FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed in part on the basis that ground 2 in the notice of appeal is upheld.

2.    Paragraphs 2 and 3 of the orders made by the primary judge on 30 April 2020 be set aside.

3.    The form of further orders in relation to ground 2 in the notice of appeal be the subject of submissions following publication of the Full Court’s reasons for judgment.

4.    The balance of the appeal be stood over to a date to be fixed in consultation with the chambers of the Chief Justice.

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

ORDERS

THE COURT ORDERS THAT:

1.    The question reserved for consideration of a Full Court be answered as follows:

Question:

Where an applicant for a safe haven enterprise visa satisfies the criteria in s 36 of the Migration Act 1958 (Cth), can the grant of the visa be prevented by the exercise of the power conferred by s 501(1) to refuse to grant a visa to a person?

Answer:

Yes.

2.    The issue of costs be the subject of submissions following publication of the Full Court’s reasons for judgment.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The issue to be dealt with in these reasons may be stated as: whether the power in s 501(1) of the Migration Act 1958 (Cth) to refuse to grant a visa can apply to an application for a protection visa under the Act.

2    This issue was the subject of a judgment of a judge of this Court in BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19), handed down on 24 December 2019. It was held that, particularly in light of amendments to the criteria for a protection visa effected by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Amendment Act), the power in s 501(1) to refuse to grant a visa does not apply to an application for a protection visa, due to inconsistency between the criteria for a protection visa, on the one hand, and s 501(1), on the other. The judgment in BAL19 is the subject of appeal, but the appeal has not yet been heard. It is nevertheless necessary, for the purposes of resolving these proceedings, to consider the correctness of the holding in BAL19.

3    There are two proceedings before the Full Court. The first, proceeding No. SAD 70 of 2020 (the BFW20 matter), is an appeal from a judgment of a Judge of this Court. In the proceeding at first instance, the primary judge reserved three questions for separate determination, and answered those questions. One of those questions (question (b)) was whether the Court should decline to follow the decision in BAL19 on the basis that it was plainly wrong. His Honour answered this question “No”. A further question (question (c)) was whether a writ of mandamus should issue to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). The primary judge answered this question “Yes” and made an order that a writ of mandamus issue requiring the Minister or his delegate to determine according to law the applicant’s application for a safe haven enterprise visa (a type of protection visa) on the basis that s 501 does not empower the refusal of the application. The appellants in this matter, being the Minister and the Commonwealth of Australia, contend (by ground 2 in their notice of appeal) that the primary judge erred in following BAL19 to hold that the power to refuse a visa under s 501(1) is unavailable in respect of a protection visa.

4    The second proceeding, No. NSD 331 of 2020 (the BGS20 matter), is a proceeding in the original jurisdiction of the Court in which a question has been reserved for consideration by a Full Court. The question is:

Where an applicant for a safe haven enterprise visa satisfies the criteria in s 36 of the Migration Act 1958 (Cth), can the grant of the visa be prevented by the exercise of the power conferred by s 501(1) to refuse to grant a visa to a person?

5    The applicant to this proceeding is BGS20; the respondents are the Minister, and the Minister for Home Affairs.

6    The parties to the two proceedings co-operated to enable the matters to be heard together. The appellants in the BFW20 matter and the respondents in the BGS20 matter are represented by the same counsel and solicitors, and relied on the same written submissions in both matters. For ease of expression, we will refer to these parties as the Minister.

7    At the hearing of these matters on 11 June 2020, it was arranged that ground 1 in the notice of appeal in the BFW20 matter would be deferred, as this potentially raises constitutional issues. The hearing proceeded in relation to ground 2 in the notice of appeal in the BFW20 matter and the question reserved in the BGS20 matter. It was submitted by the Minister that the Court could determine these aspects separately and in advance of ground 1 in the BFW20 matter, and BFW20 did not suggest otherwise.

8    Both ground 2 in the BFW20 matter and the question reserved in the BGS20 matter required the Court to determine whether BAL19 – insofar as it concluded that s 501 of the Migration Act does not apply to protection visas – was correctly decided. For the reasons that follow, in our view, the power in s 501(1) of the Migration Act to refuse to grant a visa can apply to an application for a protection visa under the Act. It follows that, in our respectful opinion, BAL19 on this issue was wrongly decided.

9    The Full Court having come to a unanimous view on this issue, it was considered appropriate to make orders giving effect to that view at the earliest opportunity, with the Court’s reasons for judgment to follow later. Accordingly, on 24 June 2020, the Full Court made orders in the BFW20 matter that:

(a)    the appeal be allowed in part on the basis that ground 2 in the notice of appeal is upheld;

(b)    paragraphs 2 and 3 of the orders made by the primary judge on 30 April 2020 be set aside;

(c)    the form of further orders in relation to ground 2 in the notice of appeal be the subject of submissions following publication of the Full Court’s reasons for judgment; and

(d)    the balance of the appeal be stood over to a date to be fixed in consultation with the chambers of the Chief Justice.

10    In the BGS20 matter, the Full Court made orders on 24 June 2020 that:

(a)    the question reserved for consideration of a Full Court be answered as follows:

Question:

Where an applicant for a safe haven enterprise visa satisfies the criteria in s 36 of the Migration Act 1958 (Cth), can the grant of the visa be prevented by the exercise of the power conferred by s 501(1) to refuse to grant a visa to a person?

Answer:

Yes.

(b)    the issue of costs be the subject of submissions following publication of the Full Court’s reasons for judgment.

11    The following are our reasons for making those orders.

Key relevant provisions

12    Before going into more detail, it is convenient to set out the key relevant provisions of the Migration Act, as they stand at present. (In due course it will be necessary to refer to the legislative history of these provisions.)

13    Section 35A provides for different classes of protection visas, including a class of temporary visas to be known as safe haven enterprise visas: s 35A(3A). Section 35A(6) provides that the criteria for a class of protection visas are the criteria set out in s 36 and any other relevant criteria prescribed by regulation.

14    Section 36 provides in part as follows:

36    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.

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 …

15    Section 5M, which is referred to in the Note under s 36(1C), provides:

5M    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.

16    The expressions “serious Australian offence” and “serious foreign offence” are defined in s 5(1) 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.

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.

17    The expression “refugee”, which appears in s 36(2)(a), is defined in s 5H, with the expressions used in that section defined or elaborated upon in subsequent sections. Section 5H provides and s 5J provides in part:

5H    Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:    For the meaning of well-founded fear of persecution, see section 5J.

(2)    Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a)    the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b)    the person committed a serious non-political crime before entering Australia; or

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

5J    Meaning of well founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:    For membership of a particular social group, see sections 5K and 5L.

…

18    Section 65 is a provision of general application dealing with the grant or refusal of applications for visas. It provides in part:

65    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.

It is relevant to note that s 65(1)(a)(iii) refers specifically to s 501.

19    Section 197C, which features in some of the submissions, provides as follows:

197C    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.

20    The expression “non-refoulement obligations” is defined in s 5(1) as follows:

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).

The reference to the “Covenant” is to the International Covenant on Civil and Political Rights.

21    Section 501 provides in part:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    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.

Note:    Character test is defined by subsection (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.

…

Definitions

(12)    In this section:

court includes a court martial or similar military tribunal.

imprisonment includes any form of punitive detention in a facility or institution.

sentence includes any form of determination of the punishment for an offence.

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

Note 2:    For notification of decisions under subsection (1) or (2), see section 501G.

Note 3:    For notification of decisions under subsection (3), see section 501C.

The Minister placed considerable emphasis on Note 1 under s 501.

22    Section 501H (upon which the Minister also relied) provides:

501H    Refusal or cancellation of visa—miscellaneous provisions

Additional powers

(1)    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.

Cross references to decisions under section 501

(2)    A reference in Part 5 to a decision made under section 501 includes a reference to a decision made under section 501A, 501B, 501BA, 501C or 501F.

The judgment in BAL19

23    The judgment in BAL19 concerned an application for constitutional writ relief in respect of a decision by the Minister for Home Affairs, pursuant to s 501(1) of the Migration Act, to refuse to grant a temporary protection visa to the applicant in circumstances where the Minister for Home Affairs accepted that Australia owed non-refoulement obligations in respect of the applicant. The first issue considered in the judgment, which is not relevant for present purposes, was whether the Minister for Home Affairs failed to consider and weigh the legal or practical consequences of removing the applicant from Australia when deciding to refuse to grant the visa. The second issue, which is of central relevance to the present proceedings, was “whether s 501 and its analogues in Pt 9 of the Act was a general provision that was displaced by, or inconsistent with, the criterion for a protection visa in s 36(1C)”: BAL19 at [3]. A third issue, which is not relevant for present purposes, concerned outstanding visa criteria.

24    His Honour set out the legislative context at [4]-[13] of the judgment. As noted by the Minister in the present proceedings, his Honour omitted to refer to Note 1 under s 501 (in this section or elsewhere in the judgment). His Honour described the decision of the Minister for Home Affairs at [14]-[26]. In the decision, the Minister for Home Affairs stated that the applicant had not satisfied him that he passed the character test, relying on s 501(6)(d)(v): BAL19 at [22]. The Minister for Home Affairs then considered the exercise of the discretion, and concluded that the reasons for refusing to grant the visa outweighed those for granting it: BAL19 at [26].

25    Although the first issue (namely, the failure to consider the legal consequences of the decision) is not presently relevant, parts of his Honour’s reasoning in relation to this issue provide context for his Honour’s consideration of the second issue. In the course of considering the first issue, his Honour referred to the 2014 Amendment Act, and the explanatory memorandum for the Bill that became that Act (the 2014 Explanatory Memorandum). As his Honour noted, the 2014 Amendment Act, by Sch 5, introduced s 36(1C) into the Migration Act, together with a “comprehensive suite of definitions” of the other criteria for a protection visa: BAL19 at [32]. The 2014 Amendment Act also introduced s 197C, which his Honour regarded as important. His Honour noted that the 2014 Explanatory Memorandum made clear at [1236] that the new s 36(1C) was a reasonably precise reflection of Australia’s international non-refoulement obligations in accordance with Art 33(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (the Refugees Convention). His Honour set out, at [34], Arts 32(1) and 33 of the Refugees Convention, which are in the following terms:

Article 32

Expulsion

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

…

Article 33

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.

(Emphasis added in BAL19.)

26    His Honour also set out, at [35], the following extract from the second reading speech for the Bill that became the 2014 Amendment Act:

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.

(Emphasis added in BAL19.)

27    It is his Honour’s consideration of the second issue (namely, the inconsistency issue) that is of central relevance for present purposes.

28    His Honour summarised at [57]-[60] the Minister for Home Affairs’ submissions, which included that:

(a)    section 36(1C) did not displace, as a source of power to refuse or cancel a protection visa, the availability of s 501 and its analogues;

(b)    in respect of visas granted prior to the 2014 Amendment Act, it had been held that the power in s 501 could be used to refuse or cancel a protection visa, referring to Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 (Plaintiff M47) and other cases;

(c)    the 2014 Amendment Act did not make any change to s 501 itself; it therefore continued as a source of power to refuse or cancel a protection visa;

(d)    extrinsic materials could not alter the meaning of the Migration Act; the statement in the second reading speech (for the Bill that became that 2014 Amendment Act) that the amendments would “create a new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention” meant that the framework was self-contained from international law; and

(e)    sections 36(1C) and 501 could operate together; s 501H made clear that s 501 was “in addition to” any other refusal powers.

29    His Honour contrasted the specific, and “much more restrictive”, criterion in s 36(1C) for a protection visa with the broader grounds covered by s 501: BAL19 at [63]-[65]. His Honour noted, in particular, that s 36(1C) is not a discretionary power. His Honour stated that “[i]n enacting s 36(1C), the Parliament determined, consistently with Art 33(2) of the Refugees Convention, that a person would be eligible to be granted a protection visa if he or she is not a person whom the Minister considers, on reasonable grounds, to be a danger to the Australian community on the premise that the person had been convicted of a particularly serious crime”: BAL19 at [64]. His Honour noted that the criterion in s 36(1C)(b) requires the existence of reasonable grounds for the Minister to consider that the person is actually a danger to the Australian community (as opposed to the criterion in s 501(6)(d)(v) of there being a risk that he or she would represent a danger to the Australian community), and that could occur only in the context of the Minister having reasonable grounds to consider that the person had been convicted of a particularly serious crime.

30    The particular importance of s 36(1C)(b), in his Honour’s view, was that it gave 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”: BAL19 at [65]. His Honour stated:

The legislative purpose of that stipulation [i.e. s 36(1C)(b)] 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.

31    His Honour contrasted this with s 501(6)(d)(v), which provides that a person does not pass the character test if there is a risk that he or she would represent a danger to the, or a segment of the, Australian community; that criterion operated by reference to the existence of a (i.e. any) risk that the person would represent a danger to the whole, or a segment of the, Australian community without any additional qualification of a past conviction or the existence of reasonable grounds to consider the existence of the risk: BAL19 at [66].

32    His Honour considered 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, referring to Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.

33    Having noted these matters, his Honour said that they raised the question whether the Minister can use the general power in s 501 or its analogues in Pt 9 to refuse to grant or to cancel a protection visa, on a basis other than that specifically provided in s 36(1C). (It is noted that, in framing the question in this way, his Honour referred to both the power to refuse and the power to cancel. In contrast, in the present proceedings, BFW20 restricts his argument to the power in s 501 to refuse an application for a protection visa.)

34    His Honour referred at [68] to the principle that, ordinarily, 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, citing Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (Anthony Hordern) at 7 per Gavan Duffy CJ and Dixon J. The following passage from Anthony Hordern at 7 was set out:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

(Emphasis added in BAL19.)

In relation to the Anthony Hordern principle, his Honour also referred to David Grant & Co Pty Ltd (receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 276 per Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed at 269.

35    His Honour reasoned that the Parliament enacted ss 36(1C) and 197C, as part of a suite of measures in the 2014 Amendment Act, to define Australia’s non-refoulement obligations and their limits: BAL19 at [69]. Importantly, in his Honour’s view, “a person who satisfied the criterion in s 36(1C), together with the other criteria prescribed in s 36 and any relevant regulation, was entitled, as of right, to be granted a protection visa under s 65(1)(a), unless, relevantly, s 501 ‘prevented’ its grant (s 65(1)(a)(iii))”. His Honour referred to the criteria in s 36(1C)(b) and then stated at [71]:

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.

36    His Honour discussed Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (Nystrom), which relevantly held that the power to cancel a visa conferred by s 501(2) was not restricted by reference to the circumstances which would engage the exercise of the power of deportation under ss 200 and 201 of the Migration Act. His Honour stated at [73] that the applicable principles of statutory construction were explained by Gleeson CJ in Nystrom at [2] as follows:

The contention that ss 200 and 201 give a person in the position of the respondent a protection or immunity from the exercise of the power conferred by s 501 is a statement of a conclusion, rather than an expression of a reason for reaching that conclusion. If there is such a reason, it must be found in a process of statutory construction. The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. 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 [Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130]. 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 [Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Livestock Corporation [No 2] (1980) 44 FLR 455 at 468-469]. As explained by Heydon and Crennan JJ, and also by Gummow and Hayne JJ, neither proposition can be made good when regard is had to the legislative history and context.

(Emphasis added in BAL19.)

Reference was also made in BAL19 to Nystrom at [59] per Gummow and Hayne JJ and at [162]-[167] per Heydon and Crennan JJ.

37    In BAL19 at [74], his Honour referred to the protection criteria in the Migration Act as considered in SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577 (SZOQQ). Under s 36(2) as considered in SZOQQ, a criterion for a protection visa was that “the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”.

38    His Honour considered there to be an overlap between s 501(6)(d)(v) and s 36(1B) and (1C) because each provision deals with considerations of the same kind by reference to security, while other provisions in s 501(6) also direct attention to the considerations with which s 36(1C) deals: BAL19 at [75]. His Honour reasoned at [76]-[77]:

76    Prior to the enactment of the [2014 Amendment Act], the structure of the Act contemplated that the provisions of the Refugees Convention, and in particular Arts 32 and 33, applied generally in respect of decisions that could result in a person being refouled. Those Articles operated so as to prevent refoulement occurring until a decision had been made as to the application of all of Australia’s non-refoulement obligations in respect of that person. Hence, in Plaintiff M47 251 CLR 1, the majority held that there was an overlap between Arts 32 and 33 and s 501(6)(d)(v) but that the latter provision was not inconsistent with Art 33. Kiefel J noted (Plaintiff M47 251 CLR at 161 [431]) that “PIC 4001(a) expresses no more than the requirements of s 501(1)”.

77    However, as the Parliamentary materials for the [2014 Amendment Act] made clear, the enactment of s 36(1C) and the related amendments sought to codify Australia’s protection obligations and, in tandem with that, s 197C excluded non-refoulement obligations from the class of relevant considerations that could inhibit the duty of an officer under s 198 to remove an unlawful non-citizen as soon as reasonably practicable. …

39    His Honour referred to Plaintiff M47 and the enactment of s 36(1B) in response to that decision. His Honour stated that that section now addresses the issue raised in Art 32 of the Refugees Convention and makes it a criterion for the grant of a protection visa: BAL19 at [79].

40    His Honour stated that Pt 9 of the Migration Act itself treats protection visas as a specific class of visa, the refusal or cancellation of which has its own bespoke consequences, referring to s 501F and s 500(4)(c)(i): BAL19 at [80]. His Honour stated at [81]: “Importantly, s 500(4)(c)(i) … refers to a decision to ‘cancel a protection visa, relying on’ ss 5H(2) or 36(1C). However, neither provision expressly creates a power to cancel a protection visa that has been granted.” His Honour also referred to s 411(1)(c)(i) and (d)(i) and s 476A(1)(c). On the basis of these provisions, his Honour reasoned that ss 5H(2) and 36(1C) were each a “conferral of power”, not merely a criterion: BAL19 at [83]. His Honour stated: “Thus, if after being granted a protection visa, a person is convicted of a particularly serious crime, he or she may be liable to a decision under s 36(1C) that his or her visa will be cancelled, since he or she may no longer meet that criterion.”

41    His Honour stated that the 2014 Amendment Act changed the Migration Act in significant respects in relation to the powers and criteria under which a protection visa may be granted or cancelled: BAL19 at [84]. His Honour highlighted the following differences at [84]:

First, a decision to refuse (or cancel) a protection visa “relying on” or “because of” ss 5H(2) or 36(1C) is reviewable, by force of s 500(1)(c), in the Tribunal in a contested inter partes hearing, even though such a decision is based on a criterion for the visa not having been met, which otherwise would be a decision reviewable in an inquisitorial process under Pts 5, 7 or 7AA. A decision to refuse a protection visa under s 501 is reviewable as a decision made independently under that section and without overlapping with ss 5H(2) or 36(1C). Secondly, s 36(1B) and (1C) are now criteria that reflect the intent, but not the precise content, of what Arts 32 and 33 of the Refugees Convention provided and how they operated in the scheme of the Act before those amendments.

42    His Honour concluded his reasoning on this issue at [85]-[88]:

85    It is important to appreciate that, as the majority in Plaintiff M47 251 CLR 1 held, prior to the [2014 Amendment Act], the three Articles (1F, 32 and 33) of the Refugees Convention overlapped to some extent with the criteria in the character test in s 501(6) and, in particular, s 501(6)(d)(v), as supporting the Minister’s then powers to refuse to grant or cancel a protection visa where the application or holder is a person to whom, but for the presence of the disentitling criteria in one of Arts 1F, 32 or 33, Australia would have owed protection and non-refoulement obligations. However, the [2014 Amendment Act] 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].

…

87    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 Amendment Act], 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 Amendment Act], 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) … is inconsistent with the specific criteria for a protection visa in s 36(1C).

88    I am of opinion that, since the [2014 Amendment Act], 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].

(Emphasis added in BAL19.)

43    The following aspects of the reasoning in BAL19 may be noted:

(a)    His Honour placed considerable weight on what he considered to be the purpose and effect of the amendments introduced by the 2014 Amendment Act. In his Honour’s view, the enactment of s 36(1C) and the related amendments sought to “codify” Australia’s protection obligations: see BAL19 at [77], [85]. His Honour also stated that the Parliament enacted ss 36(1C) and 197C, as part of a suite of measures, “to define Australia’s non-refoulement obligations and their limits”: BAL19 at [69].

(b)    His Honour considered that the criteria in s 36(1C) would have “no intelligible statutory purpose” if the discretion in s 501(1) to refuse to grant a visa were applicable to a protection visa: BAL19 at [67], [71].

(c)    In his Honour’s view, the protection criteria in ss 35A(6) and 36 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 as a basis to refuse to grant a protection visa: BAL19 at [73], [85].

(d)    His Honour rejected the Minister’s argument that the general provisions in s 501, even in light of s 501H, still confer, after the 2014 Amendment Act, a discretion on the Minister to refuse to grant or cancel a protection visa: at [87].

(e)    His Honour relied on the Anthony Hordern principle and on the principles stated by Gleeson CJ in Nystrom at [2]: BAL19 at [68], [73], [88].

The BFW20 matter

The proceeding at first instance

44    The applicant in the BFW20 matter is 28 years of age and has a mental disability of a kind which means that he cannot live independently. In December 2015, the applicant’s mother sought the grant of a protection visa under the Migration Act and the applicant was named as a secondary applicant on that application. In July 2017, the applicant’s mother’s application for a protection visa was granted. However, a decision on the applicant’s application is still pending. The applicant is presently in immigration detention.

45    In the proceeding before the primary judge, the applicant sought orders requiring the determination of his application for a protection visa and relief on the basis that his detention is not authorised by the Migration Act and has not been for some time. One of the applicant’s claims was that, by reason of the decision in BAL19, the applicant was entitled to relief by way of mandamus to compel the Minister to consider his protection visa application on the basis that the power conferred by s 501(1) does not apply to his application. Other claims made by the applicant required consideration of the detailed history of his application which stretches back to December 2015, when his visa application was made.

The judgment of the primary judge

46    As explained in the primary judge’s reasons at [36]-[38], by reason of the urgency of the matter, and the time that would be required to prepare evidence on all aspects of the applicant’s claims, the primary judge acceded to the applicant’s request that separate questions be stated and determined separately and in advance of other issues.

47    The three questions, and his Honour’s answers to those questions, were as follows:

Question (a)

Since the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189, are the respondents legally permitted to rely on a possible future exercise of power under s 501 of the Migration Act 1958 (Cth) in defence of ground 1 of the amended application?

Answer

No

Question (b)

Should the Court decline to follow the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189 on the basis that it is plainly wrong?

Answer

No

Question (c)

If questions (a) and (b) are decided adversely to the respondents, should a writ of mandamus issue to the Minister?

Answer

Yes

48    The part of the primary judge’s reasons dealing with question (a) can be put to one side for present purposes. That part of the reasons is the subject of ground 1 in the notice of appeal in the BFW20 matter. For the reasons indicated above, we are not presently dealing with that ground of appeal.

49    The primary judge considered question (b) – namely, whether BAL19 was plainly wrong – at [73]-[132] of his reasons. At the hearing before the Full Court, the argument proceeded on the basis that the question to be determined in relation to ground 2 in the notice of appeal was whether BAL19 on this issue was incorrectly decided (as distinct from whether it was plainly wrong). Given the difference between the issue before this Court and that considered at first instance, it is not necessary to refer in detail to the reasons of the primary judge on the second question. Nevertheless, we note that, at various points, his Honour summarised succinctly the thrust of the reasoning in BAL19. At [76]-[81], the primary judge set out a series of propositions drawn from the reasoning in BAL19. Further, at [104], the primary judge stated:

The significant point exposed by the reasoning [in BAL19] is that if the ample discretionary power conferred by s 501(1) could be exercised so as to refuse the grant of a protection visa then such a provision would allow the Minister to refuse to grant a protection visa in circumstances where the applicant met the requirements of the self-contained statutory code that Parliament had enacted for the express purpose of giving effect to the [Refugees Convention]. A separate and further question might arise concerning other provisions in s 501 (and the related provisions that follow) which apply to any holder of a visa. However, those provisions might be expected to operate somewhat differently (assuming they apply to the holder of a protection visa) in circumstances where a person’s claim to asylum had been recognised by the grant of a protection visa. Irrespective of the position as to those other provisions (not in issue on the present application) the force behind the overall reasoning [in BAL19] as to s 501(1) must be acknowledged.

50    The primary judge, at [111], summarised a key aspect of the reasoning in BAL19:

At its heart, that reasoning identifies a lack of harmony between two matters. First, the specific criteria as to character to be met by an applicant for a protection visa. Second, a general provision which enables an application to be refused on the basis of a different formulation as to matters of character that confers a discretion to refuse the application even though the specific criteria as to character for a protection visa are met.

51    It should also be noted that the primary judge raised questions about some aspects of the reasoning in BAL19. The primary judge questioned whether the Anthony Hordern principle was germane in circumstances where there is no specific power to grant a protection visa (s 65 being a general provision, not confined to protection visas): at [96]-[97]. Nevertheless, the primary judge considered the reasoning in BAL19 to be supportable on the basis of the principle of statutory construction that each provision of an enactment is to be construed in a manner that is consistent with the language and purpose of all the provisions of the statute such that they give effect to harmonious goals, referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) at [69]-[70]. The primary judge queried the construction of s 65 adopted in BAL19, but did not consider that aspect of the reasoning to be essential to the decision: at [110]-[111]. The primary judge also questioned whether the reasoning in BAL19 extended to the analogues of s 501(1) (such as s 501BA), but did not consider it necessary to consider this wider aspect of the reasoning in BAL19: at [131].

52    The primary judge considered question (c) – namely, whether mandamus should issue – at [133]-[138]. This question was considered on the basis of certain agreed facts, set out earlier in the primary judge’s reasons, at [39]. His Honour considered that, by reason of the answers he had given to questions (a) and (b), the applicant had demonstrated a proper basis for the issue of a writ of mandamus requiring the Minister to determine according to law his application for a protection visa on the basis that s 501(1) does not apply to his application.

53    In response to a submission by the Minister that certain visa criteria (such as the national interest) remained to be considered, the primary judge stated that, as the relief he proposed to grant would not require the decision to be made within a particular time, the fact that it was agreed that the Minister seeks to adduce further evidence before any such order is made did not stand in the way of mandamus expressed in terms that deal with delay relating to the s 501(1) point: at [137].

54    The primary judge stated that, at that stage, he did not consider it appropriate for the order to require the Minister to act by a particular date. Rather, the appropriate course, in his Honour’s view, was for there to be a further hearing at which consideration could be given to whether an order of that kind should be made: at [138]. The primary judge stated that he would grant liberty to apply to vary the order to provide for a particular time by which any decision on the protection visa application should be made: at [138].

55    In addition to an order setting out the primary judge’s answers to the three questions, the primary judge made the following orders:

2.    A writ of mandamus issue to the Minister requiring the Minister or his delegate to determine according to law the applicant’s application for a safe haven enterprise visa made on 23 December 2015 on the basis that s 501(1) does not empower the refusal of the application.

3.    There be liberty to the applicant to apply to vary order 2 to provide for a period within which the Minister is required to determine the applicant’s application.

4.    The matter be otherwise adjourned to a date to be fixed on application by the applicant.

5.    There be liberty to apply as to any order for costs.

The appeal

56    The Minister appeals from paragraphs 1, 2, 3 and 5 of the order of the primary judge.

57    Ground 2 in the notice of appeal (the only ground of present relevance) is in the following terms:

The primary judge erred in following BAL19 to hold that the power to refuse a visa under s 501(1) of the Act is unavailable in respect of a protection visa.

58    The Minister filed an interlocutory application seeking a stay of paragraphs 2 and 3 of the orders until the determination of the appeal. A stay of those paragraphs of the orders was granted on 8 May 2020: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615.

The BGS20 matter

59    This proceeding was commenced on 23 March 2020 by originating application for relief under s 39B of the Judiciary Act 1903 (Cth). In the originating application it is stated that the applicant, BGS20, is a Hazara man from Afghanistan and that he arrived in Australia by boat on 1 November 2012. The background facts relied on by BGS20 are set out in an affidavit of Alison Mary Battisson, BGS20’s legal representative, dated 20 March 2020. It is unnecessary for present purposes to set out those background facts.

60    In his originating application, BGS20 seeks the following substantive relief:

1.    A declaration that [the Minister and the Minister for Home Affairs] failed to make a decision with respect to the Applicant under ss 47 and 65 of the Migration Act 1958 (Cth) (Act) within a reasonable time.

2.    A writ of mandamus issue under section 39B(1) of the Judiciary Act 1903 (Cth) directed to [the Minister and the Minister for Home Affairs] requiring [the Minister and the Minister for Home Affairs] to proceed forthwith to consider and determine the Applicant’s application for a Safe Haven Enterprise (Class XE) Visa dated on or about 26 May 2016 submitted under the Act and the Migration Regulations 1994 (Cth).

3.    A declaration that [the Minister and the Minister for Home Affairs] denied natural justice to the Applicant by reason of the unreasonable delay in making a decision under ss 47 and 65 of the Act.

61    Two grounds are set out in the originating application. The grounds (omitting the particulars) are as follows:

1.    [The Minister and the Minister for Home Affairs] failed to make a decision with respect to the Applicant’s visa application under [ss] 47 and 65 of the Act within a reasonable time.

2.    [The Minister and the Minister for Home Affairs] denied natural justice to the Applicant by reason of the unreasonable delay in making a decision under ss 47 and 65 of the Act.

62    By interlocutory application, BGS20 applied for a question to be reserved for consideration by a Full Court concerning the correctness of BAL19. On 15 May 2020, a judge of the Court reserved the question set out at [4] above for consideration by a Full Court.

The parties’ submissions

The Minister’s submissions

63    The Minister submitted that the conclusion in BAL19 that the power to refuse a visa under s 501(1) is not applicable to protection visas, is wrong.

64    The Minister’s submissions started with the text of s 501. The Minister submitted that: s 501(1) refers to “a visa”; it does not refer only to particular classes of visa, nor does it exclude any particular classes of visa; it is of general application. The Minister submitted that there is only one reference to a specific class of visa in s 501 – that is contained in Note 1 (the text of which has been set out at [21] above). The Minister submitted that the Note forms part of the Migration Act and clarifies that s 501(1) applies to protection visas: see, eg, Spence v Queensland (2019) 367 ALR 587 at [33], [191] and [334]. The Minister submitted that: Note 1 was overlooked in BAL19; it is a complete answer, and an express answer, to the suggestion that s 501 does not apply to protection visas; the sole purpose of Note 1 is to provide expressly, and for the avoidance of any doubt, what should have otherwise been clear from the general references to a “visa” throughout s 501 – that s 501 applies to visas of any class, including protection visas.

65    Next, the Minister submitted that it is necessary to consider the text of s 501 within the context of the Migration Act as a whole as it presently stands; the Migration Act, as it stands in light of the various amendments to which it has been subject, is to be read as a combined statement of the will of the legislature: see Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 (Plaintiff S297) at [25]. The Minister submitted that at the heart of the reasoning in BAL19 was the identification of an inconsistency between s 501 and s 36(1C). However, the Minister submitted, there is no such inconsistency.

66    The Minister submitted that s 65 is the primary provision for the grant or refusal of visas; on its face, it applies equally to visas of every kind; as s 65(1)(a) makes clear, there are four cumulative categories of criteria about which the Minister must be satisfied before a visa is granted; if they are not satisfied, the visa must be refused pursuant to s 65(1)(b). The Minister submitted that, relevantly, the criteria prescribed for a particular type of visa are picked up by s 65(1)(a)(ii) and the circumstance that the visa has not been the subject of a refusal decision under s 501 is picked up by s 65(1)(a)(iii); the use of the connecting word “and” shows that both criteria must be satisfied in order for a visa to be granted; this is confirmed in respect of s 501 in particular by s 501H(1).

67    The Minister submitted that there can be no doubt that the element specified in s 65(1)(a)(iii) applies to protection visas, as it expressly requires that the grant of the visa not be prevented by, among other things, ss 91WA and 91WB, and they are only concerned with protection visas.

68    The Minister submitted that, contrary to the reasoning in BAL19 that there is “no intelligible statutory purpose” for s 36(1C) if the Minister were free to apply a less stringent criterion under s 501(1) and its analogues, involving the exercise of a broad discretion to refuse to grant the very same visa (BAL19 at [67]), an intelligible statutory purpose is readily apparent. In the Minister’s submission, s 36(1C) specifies a mandatory criterion for the grant of a protection visa in cases of very serious conduct; if it is not satisfied, an applicant is ineligible for the visa; s 501(1), by contrast, merely creates a discretionary power to refuse the grant of a visa, on character grounds that can fairly be described as broader than and in some cases overlapping with those set out in s 36(1C) (see especially, s 501(6)(d)(v)). The Minister submitted that the evident scheme of these two provisions is perfectly intelligible: if an applicant fails to satisfy the more stringent criteria in s 36(1C), a visa must be refused; if an applicant fails the less stringent character-based criteria in s 501(1), a visa may be refused. The Minister submitted that a legislative policy of mandatory refusal for very serious conduct, and discretionary refusal for less serious conduct, is far from unintelligible: it is perfectly rational and reasonable.

69    The Minister submitted that there is a difficulty with the reasoning in BAL19 insofar as it relies on the Anthony Hordern principle (see BAL19 at, eg, [68], [85], [88]). The Minister submitted that the principle is applicable where an Act confers two powers, one of which is general and the other of which is narrower but subject to special limitations. The Minister submitted that, contrary to the view apparently taken in BAL19 (eg, at [80], [83]), s 36(1C) is not a power; it is a visa criterion. The Minister submitted that s 65 is the relevant power and it is expressly subject to s 501. Accordingly, there is no room for the Anthony Hordern reasoning in the relationship between ss 65 and 501.

70    The Minister submitted that there are other textual indicators in the Migration Act as a whole that contradict the conclusion in BAL19. In this regard, the Minister referred to the definition of “fast track decision” in s 5 and s 500(4) and submitted that it is implicit in these provisions that s 501(1) can be relied upon to refuse a protection visa.

71    The Minister submitted that the reliance in BAL19 on the 2014 Amendment Act was misplaced. The Minister submitted that the essence of the reasoning in BAL19 was that the introduction of s 36(1C) impliedly repealed the operation of s 501 in respect of protection visas; yet there was no reference to the well-established proposition that there is a strong presumption against implied repeal, with the consequence that the Court must strive against such a conclusion: see, eg, South Australia v Tanner (1989) 166 CLR 161 at 171; Shergold v Tanner (2002) 209 CLR 126 at [34].

72    The Minister also submitted that his Honour’s view of the purpose of the 2014 Amendment Act should be rejected for the following reasons. First, the 2014 Amendment Act made no modification to Note 1 to s 501. Secondly, the 2014 Amendment Act itself contained another express recognition that it intended to maintain the applicability of s 501 to protection visas – it did that by introducing the concept of a “fast track decision”. Thirdly, the obvious intention of the 2014 Amendment Act in inserting in s 36(1C) was to reverse the decision of the High Court in SZOQQ. Fourthly, to the extent that the second reading speech to the Bill that became the 2014 Amendment Act referred to the intention to create a “new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention” (see [26] above), it is clear that the Minister was speaking about a statutory framework that was independent and self-contained from international law; the Minister was not suggesting that the provisions concerning protection visas would be independent and self-contained from other provisions of the Migration Act. Fifthly, in light of this obvious purpose of the 2014 Amendment Act, the significance the primary judge attributed to the fact that the application of s 501(1) to protection visas might permit refusal of such a visa to a person to whom Australia owes non-refoulement obligations under the Refugees Convention was misplaced (BAL19 at [80], [98]); it is not accurate to say (see BAL19 at [77], [85]) that the 2014 Amendment Act amended the Migration Act to “codify” Australia’s obligations under the Refugees Convention; the provisions depart from the Refugees Convention in certain respects: see, eg, the narrower criteria in ss 5H and 5J (Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at [95]) and ss 91WA, 91WB.

73    The Minister submitted that, prior to the 2014 Amendment Act, there were many decisions that either stated expressly that s 501 applies to protection visas or that proceeded on that premise. In particular, the Minister referred to Plaintiff M47 at [39], [43], [193], [389], [423] and [427] and NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (NBMZ). The Minister submitted that, in light of this consistent stream of authority, it is not to be supposed that in enacting the 2014 Amendment Act, and without any reference to these authorities or express amendment to s 501, Parliament made such a radical change to the operation of s 501 as that identified in BAL19; the existence of a settled understanding of a legislative scheme, left undisturbed by Parliament in subsequent amending Acts, is a powerful indication that that understanding is a faithful reflection of the intention of the legislature: see Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 (Probuild) at [52].

74    The Minister also submitted that, contemporaneously with the 2014 Amendment Act, Parliament debated and passed the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (the 2014 Character Amendment Act): the Bills were introduced into the House of Representatives within a day of each other, passed by the House on the same day, introduced into the Senate on the same day and passed by the Senate within a week of each other. The Minister submitted that: the 2014 Character Amendment Act made amendments to s 501; no amendment altered the judicial interpretation of s 501 accepting its application to protection visas; in this context, the fact that s 501 was amended without altering that judicial interpretation of s 501 gives rise to a presumption that Parliament accepted that interpretation: see Platz v Osborne (1943) 68 CLR 133 at 144-147; Thompson v Byrne (1999) 196 CLR 141 at [40]; Brisbane City Council v Amos (2019) 93 ALJR 977 at [24].

BFW20’s submissions

75    BFW20 submitted that the conclusion in BAL19 was correct, with the result that the power to refuse to grant a visa under s 501(1) of the Migration Act is unavailable, as a matter of statutory construction, in respect of a protection visa. It is noted that BFW20’s submissions were confined to the power to refuse a visa in s 501(1) and did not extend to the power to cancel a visa in s 501(2). In contrast, BGS20’s submissions applied also to the power to cancel a visa in s 501(2).

76    BFW20’s submissions commenced with the legislative history of the provisions. BFW20 submitted that: the significance of the legislative history in this case is revealed by Plaintiff M47; the form of the Migration Act considered in that case had proceeded on the basis that decisions to refuse or to cancel a visa could be made “relying on” one or more of Arts 1F, 32 and 33 of the Refugees Convention; it had previously been held in NAGV v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 that a decision to refuse a visa could be made in reliance upon Art 1F under s 36(2) of the Migration Act, because that Article “limits the reach of the definition of refugee in Art 1” (Plaintiff M47 at [37]); however, the locus of the power to refuse or cancel a protection visa in reliance on Arts 32 and 33 was less clear as there was “no provision of the Migration Act which [gave] direct effect to those Articles as providing grounds for the refusal or cancellation of a protection visa” (Plaintiff M47 at [38]; see also [313]); the weight of opinion in Plaintiff M47 favoured the view that the power was conferred by s 501 (see Plaintiff M47 at [42], [191]-[192], [389]; cf [457]).

77    BFW20 submitted that: the legislative scheme was radically recast by the 2014 Amendment Act; Sch 5 of that Act inserted s 36(1C), together with the criteria for determination of whether a person is a refugee or to be owed protection obligations (ss 5H-5M), as well as s 197C; the provisions follow the contours of Arts 1F, 32 and 33 of the Refugees Convention, but in the words of the then Minister, as part of a new “self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention” (see the second reading speech; see also the 2014 Explanatory Memorandum at p 10); the amendments codified the manner in which matters which might be described (in broad terms) as “character-related” affect eligibility for the grant of a protection visa.

78    BFW20 submitted that: Art 1F is reflected in s 5H(2), read with s 36(2)(a), by which a person is excluded from the statutory concept of “refugee” if the Minister has serious reasons for considering that the person has committed certain crimes (including a “serious non-political crime before entering Australia”), or has been guilty of acts contrary to the purposes and principles of the United Nations; Art 33(2) is reflected in s 36(1C) (see the 2014 Explanatory Memorandum at [1236] and compare the text of the two provisions); as regards Art 32, s 36(1B) provides that a criterion for a protection visa is that the applicant is not the subject of an adverse security assessment by the Australian Security Intelligence Organisation; that sub-section was inserted in response to the decision in Plaintiff M47 by the Migration Amendment Act 2014 (Cth).

79    BFW20 submitted that: the exercise in codification undertaken by the 2014 Amendment Act was not limited to the character-related provisions of the Refugees Convention; rather, it sought to deal comprehensively, within the criteria for protection visas, with all international law concepts that had formerly fallen for consideration by reference to either s 36 or 501; by the 2014 Amendment Act, the definition of “refugee” (Art 1A) was codified within s 5H(1), read with ss 5J, 5K and 5L; references to the Refugees Convention were systematically removed from the legislation, with the former ss 91R, 91S, 91T and 91U repealed and subsumed within the new statutory framework in ss 5H-5M, and references to the Refugees Convention in ss 36(2)(a), 48A, 228B(2), 336F, 411(1), 500, 502(1)(a)(iii) and 503(1)(c) repealed and replaced with references to the new statutory visa criteria. BFW20 submitted that: the scheme that emerges from the text of the Migration Act as a whole, incorporating the 2014 Amendment Act, reflects the legislative purpose of codification of Australia’s protection obligations under the Refugees Convention (see the 2014 Explanatory Memorandum at pp 2, 4, 10 and [1153]); that purpose is evident from the text and structure of the Migration Act, and is made pellucid by the extrinsic material, which repeatedly refers to an intention to “codify”: see the 2014 Explanatory Memorandum at pp 2, 10 and [1167], [1169], [1172], [1173], [1236].

80    BFW20 submitted that, in construing a legislative regime of this kind, two principles of construction assume importance. The first principle is the proposition articulated in R v Kirby; Ex Parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (Boilermakers) at 270 that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course, bringing with it different statutory constraints: see Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 (Plaintiff S4) at [43]. BFW20 relied on Ombudsman v Laughton (2005) 64 NSWLR 114 (Laughton), in which Spigelman CJ stated at [19]:

The maxim of statutory construction generalia specialibus non derogant reflects an underlying principle that a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character.

(Emphasis added in BFW20’s submissions.)

BFW20 submitted that, as explained in Nystrom at [54], it is that broader proposition that underlies the principle in Anthony Hordern at 7. Thus, BFW20 submitted, while it may be accepted that s 36(1C) is not a power, that is of little consequence.

81    The second important principle of construction, BFW20 submitted, is that an Act must be read as a whole “on the prima facie basis that its provisions are intended to give effect to harmonious goals”: Plaintiff S4 at [42], citing Project Blue Sky at [70]. BFW20 submitted that both principles give effect to the fundamental goal that “[c]onstruction should favour coherence in the law”: see Plaintiff S4 at [42].

82    BFW20 submitted that: the code that now appears in Pt 2, Div 3 and the related definitions in Pt 1 of the Migration Act comprise a “comprehensive regime” of the kind identified by Spigelman CJ in Laughton, which thus attracts the Boilermakers principle; among other things, it states, with precision, the consequences that attach to a person’s character for the purposes of a protection visa application; of particular relevance here, this includes the consequences that attach to a person’s criminal history; in the carefully circumscribed cases identified in s 36, read with ss 5H-5M, persons who fail to satisfy the prescribed character requirements cease to be eligible for the grant of a protection visa: ss 36(1A) and 65(1)(a)(ii).

83    BFW20 submitted that this code reflects what might equally be regarded as a form of a “code” within the Refugees Convention: Arts 1F, 32 and 33 are the only routes by which character-related matters can affect a contracting State’s Convention obligations; as Allsop CJ noted in FCS17 v Minister for Home Affairs [2020] FCAFC 68 (FCS17) 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”; consistency with that international framework favours a construction that the code introduced by the 2014 Amendment Act has an exclusive operation over the subject matter to which it relates.

84    BFW20 submitted that: the general words of s 501 should not be construed as permitting the minister to add to the consequences provided for in the code, which the Parliament has identified with some care and with an eye to the precise contours of Australia’s international obligations; they should not be so construed because, returning to the point made in Boilermakers, the affirmative statements in the code appoint or limit an order or form of things in a way which has an implicit negative force; that is, character-based refusal is not to be done by some other course. BFW20 submitted that there is an analogy here with the test for “indirect inconsistency” applied in relation to s 109 of the Constitution, which asks whether the Commonwealth law “evinces an intention to be a complete statement of the law governing the subject matter” or contains an “implicit negative proposition that nothing other than what the Commonwealth law provides with respect to that subject matter is to be the subject of legislation”: see Masson v Parsons (2019) 93 ALJR 848 at [49]. BFW20 also submitted that, although the High Court was dealing with the relationship between the Migration Act and the Migration Regulations 1994 (Cth), the position is similar to that identified by the High Court in Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) (2015) 255 CLR 231 at [21].

85    BFW20 submitted that: the protection visa provisions, which prescribe the circumstances in which considerations of character may mean that a person is not entitled to a protection visa, overlap as to subject matter and particular terms with s 501(1), but are considerably narrower; for example, the disqualifying criterion of s 36(1C) applies if the Minister considers on reasonable grounds that the person is a danger to Australia’s security or, having been convicted of a particularly serious crime, is a danger to the Australian community; under s 5M, a particularly serious crime includes a “serious Australian offence” or a “serious foreign offence”; those two terms are themselves defined in some detail (in s 5) but require that the offence involve violence, or serious damage to property, or be a serious drug offence (or, in the case of a serious Australian offence, that it be a specified offence committed whilst in immigration detention) and that it be punishable in Australia by a term of imprisonment of at least three years; by comparison, the circumstances in which a person does not pass the character test by reference to past criminal conduct in s 501(6) capture a much broader category of criminal conduct, encompassing, for example, any person who has been sentenced to a term of imprisonment of 12 months or more (including a person ordered to participate in a residential program) (ss 501(7)(c), 501(9)) or has been acquitted on grounds of unsoundness of mind and detained (s 501(7)(e)).

86    BFW20 submitted that a similar point arises from a consideration of ss 5H(2) and 36(2C) which respectively provide for a person to be excluded from the definition of “refugee” or denied complementary protection, by reference to the commission of specified crimes and other conduct; overlap can readily be identified with the terms of s 501(6)(f), but the terms of the latter provision are significantly wider, referring only to being “charged or indicted” with the listed offences, as compared with the protection visa criterion, which requires the Minister to have “serious reasons” for considering the person has committed those offences. Similarly, BFW20 submitted, while s 501(6)(d)(v) requires only that there be a “risk” the person would “represent a danger to the Australian community” to enliven s 501(1), the Minister can only act under s 36(1C)(b) to exclude a person if “having been convicted by a final judgment of a particularly serious crime”, the person “is a danger to the Australian community”: see BAL19 at [70].

87    BFW20 submitted that: the result (if s 501 applied to the refusal of protection visas) would be a substantial undermining of the protections afforded by the Refugees Convention in circumstances where Parliament had manifested a clear intention to give effect to that Convention in codified form; a regime of the kind introduced by the 2014 Amendment Act leaves no room for that (potentially discordant) operation of s 501; rather, the generally applicable power conferred by the latter provision to refuse to grant a visa is not available to be exercised to refuse to grant a person a “protection visa”; that proposed construction avoids disharmony and promotes a coherent operation of the Migration Act, consistent with the apparent statutory purpose.

88    BFW20 made clear that he does not submit that no aspect of s 501 applies to protection visas. BFW20 noted that (what he described as) the codified provisions are addressed only to the subject matter of initial eligibility, not ongoing entitlement. As such, BFW20 accepted, the exhaustive nature of the code does not give rise to an equivalent negative implication that would preclude the possibility that the cancellation of protection visas could take place under s 501(2) at some later point in time. BFW20 submitted that it would undermine the scheme if that cancellation was to take place on the basis of facts and circumstances that appertained at the time of the grant (returning to the point made in Boilermakers, that would, in substance, permit the same matter to be done according to some other course); but that does not preclude cancellation of a protection visa on the basis of “new facts or different considerations” (Minister for Home Affairs v Brown (2020) 376 ALR 133 at [115]).

89    BFW20 rejected the proposition that his construction depended on the “implied repeal” of the operation of s 501 in respect of protection visas; rather, the question that arises here is how the provisions are to be considered as living together, on the prima facie basis that the provisions give effect to harmonious goals.

90    BFW20 accepted that s 65(1)(a)(iii) applies to protection visas, particularly given the references to ss 91WA and 91WB. However, BFW20 submitted that the inclusion of the reference to s 501 in s 65(1)(a)(iii), much like the inclusion of the words “any other provision of this Act or of any other law of the Commonwealth” says nothing about whether s 501 in fact applies to the grant of a protection visa. In BFW20’s submission, in the same way it is necessary to look outside s 65(1)(a)(iii) to determine whether there is “any other provision of this Act” or “any other law of the Commonwealth” which operates on s 65(1)(a)(iii), it is necessary to look outside it to determine whether s 501 applies in the circumstances of a particular class of visa. BFW20 submitted that the argument by reference to s 501H is similarly disposed of: it is a general provision in respect of different kinds of visa applications.

91    In relation to the Minister’s submission that it is implicit in s 500(4) that protection visas may be the subject of refusal or cancellation under s 501, BFW20 submitted (among other things) that s 500(4) came to exist in its current form due to the 2014 Amendment Act and that, immediately prior to commencement of that Act, it was the case (on the weight of opinion in Plaintiff M47) that protection visas could be refused under s 501; the reference to Pt 7 in s 500(4) accommodates the fact that as at the commencement of the 2014 Amendment Act, there were likely extant refusal decisions in respect of protection visas made under s 501, thus necessitating the continued express exclusion of review under Pt 7.

92    BFW20 submitted that, contrary to the Minister’s submission, it was not necessarily implicit in the definition of “fast track decision” that s 501(1) can, after the amendments effected by the 2014 Amendment Act, be relied upon to refuse a protection visa.

93    In relation to Note 1 under s 501, BFW20 submitted that the Minister’s reliance on the Note involves a (very small) tail wagging a (very large) dog: it vastly overstates both the significance of this kind of Note, and the significance of this particular Note. BFW20 submitted that the Note is “navigational” in that it directs the reader to a provision which is related in some way to the provision to which the Note is attached; the extent to which any Note assists in the task of statutory construction is necessarily limited (Shuster v Minister for Immigration and Citizenship (2008) 167 FCR 186 at [11], quoting Pearce and Geddes, Statutory Interpretation in Australia (6th ed, Lexis Nexis, 2006) at [4.49]); the extent to which a navigational Note which points the reader to a definitional provision can assist at all is to be doubted. BFW20 also submitted that, to the extent that it does assist, it merely reflects and accommodates the proposition (accepted by BFW20) that s 501 may have ongoing application to the cancellation of protection visas by way of ss 501(2), 501(3) and 501(3A) (subject to the complex issues, referred to earlier in BFW20’s submissions, that arise in circumstances of a grant and subsequent cancellation).

94    BFW20 submitted that the ex post facto “intelligible statutory purpose” posited by the Minister was not one that emerges from the text of the statute read in its permissible context. BFW20 submitted that: the legislative text itself sets out a comprehensive, self-contained, regime for ineligibility for protection visas on character grounds, which give rise to an evident lack of congruency with the broad criteria for refusal in s 501; at the time the 2014 Amendment Act was enacted, it was emphasised that it was “not the intention of the Government to resile from Australia’s protection obligations under the Refugees Convention” (see the 2014 Explanatory Memorandum) and the Minister was able to say “[a]sylum seekers will not be removed in breach of any non-refoulement obligations” (see the second reading speech); yet precisely that consequence follows unless s 501(1) is confined so as not to permit refusal of protection visas on character-related grounds.

95    BFW20 accepted that the position differed prior to the commencement of the 2014 Amendment Act.

96    In relation to the 2014 Character Amendment Act, BFW20 submitted that it is irrelevant that the Parliament did not make specific amendments to s 501 itself; the question falls to be determined by reference to the amendments in fact enacted by the 2014 Amendment Act, and the consequence of those amendments for the coherent construction of the scheme as a whole.

BGS20’s submissions

97    BGS20 generally adopted BFW20’s submissions. The main points of distinction between their respective positions were:

(a)    BFW20 did not rely on the Anthony Hordern principle, while BGS20 did;

(b)    BFW20 allowed for some operation of s 501 in relation to protection visas (namely, cancellation based on new facts and circumstances), while BGS20 contended that s 501 does not apply to protection visas; and

(c)    BGS20 placed greater reliance on the enactment of s 197C as one of amendments made by the 2014 Amendment Act.

98    BGS20 submitted that: prior to the amendments effected by the 2014 Amendment Act, the discretionary exercise of s 501 to refuse to grant (or to cancel) a visa held by a person assessed as being a refugee within meaning of Art 1 of the Refugees Convention did not result, as a legal consequence of that decision, in the removal of that person from Australia; an exercise of power under s 501 could not, therefore, result in a breach of the obligation that Australia had undertaken to the international community not to refoul a person in accordance with Art 33 of the Refugees Convention; instead, the refusal (or cancellation) of a visa under s 501 of a person found to be a refugee resulted in the indefinite detention of that person: NBMZ at [14]-[15], [17] per Allsop CJ and Katzmann J; at [133], [135]-[136] per Buchanan J.

99    BGS20 submitted that: as set out in BFW20’s submissions, the legislative scheme vis-a-vis applicants for protection visas was radically recast by the 2014 Amendment Act; the effect of the amendments was to “codify” Australia’s protection obligations under the Refugees Convention; significant elements of that codification were the insertion of new ss 5H, 36(1C) and 197C; under the codification, a person would only be owed protection obligations if they met the criteria in (among other things) ss 5H and 36(1C): s 36(1A). BGS20 submitted that s 197C made it irrelevant for the purposes of removal under s 198 whether Australia owed non-refoulement obligations (within the meaning of that term as codified by amendments to s 5) to the intended deportee. BGS20 noted, however, that the relevant portion of the second reading speech for the Bill that became the 2014 Amendment Act stated with respect to insertion of s 197C that:

Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier section. 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.

100    BGS20 submitted that, as stated in BAL19 at [36], “[t]he purpose for which the Parliament enacted s 197C appears to have been to prevent persons who had not been able, or perhaps not yet sought, to establish that Australia owed them non-refoulement obligations, subsequently invoking reliance on the possible, but unestablished, existence of those obligations after their protection claims or their other rights to seek a visa had been rejected and they were liable to removal from Australia as soon as reasonably practicable under s 198”. BGS20 submitted that the effect of the introduction of s 197C was, however, to impose a duty on the Department to remove the person as soon as reasonably practicable to the relevant country of origin, including if that was a country in respect of which the person was assessed as being owed protection obligations: DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at [30].

101    BGS20 submitted that two consequences arise from this. First, decisions concerning the effect of s 501 prior to the 2014 Amendment Act are of limited (if any) relevance; the statutory scheme prior to the amendments could not result in a duty on Departmental officials to act in a manner inconsistent with Australia’s non-refoulement obligations, with the result that the exercise of that power was not inconsistent with the Refugees Convention. Secondly, the Minister’s submission that there is no inconsistency between ss 36(1C) and 501 must be rejected. BGS20 submitted that s 36(1C), as the statutory expression of the only exception to the non-derogable obligation not to refoul a refugee, is directly inconsistent with a discretionary executive power to refuse or cancel a protection visa (such as that conferred under s 501) in terms far wider than that contemplated by Art 33(2), where the exercise of such power can automatically require the removal of that refugee to a place where he or she is at risk of persecution.

102    BGS20 submitted that it was correctly concluded in BAL19 that inconsistency precluded the Minister from using s 501(1) as a basis to refuse to grant a protection visa to an applicant who otherwise satisfied the criteria in s 36: see Project Blue Sky at [69]-[71]. BGS20 also relied on the principle that a statute is to be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with established rules of international law: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (Plaintiff M70) at [247].

103    BGS20 relied on the Anthony Hordern principle, namely that when the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power; that is, where a particular procedure is designated to achieve something, other procedures are thereby excluded. BGS20 submitted that, for two statutory powers to attract the operation of the Anthony Hordern principle, they must deal with the same subject matter: Nystrom at [59]-[61]. BGS20 submitted that, in determining whether two statutory provisions attract the operation of the Anthony Hordern principle, it is also necessary to have regard to the purpose of each power and the consequences which follow when the powers are exercised: Nystrom at [163]-[164].

104    BGS20 submitted that ss 36(1C) and 501(1) give rise to conflict and ambiguity by reason of the overlap in the subject matter of each provision; it is clear from a comparison of the language in ss 36(1C) and 501(1) that there is a higher degree of specificity in the substance and operation of s 36(1C), in that s 36(1C) only operates in circumstances where an applicant seeks the grant of a protection visa as defined in s 35A – see s 35A(6); as such, to the extent that both ss 36(1C) and 501(1) could be relied on in refusing an applicant a protection visa for reasons relating to criminal or other dangerous conduct, it could be said that the subject matter of these two provisions is substantially the same so as to attract the application of the Anthony Hordern principle.

105    BGS20 submitted that, if s 501(1) were to be construed as permitting the refusal of a protection visa to an applicant who satisfied the requirements of s 36(1C), then the statutory criterion prescribed by s 36(1C) would be left with no useful function: Project Blue Sky at [71]; BAL19 at [67] and [71].

106    BGS20 submitted that: insofar as the Minister submits that s 36(1C) cannot properly be characterised as a power, it is apparent from s 500 that the Migration Act contemplates the use of s 36(1C) as a power; this is because s 500(1)(c)(i) specifically contemplates applications for review being made to the Administrative Appeals Tribunal of decisions to refuse a visa relying on s 36(1C); the fact that s 36(1C) is ‘activated’ by way of s 65 is a matter of form rather than substance, and does not exclude it from the operation of the Anthony Hordern principle.

107    BGS20 submitted that the Minister’s submissions on Note 1 under s 501 failed to overcome the difficulty posed by the application of the Anthony Hordern principle, which is that the operation of s 501(1) must be displaced by the existence and operation of s 36(1C).

108    BGS20 submitted that the presumption against construing provisions so that one operates to impliedly repeal the other (relied on by the Minister) could not be applied in the present case without offending other principles of construction, namely those in Project Blue Sky at [69]-[71] and Plaintiff M70 at [247].

Consideration

Relevant principles of statutory construction

109    There was no real issue between the parties as to the applicable principles of statutory construction. The real difference between the parties concerned the application of those principles in the circumstances of this case.

110    The principles of statutory construction involve the attribution of an intention to the legislature. As the High Court explained in Zheng v Cai (2009) 239 CLR 446, this does not refer to the attribution of a collective mental state to legislators; rather judicial findings as to legislative intention “are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws”: Zheng v Cai at [28] per French CJ, Gummow, Crennan, Kiefel and Bell JJ. Their Honours also stated that “the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy”.

111    As is well established, the task of statutory construction begins and ends with the statutory text, which must be considered in context, including by reference to legislative history and extrinsic material: see Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39], quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47].

112    Of particular relevance to the issues raised in these proceedings are the principles applicable where legislation has been amended. In this regard, in Plaintiff S297, Crennan, Bell, Gageler and Keane JJ stated at [25]:

The numerous amendments that have been made to the [Migration Act] form part of its legislative history and bear legitimately on its construction [Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]]. They are to be construed as part of the Act [Section 11B(1) of the Acts Interpretation Act 1901 (Cth)], so as to be read together “as a combined statement of the will of the legislature” [Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463]. The timing of amendments might assist in determining the “hierarchy” of apparently conflicting provisions of the Act as amended [cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [70]. See also Ross v The Queen (1979) 141 CLR 432 at 440], but notions of “implied repeal” have no place.

113    In the above extract, their Honours cited Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463. In that case, which raised an issue of construction of ss 23 and 24 of the Stamp Duties Act 1923 (SA), Brennan CJ, Dawson and Toohey JJ stated at 463:

Section 24 was not amended at the same time as s 23, but the amended s 23 must be read together with s 24 in accordance with the principle expressed in s 15 of the Acts Interpretation Act 1901 (Cth). The principle is that every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part of it. The Commonwealth Acts Interpretation Act has no application to South Australian legislation and there is no South Australian counterpart to s 15. However, that section is declaratory and represents the modern approach to the construction of an amended statute. The result is that both the Act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature. Thus the effect of the amending Act may be to alter the meaning which remaining provisions of the amended Act bore before the amendment.

(Footnote omitted.)

See also, to similar effect, the judgment of McHugh and Gummow JJ at 479 in the same case.

114    The submissions on behalf of BFW20 and BGS20 referred to the principles concerning the apparently conflicting provisions of a statute (although there is an issue whether or not there is a conflict of provisions in the present case). In this regard, in Project Blue Sky, McHugh, Gummow, Kirby and Hayne JJ stated at [69]-[70]:

69    The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

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.

(Footnotes omitted.)

115    The Anthony Hordern principle was relied on in the submissions of BGS20. The relevant passage from the judgment on Gavan Duffy CJ and Dixon J in Anthony Hordern at 7 has been set out at [34] above. See also the discussion of the maxim, expressum facit cessare tacitum in Pearce, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019), at [4.46]-[4.50].

116    The Anthony Hordern principle was discussed by the High Court in Nystrom, which concerned whether s 501(2) of the Migration Act was restricted by the deportation power in ss 200 and 201. A passage from the judgment of Gleeson CJ in Nystrom was quoted in BAL19 (see [36] above). The judge in BAL19 also referred to Nystrom at [59] per Gummow and Hayne JJ and at [162]-[167] per Heydon and Crennan JJ. The cited paragraph from the judgment of Gummow and Hayne JJ in Nystrom reads 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.)

117    Justices Gummow and Hayne also referred, at [61], to the need to address whether “the subject matter of the power is in law substantially the same”. In the circumstances of Nystrom, their Honours held that the two powers did “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”: at [61].

118    Justices Heydon and Crennan in Nystrom held that the Anthony Hordern principle had no application for reasons including (at [165]):

The line of authority beginning with Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia, upon which Mr Nystrom relied, has no application here as there is no repugnancy between the two powers. In fact, they are consonant with each other.

(Footnotes omitted.)

119    BFW20 relied, not on the Anthony Hordern principle as such, but on the broader proposition underpinning that principle. In Plaintiff S4, French CJ, Hayne, Crennan, Kiefel and Keane JJ referred, at [42], to the principles discussed in Project Blue Sky – namely, that the meaning of a provision must be determined by reference to the language of the instrument viewed as a whole, and that an Act must be read as a whole on the prima facie basis that its provisions are intended to give effect to harmonious goals – and the proposition that construction should favour coherence in the law. Their Honours then stated at [43]:

It is these fundamental principles which underpin what is sometimes called the “Anthony Hordern principle” [Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7. See also Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566] and the proposition on which that principle depends: “that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.” [R v Wallis; Ex parte Employers Association of Wool Selling Brokers (Wool Stores Case) (1949) 78 CLR 529 at 550 per Dixon J. See also R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 270]

The text favours the Minister’s construction

120    In our view, for the reasons that follow, the text of the relevant provisions of the Migration Act favours the Minister’s construction, namely that the power in s 501(1) to refuse to grant a visa can apply to an application for a protection visa.

121    First, the terms of s 501 are unqualified; it is expressed as a general provision (broadly, to refuse to grant or to cancel a visa on character grounds) applicable to all kinds of visas.

122    Secondly, Note 1 under s 501 strongly suggests that the section applies to a protection visa. Although the Note is set out above, for ease of reference we set it out again:

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

123    The Note forms part of the Migration Act (see the Acts Interpretation Act 1901 (Cth), s 13(1)). Contrary to BFW20’s and BGS20’s submissions, the Note is not merely navigational. The Note was present when s 501 was placed into the Act in 1998 in its current structure. At that time such a Note was not part of the Act in the light of the then terms of s 13(3) of the Acts Interpretation Act: “No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.” Section 13 of the Acts Interpretation Act was wholly repealed and replaced in 2011 by the Acts Interpretation Amendment Act 2011 (Cth), which introduced s 13(1) in its current form:

13    Material that is part of an Act

(1)    All material from and including the first section of an Act to the end of:

(a)    if there are no Schedules to the Act—the last section of the Act; or

(b)    if there are one or more Schedules to the Act—the last Schedule to the Act;

is part of the Act.

124    Thus, at the time of the 2014 amendments, Parliament can be taken to have understood that the Note to s 501 was part of the Act which was being amended. Thus, the Note is more than navigational. In addition to identifying the place where “visa” is defined, the Note goes on to state that visa “includes, but is not limited to, a protection visa”. The Note appears to be intended to make clear, should there be any doubt about the matter, that s 501 applies to protection visas.

125    Thirdly, s 65(1) (set out at [18] above), a provision of general application dealing with the grant or refusal of applications for visas (including protection visas), refers expressly, in s 65(1)(a)(iii), to the grant of the visa not being prevented by s 501. The reference to s 501 strongly suggests that the power in s 501(1) to refuse to grant a visa is applicable to visas generally, including protection visas. Further, the express references in s 65(1)(a)(iii) to ss 91WA and 91WB, which are only concerned with protection visas, make clear that s 65(1)(a)(iii) applies to protection visas.

126    BFW20 submitted that the inclusion of the reference to s 501 in s 65(1)(a)(iii), much like the inclusion of the words “any other provision of this Act or of any other law of the Commonwealth” says nothing about whether s 501 in fact applies to the grant of a protection visa. However, we do not consider that submission to be persuasive. The express reference to s 501 supports the proposition that the power in that section is applicable to visas generally.

127    Fourthly, s 501H (set out at [22] above) states that the power in s 501(1) to refuse to grant a visa is “in addition to” any other power under the Migration Act to refuse to grant a visa. While the character provisions in the protection visa criteria are not aptly described as a “power” (see further below), s 501H nevertheless supports the construction that s 501(1) is applicable to visas generally, including protection visas.

128    Finally, we note that there is nothing in the text of s 36, or the related definitions dealing with the criteria for a protection visa, that expressly excludes the application of s 501 to protection visas.

Sections 36 and 501 are overlapping but not inconsistent provisions

129    It is important next to recognise that, while the character provisions in s 36 (and related definitions) and s 501 overlap, there is no necessary inconsistency between the provisions. The provisions operate in different ways: if an applicant fails to satisfy the character provisions in the protection visa criteria, the application for a protection visa must be refused; whereas, if an applicant fails to satisfy the character provisions in s 501, the application may be refused. Thus, there is no necessary inconsistency between the provisions.

130    The fact that the character provisions in the protection visa criteria lead to automatic refusal, while the character provisions in s 501 merely enliven a discretion to refuse, provides an intelligible basis for the presence of the (narrower) character provisions in the protection visa criteria: cf BAL19 at [67], [71]. It is not to be assumed that, just because an applicant fails to satisfy the Minister that the applicant passes the character test, their application for a visa will be refused under s 501(1). The exercise of the discretion under s 501(1) depends on the facts and circumstances of the case, having regard to relevant considerations. Contrastingly, failure to satisfy the character provisions of s 36(1C) leads to automatic refusal of a protection visa. For the same reason, BGS20’s submission that that, if s 501(1) were to be construed as permitting the refusal of a protection visa to an applicant who satisfied the requirements of s 36(1C), then the statutory criterion prescribed by s 36(1C) would be left with no useful function, should be rejected.

131    There was no call in this case to consider the consequences of this overlap, in particular in the manner of approach to the exercise of discretion in s 501 in circumstances where s 36 is otherwise satisfied: cf Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41-42; and R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333.

The legislative history does not support BFW20 and BGS20’s construction

132    For the reasons that follow, the legislative history does not support BFW20 and BGS20’s construction, namely that the power in s 501(1) to refuse to grant a visa does not apply to protection visas.

133    Section 501 in largely its current form (including Note 1) was introduced with effect from 1 June 1999 by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth), Sch 1. At that time, the criterion for a protection visa was expressed in terms of the Refugees Convention as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Refugees Protocol). Both before and immediately after the introduction of this version of s 501, s 36 of the Migration Act was expressed as follows:

36    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 Refugees Convention as amended by the Refugees Protocol.

134    Section 36 was amended by the Migration Legislation Amendment Act (No 6) 2001 (Cth), which introduced paragraph (a) into s 36(2) and located the above criterion in that paragraph. Section 36(2)(a) was amended a number of times between that amending Act and the 2014 Amendment Act, but it continued to refer to Australia’s protection obligations under the Refugees Convention as amended by the Refugees Protocol: see the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth); and the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth). We note for completeness that paragraph (aa) of s 36(2) was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth).

135    Section 36(2)(a) was amended to its present form by the 2014 Amendment Act, Sch 5. In its present form, s 36(2)(a) does not refer to the Refugees Convention as amended by the Refugees Protocol, but rather to the person being a refugee (see [14] above). The 2014 Amendment Act also introduced s 36(1C) and the definitions in ss 5H-5M.

136    In a number of court decisions in relation to the Migration Act as it stood before the 2014 Amendment Act, it was accepted that s 501 was capable of application in relation to a protection visa: see, eg, Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 at [108], [114] per Lander J (with whom Carr and Sundberg JJ agreed); see also VWOK v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 135 and NBMZ – a necessary premise of the issue considered in each of those cases was that s 501 applied to protection visas.

137    In Plaintiff M47, decided in 2012, a majority of the High Court (French CJ, Hayne, Crennan and Kiefel JJ; Gummow, Heydon and Bell JJ dissenting) held that cl 866.225 of Sch 2 to the Migration Regulations was invalid to the extent that it prescribed public interest criterion 4002 as a criterion for a protection visa because it was inconsistent with the scheme of the Migration Act. A majority of the members of the High Court expressly accepted that s 501 was capable of application in relation to a protection visa. At [38]-[39], French CJ stated:

38    … There is no provision of the Migration Act which gives direct effect to those Articles [namely, Arts 32 and 33 of the Refugees Convention] as providing grounds for the refusal or cancellation of a protection visa. It is necessary, therefore, to turn to s 501 and the application of the character test to determine whether, and if so in what ways, decisions to refuse or cancel a protection visa made under that section may be said to rely on one or more of Arts 1F, 32 and 33(2).

39    If the criterion under s 36(2)(a) of the Migration Act and all other prescribed criteria are satisfied, the Minister is nevertheless required to refuse the grant of a protection visa if the visa applicant does not pass the character test in s 501. The applicant would be treated as a person to whom Australia has protection obligations under the Convention but, being refused a visa, would be an unlawful non-citizen. The applicant would continue to be entitled to the benefit of the non-refoulement obligation under Art 33 unless the condition in Art 33(2) were satisfied. In that case there would be nothing in the Convention to prevent his return to the country from which he came.

(Footnotes omitted; emphasis added.)

Further, at [43], French CJ stated:

A refusal or cancellation of a visa under s 501, based upon a finding that meets one or more of the disentitling criteria under Arts 1F, 32 or 33(2), will have consequences for Australia’s obligations under the Convention and therefore for the application of other provisions of the Migration Act.

138    At [193], Hayne J stated:

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”.

(Footnote omitted; emphasis added.)

139    At [388]-[389], Crennan J stated:

388    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, s 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.

389    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; emphasis added.)

140    At [423] and [427], Kiefel J (as her Honour then was) stated:

423    Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. It is not restricted in its application to protection visas. A person does not pass the character test, which is set out in s 501(6), if, inter alia, there is a significant risk that he or she would represent a danger to the Australian community if he or she were allowed to enter or remain in Australia. It may be observed that this is not inconsistent with the terms of Art 33(2).

…

427    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).

(Emphasis added.)

141    In the present proceedings, BFW20 and BGS20 accepted that, prior to the amendments effected by the 2014 Amendment Act, the power in s 501(1) to refuse to grant a visa was capable of application in relation to a protection visa.

142    In this context, it is significant that the amendments effected by the 2014 Amendment Act did not expressly alter the position that s 501 was capable of application in relation to a protection visa. In particular, no change was made to the text of s 501 (including Note 1). We were not taken to anything in the extrinsic materials that referred to an intention to alter the position as regards s 501. Further, the nature of the 2014 amendments and the relevant extrinsic material (including the second reading speech) do not disclose an unexpressed or implied intention to alter the position as to s 501. These matters are powerful indicators that the legislature did not intend to alter the pre-existing position that s 501(1) was capable of application in relation to a protection visa.

143    The broad intention of the 2014 Amendment Act was to specify the criteria for a protection visa in the Migration Act itself, rather than by reference to the Refugees Convention, as had been the case previously. Thus the 2014 Amendment Act removed the reference to the Refugees Convention in s 36(2)(a) and instead used the word “refugee”, which was defined in s 5H and subsequent sections. That broad intention does not necessarily carry with it an intention to alter the pre-existing position that s 501(1) was capable of application in relation to a protection visa.

144    BFW20 and BGS20 relied on the statement in the second reading speech that the Bill would create a “new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention” (see [26] above) and the statement to the same effect at p 10 of the 2014 Explanatory Memorandum. We do not take those statements as indicating an intention that the statutory criteria would be “independent” of the other provisions of the Migration Act; an intention to that effect would be difficult to reconcile with the continued operation of s 65(1) as the general provision dealing with the grant or refusal of applications for visas, including protection visas. Rather, the statements reflect the broad intention that we have described above, namely to specify the relevant criteria in the Act itself rather than by reference to the international instruments. BFW20 and BGS20 also relied on the references in the 2014 Explanatory Memorandum to an intention to “codify” Australia’s interpretation of its obligations under the Refugees Convention: see the 2014 Explanatory Memorandum at pp 2, 10 and [1167], [1169], [1172], [1173], [1236]. The references to codification also reflect the broad intention that we have described above; they do not indicate an intention to create an exhaustive “code” in relation to the grant or refusal of a protection visa. An intention to that effect would be difficult to reconcile with the text of the 2014 amendments, which did not expressly alter the application of s 501 in relation to protection visas.

145    BFW20 and BGS20 submitted that the exercise in codification undertaken by the 2014 Amendment Act sought to deal comprehensively with all international law concepts that had formerly fallen for consideration by reference to either s 36 or s 501, and that the scheme that emerges from the text of the Migration Act as a whole, incorporating the 2014 amendments, reflects the legislative purpose of codification of Australia’s protection obligations under the Refugees Convention. While it may be accepted that the protection criteria introduced by the 2014 Amendment Act reflected, in a broad sense, Australia’s international obligations under the Refugees Convention, the amendments do not demonstrate an intention to give effect to those obligations in all respects – in some cases, for example, the “internal relocation principle”, the criteria depart from the Refugees Convention: see FCS17 at [8], [49], [61]. Nor do the amendments demonstrate an intention to create a self-contained code that is insulated from the other provisions of the Migration Act, including general provisions such as s 501.

146    The Minister submitted that BFW20 and BGS20’s construction would have a perverse consequence. The Minister submitted that, prior to the 2014 amendments, at a time when the Migration Act was expressly linked to the Refugees Convention, s 501 applied to protection visas even though it might lead to refusal or cancellation of a protection visa in circumstances the Refugees Convention did not permit. The Minister submitted that, on BFW20 and BGS20’s construction, the result of the 2014 amendments, whose express purpose was to weaken the connection between the Migration Act and the Refugees Convention, would be that s 501 now conforms more closely to the Refugees Convention. We are not persuaded that it was an express purpose of the 2014 amendments to “weaken” the connection between the Migration Act and the Refugees Convention. It is true that, as noted above, the statutory criteria introduced by the 2014 Amendment Act depart in some respects from the Refugees Convention. But we would nevertheless describe the broad intention of the amendments as being to specify the criteria for a protection visa in the Act itself, rather than to weaken the connection between the Migration Act and the Refugees Convention.

147    The Minister submitted that, contemporaneously with the 2014 Amendment Act, Parliament debated and passed the 2014 Character Amendment Act; that Act made amendments to s 501, but no amendment altered the judicial interpretation of s 501 accepting its application to protection visas. The focus for present purposes is the construction of the Migration Act in light of the amendments made by the 2014 Amendment Act. Given that focus, it is unclear whether any assistance can be obtained from the passage of another amending Act at about the same time as the 2014 Amendment Act. However, it is unnecessary to resolve this issue. The other matters referred to above demonstrate that the legislative history does not support BFW20 and BGS20’s construction.

BFW20 and BGS20’s submission regarding exclusive operation

148    The main thrust of BFW20’s submissions (adopted by BGS20) was that the 2014 Amendment Act comprehensively codified the criteria for an application for a protection visa, including the subject matter of refusal on character grounds, indicating an intention that these provisions have an exclusive operation over that subject matter. The submission relied on the principle in Boilermakers that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course, bringing with it different statutory constraints. BFW20’s submissions also relied on Laughton at [19] (see [80] above) and Plaintiff S4 at [43] (see [119] above).

149    In our view, neither the purpose nor the effect of the 2014 Amendment Act was to create a comprehensive code as regards the grant or refusal of a protection visa, including the subject matter of refusal on character grounds. It is true that the protection visa criteria are detailed and include specific provisions relating to character. However, there is no express provision to the effect that the criteria represent an exhaustive statement regarding refusal of a protection visa on character grounds. And the 2014 amendments did not expressly alter the position as regards s 501. In the context of the pre-existing state of the law, if the Parliament had intended the statutory criteria for a protection visa to be exhaustive (and thus to alter the position as regards s 501), this is likely to have been made clear in the text of the amendments. Further, the extrinsic materials do not indicate an intention to alter the pre-existing position, namely that s 501 was capable of application in relation to protection visas.

150    For these reasons, we do not accept the proposition that the statutory criteria for a protection visa introduced by the 2014 Amendment Act were intended to be an exhaustive statement of the subject of refusal of a protection visa on character grounds. Accordingly, the principle in Boilermakers, and the description of that principle in Laughton and Plaintiff S4, have no application in the present case.

151    We note for completeness BFW20’s submission that there is an analogy here with the test for “indirect inconsistency” applied in relation to s 109 of the Constitution, which asks whether the Commonwealth law “evinces an intention to be a complete statement of the law governing the subject matter” or contains an “implicit negative proposition that nothing other than what the Commonwealth law provides with respect to that subject matter is to be the subject of legislation”. For the same reasons, this analogy has no application in the present case.

152    Insofar as BGS20 relied on the Anthony Hordern principle, the submission is to be rejected. As expressed in the cases referred to at [115]-[118] above, the Anthony Hordern principle is concerned with a situation where there are two powers, one of which is subject to conditions or restrictions. In such a case, general expressions in the same instrument which might otherwise have been relied upon for the same power, are excluded. In the present case, while s 501 confers a power to refuse to grant (or to cancel) a visa, ss 5H(2) and 36(1C) are not powers to refuse a protection visa but rather form part of the criteria for a protection visa: cf BAL19 at [80]-[83]. The reference in s 500(1)(c)(i) to review of a decision to refuse a visa “relying on” s 36(1C) does not make it a power: as s 500(1)(c)(i) itself makes clear, the refusal is “under” s 65. In any event, for the reasons set out above, the proposition underlying the Anthony Hordern principle is inapplicable in the circumstances of this case.

BGS20’s submissions based on s 197C and international law

153    BGS20 submitted that, prior to the amendments effected by the 2014 Amendment Act, an exercise of power under s 501 could not result in a breach of international non-refoulement obligations (but rather resulted in indefinite detention) and that this changed with the introduction of s 197C (set out at [19] above) as part of those amendments. However, we are not persuaded that the introduction of that provision, which is not directly concerned with the grant or refusal of a visa, indicates an intention to alter the pre-existing operation of s 501, such that it would cease to apply to protection visas.

154    BGS20 relied on the principle that a statute is to be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with established rules of international law, referring to Plaintiff M70 at [247]. However, in circumstances where the pre-existing operation of s 501 in relation to protection visas did not necessarily conform to international law, and the 2014 amendments did not expressly alter that position, the principle does not assist in resolving the present issue of statutory construction.

Cancellation of a visa under s 501

155    As noted above, one difference between the submissions on behalf of BFW20 and BGS20 was that BFW20 allowed for some operation of s 501 in relation to protection visas (namely, cancellation based on new facts and circumstances), while BGS20 contended that s 501 does not apply to protection visas. While there is a logic to BFW20’s position, it is difficult to reconcile with the text of s 501 – both the power to refuse to grant a visa (in s 501(1)) and the power to cancel a visa (in s 501(2)) apply to visas generally. Further, the construction suggested by BFW20 would be likely to give rise to practical uncertainty (as to when the power to cancel is available), suggesting that it is unlikely to have been intended.

Other provisions of the Migration Act

156    The Minister submitted that both the definition of “fast track decision” in s 5, and s 500(4), assume that s 501 applies to protection visas. BFW20 and BGS20 submitted that a definition could not be relied on in this way, and that the reference to Pt 7 in s 500(4) accommodates the fact that as at the commencement of the 2014 Amendment Act, there were likely extant refusal decisions in respect of protection visas made under s 501, thus necessitating the continued express exclusion of review under Pt 7. It is unnecessary to resolve this issue. Even without reliance on the definition of “fast track decision” and s 500(4), in our view the Minister’s construction is to be preferred.

157    The Minister noted in his submissions that protection visas are not the sole manner in which the Migration Act caters for refugees. The Minister referred to Refugee and Humanitarian (Class XB) visas, provided for in reg 2.07AM and item 1402 of Sch 1 to the Migration Regulations and referred to in s 39A of the Migration Act. The Minister submitted that, on any view, s 501 applies to these visas, as they are not protection visas. The Minister submitted that the construction contended for by BFW20 and BGS20 therefore depends upon the Parliament having intended that refugees who obtain protection visas should be immunised from the operation of s 501 but that refugees who obtain Class XB visas should not be, and that there is no rational reason for such an operation. BFW20 and BGS20 disputed that reliance could be placed on these matters, which are dealt with in regulations, for the purposes of construction of the statute. It is unnecessary to reach a concluded view on the Minister’s submission as the Minister’s construction is to be preferred in any event.

158    In BAL19 at [80]-[82], reliance was placed on the fact that in certain respects protection visas are expressly treated differently from other visas in the Migration Act. One example identified in that case was s 501F, which generally provides that if the Minister makes a decision under s 501 or similar provisions to refuse to grant a visa to a person or to cancel a visa granted to that person, any pending application for another visa is taken to have been refused unless that other application is for a protection visa. However, the fact that in certain respects protection visas are expressly treated differently from other visas in the Migration Act does not mean that in another, and unexpressed, respect they are also to be treated differently from other visas. Indeed, the fact that the Parliament has in certain respects expressly dealt with protection visas differently from other visas tends against any conclusion that in another unexpressed respect they are also to be treated differently.

KDSP

159    The correctness or otherwise of BAL19 was also raised in another proceeding before a Full Court of this Court, heard shortly before the hearing in the present matter. On 23 June 2020, the Full Court that heard that matter published its reasons for judgment: KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108. All members of the Full Court (Bromberg, O’Callaghan and Steward JJ) concluded that the power in s 501(1) to refuse to grant a visa can apply to an application for a protection visa: at [104] per Bromberg J and [302] per O’Callaghan and Steward JJ. Although there are differences in emphasis, there is considerable overlap between the reasons delivered in that case (particularly those of O’Callaghan and Steward JJ at [278]-[298]) and the reasons set out above.

Conclusion

160    For the above reasons, we concluded that the power in s 501(1) of the Migration Act to refuse to grant a visa can apply to an application for a protection visa under the Act. Accordingly, we made the orders set out at [9]-[10] above.

161    The orders made on 24 June 2020 in the BFW20 matter included that the form of further orders in relation to ground 2 in the notice of appeal be the subject of submissions following publication of the Full Court’s reasons for judgment. Subject to any submissions the parties may wish to make, we consider it appropriate to set aside questions (b) and (c) and the answers to those questions (see [47] above), and to substitute a single question (and answer that question) in the same terms as the question and answer in the BGS20 matter. This reflects the way the argument was presented in relation to ground 2 at the hearing on 11 June 2020. As this matter was not discussed at the hearing, it is appropriate that the parties have the opportunity to make submissions on this form of relief.

Associate:

Dated:    7 July 2020