delegate of the Minister had already found that he did not fall within Art. 33(2). The submission was rejected. Lindgren J. said at 246 [83]:

With respect, it is erroneous to think that the “protections” of the receiving country found in Art 1F and 33(2) of the Convention apply to the exclusion of s 501 of the Act. Section 65(1)(a)(iii) expressly requires a s 65 delegate to be satisfied that the grant of a visa is not prevented by a decision to refuse under s 501, and s 501H provides, relevantly, that the power to refuse to grant a visa given by s 501(1) is “in addition to” any other power under the Act to refuse to grant a visa. It follows that a s 65 delegate cannot be satisfied of the matters referred to in s 65(1)(a) where a s 501(1) delegate has refused to grant a visa after not being satisfied that the applicant passes the s 501 character test.

225    The fourth decision is that of the High Court in Plaintiff M47/2012. An issue for decision in that case was whether a certain regulation, which permitted the Minister to refuse to grant a protection visa where the Australian Security Intelligence Organisation had assessed the refugee to be a risk to security, was consistent with the scheme of the Act. A majority of the Court decided that the regulation was not authorised by the Act (the relevant capacity to make regulations was contained in s. 31(3)) and was therefore invalid. An equivalent power of refusal is now contained in s. 36(1B) (set out above). In reaching its conclusion the Court was required to consider the scheme of the Act, and how, amongst other things, the Act at that time permitted the Minister to act in accordance with Art. 33(2) of the Convention. As French C.J. posed the question to be answered – “where does the Migration Act provide the power for decisions to be made to refuse or cancel a protection visa in such a way as to rely upon one or other of Arts 1F, 32 and 33(2)?” (at 36 [36]).

226    The Chief Justice observed at 36-37 [37]-[38] that, at that time, no provision of the Act gave direct effect to either Arts. 32 or 33. In contrast, it had previously been held that the terms of Art. 1F had also been “adopted” within former s. 36(2)(a): NAGV v. Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 C.L.R. 161. French C.J. decided that the disentitling criteria in Arts. 32 and 33(2) had been subsumed within the character test set out in s. 501. At 37 [40] his Honour said:

As noted earlier in these reasons, the defendants accepted that the disentitling criteria in Arts 32 and 33(2) which would lift Convention bars to the expulsion or refoulement of a refugee are subsumed within the character test. “National security or public order” is a ground for expulsion under Art 32. The existence of reasonable grounds for regarding the refugee as a danger to the security of the host country is a criterion for forfeiting the benefit of Art 33(1). Those criteria fall within the concept in s 501(6)(d)(v) of a person who would represent a danger to the Australian community or to a segment of that community.

227    French C.J. rejected a submission that former s. 500, set out above, had been drafted on the mistaken belief that Arts. 32 and 33(2) were relevant to an application of former s. 36(2)(a). Instead, his Honour observed that there was an overlap in operation between those Articles and s. 501(6)(d)(v) of the Act. Thus at 38 [42], French C.J. said:

In relation to s 501, it is sufficient for present purposes to proceed on the basis, conceded by the defendants, that there is an overlap between the criteria in Arts 32 and 33(2) and the criteria in s 501(6)(d)(v) of the Migration Act. A Minister refusing a visa or cancelling a visa in reliance upon s 501(6)(d)(v) may do so on a basis which also satisfies the disentitling criteria under one or other of Arts 32 or 33(2).

228    Gummow J. dissented on the issue concerning the validity of the regulation. However, his Honour made one observation which is important to note, and about which the other justices of the Court expressed no disagreement. His Honour referred to the “tension”, observed by Lord Bingham of Cornhill in Reg. (European Roma Rights Centre) v. Immigration Officer at Prague Airport [2005] 2 A.C. 1, between the power of a sovereign nation to “admit, exclude and repel aliens” and the “humane practice”, as reflected in treaty obligations, to admit a person seeking refuge from persecution (at 49 [75]). Gummow J. went on to observe that, consistently with that tension, under the Act as it then was, a Minister could be satisfied that Australia has protection obligations under the Convention in respect of a person in circumstances where that person nonetheless fails to qualify for the grant of a protection visa. At 65-66 [136] his Honour said:

It is plain from the terms of the section that s 36(2) of the Act does not purport to cover “completely and exclusively” the criteria for the grant of a protection visa. Section 31(3) explicitly provides for the prescription by the Regulations of other criteria. It follows that an applicant to whom the Minister is satisfied Australia has protection obligations under the Convention yet may fail to qualify for a protection visa. An applicant to whom the disqualifying provisions of Art 1F do not apply nevertheless may have to meet criteria specified in the Regulations. The assessment of the plaintiff relevantly required by the Regulations is by Australia’s specialised security intelligence agency. The role given to it by the Regulations is a manifestation of the national interest identified in s 4(1) of the Act, being the interest of a sovereign state to scrutinise those aliens seeking admission, even if they be persons to whom protection obligations are owed. The provisions in the Act dealing with the “character test”, described above, are another example of the balance the legislature has sought to strike between the two interests identified by Lord Bingham of Cornhill in the passage referred to in the opening paragraph of these reasons.

(Footnotes omitted and emphasis added.)

229    It follows that Gummow J. was of the view that the “character test” formed part of Australia’s then domestic law for the grant of a protection visa. That test reflects Australia’s power to “admit, exclude and repel aliens.” Critically, we note that the existence of the “tension” has also been recognised by the High Court on a number of other occasions: Minister for Immigration and Multicultural Affairs v. Ibrahim (2000) 204 C.L.R. 1 at 45-46 [137]-[138]; NAGV v. Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 C.L.R. 161 at 169-171 [13]-[21]; FTZK v. Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 A.L.J.R. 754 at 768 [69]; see also Minister for Immigration and Multicultural Affairs v. Khawar (2002) 210 C.L.R. 1 at 15-17 [41]-[48].

230    Hayne J. was also of the view that there were several elements of the character test set out in s. 501(6) that intersected with Arts. 32 and 33(2). That was particularly so in the case of s. 501(6)(d)(v). His Honour thus said at 82-83 [192]-[193]:

Other elements of the character test in s 501(6) direct attention to many other kinds of consideration. Some, perhaps many, may fall within the reference in Art 32 to “public order”, but it is not necessary to attempt to identify the extent to which the two overlap. It is enough to observe that the character test directs attention to the issues with which Arts 32 and 33(2) deal.

A decision to refuse to grant a protection visa because its grant is prevented by s 501 is thus capable of being a decision “relying on” Art 32 or Art 33(2) which would engage s 500(1)(c). That is, a decision to refuse to grant a protection visa relying on either Art 32 or Art 33(2) is a particular species of case in which the grant of a protection visa is prevented (s 65(1)(a)(iii)) by s 501. This construction of the Act being open, there is no reason to construe s 500(1)(c) as if the reference there (and elsewhere in the Act) to a refusal to grant a visa relying on Art 32 or Art 33(2) were “superfluous, void, or insignificant”.

(Footnotes omitted.)

231    Importantly, Hayne J. otherwise rejected a submission that a decision relying on Art. 33(2) could not be made under s. 501 because the character test “requires proof to a lesser standard than would be necessary to engage Art 33(2)” (at 84 [199]). His Honour gave the following two reasons for that proposition at 84-85 [200]-[201]:

First, the submission proceeded from the premise that it is necessary to begin by asking whether s 501 (and s 501(6)(d)(v) in particular) “embodies Australia’s interpretation and implementation of Australia’s obligations under Arts 32 and 33 of the Convention”. That is, the defendants sought first to construe the Convention and then read the Act as if it gives effect to that construction. This inverts the proper order of enquiry. The Act must be construed in the light of its recognition of and references to Australia’s international obligations but it is the Act and its text which controls.

The second reason to reject this submission is that it assumed, wrongly, that s 501 can be applied on the basis of unfounded suspicion or suggestion, without recognition of the consequences that flow from its application, whereas the application of Art 33(2) would require clear and cogent proof of a serious threat to national security. But a decision to refuse to grant a protection visa relying on either Art 32 or Art 33(2), as a species of s 501 decision, cannot be made unless, in a case where security is at issue, the decision-maker is satisfied that the person concerned is a risk to national security.

(Footnotes omitted.)

232    The primacy of the text of the Act was also emphasised by Hayne J. at 91 [223] where his Honour said:

The plaintiff placed the notion of “protection obligations” and s 36 at the forefront of his argument. Though expressed in a number of different ways, a constant thread in many of the submissions advanced on behalf of the plaintiff was that, having been found to be a refugee, he is a person to whom Australia owes protection obligations and he cannot be removed from Australia otherwise than in accordance with Arts 32 and 33(2) of the Convention. Expressed in this way, not only is the argument too broad, it does not engage, as it must, with the text of the Act.

That “constant thread”, referred to in the foregoing passage, appeared again here in the submissions of both the appellant and the Human Rights Commission (as to which see below).

233    Heydon J. decided that it was possible to assume, given the text of former s. 500(1)(c), that there should be implied into the Act a power to refuse or cancel a visa on Arts. 32 or 33(2) grounds. His Honour, however, was of the view that a decision to refuse to grant a protection visa based on this implied power was different from a decision to refuse the grant of a visa pursuant to s. 501 of the Act. Whilst different, his Honour did not appear to be of the view that these two powers were in any way inconsistent with each other. His Honour said at 123 [313]:

The plaintiff submitted that a distinct power to refuse or cancel a visa on Arts 32 or 33(2) grounds can be implied from s 500(1)(c) itself. It is possible that that submission is correct. It will henceforth be assumed that it is correct. On that assumption, the criteria in Arts 32 and 33(2), which are stated in the Convention as conditions to be satisfied before expulsion, are given an additional role – the role of criteria for refusal of a protection visa before the consequential process of expulsion is undertaken. A decision to refuse to grant a protection visa because its grant is prevented by s 501 differs from a decision to refuse to grant it because its grant is prevented by the power implied from s 500(1)(c). A s 501 decision may be based on the same or similar matters of fact as those described in Arts 32 and 33(2). Those matters of fact would be relevant to a decision based on the power implied from s 500(1)(c). But a s 501 decision is not strictly speaking a decision “relying on” Arts 32 or 33(2). A s 501 decision is based on s 501(6) criteria. A decision based on the power implied from s 500(1)(c) rests on criteria which have a different source and different modes of expression. On the other hand, the process of expelling a refugee by reason of a decision to refuse to grant a protection visa because s 501 prevents its grant (or indeed by reason of the fact that the power implied from s 500(1)(c) prevents its grant) could not be carried out unless the matters of fact described in Arts 32 or 33(2) exist.

(Footnote omitted.)

234    Crennan J. decided that there were a number of provisions in the Act which empowered the Minister to make a decision to refuse or to cancel a protection visa “relying on one or more of the following Articles of [the Convention], namely, Article 1F, 32 or 33(2)”, to use the language of former s. 500(1)(c). These included ss. 501(6)(d)(v), 501(3) and 116(1)(e). As her Honour said at 149-150 [388]-[389]:

Section 500(1) of the Migration Act provides that applications may be made to the AAT for review of specified categories of decisions under the Migration Act. Read together, ss 500(1)(c) and (4)(c) give the AAT jurisdiction to review any decision under the Migration Act “to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of [the Convention], namely, Article 1F, 32 or 33(2)”, other than a decision to which a certificate under s 502 applies.

As explained by the Chief Justice and Hayne J, a decision under s 501 of the Migration Act to refuse to grant a protection visa invoking the aspect of the character test set out in s 501(6)(d)(v) could be a decision which meets this description. Other types of decision under the Migration Act might also meet this description. For example, a decision under s 501(3) to refuse to grant, or to cancel, a protection visa in the “national interest” invoking the aspect of the character test set out in s 501(6)(c)(ii) (that is, that “having regard to ... the person’s past and present general conduct ... the person is not of good character”) might qualify as a decision covered by s 500(1)(c). It can also be noted that a decision to cancel a visa relying on Arts 32 and 33(2) might conceivably be made otherwise than under s 501. For example, a decision under s 116(1)(e) to cancel a protection visa on the basis that “the presence of its holder in Australia is, or would be, a risk to the ... safety or good order of the Australian community” might also qualify as a decision covered by s 500(1)(c).

(Footnotes omitted.)

235    Kiefel J. (as her Honour then was) also thought that the power of cancellation pursuant to s. 501 was different from the power of cancellation implied from s. 500(1)(c). Her Honour said at 164-165 [441]-[443]:

The assumption made in s 500(1)(c), that there is a power to refuse the grant of a protection visa relying on the three Articles, suggests that there is another provision in the Migration Act which confers the power. But for the decision in NAGV, the obvious candidate would be s 36(2) and its requirement that a visa applicant be a person to whom the Minister is satisfied Australia has “protection obligations” under the Refugees Convention. On one view, the qualification of a person as a refugee under Art 1A is not sufficient to answer that question. Articles 1F, 32 and 33(2) are expressed in terms which prevent the operation of the Refugees Convention in certain circumstances, or prevent a particular person claiming the benefit of its provisions. Where those Articles operate such that the Refugees Convention does not apply or a refugee is disentitled from claiming the benefit of the prohibition on refoulement, it might be thought possible to conclude that Australia does not owe protection obligations to that person. However, NAGV holds that the reference to these Articles in the Migration Act does not derogate from a construction of s 36(2) by which the criterion there expressed is answered by reference to the definition of a refugee in Art 1A of the Refugees Convention. The plaintiff’s submissions do not seek to cast doubt upon the decision in NAGV.

The defendants refer to the Explanatory Memorandum dealing with what became s 500(1)(c), where it was said that the provision has the effect of “removing the obligation to provide protection as a refugee to a person who has committed crimes against peace, war crimes, crimes against humanity, serious non-political criminal offences, or otherwise presents a threat to the security of Australia or to the Australian community.” A threat to the “security of Australia” may be taken to refer to Arts 32 and 33(2) and a “threat to the ... Australian community” may reflect the danger to the community referred to in Art 33(2).

The defendants point out that the assumption there expressed, that the effect of a person coming within Arts 1F, 32 or 33(2) was to remove protection obligations, was shown to be wrong in NAGV. But an acceptance of the defendants’ proposition does not mean that the power referred to in s 500(1)(c), and the other sections referred to above, does not exist and cannot be used to refuse a protection visa on the grounds provided by these Articles. Section 500 and the other sections necessarily imply the existence of the power.

(Footnotes omitted.)

236    Kiefel J., nonetheless, was of the view that the power to refuse or cancel visas implied from s. 500(1)(c) was “additional to” the power conferred by s. 501; section 501, in that respect, was “not inconsistent with the terms of Art 33(2)” (at 160 [423]). Indeed, both powers formed part of the wider scheme for the cancellation and refusal of visas. Thus, at 160-161 [426]-[428] her Honour said:

Sections 500-503 may be seen as something of a scheme which provides the Minister with a power to refuse a visa to a person, to cancel a person’s visa, or to directly exclude a person from Australia, where that person is seen to pose risks of certain kinds to the Australian community. Decisions made under s 501(1) or in exercise of the power recognised by s 500(1)(c) are, however, expressed to be subject to review by the AAT. The Minister’s personal decision under s 502 to exclude a person in the national interest is not, but it is subject to the scrutiny of Parliament.

It is clearly possible that the application of s 501 may involve an assessment of the risk posed by a person to the security of Australia in considering whether the person represents a danger to the Australian community. That is not, however, the principal focus of the section. It involves wider considerations as to a person’s character and is not limited to decisions concerning protection visas. Section 501 does not refer to refugees or the Refugees Convention. Questions as to national security, in the context of a refusal of a person’s application for a protection visa, are more squarely raised by s 500(1)(c).

The power of refusal recognised by s 500(1)(c) is clearly one that is additional to, and separate from, the power given by s 501(1) and should be applied in its field of operation. The source of the power so recognised is a matter dealt with later in these reasons [extracted above at [235]]. For present purposes it may further be observed that the power is said by s 500(1)(c) to draw upon what is contained in the three Articles of the Refugees Convention, two of which, Arts 32 and 33(2), identify, as grounds for expulsion of a person from a country, the risks posed by the person to national security. Attention should therefore be directed, at least in the first instance, to the source of the power recognised by s 500(1)(c) and, if possible, effect given to that power.

(Footnotes omitted.)

237    Bell J. did not consider it necessary to identify the source of the power to cancel or refuse a visa on Convention grounds as being found in either ss. 500 or 501, but was satisfied that such a power nonetheless existed in the Act. At 179 [488] her Honour said:

A decision to refuse to grant or to cancel a protection visa because an applicant fails to satisfy s 501(6)(d)(v) of the character test may involve consideration of matters that answer the description of “national security” or “danger to security” but it is strained to characterise such a decision as one “relying on” Arts 32 or 33(2). The Act states the test in terms which do not draw on either Article of the Convention. While there is much to be said for the view stated in the joint reasons in NAGV quoted above, it was unnecessary for their Honours to determine whether, as the defendants here submit, the reference to Arts 32 and 33(2) in s 500(1)(c) and the linked provisions was enacted in error. An interpretation that gives no work to provisions of an Act should be avoided. Whether the power is sourced in s 501(6)(d)(v) or is to be implied from the grant of jurisdiction to review in s 500(1)(c), it is a power to refuse to grant or to cancel a protection visa relying on grounds that would support the expulsion or refoulement of a refugee under the Convention. An adverse security assessment by ASIO may be based on considerations that would not support a decision to refuse a protection visa on the ground that there is a significant risk that the person is a danger to the Australian community or a segment of it (s 501(6)(d)(v)) or more directly relying on Arts 32 or 33(2). However, there is no inconsistency in subjecting applicants for protection visas to the same barrier to entry that is applied to applicants for other classes of visa which entitle the holder to enter and reside in Australia.

(Footnotes omitted.)

Once again, there was no suggestion of any inconsistency between the two powers.

238    In our view, Plaintiff M47/2012 stands for the following three relevant propositions:

(1)    that prior to the 2014 Amending Act, the Act conferred on the Minister a power to cancel or refuse a protection visa on the basis of the content of applicable Convention grounds, including Art. 33(2);

(2)    whether this power either existed within s. 501(6)(d)(v) itself (or some other provision of the Act) or was to be implied from former s. 500, it nonetheless existed side by side with the other powers of refusal and cancellation conferred by s. 501. To use the language of Kiefel J., it was an “additional” power; and

(3)    there is no suggestion in any of the judgments that the co-existence of these two classes of powers in the Act gave rise to any issue of inconsistency or repugnance.

239    The final decision is that of the High Court in SZOQQ v. Minister for Immigration and Citizenship (2013) 251 C.L.R. 577. This case again concerned the former s. 36(2)(a) of the Act. An Indonesian man had sought the grant of a protection visa. He had previously been convicted in Australia of manslaughter. The visa was refused because a Ministerial delegate had formed the view that Australia did not owe him any “protection obligations” under the Convention, to use the language of former s. 36(2)(a). That was because the applicant had been convicted of a “particularly serious crime” and the delegate had decided that he constituted a danger to the community.

240    Keane J. (with whom French C.J., Hayne, Crennan, Kiefel, Bell and Gageler JJ. agreed), decided that the terms of Art. 33(2) of the Convention had not been incorporated into former s. 36(2)(a). Such a conclusion was consistent with the earlier decision of the High Court in NAGV v. Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 C.L.R. 161. The Minister nonetheless had argued that the subsequent enactment of s. 91U (since repealed) dictated a different outcome. Section 91U had contained a definition of what was a “particularly serious crime” for the purposes of Art. 33(2). This argument was rejected.

241    Importantly, it was rejected because of the language of s. 36(2)(a). As Keane J. observed at 589 [30]-[31]:

The first respondent’s contention that s 91U of the Act is apt to confine the scope of persons to whom Australia has “protection obligations” in s 36(2)(a) has no textual basis. Section 36(2)(a) of the Act does not refer to Art 33(2), or the expression “particularly serious crime”. The text of s 91U gives content to the expression “particularly serious crime”. It does not purport to affect the operation of s 36(2)(a).

Section 91U is not expressed in terms which are apt to translate into the terms of s 36(2) the operation of Art 33(2) of the Refugees Convention to provide for the extinguishment of the non-refoulement obligation in Art 33(1), much less all of Australia’s other extant protection obligations.

The Submissions of the Parties

242    Unlike BAL19, which concerned an exercise of power under s. 501, this appeal concerns an exercise of power under s. 501A. On one view, no inconsistency arises between that provision and s. 36(1C). The appellant, however, pointed out that s. 501A relevantly requires the presence of a decision of the A.A.T. not to exercise the power in s. 501(1) to refuse to grant a visa (called in s. 501A an “original decision”). Here, there was no such original decision because BAL19 had necessarily rendered the first decision made by the delegate of the Minister pursuant to s. 501 a nullity. It followed, it was said, that there was no decision that the A.A.T. could have validly reviewed, and it could not thereby have decided not to exercise the power in s. 501(1) of the Act.

243    The Minister conceded that the power conferred by s. 501A is “governed directly by the decision in BAL19.” That was because the power was said to be exercisable by reference to criteria which “are indistinguishable from those in s 501(1).” The Minister did not otherwise agree with the reasoning of the appellant. That was because notwithstanding any defect in the delegate’s decision, the A.A.T.’s decision had been validly made as its power was not dependent upon the pre-existence of a legally effective decision for it to review. Rather, its power was simply dependent upon the fact of a purported decision having been made. For our part, we agree with that submission: Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 A.L.R. 307. Nonetheless, in what follows we will accept the applicability of the Minister’s concession.

244    The appellant otherwise supported the reasoning of Rares J. in BAL19 and distilled his written submission on this point into two paragraphs with admirable brevity. The appellant’s written submissions thus state:

Parliament enacted subs 36(1C) of the Act to implement Article 33 of the Refugees Convention. Parliament did not intend, by so legislating, to derogate from Australia’s non-refoulement obligations. To permit s 501 to be utilised to refuse the grant of a protection visa for grounds lesser than those in Article 33(2) (ie subs 36(1C)), would be to undermine the threshold which is found in that Article, as Parliament sought to implement. This is the essence of the reasoning of Rares J in BAL19: see eg at [69], [71].

As Rares J also explained, while Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 did discuss the existence of an ‘overlap between Arts 32 and 33, on the one hand, and provisions of the character test in s 501(6)’, which existed prior to the 2014 amendments, ‘that overlap operated differently’: see at [75]. Specifically, the pre-2014 ‘overlap’ was in a context in which there was no s 36(1C). The work that subs 501(6) did, in picking up Articles 32 and 33, is now done by subs 36(1C). So much is clear from the terms of subs 36(1C), and the Explanatory Memorandum. It is the point also made by Rares J at [85] and [87].

(Footnote omitted.)

245    The Minister submitted that BAL19 was wrongly decided. He contended that s. 36(1C) forms part of the criterion for the grant of a protection visa. Contrary to the reasoning of Rares J., it was said that s. 36(1C) confers no power. His Honour’s reliance upon the language in s. 500(4) was, in that respect, misconceived. A decision to cancel a visa “relying on” s. 36(1C) (these are the words used in the provision) was intended to be a reference to other powers, such as that under s. 116, where a visa might be cancelled using that power but in reliance upon s. 36(1C).

246    The Minister emphasised the text of s. 65 of the Act and its place within the statutory scheme. That scheme included s. 35A(6) (introduced by the 2014 Amending Act) which sets out the applicable criteria for the grant of a protection visa. There are two. The first is the criteria “set out in section 36”; the second is “any other relevant criteria prescribed by regulation for the purposes of section 31.” In other words, the “Convention” criteria set out in s. 36 are, by the plain language of this provision, not the only criteria for the grant of a protection visa.

247    The Minister submitted that a duty to grant a protection visa in accordance with s. 65 only arises if all the criteria for the grant of a protection visa are satisfied and all of the applicable conditions in that section are met. In s. 65, those conditions expressly include that the grant of the visa has not been prevented by ss. 91WA and 91WB (these apply specifically to protection visas) or by s. 501 of the Act. In other words, the express language of s. 65 requires the Minister to take notice of whether the power in s. 501 has been exercised. That condition applies to all visas, including protection visas. To avoid doubt, it was said, Parliament has expressly stated in s. 501H, that the power of refusal in s. 501 is in addition to other powers of refusal or cancellation. That includes, by its terms, s. 36(1C).

248    Because s. 36(1C) conferred no power, the Minister also submitted that the Anthony Hordern principle could have no application. There were no competing powers, one general in nature with the other being more specific. More fundamentally, the Minister submitted that there had been no implied repeal of s. 501 in its application to protection visas by reason of the enactment of the 2014 Amending Act. There was no inconsistency between s. 36(1C) and s. 501; together they constituted cumulative requirements that a visa applicant might need to meet. The Minister relied upon VWOK and SZLDG.

249    The Minister also submitted that the insertion of s. 36(1C) was “responsive” to the High Court’s decision in SZOQQ by making the content of Art. 33(2) an additional express criterion in the Act. In contrast, it was submitted, s. 501 was relevantly inserted into the Act in 1998 (by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth.)). It was said that the purpose of s. 501 was to strengthen the Minister’s powers to refuse to grant or cancel a visa. Unlike s. 36(1C), it confers a discretionary power. Section 501 was not amended in any way by the 2014 Amending Act. In the Minister’s submission, the language of the Act is clear: a person can still fail the “character test” in s. 501, even if they have not committed a particularly serious crime and are not a danger to the community. No inconsistency arises from the further enactment by Australia of its interpretation of its international obligations under the Convention into domestic law and the continued retention of a more general power to cancel or refuse any visa on character grounds.

250    In his oral address, Mr. Kennett, Senior Counsel for the Minister, emphasised certain additional textual matters. He relied, in that respect, on “Note 1” to s. 501 set out above and pointed out that the 2014 Amending Act had never altered its text, even though it would have been a simple matter to have deleted it entirely. The continued presence of the note made it clear, it was said, that s. 501 continued to apply to protection visas. He also relied upon the text of:

(a)    the definition of a “fast track decision”; and

(b)    section 500(4).

(In each case set out above.)

251    Those provisions, it was contended, plainly assumed the continued operation of s. 501 to the grant of a protection visa.

252    The Minister also disagreed with the proposition that the language of s. 36(1C) was part of a self-contained code for the grant of protection visas. He submitted that Parliament has simply enacted into domestic law its interpretation of its Convention “obligations” and had just decided to insert them “in one place.”

253    The Human Rights Commission supported the correctness of BAL19. The essence of its submission to the Court was that there was a fundamental inconsistency between s. 36(1C) and s. 501 that needed to be resolved in accordance with the canon of statutory construction known as the principle of “harmonious construction.” In other words, the Act should be construed in a way which best achieves a harmonious result: Commissioner of Police (N.S.W.) v. Eaton (2013) 252 C.L.R. 1 at 28 [78].

254    The Human Rights Commission accepted that the Anthony Hordern principle was not applicable because s. 36(1C) conferred no power. But that did not matter. That principle was merely an instance of a broader proposition, namely “that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise”. That proposition applied here. Here, a person may have a “substantial criminal record” for the purposes of s. 501 which is not a criminal record that would trigger an application of s. 36(1C). The Commission submitted that the Act should be construed to avoid a result whereby both s. 36(1C) and s. 501(1) applied to the “same thing” but using in each case different tests; otherwise there would be incoherence. It would also permit the Minister to refuse the grant of a protection visa “in a manner that would lead to Australia breaching its non-refoulement obligations” under the Convention. Such an outcome would be contrary to the well-known principle, articulated by Gleeson C.J. in Plaintiff S157/2002 v. The Commonwealth of Australia (2003) 211 C.L.R. 476 at 492 [29] as follows:

… where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia’s obligations.

(Footnote omitted.)

See also FCS17 v. Minister for Home Affairs [2020] FCAFC 68 at [7] per Allsop C.J.

255    The solution to this problem was to give the particular provision (s. 36(1C)) a legal meaning which impliedly excluded the general provision (s. 501). Because it was submitted s. 36(1C) comprises a “comprehensive regime” which defines the “precise contours” of Australia’s international obligations, s. 501(6)(a) at least (i.e. where a person has a “substantial criminal record” as defined) needed to be read down. In that respect, the Human Rights Commission emphasised that it had confined its submission to the power to refuse, as distinct from to cancel, a protection visa.

256    The Human Rights Commission also pointed out that prior to the 2014 Amending Act, it was possible for the Minister to apply s. 501 to refuse the grant of a protection visa, if he did so by reference to the content of Art. 33(2) (presumably this was a reference to s. 501(6)(d)(v)). But that is now no longer possible precisely because s. 36(1C) had been enacted.

257    Whilst the submissions of the Human Rights Commission appeared to be limited to a construction of s. 501(6)(a) and the power of refusal, the Minister contended that a consequence of accepting their correctness would be to confine Australia’s ability both to refuse or cancel a protection visa to the criteria set out in s. 36 of the Act. In the Minister’s submission, that outcome is incompatible with the express requirements of s. 65, and its express reference to s. 501 (as well as to ss. 91WA and 91WB).

258    The Human Rights Commission did not agree with the Minister’s criticism of its submission. It accepted that a person might satisfy the criterion contained in s. 36(1C) (and, we assume, s. 36 more generally) yet be able to be refouled because of an application of either ss. 91WA or 91WB. That was because, it was said, these sections expressly refer to protection visas; in contrast, s. 501 does not expressly refer to such visas (although, we observe, “Note 1” to that provision does so refer). Moreover, it was submitted that because the 2014 Amending Act codified Australia’s interpretation of its international obligations under the Convention, it was logical to presume that Parliament intended that Australia would only ever breach those obligations “rarely and in the way specified in that “code”” (emphasis in original). The Commission urged that it was otherwise not necessary for the Court to resolve “every permutation and combination” of the ways in which s. 36(1C) and s. 501 might intersect. However, it did accept that satisfaction of the criterion in s. 36(1C) did not confer an immunity on a future cancellation of a visa under s. 116 by reason of the emergence of new facts or different considerations.

259    Before the Court, Senior Counsel for the Human Rights Commission very properly accepted that there was an overlap between the fields of operation of ss. 36(1C) and 501 and that this overlap, of itself, was not sufficient to justify this construction of s. 501. Rather, he relied more specifically upon those passages in the 2014 Explanatory Memorandum which describe the enactment of Australia’s interpretation of its Convention “obligations” as a codification of those obligations. We have already set out two of those passages. Another passage may be found on page 10 as follows:

The Bill also removes most references to the Refugees Convention from the Migration Act and instead creates a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention. It is not the intention of the Government to resile from Australia’s protection obligations under the Refugees Convention but rather to codify Australia’s interpretation of these obligations within certain sections of the Migration Act. These amendments set out the criteria to be satisfied in order to meet the new statutory definition of a refugee. They also clarify those grounds which exclude a person from meeting the definition or which (where a person satisfies the definition of a refugee) render them ineligible for the grant of a Protection visa.

(Emphasis in original.)

260    It was submitted that the effect of codifying Australia’s Convention “obligations” was to create an exclusive code for dealing with the grant of protection visas. By enacting such a code, Parliament intended, it was submitted, to give it exhaustive operation. The Human Rights Commission also submitted that the presence of a self-contained code for the grant of a protection visa could also be seen from the language of s. 36 and from the enactment of detailed definitions, such as the definition of “refugee” (s. 5H), of the term “well-founded fear of persecution” (s. 5J) and the term “particularly serious crime” (set out above). The result was that s. 501, in so far as it ostensibly conferred a power to refuse the grant of a protection visa, was indirectly inconsistent with this protection visa code, in particular s. 36(1C). It followed that the words of s. 501 needed to be read down to exclude protection visas from the reach of that provision (at least with respect to the issue of refusal). The inconsistency was similar, it was said, to that inconsistency between Federal and State Acts that can sometimes arise in cases concerning s. 109 (as set out in s. 9 of the Commonwealth of Australia Constitution Act 1900 (Imp.)).

261    Finally, the Human Rights Commission submitted that the concept of codification now meant that the Act contained starkly different provisions from those considered in Plaintiff M47/2012. That case could accordingly be distinguished from the circumstances here.

262    In his written reply, the appellant maintained his submission that s. 36(1C) is “an aspect of the power” to grant a visa pursuant to s. 65. He relied upon the statutory context whereby a person may apply for a visa under s. 45 of the Act, which if valid, the Minister, pursuant to s. 47, is obliged to consider. He also relied upon the fact that s. 36(1C) is a “state of mind” provision which he submitted was capable of formation “from time to time” and even after the grant of a visa. Section 501(1) was also said to be a “state of mind” provision. The existence of these two states of mind provisions highlighted, it was contended, the conflict between them. As the appellant put it in his written submissions:

Rhetorically, why would Parliament have intended for the Minister to be mandated to form a state of mind with regard to the graver matters in s 36(1C), if the Minister could always refuse the grant of a protection visa, in the exercise of discretion, on a state of mind formed upon the lesser basis in the ‘character test’? The answer is that Parliament did not so intend.

263    In any event, it was said, it did not matter whether or not s. 36(1C) conferred a power. The need to read down s. 501 was a consequence of an application of the broader generalia specialibus non derogrant maxim. In that respect, there was little difference in the positions of the appellant and the Human Rights Commission: see The Ombudsman v. Laughton (2005) 64 N.S.W.L.R. 114 at 118 [19] per Spiegelman C.J.; Cridland v. Commissioner of Taxation (1977) 140 C.L.R. 330; and Federal Commissioner of Taxation v. Gulland (1985) 160 C.L.R. 55 at 66-67 per Gibbs C.J. In the context of the Act, the appellant also relied upon the following observation of French C.J. in Plaintiff M150/2013 v. Minister for Immigration and Border Protection (2014) 255 C.L.R. 199 at 214-215 [37]:

The express provisions of the Migration Act relating to protection visas reflect their special purpose. They point away from the interpretative submission advanced by the defendants based upon the difference in language between ss 39 and 85. General provisions of the Act should not be construed in a way that is inconsistent with that purpose, involving the discharge of international obligations, unless their text plainly requires such a construction.

264    The appellant also submitted that the presence of s. 501H in the Act did not detract from the correctness of BAL19. Once s. 501(1) was read down to exclude any power to refuse a protection visa, it did not relevantly confer any power that was “in addition to any other power under” the Act.

265    The appellant next denied that the text of s. 500(4) assisted the Minister. Rather, the appellant emphasised what he characterised as a contemplation by the words of that provision of the “narrower kinds of s. 36(1C) decision” referred to in s. 500(4)(c) in contrast to the “more general, non-protection visa specific reference to a decision under s. 501” as referred to in s. 500(4)(b). We shall return to consider this provision.

266    The appellant also relied upon the introduction by the 2014 Amending Act of s. 197C. Given that it permitted Australia to refoul a non-citizen despite the existence of non-refoulement obligations, Parliament could not have intended to expose a person who otherwise satisfied s. 36(1C) to refoulement in the absence of clear words.

267    The appellant also emphasised the special nature of a protection visa. In his written reply the following contention was made:

It follows that a protection visa may not be cancelled (nor refused) on the subset of ‘character’ grounds that are lesser than the kinds of matters in Arts 1F, 32 and 33 of the Refugees Convention. This outcome is unsurprising: it is consistent with the provisions introduced by the both the Amending Act and the Cancellation Amending Act. The result that a protection visa may be more indelible than another kind of visa is equally unsurprising. In Plaintiff S297, the High Court reached a conclusion that a provision of the Act that on its face was broad enough to apply to all kinds of visas should be read such that protection visas were excluded from its ambit. Although some of the specific provisions in Plaintiff S297 have since been amended, the Act still maintains a distinction between protection visas and other visas.

(Footnote omitted.)

268    Finally, the appellant urged the Court to find that BAL19 was correctly decided.

Disposition of Ground Two

269    We commence with two general propositions.

270    First, the maxims or canons of statutory construction are only tools. They serve the task of ascertaining Parliament’s intention from the words it has deployed. The maxims cannot be used to thwart that intention. As Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. observed in Gedeon v. Commissioner of the New South Wales Crime Commission (2008) 236 C.L.R. 120 at 140 [51]:

The question of construction of para (b) of s 7(1) is not resolved by the application of any particular maxim or canon of statutory construction selected from among those which may jostle for acceptance. The preferable starting point appears from what was said by Dixon J in Cody v J H Nelson Pty Ltd:

“In the modern search for a real intention covering each particular situation litigated, however much help and guidance may be obtained from the principles and rules of construction, their controlling force in determining the conclusion is likely to be confined to cases where the real meaning is undiscoverable or where the court of construction, sceptical of the foresight of the draftsman or of his appreciation of the situation presented, is better content to supply the meaning by a legal presumption than subjectively.”

(Footnote omitted.)

See also Lord Reid in Maunsell v. Olins [1975] A.C. 373 at 382.

271    More recently, in Australian Mines and Metals Association Inc v. Construction, Forestry, Maritime, Mining and Energy Union (2018) 268 F.C.R. 128, this Court (Allsop C.J., Griffiths and O’Callaghan JJ.) said at 147 [78]:

The task of statutory construction can be assisted by a wide range of more specific principles of statutory construction, many of which have been developed by the courts, while others are now expressed in legislation such as the Acts Interpretation Act 1901 (Cth) (the AIA), including ss 15AA and 15AB. Some caution is required in selecting and applying the non-statutory or common law principles. They are not inflexible rules and their application in particular circumstances can be nuanced. Moreover, there can be tension between some of the principles. They are not masters, but should be viewed as servants and tools of analysis in the task of statutory construction.

(Emphasis added.)

272    Secondly, Parliament is free to pass laws which may conflict with or be inconsistent with its international treaty obligations. When it does so, its will must be enforced. As Allsop C.J. recently observed in FCS17 v. Minister for Home Affairs [2020] FCAFC 68 at [8]:

Australia’s adoption of the Refugees Convention did not inhibit the authority of Parliament to legislate in a way that departed from the Refugees Convention, or from how courts, Australian or foreign, had interpreted or construed it, and how the courts thereby gave content to its character and form as international law: cf Starke JG An Introduction to International Law (Second Edition) at 38-44.

273    The ability of the Federal Parliament to prescribe conditions or criteria in the Act which are over and above the stipulations set out in the Convention, permit Australia to reconcile the “tension”, identified by Gummow J. and Lord Bingham and described above, in its own way.

274    We return to Plaintiff M47/2012. French C.J. recognised Australia’s capacity to reconcile this “tension” at 25 [14]:

A number of observations about the nature of the Convention and the obligations it imposes on Contracting States were set out in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs. They included the following:

•    the obligations created by the Convention are owed by the Contracting States to each other and not to refugees;

•    the Convention does not detract from the right of a Contracting State to determine who should be allowed to enter its territory;

•    the determination of the status of refugee is a function left by the Convention to the competent authorities of the Contracting States which may select such procedures as they see fit for that purpose;

•    the Convention sets out the status and civil rights to be afforded within Contracting States to those accorded the status of refugee.

(Footnotes omitted and emphasis added.)

275    Heydon J. emphasised the primacy of the language of the Act and observed at 102-103 [261]-[263]:

But it does not follow … from Australia’s international obligations to the other parties to the Convention, that the relevant person has any entitlement to a visa. That person’s entitlement to a visa depends on the Act alone. In the absence of legislation, the Convention has no effect on the rights and duties of individuals or of the Commonwealth under Australian municipal law.

…

The plaintiff submitted that the Act should be construed in a way that facilitates Australia’s compliance with its Convention obligations, to the extent that the text and context of the relevant provisions permit.

Those submissions may be accepted for the purpose of the proceedings. However, the legislature may well decide not to adopt the whole of a treaty that the Executive has entered. “[T]he purposes of international instruments are not necessarily to be pursued at all costs.” “The purpose of an instrument may instead be pursued in a limited way, reflecting the accommodation of differing viewpoints, the desire for limited achievement of objectives, or the constraints imposed by limited resources.” The authorities which the plaintiff relied on did not state that the Act gives effect to the whole of the Convention. It is notorious that it does not. The relevant question is what the Act provides, not the Convention.

(Footnotes omitted.)

276    Heydon J. also expressly recognised that the Act imposed additional requirements before a recognised refugee is entitled to the grant of a protection visa. His Honour thus observed at 108 [274]:

… the Convention does not detract “from the right of a Contracting State to determine who should be allowed to enter its territory.” In Australian law, “absent some authority conferred by statute, aliens have no right to enter or reside in Australia”. The relevant statute is the Act. It controls entry by a visa regime. Section 65 regulates the grant of visas. Section 65 creates requirements additional to refugee status before a person can be granted a protection visa. Recognition by a delegate of the Minister and by the Refugee Review Tribunal of a person as a refugee does not in Australia confer a right to asylum in the sense that that person is permitted to live and work in Australia. It confers a right of refuge. That right of refuge may be temporary.

(Footnotes omitted and emphasis added.)

277    Here, the issue for determination is whether Parliament intended to make s. 36(1C) an exhaustive test for the refusal of protection visas on character grounds, so that it is thereby necessarily incompatible with the character test found in s. 501. There are a number of reasons for concluding that when Parliament enacted s. 36(1C), it had no such intention.

278    First, both prior to the enactment of the 2014 Amending Act, and in the following period of time until the publication of BAL19, it was commonplace for the Minister to refuse to grant a protection visa because a given applicant had failed to pass the character test, in some way, in s. 501. Taking that power away would constitute a dramatic and important reform to the Act. Yet there is nothing in the 2014 Explanatory Memorandum, or in the Second Reading Speech to the Bill that became the 2014 Amending Act that expressly suggests, in any way, that such a reform was what Parliament intended. If that is what Parliament had wanted to do, it could have easily have amended s. 501 to expressly exclude protection visas from its scope of operation. Where necessary, that is precisely what it has done in the past: see, for example, ss. 501E and 501F. Yet Parliament never did this in respect of s. 501.

279    Secondly, there is nothing about the language used in s. 36(1C) that suggests that it is now intended to be the exhaustive test on when to refuse to grant a protection visa on character grounds. By its terms, it simply does not exclude s. 501 (or indeed any other power to refuse the grant of a protection visa). Moreover, it must be read with s. 35A(6). That provision, with respect, makes it abundantly clear that s. 36 is not the exclusive repository for the criteria for the grant of a protection visa.

280    Thirdly, s. 36(1C) and s. 501 serve different functions and have different provenances. As Gummow and Hayne JJ. pointed out in Nystrom, s. 501 was originally introduced into the Act in 1992 as s. 180A by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth.). The Explanatory Memorandum to the Bill that became that Act, described the purpose of s. 501 at page 1 in the following terms:

The proposed scheme to exclude persons whose presence in Australia is undesirable consists of a power, additional to other powers in the Migration Act 1958, to refuse an application or cancel a visa or entry permit held by such a person. The Minister must be satisfied that the person is not of good character or would vilify, incite discord or represent a danger to the Australian community or a segment of it or would be likely to engage in criminal conduct in Australia. In considering a person’s character, the person’s past criminal conduct, general conduct and any association with an individual, group or organisation will be relevant.

281    There is no suggestion that the creation of this power, said to be “additional to other powers”, was not intended to be exercisable in the case of protection visas. Rather, the power overlays all visas. In 1998, the power was strengthened further by the passing of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth.) which enacted s. 501. Paragraphs [1] and [2] of the Explanatory Memorandum which accompanied the Bill that became that Act (the “1998 Explanatory Memorandum”), state as follows:

The Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 (“the Bill”) amends provisions in the Migration Act 1958 (“the Act”) to implement a number of Government initiatives in the Immigration and Multicultural Affairs Portfolio. Specifically, the Bill amends the Act to give the Government greater control over the entry into, and presence in, Australia of certain non-citizens who are unable to satisfy the Minister that they pass the “character test”. Other amendments are also required to strengthen the procedures used in dealing with such people.

The amendments to the Migration Act:

•    strengthen the power to refuse to grant or cancel a visa on character grounds by:

-    introducing a character test in section 501;

-    deeming certain persons not to pass the character test;

-    providing that visa applicants and visa holders who are being considered under section 501 bear the burden of proof in convincing the Minister that they pass the character test;

-    deeming refusal of all visa applications applied for, and cancellation of all visas held by, a person who has “failed” the character test and whose visa application has consequently been refused or whose visa has been cancelled;

-    detailing the obligations of the Minister to notify an applicant or visa holder of a decision to refuse to grant or cancel a visa on the basis of the person’s character;

-    providing for the consideration of evidence and determination of whether a person passes the character test to cover cases which do not fall within the new deeming provisions; and

-    permitting temporary detention of a visa holder where a section 501 or 501A cancellation decision is being considered;

•    expand the Minister’s power to give binding directions under section 499 to delegates and Tribunals, particularly in terms of the factors to be taken into account in deciding whether to refuse a visa application or cancel the visa of a non-citizen who has been found not to have passed the character test;

•    prevent (with limited exceptions) persons who have had a visa refused or cancelled on character grounds from applying for further visas while they are still in the migration zone;

•    expedite the process of review by the Administrative Appeals Tribunal (“AAT”) of decisions made under the new character provisions where the decision relates to a person who is in the migration zone. The most significant amendments include:

-    imposing strict time limits on, and otherwise expediting, the review of section 501 decisions made by a delegate of the Minister; and

-    deeming a delegate’s decision to be affirmed where the AAT fails to make a decision within 84 days;

•    enhance the power to remove unlawful non-citizens from Australia;

•    strengthen the Minister’s personal powers to refuse to grant or cancel a visa on character grounds:

-    to enable the Minister to personally exercise a special power to intervene in any case and substitute his/her own decision to refuse to grant or cancel. This decision may be revoked if made without prior notice to the person; and

-    to ensure that the Minister’s personal decisions are not reviewable;

•    provide protection from disclosure of confidential security and criminal intelligence information that is provided by Gazetted agencies;

•    introduce consistency into the circumstances in which conclusive certificates may be granted to prevent review of a decision: the new standard test for all conclusive certificates will be “the national interest”;

•    create transitional provisions in respect of the above amendments; and

•    make minor technical amendments arising out of the above amendments.

282    Again, there is nothing in the foregoing that suggests that, when enacted, s. 501 was not intended to confer on the Minister a power to refuse the grant of a protection visa. Rather, s. 501 confers on the Minister a discretionary power to refuse all categories of visa capable of being granted by the Act. The ground of refusal is relevantly a character test which Parliament had authority to determine. Whether that test does or does not comply with Australia’s international obligations under the Convention would not appear to matter. That is because the power applies indifferently to all visas.

283    In contrast, s. 36(1C) has a different provenance and serves another purpose. It confers no discretionary power on the Minister. Rather, it is one criterion that “an applicant for a protection visa must satisfy” (s. 36(1A)) in order to be eligible for the grant of a protection visa. By its terms s. 36(1C) confers no power and, in our view, s. 500 does not imply that it does. But even if it did, we think it makes no difference. That is because s. 36(1C) is directed at addressing a different topic; namely the domestic enactment of Australia’s interpretation of its rights under Art. 33(2) of the Convention. This is made clear in paragraphs [1235]-[1237] of the 2014 Explanatory Memorandum which state as follows:

New subsection 36(1C) is therefore a criterion that excludes a refugee from the grant of a protection visa.

New subsection 36(1C) is intended to codify Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention. As such, a person who is captured by new subsection 36(1C) will not engage Australia’s non-refoulement obligations under the Refugees Convention or for the purposes of the new statutory framework relating to refugees.

A person who is captured by new subsection 36(1C) will not be eligible for the grant of a protection visa.

(Emphasis in original.)

284    Fourthly, and with great respect to Rares J., to the appellant and to the Human Rights Commission, there is no necessary repugnance or inconsistency between ss. 501 and 36(1C). This is not a case where “contrariety is manifest”: Reseck v. Federal Commissioner of Taxation (1975) 133 C.L.R. 45 at 53 per Stephen J. If an applicant fails to satisfy s. 36(1C) they will not be eligible for a visa. In such a case, there will be no role for s. 501 to play as there will simply be nothing to refuse. If an applicant satisfies s. 36(1C), he or she may, like all other visa applicants in Australia, be subject to the Minister’s discretionary powers in s. 501. In this way, and in our view, ss. 36(1C) and 501(1) are cumulative requirements.

285    It is plainly within the constitutional competence of Parliament to confer the power contained in s. 501 upon the Minister and to create in this way a general requirement for the grant of all types of visas. In reaching this conclusion, it matters not whether s. 501 be characterised as a general or a specific power, although in Nystrom, Heydon and Crennan JJ. were of the clear view that it was not a “vague or general power.” That is because it exists to serve a distinctly different purpose. And whilst it is true, at perhaps a very high level, that both provisions address (at least in part) the criminal activity of an applicant, that analysis suffers a similar fate as the argument made in Nystrom: it focuses on only one potential overlap in the provisions; namely that each relevantly turns on the presence of criminal behaviour. But so do ss. 200 and 201 of the Act, which were found in Nystrom not to be inconsistent with s. 501.

286    Fifthly, there is the text of s. 65. It unambiguously and relevantly stops the grant of any visa where that is prevented by s. 501. Nothing in the text of that provision or in s. 501 justifies a blanket exemption from that requirement in the case of all protection visas.

287    Sixthly, there is also the text of the definition of “fast track decision” in s. 5 of the Act. It relevantly means “a decision to refuse to grant a protection visa … other than a decision to refuse to grant such a visa ... because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501.” Plainly, if the appellant is correct, this part of the definition of fast track applicant would be rendered meaningless. Moreover, the language of the definition plainly shows that Parliament, at the very least, assumed that the power to refuse the grant of a protection visa pursuant to s. 501 was not removed by the 2014 Amending Act.

288    We do not otherwise accept the submission that by reason of the definition of fast track applicant, the regime for fast track decisions was limited to visa applications made before the 2014 Amending Act. Whilst a “fast track applicant” is someone who must have relevantly arrived in Australia before 1 January 2014, that does not foreclose the possibility that such a person could apply for a protection visa after the passing into law of the 2014 Amending Act. Indeed, item 27 of Sch. 4 to the 2014 Amending Act makes it clear that it is confined to fast track applications made “on or after the commencement” of that Schedule.

289    Seventhly, there are other textual glimmers in the Act which illuminate the proposition that Parliament did not intend to confine or impliedly amend s. 501 when it passed the 2014 Amending Act. These were relied upon by the Minister. Of themselves, they are of no great moment; but to an extent they do support the conclusion we have reached. First, there is the text of s. 500(4). The Minister submitted that the exclusion of s. 501 decisions by s. 500(4) from review in the A.A.T. under Pt. 7 of the Act (which deals only with the review of decisions to cancel or refuse protection visas), suggested that Parliament plainly considered it was possible to refuse a protection visa under s. 501, and so had enacted a rule dealing with the review of such decisions. More telling is “Note 1” to s. 501 (set out above). It was not amended in any way by the 2014 Amending Act. Notes form “part of” Federal legislation: s. 13 of the Acts Interpretation Act 1901 (Cth.). Whilst a note cannot govern the text of an act, it can be used as an aid in the interpretation of a provision: Shuster v. Minister for Immigration and Citizenship (2008) 167 F.C.R. 186 at 188-189 [11]. Here, it supports the contention that the visas to which section 501 is to apply include protection visas. We do not, and with great respect, consider that such a conclusion can be defeated by contending that the note is merely definitional; although that dilutes the extent to which one can rely upon it. Nor, with very great respect, is the conclusion defeated by the contention that the amendments made to the Act in 2014 could have been made “more elegantly”.

290    Eighthly, our conclusion is supported by authority. With great respect to Rares J., we do not think that it matters that prior to the 2014 Amending Act, at least in the case of Art. 33(2), its contents were not part of the “statutory criteria for the grant of a protection visa” (BAL19 at [87]). That is because the alleged conflict or inconsistency observed by Rares J. already existed within the Act. In Plaintiff M47/2012, a majority of the High Court were of the view that a power to refoul in accordance with Art. 33(2) subsisted within the Act. That power existed either as part of other provisions, such as s. 501(6)(d)(v), or its presence was to be implied, because of provisions such as former s. 500 of the Act. What the 2014 Amending Act did was re-enact the very same power, but on this occasion expressly as a criterion to be fulfilled. Significantly, in Plaintiff M47/2012 no justice of the High Court expressed any difficulty with that power co-existing with the power in s. 501(1). French C.J. observed that there was an “overlap” between Art. 33(2) and s. 501(6)(d)(v) (at 38 [42]). Hayne J. was of the view that the “character test” directed attention to the issues with which both Arts. 32 and 33(2) deal (at 82 [192]). His Honour also rejected as “too broad” the proposition that a person who is found to be a “refugee” cannot be removed from Australia “otherwise than in accordance with Arts. 32 and 33(2).” Such an argument did not engage with the text of the Act (at 91 [223]). Kiefel J. (as her Honour then was), was of the view that the Art. 33(2) power, implied from s. 500, was “additional to” the power in s. 501(1) (at 161 [428]). Her Honour was of the view that the power in s. 501 was “not inconsistent” with the terms of Art. 33(2) (at 160 [424]).

291    Our view is also supported by the passages we have set out in Nystrom above. In that case, the power in s. 501 to cancel a visa was found to co-exist harmoniously with the power of deportation conferred by ss. 200 and 201 of the Act. Those powers were seen as distinct and cumulative even though they were both capable of being exercised upon the criminal conviction of a visa-holder. A similar observation may be made about ss. 36(1C) and 501(1). Our view is also supported by the decision in VWOK, both at first instance and on appeal to this Court, in the passages we have set out above, and by the observations of Lindgren J. in SZLDG, also set out above.

292    Ninthly, there is nothing in the 2014 Explanatory Memorandum that supports the proposition that by making the amendments set out in the 2014 Amending Act, Australia intended to abandon its resolution of the “tension” referred to by Gummow J. and Lord Bingham by favouring the tests prescribed only by the Convention in relation to the grant of protection visas. It will be recalled that Gummow J. had observed in Plaintiff M47/2012 that Australia’s resolution of that tension included the enactment of the “character test” in s. 501. In our view, the appellant and the Human Rights Commission have not established that the effect of the 2014 Amending Act was to eliminate that “character test” in relation to the grant of protection visas.

293    Tenthly, we do not think that the references in the 2014 Explanatory Memorandum to the concept of “codification” support the conclusion that Parliament intended to create a self-contained code for the grant of protection visas. In Federal Commissioner of Taxation v. McNeil (2007) 229 C.L.R. 656, Gummow A-C.J., Hayne, Heydon and Crennan JJ. observed at 668-669 [40]:

The term “code” ordinarily is used to describe the statutory replacement of the common law upon a particular subject.

(Footnote omitted.)

294    That is all, we think, that Parliament intended to do here. It wanted to replace statutorily the applicable contents of the Convention, especially the definition of a refugee in Art. 1, with the provisions set out in Sch. 5 of the 2014 Amending Act. That act of replacement does not justify the conclusion that those provisions, especially s. 36(1C), have about them that further quality of self-containment and exclusivity as contended for by the appellant and the Human Rights Commission. The presence of such qualities would need to be justified from the language used in those provisions; no such language, however, appears in those provisions to support that contention. Instead, the language of s. 35A(6) expressly denies any such exhaustive field of operation. More particularly, s. 36(1C) does not contain words which by necessary implication show that it is the exclusive rule barring the grant of a protection visa on character grounds.

295    Eleventhly, what then is the answer to the appellant’s question asked rhetorically and set out above? Why has s. 36(1C) been included in the Act when the Minister can always refuse the grant of a protection visa using the less stringent test found in s. 501(1) of the Act? That question is perhaps, and with respect, misconceived because a similar observation might have been made about s. 201 of the Act, as considered in Nystrom. In any event, the key point is that s. 36(1C) expresses Australia’s interpretation of its right of refoulement under Art. 33(2) of the Convention. That is its purpose. It takes the form of a criterion to be satisfied. In contrast, s. 501 confers powers of refusal and cancellation for all applicants and visa holders, where there has been a failure of the character test. The purpose of this provision is different. It is an additional power designed to “strengthen”, to use the language of the 1998 Explanatory Memorandum, the Minister’s power to refuse any visa application on character grounds. Moreover, and in any event, as French C.J. observed in Plaintiff M47/2012 at 39 [46], a potential overlap in operation between former s. 500(1)(b) (A.A.T. review of decisions made under s. 501) and s. 500(1)(c) (A.A.T. review of decisions made in reliance upon, amongst other things, Art. 33(2)), did not preclude his conclusion that Art. 33(2) was subsumed within s. 501:

As Lord Macnaghten said in Commissioners for Special Purposes of Income Tax v Pemsel:

Nor is surplusage or even tautology wholly unknown in the language of the Legislature.

(Footnote omitted)

296    Indeed, on some occasions, provisions or words are inserted into an Act out of an abundance of caution: Commissioner of Taxation v. Greenhatch (2012) 203 F.C.R. 134 at 144 [40] per Edmonds, Greenwood and Robertson JJ. That is especially so with highly complex, and often amended Acts of Parliament, such as the Act here. Section 36(1C) may play no greater role than this.

297    Twelfthly, we do not consider that the Second Reading Speech compels any contrary conclusion. We respectfully agree with the Minister’s submission that the reference in that speech to “a new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention” is to a “framework” which is independent from international law. It is not a reference to a “framework” which is self-contained from other provisions of the Act. Again, and with respect, if Parliament had intended to amend s. 501, it would have done so using express language.

298    Thirteenthly, we also do not consider that Australia’s international obligations under the Convention compel a contrary conclusion. It may be accepted that Australia’s interpretation of those obligations was codified by the 2014 Amending Act. But that codification does not preclude Australia from enacting additional requirements that must be met by all individuals who seek a visa. Section 501 is such a requirement.

299    We finally note that the appellant and the Human Rights Commission place considerable reliance on the recent decision of Colvin J. in BFW20 by his Litigation Representative BFW20A v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562 (subsequently followed in AEM20 v. Minister for Home Affairs [2020] FCA 623; see also AFX17 v. Minister for Home Affairs [2020] FCA 807; AFX17 v. Minister for Home Affairs (No. 2) [2020] FCA 858). In that case, Colvin J., whilst doubting some parts of the reasons in BAL19, nonetheless decided that it was “not plainly wrong in the required sense” (at [132]). With respect, for a judge sitting at first instance, that particular conclusion was correct.

300    At [76]-[80] Colvin J. observed that there were four matters at the heart of BAL19. They were as follows:

At the heart of the reasoning in BAL19 are four matters. First, Parliament has enacted the protection visa provisions of the Migration Act in order to codify and give effect to Australia’s obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (Convention).

Second, the protection visa provisions have within them provisions that deal with the circumstances in which matters of character may mean that a person is not entitled to a protection visa and those provisions overlap as to their subject matter and terms with the ‘character test’ that defines the extent of the general power conferred by s 501(1) to refuse or cancel a visa.

Third, the circumstances in which matters of character may mean that an applicant fails to satisfy the criteria for a protection visa are considerably narrower than the circumstances in which the character test that applies to s 501(1) may not be satisfied.

Fourth, under the protection visa provisions, if a person fails to satisfy the Minister that they meet the relevant character requirements then the person does not meet the criteria to qualify for the grant of a visa (and the application must be refused) whereas, under s 501(1), a failure by a person to satisfy the Minister that they pass the character test enlivens a broad discretion to refuse to grant the visa (and the application may still be granted).

Therefore, if the general discretionary power conferred by s 501(1) was to apply to an application for a protection visa then the effect would be that even though a person qualified for a protection visa according to the provisions in the Migration Act that codify the obligations under the Convention, the person could be refused a protection visa in the exercise of the general discretionary power. The result would be a substantial undermining of the protections afforded by the Convention in circumstances where Parliament had manifested a clear intention to give effect to the Convention in the codified form of the protection visa provisions.

301    For the reasons given above, and with very great respect:

(a)    the references in the 2014 Explanatory Memorandum to the codification of Australia’s interpretation of its Convention “obligations” do not support the conclusion that the provisions in Sch. 5 of the 2014 Amending Act were intended to operate as an exclusive and exhaustive statement of the circumstances in which Australia would grant protection visas;

(b)    the presence of the overlap between the fields of operation of ss. 36(1C) and 501 is of no moment. As described above, s. 501 overlaps with other provisions. In that capacity, it operates as a further and cumulative requirement applicable with respect to all applicants seeking a visa under the Act; and

(c)    the presence of a discretionary power in s. 501 that may be applicable to the grant of a protection visa does not result in a “substantial undermining of the protections afforded by the Convention”. For the reasons given above, it has always been an essential feature of Australia’s resolution of the “tension” between its right to control its borders and its international “obligations” under the Convention to impose requirements which are in addition to those set out in that Convention. Moreover, and in our view, Australia gave faithful effect to its interpretation of those Convention “obligations” by the amendments made in Sch. 5 of the 2014 Amending Act. However, those amendments subsist within an Act that includes additional requirements, such as the “character test” in s. 501.

302    For the foregoing reasons, and with very profound respect, we cannot agree with the conclusion reached in BAL19 that s. 501(1) cannot be applied to refuse the grant of a protection visa. It follows that the Minister had the power to refuse the protection visa here pursuant to s. 501A of the Act. The second ground of appeal should be dismissed.

DISPOSITION

303    For the foregoing reasons this appeal should be dismissed. The parties are to confer on the question of costs and are to file and serve agreed orders on that issue within 14 days hereof, or failing agreement, written submissions of no more than two pages in length confined to that issue.

Associate:

Dated:    23 June 2020