Federal Court of Australia

Zhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 101

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of the appeal as taxed, agreed or assessed.

3.    The parties file written submissions of no more than 5 pages in length confined to the question of costs in the primary proceeding.

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

REASONS FOR JUDGMENT

RANGIAH AND BURLEY JJ:

1    We gratefully adopt the introduction, legislative framework and summary of the submissions provided by Meagher J. We agree with the conclusion that her Honour reaches, which is that the appeal must be dismissed.

2    There is no dispute that the outcome of the appeal turns on whether cl 500.217(1), to the extent that it requires satisfaction of the terms of PIC 4003(b), detracts from, or impairs the operation of, and is therefore repugnant to, the Migration Act 1958 (Cth): Plaintiff M47/2012 v Director General of Security [2012] HCA 46; 251 CLR 1 at [54] (French CJ), [133]–[136] (Gummow J), [174] (Hayne J). As French CJ said at [54]:

54 Regulations made under s 504 must be "not inconsistent with" the Migration Act. Even without that expressed constraint delegated legislation cannot be repugnant to the Act which confers the power to make it. Repugnancy or inconsistency may be manifested in various ways. An important consideration in judging inconsistency for present purposes is "the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned." A grant of power to make regulations in terms conferred by s 504 does not authorise regulations which will "extend the scope or general operation of the enactment but [are] strictly ancillary." In considering whether there has been a valid exercise of the regulation-making power "[t]he true nature and purpose of the power must be determined".

(Footnotes omitted)

3    In our view no such repugnancy is demonstrated in the present case and the learned primary judge did not err in so concluding.

4    This may be explained by reference to the intersection between the Migration Act, the Migration Regulations 1994 (Cth), the Autonomous Sanctions Act 2011 (Cth) and the Autonomous Sanctions Regulations 2011 (Cth).

5    PIC 4003(b) was introduced to the Migration Regulations by the Migration Amendment Regulations 2000 (No 6) (Cth) as a vehicle to ensure (per the Explanatory Statement, Migration Amendment Regulations 2000 (No 6) at p 3):

… that the risk that an applicant is directly or indirectly associated with the proliferation of weapons of mass destruction can be assessed. The effect of this amendment is that under new item 4003 the Foreign Minister, or a person authorised by the Foreign Minister, will be able to decide whether an applicant’s presence in Australia:

•    would be prejudicial to relations between Australia and a foreign country; or

•    may be directly or indirectly linked to the proliferation of weapons of mass destruction.

If an applicant is determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia falls foul of either paragraph 4003(a) or 4003(b), the person will not satisfy public interest criterion 4003.

6    The terms of PIC 4003 were amended by the terms of the Migration Amendment Regulations 2006 (No 1) (Cth), but PIC 4003(b) remained unchanged. A further amendment to PIC 4003 was made in Migration Amendment Regulations 2012 (No 1) (Cth) and again PIC 4003(b) remained unchanged. The Explanatory Statement issued by the Minister for Immigration and Citizenship concerning the amended regulations relevantly provided that the general purpose of the amendment (per the Explanatory Statement, Migration Amendment Regulations 2012 (No 1) at p 1):

… is to amend the Migration Regulations 1994 (the Principal Regulations) to create specific criteria for the refusal to grant or the cancellation of a visa in most circumstances where the Foreign Minister has declared a person under the Autonomous Sanctions Regulations 2011 (The Autonomous Sanctions Regulations) and has not waived the operation of the declaration. A declaration could be made for the purposes of preventing the person from travelling to, entering or remaining in Australia.

7    The Explanatory Statement addresses PIC 4003 specifically in Item [3] of Attachment B (p 7), and notes that it is a commonly prescribed time of decision criterion that applies to the majority of visa subclasses. It notes that PIC 4003(b) remains unchanged from the earlier version of the regulations but goes on to explain the intersection between the Autonomous Sanctions Act, the Autonomous Sanctions Regulations and the language of the Migration Regulations. In this regard it notes that s 10(1)(a) of the Autonomous Sanctions Act provides that the Autonomous Sanctions Regulations may make provision relating to proscription of persons or entities. It also notes that by reg 6(2)(b) of the Autonomous Sanctions Regulations (now reg 6A(1)), for the purposes of s 10(1)(a), the Foreign Minister may, by legislative instrument, declare a person for the purpose of preventing the person from travelling to, entering or remaining in Australia if the Foreign Minister is satisfied that the person is contributing to the proliferation of weapons of mass destruction.

8    The Explanatory Statement goes on to say at p 8:

The purpose of the amendment is to ensure that a visa applicant fails to satisfy PIC 4003, and would be refused a visa, if the visa applicant is a person declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations, and is not a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations. This outcome is consistent with the purpose of the Foreign Minister’s declaration, which is to prevent the declared person from travelling to, entering or remaining in Australia.

9    The Explanatory Statement at p 9, Attachment C, includes a Statement of Compatibility with Human Rights which also provides an overview of the amendments:

The amendments to the Migration Regulations 1994 are intended to give effect to the travel sanctions element of reforms to Australia’s autonomous sanctions legislative regime implemented by the Autonomous Sanctions Act 2011 and the Autonomous Sanctions Regulations 2011. The Minster for Foreign Affairs is responsible for Australia’s autonomous sanctions regime. The purpose of the new legislative framework is to allow greater flexibility in the range of punitive measures Australia can apply as a response to situations of international concern, such as the proliferation of weapons of mass destruction, the grave repression of human rights or armed conflict.

10    The Autonomous Sanctions Act is entitled “An Act to make provision relating to sanctions to facilitate the conduct of Australia’s external affairs, and for related purposes”. The objects described in s 3 are consistent with this heading and include provision for autonomous sanctions and their enforcement. Subsection 3(3) provides for “thematic sanctions” which include addressing “the proliferation of weapons of mass destruction”.

11    In this context it may be seen that determinations made under PIC 4003(b) are quite unlike decisions made about character under s 501 of the Migration Act. They address, as the respondents submit, an individuated response to a foreign policy risk, being the proliferation of weapons of mass destruction. Responsibility for such a decision is reposed in the Minister for Foreign Affairs.

12    This may be contrasted with the requirements of s 501 of the Migration Act, which by s 501(1) reposes the discretion in the Minister for Immigration to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test as set out in s 501(6). The provisions of s 501(6) that the appellant identifies as potentially relevant and overlapping with PIC 4003(b) are subsections 501(6)(b) (association with a group, organisation or person that has been involved in criminal conduct), 501(6)(c) (good character based on past and present criminal conduct or general conduct) or 501(6)(d)(v) (risk that the person would represent a danger to the Australian community or a segment thereof). Yet none of these provisions involve an assessment of the type that underlies PIC 4003(b), which concerns the person’s association with the specific activity of “proliferation of weapons of mass destruction”, defined in regulation 1.03 of the Migration Regulations as including:

… directly or indirectly assisting in the development, production, trafficking, acquisition or stockpiling of

(a) weapons that may be capable of causing mass destruction; or

(b) missiles or other devices that may be capable of delivering such weapons.

13    Whilst it may be the case that considerations within s 501(6) may lead the Minister for Immigration to consider that a person fails the character test and at the same time the Minister for Foreign Affairs may conclude that the same person falls within PIC 4003(b), the rationale by which those assessments are made come from quite different perspectives.

14    Mr Zhu correctly submits that the question of whether PIC 4003(b) is beyond the s 504 regulation-making power is whether it varies or departs from the provisions of the Migration Act. He contends that the terms of PIC 4003(b) “cut across” the character test responsibility, because an assessment under PIC 4003(b) falls “squarely within” the character test.

15    However, we have referred above to the quite different purpose of PIC 4003(b). A determination under PIC 4003(b) need not involve any assessment of a person’s association with others who have been involved in criminal conduct, their character or whether or not they represent a danger to the community. Whilst it is possible that there will be an overlap between the exercise of a discretion to refuse a visa on character grounds and a refusal under PIC 4003(b), that is not necessarily so. As noted by Crennan J in VWOK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 336 at [33], there is nothing clearly inconsistent or clearly lacking in harmony in the coexistence of a power to refuse a particular class of visa for failure to satisfy certain criteria set out in subordinate legislation and a power to refuse to grant a visa on character grounds under the Migration Act. This observation was subsequently endorsed by the Full Court in VWOK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 249; 147 FCR 135 at [19], which was cited with approval by Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 at [155] fn 155.

16    This point also addresses a further argument raised by Mr Zhu, which is that PIC 4003(b) departs from or alters the scheme of the Migration Act by removing the Minister’s discretion that would exist under s 501(1). The fact that the two aspects of the legislative and regulatory regime overlap does not signify that the regulation departs from or detracts from the Migration Act. Each addresses a different circumstance. Section 501H(1) of the Migration Act provides that the power in s 501 to refuse the grant of a visa is “in addition to any other power under th[e] Act” to do so. The Full Court in VWOK noted at [19], [21]:

19    … Further, from the terms of s 501, the terms of s 501H and the Explanatory Memorandum for the Bill, the passing of which introduced ss 501 and 501H into the Migration Act, s 501 can be seen as a power available to the Minister additional to all other powers of refusal and not intended to carve out a particular field of criminal conviction or character generally as relevant matters in the grant or refusal of a visa.

…

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

17    The same may be said, as a matter of substance, of s 501 in its relation to a decision to refuse the grant of a visa under s 65 of the Migration Act for non-satisfaction of PIC 4003(b). The discretion imparted to the Minister to allow or refuse a visa based on satisfaction of the character test continues as does the power under PIC 4003(b). The fact that there are two sources of power, by which a person in the position of Mr Zhu may be exposed, by different processes, to similar consequences does not mean that PIC 4003(b) is repugnant to s 501. As Gleeson CJ noted in Nystrom at [2], there is nothing novel, or even particularly unusual about that. It does not of itself mean that only once source of power is available.

18    In our view it cannot be said that the subject matter of s 501 deals completely, and thus exclusively, with the subject matter of PIC 4003(b) with the result that the latter detracts from or impairs the operation of s 501. This also addresses the third and fourth arguments raised by Mr Zhu, which concern the provision of reasons or independent merits review for a decision made under PIC 4003(b) and whether this departs from or alters the scheme in s 501.

19    For these reasons, the appeal must be dismissed. Mr Zhu should pay the costs of the appeal. We note that the primary judge declined to make orders in relation to costs until after the appeal is determined. We consider it likely that the appropriate order is that Mr Zhu, having failed before the primary judge, ought to pay the costs of the first instance hearing. However, we will allow the parties to make brief written submissions on that subject before determining it.

Associate:

Dated:    11 August 2025

REASONS FOR JUDGMENT

MEAGHER J:

introduction

20    This is an appeal from the decision of the Federal Circuit and Family Court of Australia Division 2 (FedCFamC2G) in Zhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 411, made on 3 May 2024. The issue is whether Public Interest Criterion 4003 (PIC 4003) in Schedule 4 of the Migration Regulations 1994 (Cth) is inconsistent with or exceeds the Migration Act 1958 (Cth).

21    The appellant is Mr Xiaolong Zhu. The first respondent is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The second respondent is the Administrative Appeals Tribunal. The third respondent is the Minister for Foreign Affairs and Trade. The Tribunal filed a submitting notice, dated 18 June 2024. The first and third respondents will be collectively termed the Ministers.

22    The material before the Court was a notice of appeal dated 20 May 2024, Mr Zhu’s outline of submissions dated 22 October 2024, the Ministers’ submissions dated 11 November 2024 and the Appeal Book.

23    For the reasons which follow, I would dismiss the appeal.

BACKGROUND

24    Mr Zhu is a citizen of the Peoples’ Republic of China. He applied for a Class TU (Subclass 500) (Student) Visa on 9 August 2018 (student visa).

25    On 3 September 2018, Mr Zhu began a supervised Doctor of Philosophy (PhD) at the Queensland University of Technology (QUT).

26    Mr Zhu’s field of research concerns Unmanned Aerial Vehicles (UAV) otherwise described as drones. He proposed to focus on surveying and studying algorithms and models about the area of UAV navigation in GPS denied environments. He was offered and accepted a scholarship from the CSIRO in respect of the study.

27    On 3 June 2020 a determination was made by a delegate of the Foreign Minister. The determination was made pursuant to PIC 4003(b) in Schedule 4 of the Migration Regulations.

28    Mr Zhu received a letter on 8 June 2020 asking him to comment on adverse information received by the Department of Home Affairs. In response, Mr Zhu provided a letter dated 15 June 2020, written by a Professor Helen Klaebe who was Pro Vice-Chancellor of Graduate Research and Development and Chair, Research Degrees Committee, which stated in part, as follows:

15 June 2020

To Whom It May Concern,

Mr Xiaolong Zhu (DOB: 10 April 1989) commenced his Doctor of Philosophy (PhD) at Queensland University of Technology (QUT) on 3 September 2018 under the supervision of Associate Professor Felipe Gonzalez.

I would like to confirm that the specific research topic of Xiaolong Zhu’s PhD thesis is not directly or indirectly associated with a proliferation of weapons of mass destruction. The topic of his research is on ‘An Approach for Multi-UAV Navigation in GPS-Denied Environments Using Sequential Decision Making under Uncertainty’.

29    Ultimately, a delegate of the Minister for Immigration determined that Mr Zhu should not be issued with a student visa, as he failed to meet the requirements as per the Migration Act and the criteria under the Migration Regulations, more specifically cl 500.217 of Schedule 2 in the Migration Regulations and PIC 4003 in Schedule 4 in the Migration Regulations. This was communicated to Mr Zhu by way of a letter dated 21 October 2020.

Procedural History

30    At this stage, it is useful to set out some of the procedural history of this matter, as it pertains to the issues on appeal.

31    Mr Zhu applied for review before the Tribunal of the delegate of the Minister for Immigration’s decision to refuse to grant a student visa pursuant to s 65 of the Migration Act. The hearing took place on 11 January 2022 and on 5 April 2022 the Tribunal affirmed the ministerial delegate’s decision. At [38] the Tribunal’s reasons set out:

38.     The Tribunal is of the view that there are only two circumstances where, after a PIC 4003(b) determination has been made, the Tribunal can set aside a delegate’s decision made on that basis:

•    Firstly, if the applicant can positively establish that the determination was not made in respect of them i.e. a case of mistaken identity; or,

•    If the determination is rescinded or revoked and evidence of this is provided to the Tribunal; or,

•    Secondly, if the determination is rescinded or revoked and evidence of this is provided to the Tribunal.

32     The Tribunal concluded at [55]:

55.     If the applicant wished to avoid the operation of PIC 4003(b) it would be necessary for the applicant to show the determination was not made in respect of the applicant, whether due to a case of mistaken identity or otherwise or has been withdrawn or rescinded. The Tribunal has found that none of these circumstances apply in the applicant’s case.

33    Mr Zhu sought judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia (Division 2) ultimately by way of an amended application relying on only one remaining ground of review, namely that cl 500.217, contained in Schedule 2 of the Migration Regulations and PIC 4003, contained in Schedule 4 of the Migration Regulations, were invalid and ultra vires, relying on Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1. In the primary judgment, the primary judge rejected Mr Zhu’s ground of review. In so doing the primary judge concluded as follows:

    “To the extent that PIC 4003(b) imposed criteria which had to be satisfied prior to the grant to an applicant of a visa, the criteria were separate from, and unrelated to, those matters which possibly precluded the grant of a visa under s. 501 of the Act”: Zhu at [31];

    “The provisions of s. 501 of the Act did not specifically deal with issues concerning the proliferation of weapons of mass destruction. To the extent that PIC 4003(b) dealt with a specific factual scenario not addressed in s. 501, it was not repugnant to that section”: Zhu at [33];

    The presence of s 501H(1) of the Migration Act, which clarified that the power to refuse to grant a visa as per s 501 of the Migration Act was additional to other powers to refuse to grant a visa under the Migration Act, further supported the submission that “PIC 4003(b) is a separate and different source of power for the refusal of a visa application from that in s. 501” of the Migration Act: Zhu at [34];

    “PIC 4003(b) was directed to a different factual scenario to either of the scenarios contemplated by s. 501(6)(c)(ii) or s. 501(6)(d)(v) of the Act. For that reason, and as a matter of construction, the decision of the High Court in Plaintiff M47 (2012) 251 CLR 1 was distinguishable from the facts of the present matter”: Zhu at [35];

    “The Court further finds that there was no practical inconsistency between PIC 4003(b) and s.501(6)(c)(ii), or s. 501(6)(d)(v), in the circumstances of the present matter, because the delegate was not required to consider either of those two sections when making his refusal decision”: Zhu at [36];

    “The Court finds that cl. 500.217(1) was not invalid, insofar as it required a visa applicant to satisfy PIC 4003(b) prior to having a valid visa granted to them”: Zhu at [37]; and

    “The applicant has not demonstrated any jurisdictional error on the part of the Tribunal”: Zhu at [38].

34    Mr Zhu also applied for revocation of the 3 June 2020 determination, by way of a letter dated 23 September 2021 sent by his representative, AusLaw Partners, to the First Assistant Secretary of the Department of Foreign Affairs.

35    On 11 November 2022, the Ambassador for Arms Control and Counter-Proliferation in the Department of Foreign Affairs and Trade made a further determination, consistent with the earlier determination, that is, that Mr Zhu was found to be “a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction”: Zhu at [20].

36    Mr Zhu then appealed to this Court on the basis that the Court below erred by failing to find that:

(a)    Public interest criterion 4003 in Schedule 4 of the Migration Regulations 1994, insofar as it purported to apply to the Appellant via s 500.217 in Schedule 2 of the Migration Regulations 1994, was invalid as inconsistent with or beyond the regulation-making powers conferred by the Migration Act 1958; and

(b)    The decision of the Administrative Appeals Tribunal made on 5 April 2022 was vitiated by jurisdictional error as a result of its application of public interest criterion 4003 to the Appellant’s matter.

(Emphasis in original.)

LEGISLATIVE FRAMEWORK

37    The relevant legislation includes the Migration Act and Migration Regulations.

38    Section 65(1) of the Migration Act deals with the decision to grant or refuse to grant a visa. It reads as follows:

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.

Note 1:     Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in a determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has reached a specified maximum number.

Note 2:     See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.

39    Section 504 of the Migration Act provides for the making of regulations. It reads, in part, as follows:

504 Regulations

(1)    The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act …

40    Section 505 of the Migration Act states:

505 Regulations about visa criteria

To avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:

(a) is to get a specified person or organisation, or a person or organisation in a specified class, to:

(i)     give an opinion on a specified matter; or

(ii)     make an assessment of a specified matter; or

(iii)     make a finding about a specified matter; or

(iv)     make a decision about a specified matter; and

(b) is:

(i)     to have regard to that opinion, assessment, finding or decision in; or

(ii)     to take that opinion, assessment, finding or decision to be correct for the purposes of;

deciding whether the applicant satisfies the criterion.

41    In relation to visas, s 31(1) of the Migration Act states that “[t]here are to be prescribed classes of visas”. Section 31(3) of the Migration Act empowers the regulations to “prescribe criteria for a visa or visas of a specified class”.

42    The relevant regulation is reg 2.03(1) of the Migration Regulations, which states:

2.03 Criteria applicable to classes of visas

(1)    For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to other provisions of these Regulations, the prescribed criteria for the grant to a person of a visa of a particular class are:

(a) the primary criteria set out in a relevant Part of Schedule 2; or

(b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

43    In Schedule 2 of the Migration Regulations, Subclass 500 covers student visas. Relevant to this case cl 500.217(1) of the Migration Regulations requires an applicant to satisfy PIC 4003, among others. PIC 4003(b) is found in Schedule 4 of the Migration Regulations. It states:

4003     The applicant:

…

(b) is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction; and …

44    The definition of “proliferation of weapons of mass destruction” is found in reg 1.03 of the Migration Regulations as follows:

1.03 Definitions

In these Regulations, unless the contrary intention appears:

…

proliferation of weapons of mass destruction includes directly or indirectly assisting in the development, production, trafficking, acquisition or stockpiling of:

(a) weapons that may be capable of causing mass destruction; or

(b) missiles or other devices that may be capable of delivering such weapons.

45    Under s 65(1)(a)(iii) of the Migration Act, s 501 is a mandatory consideration in deciding whether or not to grant a visa.

46    Section 501(1) of the Migration Act reads as follows:

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).

47    Section 501(6) of the Migration Act establishes that “a person does not pass the character test” if any of the listed circumstances apply. Those circumstances include where the Australian Security Intelligence Organisation has assessed that person “to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979)”: s 501(6)(g) of the Migration Act.

48    Section 501(6) of the Migration Act also includes circumstances such as where:

…

(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

…

(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:

…

(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 …

49    Section 501H of the Migration Act establishes the relationship between ss 501, 501A, 501B or 501BA and other powers under the Migration Act.

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.

50    Under the Migration Act, the Minister is required to provide reasons to the visa applicant where the applicant’s visa has been refused subject to various requirements and exceptions: ss 66, 501C and 501G of the Migration Act. Section 500 of the Migration Act establishes a pathway for review of a decision made pursuant to s 501 of the Migration Act.

51    Under the Migration Act, the Minister is not required to give reasons for a decision made under PIC 4003(b) of the Migration Regulations. The relevant section is s 5E of the Migration Act, which reads as follows:

5E Meaning of purported privative clause decision

(1)    In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

(a) a failure to exercise jurisdiction; or

(b) an excess of jurisdiction;

in the making of the decision.

(2) In this section, decision includes anything listed in subsection 474(3).

52    Consequently, s 474 of the Migration Act is also instructive.

474 Decisions under Act are final

…

(2) In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4), (4A) or (5).

53    Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJRA), which enumerates the classes of decisions which are exempt from the application of the ADJRA, includes:

(d) decisions under any of the following Acts:

Australian Security Intelligence Organisation Act 1956

Intelligence Services Act 2001

Australian Security Intelligence Organisation Act 1979

Inspector-General of Intelligence and Security Act 1986

Telecommunications (Interception and Access) Act 1979

Telephonic Communications (Interception) Act 1960

54    Section 3(3)(a) of the Autonomous Sanctions Act 2011 (Cth) states:

3 Objects of this Act

…

Thematic sanctions

(3)        Without limiting subsection (1), the autonomous sanctions may address one or more of the following:

(a) the proliferation of weapons of mass destruction; …

SUBMISSIONS

55    Mr Zhu submits that PIC 4003(b) of the Migration Regulations impermissibly departs from the Migration Act and therefore is invalid. Mr Zhu’s contention is that the following “four essential features of the scheme established by the Act” demonstrate the relevant inconsistency between PIC 4003(b) of the Migration Regulations and the Migration Act:

(1)    PIC 4003(b) of the Migration Regulations appropriates the power to determine a “particular character issue”, being “the person’s association, conduct, or risk in relation to proliferation of weapons of mass destruction” and grants the power to make a determination to the Foreign Minister;

(2)    PIC 4003(b) of the Migration Regulations removes the discretion of the Immigration Minister as per s 501(1) of the Migration Act;

(3)    PIC 4003(b) of the Migration Regulations undermines the Migration Act’s intention that a visa applicant be entitled to “written reasons for an adverse character assessment” because it does not subject the Foreign Minister to an obligation to provide reasons for a decision made under PIC 4003(b); and

(4)    PIC 4003(b) of the Migration Regulations deprives a visa applicant of the right to independent merits review regarding determinations made by the Foreign Minister or the Foreign Minister’s delegate under PIC 4003(b).

56    Mr Zhu contends that s 501 of the Migration Act operates like a code to determine the suitability of a person to be granted a visa. The basis of that submission is threefold: that, as there are some visa applicants to whom both s 501 of the Migration Act and PIC 4003(b) of the Migration Regulations might apply, there is impermissible overlap, that s 501 is attended by procedures with respect to written reasons for, and reviews of, decisions which are bypassed by PIC 4003(b) and that ss 500 and 501 in context are clearly intended to apply to that category of visa applicants who might otherwise fall within PIC 4003(b). Mr Zhu contends that the Migration Regulations relied upon in this case, which form delegated legislation, depart from that harmonious code.

57    Central to Mr Zhu’s argument is the application of Plaintiff M47/2012 to his case. He accepts that Plaintiff M47/2012 dealt with a different Public Interest Criterion and a previous version of the Migration Act but submits it contained general statements of principle applicable to this case. He contends that in Plaintiff M47/2012 the majority of the High Court identified the scheme of the Migration Act, including that it vested the decision-making responsibility in the Immigration Minister and provided for independent merits review.

58    Mr Zhu submits that even an incomplete overlap between s 501 of the Migration Act and PIC 4003(b) of the Migration Regulations is sufficient to impair the operation of the Migration Act, as a category of applicants exist, who would ordinarily be subject to the procedures under s 501 of the Migration Act but instead become subject to the procedures under PIC 4003(b) of the Migration Regulations. That is, a case could conceivably arise where a person found to be associated with the proliferation of weapons of mass destruction, pursuant to PIC 4003(b) could also be found to, for example, pose a risk of danger to the Australian community in accordance with s 501(6)(d)(v) of the Migration Act. To support that contention Mr Zhu points to [191] of Plaintiff M47/2012 per Hayne J, wherein his Honour stated:

191    Both Art 32 and Art 33(2) deal with threats to security. Article 32 refers to expelling a refugee on “grounds of national security or public order”; Art 33(2) refers to “a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is”. There are several elements of the character test set out in s 501(6) that intersect with the references in Arts 32 and 33(2) to “national security” and “security of the country in which [the person] is”. The provision of the character test of most obvious relevance to Arts 32 and 33(2) is s 501(6)(d)(v), which provides that a person does not pass the character test if:

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

...

(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.”

This provision of the character test embraces considerations of the kind with which both Arts 32 and 33(2) deal by their references to “security”.

59    Mr Zhu submits that as well as overlapping with s 501(6)(d)(v) of the Migration Act, PIC 4003(b) of the Migration Regulations also overlaps with s 501(6)(b) of the Migration Act which relates to a person’s membership of, or association with, a group or organisation which has been involved in criminal conduct and s 501(6)(c) of the Migration Act which refers to a person’s criminal or general conduct. He submits that although the scope of the respective provisions is not identical, this is not determinative, relying upon Plaintiff M47/2012: at [204] (Hayne J) and [399] (Crennan J).

60    That approach is opposed by the Ministers on the basis that in Plaintiff M47/2012 the Court considered an entirely different provision in the Migration Regulations, in the context of earlier versions of ss 36 and 500 – 503 of the Migration Act, and in any case was focussed on inconsistency arising between s 500(1)(c) of the Migration Act and PIC 4002 of the Migration Regulations, such that s 501 of the Migration Act was not considered in detail.

61    The Ministers argue that s 501 of the Migration Act is not intended to deal completely with the subject matter of PIC 4003 of the Migration Regulations, relying upon VWOK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 249; 147 FCR 135. At [18]–[19] of the Full Court’s reasons in VWOK, their Honours upheld the reasoning of the primary judge, Crennan J, with respect to her Honour’s analysis of any inconsistency between cl 866.222A of the Migration Regulations and s 501 of the Migration Act.

62    Clause 866.222A of the then Migration Regulations contained criteria which an applicant for a permanent protection visa was required to satisfy at the time the decision was made: See VWOK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 336 at [13] (VWOK PJ). It was introduced in the Migration Amendment Regulations 2001 (No. 8) (Cth) by way of item 4 to Schedule 1, and read as follows:

[4]     Schedule 2, after clause 866.222

insert

866.222A     In the case of an applicant referred to in paragraph 866.211 (a), the applicant has not, in the last 4 years, been convicted of an offence against a law of the Commonwealth, a State or Territory for which the maximum penalty is imprisonment for at least 12 months.

63    Crennan J concluded in VWOK PJ that there was no inconsistency between cl 866.222A of the Migration Regulations and s 501 of the Migration Act: at [30]. Her Honour considered other powers which existed to cancel a visa, and the separation of visas into specified classes under s 31 of the Migration Act: VWOK PJ at [32]. Crennan J concluded that there was “nothing repugnant to the Act in regulations containing certain specified criteria for certain specified visas”: VWOK PJ at [32].

64    Additionally, her Honour examined other sections of the Migration Act which touched on the common subject matter in the circumstances of that case, being “criminal conduct”: VWOK PJ at [32]. Crennan J concluded that s 501 of the Migration Act could not be understood as demonstrating “any intention to exhaustively cover the circumstances in which a criminal record may be taken into account”: VWOK PJ at [32].

65    At [33] of VWOK PJ, Crennan J stated:

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

consideration

Are the Migration Regulations inconsistent with the Migration Act?

66    There is no dispute as to the following principles:

    Where a statute purports to cover its subject matter exhaustively, any other legislation which purports to cover that subject matter may be repugnant, if it operates to detract from or impair the operation of the exhaustive legislation: Plaintiff M47/2012 at [54] (French CJ), [134], [136] (Gummow J), [174] (Hayne J); and

    The question of repugnancy is one of statutory construction, which requires consideration of the context and purpose of the legislation: ENT19 v Minister for Home Affairs [2023] HCA 18; 278 CLR 75 at [86]–[87].

67    Critical to that question is “the degree to which the legislature has disclosed an intention [to deal] with the subject with which the statute is concerned”: Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCAFC 91; (2023) 298 FCR 57 at [44], quoting Morton v Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402 at 410, Plaintiff M47/2012 at [54] (French CJ), [133]–[134] (Gummow J).

68    The question is to be answered as a matter of construction within the principles at [86]–[87] of ENT19 as follows:

Was the Decision authorised by cl 790.227, properly construed?

86        Regulations are to be construed according to the ordinary principles of statutory construction. The starting point for the ascertainment of the meaning of a provision is its text, while at the same time regard is to be had to its context and purpose. Of course, the statutory context of regulations includes the Act under which the regulations were made and are sustained. Context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense, including by reference to legislative history and extrinsic material. As Kiefel CJ, Nettle and Gordon JJ explained in SZTAL v Minister for Immigration and Border Protection:

“This is not to deny the importance of the natural and ordinary meaning of a word … Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”

87    The context of the words, consideration of the consequences of adopting a provision’s literal meaning, the purpose of the statute and principles of construction may lead a court to adopt a construction that departs from the literal meaning of the words of a provision. One such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. As expressed by Gageler J in SAS Trustee Corporation v Miles, “statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means”. Where conflict appears to arise in construing an Act, “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”, and this “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’”. Ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended.

(Emphasis in original and footnotes omitted.)

69    Examination of the statutory scheme relating to PIC 4003(b) of the Migration Regulations and the relevant secondary materials demonstrate that the policy and purpose underlying it reveal an intention to deal with a very precise mischief, namely the prevention of the proliferation of weapons of mass destruction.

70    As the Ministers correctly submit PIC 4003(b) of the Migration Regulations is not directed to “character”. Instead, it is directed to questions of national security.

71    As the Ministers contend PIC 4003(b) of the Migration Regulations must be considered within the context of other relevant legislative schemes. PIC 4003(b) was introduced into the Migration Regulations by item 3 in Schedule 2 of the Migration Amendment Regulations 2000 (No. 6) (Cth). The introduction of the specific criterion was intended to directly address the threat of the proliferation of weapons of mass destruction by overseas visitors seeking the grant of a visa, as per the explanatory statement to the Migration Amendment Regulations 2000 (No. 6). Consequently, reg 2.43 of the Migration Regulations was expanded to enable the Immigration Minister to cancel a visa on the basis of a determination made pursuant to PIC 4003(b) by the Foreign Minister by way of item 2 in Schedule 2 of the Migration Amendment Regulations 2000 (No. 6).

72    In the explanatory statement to that legislation, its purpose clearly included, amongst other things, to:

-     provide a mechanism for refusing to grant or cancelling a visa where the Foreign Minister determines, pursuant to paragraph 505(a) of the Act, that the applicant’s presence in Australia may be directly or indirectly associated with a risk of proliferation of weapons of mass destruction; …

73    PIC 4003 was reintroduced in a “new form” in item 18 of Schedule 1 of the Migration Amendment Regulations 2006 (No 1) (Cth), though the terms of PIC 4003(b) were unchanged.

74    PIC 4003 of the Migration Regulations was amended once again by way of the commencement of the Migration Amendment Regulations 2012 (No 1) (Cth), specifically item 3 to Schedule, however PIC 4003(b) remains unchanged. The Ministers’ submissions draw upon the explanatory memorandum, as follows:

The purpose of the Regulations is to amend the Migration Regulations 1994 … to create specific criteria for the refusal to grant or the cancellation of a visa in most circumstances where the Foreign Minister has declared a person under the Autonomous Sanctions Regulations 2011 … and has not waived the operation of the declaration. A declaration could be made for the purposes of preventing the person from travelling to, entering or remaining in Australia.

…

Item [3] – Schedule 4, item 4003

…

The purpose of the amendment is to ensure that a visa applicant fails to satisfy PIC 4003, and would be refused a visa, if the visa applicant is a person declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations, and is not a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations. This outcome is consistent with the purpose of the Foreign Minister’s declaration, which is to prevent the declared person from travelling to, entering, or remaining in Australia.

…

The amendments retain the current requirements that an applicant for a visa is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia is, or would be, contrary to Australia’s foreign policy interests or may be directly or indirectly associated with the proliferation of weapons of mass destruction, in substituted paragraphs 4003(a) and (b).

Statement of Compatibility with Human Rights

…

The amendments to the Migration Regulations 1994 are intended to give effect to the travel sanctions element of reforms to Australia’s autonomous sanctions legislative regime implemented by the Autonomous Sanctions Act 2011 and the Autonomous Sanctions Regulations 2011. The Minister for Foreign Affairs is responsible for Australia’s autonomous sanctions regime. The purpose of the new legislative framework is to allow greater flexibility in the range of punitive measures Australia can apply as a response to situations of international concern, such as the proliferation of weapons of mass destruction, the grave repression of human rights or armed conflict.

(Emphasis in original.)

75    Relevantly, the explanatory memorandum to the Migration Amendment Regulations 2012 (No 1) (Cth) also states:

Public interest criteria (PIC) 4003 is a commonly prescribed time of decision criterion in Schedule 2 to the Principal Regulations that applies to the majority of visa subclasses. …

76    It also addresses the relationship between the Migration Regulations and the Autonomous Sanctions Act as borne out in the introduction of PIC 4003(c), as follows:

New paragraph 4003(c) provides that the applicant, either:

•    is not declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations for the purpose of preventing the person from travelling to, entering or remaining in Australia; or

•    if the applicant is declared – is a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations.

Paragraph 10(1)(a) of the Autonomous Sanctions Act provides that the regulations may make provision relating to proscription of persons or entities (for specified purposes or more generally).

Paragraph 6(1)(b) of the Autonomous Sanctions Regulations provides that for paragraph 10(1)(a) of the Autonomous Sanctions Act, the Foreign Minister may, by legislative instrument, declare a person mentioned in an item of the table in regulation 6 for the purpose of preventing the person from travelling to, entering or remaining in Australia.

Paragraph 6(2)(b) of the Autonomous Sanctions Regulations provides that for paragraph 10(1)(a) of the Autonomous Sanctions Act, the Foreign Minister may, by legislative instrument, declare a person for the purpose of preventing the person from travelling to, entering or remaining in Australia if the Foreign Minister is satisfied that the person is contributing to the proliferation of weapons of mass destruction.

Broadly, regulation 19 of the Autonomous Sanctions Regulations provides that the Foreign Minister may waive, in writing, and only on grounds that it would be in the national interest or on humanitarian grounds, the operation of the declaration, for a visa applicant who is a person declared under paragraph 6(1)(b) or (2)(b), to the extent that it would have the effect of preventing the person from travelling to, entering or remaining in Australia as would be permitted by the visa.

The purpose of the amendment is to ensure that a visa applicant fails to satisfy PIC 4003, and would be refused a visa, if the visa applicant is a person declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations, and is not a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations. This outcome is consistent with the purpose of the Foreign Minister’s declaration, which is to prevent the declared person from travelling to, entering, or remaining in Australia.

77    The scope of the mischief to which PIC 4003(b) of the Migration Regulations is directed has been broadly defined. The construction of PIC 4003(b) of the Migration Regulations was considered by Dowsett J at [41]–[42] of Plaintiff B60 of 2012 v Minister for Foreign Affairs and Trade [2013] FCA 1303; 219 FCR 109 as follows:

41     Criterion 4003(b) requires that the visa applicant not have been determined to be a person:

•    whose presence in Australia,

•    may be directly or indirectly,

•    associated with the proliferation of WMD.

42     The expression “may be directly or indirectly associated with” contains three features which suggest that the relevant association may include a very broad range of possible “relationships”. Those features are the word “may”, the phrase “directly or indirectly” and the words “associated with”. The breadth of the provision makes it virtually impossible to identify, in advance, any general limits. It is quite possible that the applicant’s presence in Australia, taken in conjunction with other, presently unknown factors would suggest a relevant association. It is also possible that the applicant might not, herself be aware of something in her past or in her associations, in Iran or elsewhere which might raise a relevant concern. She may satisfy educational or other criteria which suggest that the applicant could be identified by those conducting WMD programmes in Iran as a potential worker in that area. Use of the word “may” implies a bare possibility. The focus is the possibility of an association, not a demonstrated association.

78    By way of contrast, the mischief towards which s 501 of the Migration Act is directed is concerned with the refusal to grant, or the cancellation of, visas to people who are assessed to pose a danger to the Australian community. That is apparent from an examination of the subsections upon which Mr Zhu focuses, that is ss 501(6)(b), (c) and (d)(v) of the Migration Act.

79    Thus, PIC 4003(b) of the Migration Regulations is directed to a different purpose from that targeted by s 501 of the Migration Act. The Ministers’ submission that determinations made on the basis of PIC 4003(b) of the Migration Regulations are “an individuated response to a foreign policy risk”, not a character decision, is accepted. It is quite conceivable that an innocent act, which infringes upon PIC 4003(b) of the Migration Regulations would not necessarily infringe upon a character ground in s 501(6) of the Migration Act. PIC 4003(b) of the Migration Regulations is a separate requirement that an applicant must satisfy should he or she wish to be successful in a visa application to which the criterion applies. Thus, the purpose, context and practical operation of s 501 of the Migration Act and PIC 4003(b) of the Migration Regulations are clearly separate but intended to be complementary. As such PIC 4003(b) of the Migration Regulations cannot be viewed as an impermissible incursion into the scope and subject matter of s 501 of the Migration Act.

80    It is true that there may be potential overlap between character grounds under s 501 of the Migration Act and the requirement that an applicant not “be directly or indirectly associated with the proliferation of weapons of mass destruction” under PIC 4003(b) of the Migration Regulations. It is also true that the consideration required in PIC 4003(b) of the Migration Regulations may fall within some of the criteria in s 501(6) of the Migration Act (as identified above). However, s 501(6) does not require consideration of the subject matter in PIC 4003(b) of the Migration Regulations, and furthermore not all cases will present overlap.

81    Inconsistency does not arise where a regulation, if not met, requires the refusal of a visa and a separate discretion under a provision of the Migration Act enables a relevant person to refuse a visa on character grounds. The clear differences between the mischief to which the competing provisions are directed yield separate legislative intentions that are implemented in different ways, consistent with the approach endorsed in VWOK (as referred to above) which was footnoted without disapproval in the judgment of Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566. At [2] of Nystrom, Gleeson CJ stated:

2     As to the issue concerning the effect, if any, upon s 501(2) of the Migration Act 1958 (Cth) of ss 200 and 201 of that Act, I would make the following comment. 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. 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. 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. In the result, the respondent’s contention amounts to an assertion; a statement of an outcome that would be supportive of his freedom to remain in Australia, and in that sense protective of his interests, but without a convincing argument of statutory construction which sustains that outcome. Therefore, it fails.

(Footnotes omitted.)

82    As his Honour makes clear, that two separate sources of power are created with particular processes which are applicable to usually, but not always, different circumstances, even if the final outcome is similar, is not of itself “novel” or “unusual” and gives rise to no inherent repugnancy: Nystrom at [2]. There would need to be an “incompatibility” arising from legislative intention that only one of the sources would apply: Nystrom at [2]. That is not the case here.

83    This case may be contrasted with the different regulation and different statutory provisions considered in Plaintiff M47/2012. In Plaintiff M47/2012 the High Court considered an application by a Sri Lankan national for a protection visa which had been refused on the basis that he did not meet PIC 4002 and therefore cl 866.225 of Schedule 2 of the Migration Regulations as a result of an adverse security assessment. Relevantly cl 866.225 of the Migration Regulations required that an applicant satisfy prescribed Public Interest Criteria including, in that case, PIC 4002 which was extracted in its applicable form at [59] of Plaintiff M47/2012, as follows:

59     … 4002 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[.]

84    Also in operation was s 501 of the Migration Act which conferred a power upon the Minister to refuse to grant a visa to an applicant if that applicant failed the character test, in similar but not identical terms to s 501 of the Migration Act as it is currently drafted.

85    Plaintiff M47/2012 was a person to whom Australia owed protection obligations under the criterion contained in s 36(2)(a) of the Migration Act, namely that an applicant must be a non-citizen in Australia in respect of whom “the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”: See Plaintiff M47/2012 at [76] (Gummow J).

86    There were a number of issues before the High Court, one of which was whether PIC 4002 of the Migration Regulations was invalid. This issue required consideration of the interaction between various of the Migration regulations and the Migration Act. In so doing, French CJ, Hayne, Crennan and Kiefel JJ conceived of the relevant scheme under the Migration Act variously as follows:

87    Per French CJ at [65]–[66]:

Whether public interest criterion 4002 is invalid

65     The Migration Act creates a statutory scheme, the purpose of which is to give effect to Australia’s obligations under the Convention and to provide for cases in which those obligations are limited or qualified.

…

66     The Act provides procedural protection by way of merits review of decisions to refuse or cancel a visa relying on Arts 32 or 33(2). That protection is not available in those “national interest” cases in which the Minister makes a decision personally to refuse or cancel a visa pursuant to s 501 and issues a certificate under s 502. That is the statutory scheme by reference to which the validity of public interest criterion 4002 is to be judged.

88    Per Hayne J at [222]:

222     This Court has pointed out, more than once, that the text and structure of the Act proceed on the basis that the Act enables Australia to respond to the international obligations that Australia undertook when it acceded to the Convention. The construction of the Act that has been identified is consistent with those obligations. But it will be observed that the reasons given for adopting that construction stem almost entirely from consideration of the text and structure of the Act and do not direct particular attention to the content of the international obligations Australia has under the Convention. …

(Footnotes omitted.)

89    And at [224]:

224    … The Act should be construed in the light of its recognition of and references to Australia’s international obligations but it is the Act and its text which controls.

90    Per Crennan J at [381]:

Question 2A – is cl 866.225 invalid?

381    … Read as a whole, the Migration Act contains a complex and interconnected set of provisions “directed to the purpose of responding to the international obligations which Australia has undertaken” in the Convention. …

(Emphasis in original and footnotes omitted.)

91    And at [399]:

399    These differences support the plaintiff’s essential contention that the prescription of PIC 4002 as a criterion for the grant of a protection visa departs from and undermines the specific provisions of the Migration Act which apply to a decision to refuse, or to cancel, a protection visa relying on Arts 32 and 33(2) of the Convention. The differences in scope between PIC 4002, s 4 of the ASIO Act and Arts 32 and 33(2) of the Convention, which were noted in submissions, do not ameliorate that inconsistency. This leads to the conclusion, which answers Question 2A, that cl 866.225 of Sched 2 to the Migration Regulations is, to the extent that it prescribes PIC 4002 as a criterion for the grant of a protection visa, beyond the power conferred by s 31(3) of the Migration Act.

92    Per Kiefel J at [456]–[457]:

Conclusions

456    The Migration Act contemplates that the Minister, or the Minister’s delegate, may consider whether a person poses a risk to the security of Australia in determining whether to grant or to refuse a protection visa. If the Minister considers that the risk to security is unacceptable, a visa may be refused notwithstanding that a person comes within the Refugees Convention’s definition of a refugee. The Minister could be informed by an assessment by ASIO. It may be noted that such an assessment is required under the Migration Act where a person is to be deported on security grounds.

457    The Migration Act, by s 500(1)(c), provides for a review to be conducted by the AAT of a decision of this kind. This strongly implies that the grounds provided by the three Articles of the Refugees Convention, which may be relied upon by the Minister in refusing to grant a protection visa, are not criteria respecting the grant of a visa under s 65(1)(a)(ii); rather, what is contemplated is that the procedure concerning refusal on these grounds is subject to review by a tribunal chosen for that purpose.

(Emphasis in original and footnotes omitted.)

93    It was thus in the context of the protection visa regime and Australia’s obligations assumed as a result of the Refugees Convention that the statements were made by the High Court in Plaintiff M47/2012.

94    In my respectful view Mr Zhu’s submissions in this regard fail to grapple with the subtleties of the Migration Act by treating it as comprising one single pathway for the making of the myriad decisions which arise thereunder. The scheme of the Migration Act at its most general level must encompass multiple pathways to decisions and Plaintiff M47/2012 deals with but one of those, being the scheme for protection visas. This is borne out at [194] of Plaintiff M47/2012, per Hayne Jas follows:

194    The reason for the Act marking off this class of decision for a special process of review is readily apparent. A decision of this kind will lead to the expulsion from Australia of a person who has been found to be a refugee within the meaning of Art 1 of the Convention. Marking off decisions of this kind for special review processes reflects a legislative recognition of important aspects of the international obligations Australia has undertaken. There is in these circumstances all the more reason to read s 500(1)(c) in a way that gives all of its elements work to do. Yet if, as the defendants submitted, a decision taken under s 65(1) to refuse a protection visa because its grant is prevented by s 501 cannot be a decision relying on Art 32 or Art 33(2), the reference to decisions of that kind in s 500(1)(c) is given no work at all.

95    This approach is only strengthened by the existence of s 501H(1) of the Migration Act, which makes clear that s 501 of the Migration Act is a power available to the Minister additional to all other powers of refusal and clearly contemplates the existence of other powers in the Migration Act “as in force from time to time, to refuse to grant a visa to a person”. This supports the argument that the Migration Act, in this case, contains complementary processes whereby separate, but related, powers may exist without impairing one another and that the power in s 501 of the Migration Act to refuse to grant a visa is additional to other powers under the Migration Act, including decisions made under s 65 of the Migration Act for failure to satisfy PIC4003(b) of the Migration Regulations.

96    This argument is further bolstered by analysis of PIC 4001 of the Migration Regulations and its proximity within the relevant Schedule of the Migration Regulations to PIC 4003. PIC 4001 clearly requires an assessment of character to give PIC 4003 “work to do” in the sense of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. At [71] of Project Blue Sky Inc, McHugh, Gummow, Kirby and Hayne JJ stated:

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

(Emphasis added and footnotes omitted).

97    The parties also disagree about the application of s 505 of the Migration Act to the circumstances of this case. Section 505 provides for consultation between the Immigration Minister and a “specified person or organisation” when determining “whether an applicant for a visa … satisfies the criterion”. In Mr Zhu’s submission PIC 4003 of the Migration Regulations is not a criterion which creates the sort of mechanism envisaged by s 505 of the Migration Act; rather, it is a criterion of its own in the same way as that of the impugned PIC 4002 of the Migration Regulations in Plaintiff M47/2012. Mr Zhu relies on [59] of Plaintiff M47/2012 for this proposition as follows:

[59]     Schedule 4 to the Regulations is entitled “Public interest criteria and related provisions”. Public interest criteria 4001 and 4002 are in the following terms:

“4001 Either:

(a) the person satisfies the Minister that the person passes the character test; or

(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

(c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

(d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

4002 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.”

Public interest criterion 4003A is not material for present purposes. Public interest criterion 4002 does not create a mechanism, of the kind contemplated by s 505, for third party assessment informing the Minister’s decision. It is itself a criterion. As a matter of construction, the term “is not assessed” in public interest criterion 4002 must be taken to refer to the absence of any current adverse assessment by ASIO that a person is directly or indirectly a risk to security. That is to say, if ASIO has made such an assessment at one time and thereafter made a fresh assessment that the applicant is not a risk to security, the applicant will, while that later assessment stands, satisfy the criterion in public interest criterion 4002.

98    The Ministers’ submission with respect to s 505 of the Migration Act, with which I agree, is that “there is no indication in the Act that decisions in relation to an application for a visa cannot be made by any decision-maker other than the Immigration Minister (or a delegate)”. Indeed, s 505 of the Migration Act makes express provision for the Immigration Minister to consult with other specified persons or organisations for the purposes of making a determination about whether an applicant satisfies a criterion under the Migration Regulations – PIC 4003(b) simply provides for the Foreign Minister to make a relevant determination, in respect of which the Immigration Minister must determine the existence, when deciding whether a visa applicant has satisfied PIC 4003.

99    As to the other arguments Mr Zhu advances, namely that PIC 4003(b) of the Migration Regulations impairs or detracts from the operation of the Migration Act, because it removes the Immigration Minister’s discretion and deprives an applicant of the right to obtain written reasons for the decision of the Foreign Minister or to obtain independent merits review, those arguments must be rejected. Once the purpose of PIC 4003 of the Migration Regulations is understood it is clear that it is intended to provide a separate pathway in respect of specific circumstances and is not intended to fall within the terms of s 501 of the Migration Act, with all that that entails. As I have concluded that no inconsistency arises, because s 501 of the Migration Act and PIC 4003 of the Migration Regulations are intended to provide discrete pathways, Mr Zhu cannot succeed on an argument that PIC 4003(b) of the Migration Regulations is inconsistent with the scheme established by the Migration Act simply because it does not provide a pathway within which the Minister can exercise a discretion equivalent to that which arises in s 501 of the Migration Act and an applicant can seek written reasons or merits review.

100    Finally, Mr Zhu urges that VWOK ought to be approached with caution given the later decision in Plaintiff M47/2012. He also seeks to distinguish VWOK on the basis that the facts of that case concerned an application for a permanent protection visa, which was not granted on the basis of the applicable criteria, but which refusal did not necessarily prevent a temporary protection visa from being granted. Mr Zhu notes that the bar on granting a permanent protection visa only operated for a designated time in VWOK, whereas in the present case, PIC 4003 of the Migration Regulations operates as an absolute bar to the granting of a student visa. However, VWOK was referred to in Plaintiff M47/2012 at [70]–[71], per French CJ, without disapproval. Further, while it is true that the incomplete and temporal bar posed by cl 866.222A of the then Migration Regulations supported a finding of consistency in that case, it cannot be used to point to inconsistency in the present case.

101    For those reasons I would dismiss the appeal.

Costs

102    Mr Zhu submits that the appeal should be allowed with costs. The Ministers submit that the appeal should be dismissed and that the Court should make a costs order in favour of the Ministers with respect to both the appeal and the proceedings before the primary judge.

103    I note that no costs order was made by the primary judge with respect to the proceedings before his Honour, in light of this appeal. It is appropriate that this Court allow the parties to make brief written submissions with respect to costs before determining those orders.

CONCLUSION

104    The appeal is dismissed.

Associate:

Dated:    11 August 2025