FEDERAL COURT OF AUSTRALIA

SZ v Minister for Immigration & Multicultural Affairs [2000] FCA 836

MIGRATION – Migration Act 1958 (Cth) – whether paragraph 65(1)(b) invalid as conferring judicial power contrary to Chapter III of Constitution – whether paragraph 415(2)(a), as applies to decision to refuse to grant protection visa, invalid as conferring judicial power contrary to Chapter III of Constitution – whether Migration Act gives refugee right to enter or remain in Australia – nature of regulation of entry of non-citizens – whether Refugees Convention incorporated into municipal law – need for satisfaction of Minister – whether interpretation of laws and instruments exclusively judicial function – whether Refugee Review Tribunal exercises judicial power of Commonwealth

Migration Act 1958 (Cth)

T v Immigration Officer [1996] AC 742, referred to

Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, cited

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, cited

Reg v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, cited

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, followed

Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298, cited

Attorney-General (Cth) v Breckler (1999) 163 ALR 576, cited

Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, followed

Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656, followed

N44 v Minister for Immigration and Multicultural Affairs [1999] FCA 1127, cited

Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415, cited

Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19, cited

Lu v Minister for Immigration and Multicultural Affairs [2000] FCA 40, cited

Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 485, cited

SZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS, CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE, DIRECTOR, AUSTRALIAN PROTECTIVE SERVICE, COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

N 190 of 2000

BEAUMONT, BRANSON & LEHANE JJ

SYDNEY

22 JUNE 2000

THE COURT ORDERS THAT:

The questions reserved for the consideration of the Full Court be answered as follows:

Question:          Is paragraph 65(1)(b) of the [Migration Act 1958 (Cth)] invalid as conferring judicial power contrary to Chapter III of the Constitution?

Answer:            No.

Question:          Is paragraph 415(2)(a), in so far as it applies to a decision to refuse to grant a protection visa, invalid as conferring judicial power contrary to Chapter III of the Constitution?

Answer:            No.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BEAUMONT J:

1                     I have had the advantage of reading the draft reasons of Branson J and I agree.

Associate:

Dated:              22 June 2000

REASONS FOR JUDGMENT

BRANSON J:

2                     A judge of the Court has reserved certain questions concerning this matter to a Full Court of the Court.  The special case identifies the questions to be answered by the Full Court as:

“1.       Is paragraph 65(1)(b) of the [Migration Act 1958 (Cth)] invalid as conferring judicial power contrary to Chapter III of the Constitution?

2.         Is paragraph 415(2)(a), in so far as it applies to a decision to refuse to grant a protection visa, invalid as conferring judicial power contrary to Chapter III of the Constitution?”

Stated Facts

3                     The special case states the following facts:

“1.       The applicant … is a citizen of India.  He arrived in Australia on 10 February 1996.

2.                  On 23 February 1996 the applicant lodged with the Department of Immigration and Multicultural Affairs an application for a protection visa under the Migration Act 1958 (Cth) (“the Act”).

3.                  On 22 May 1997 a delegate of the first respondent refused to grant a protection visa under section 65 of the Act.

4.                  On 17 June 1997 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) under section 412 of the Act for review of the decision of the delegate.

5.                  The applicant appeared before the Tribunal to give evidence and was assisted before the Tribunal by a migration agent.

6.                  On 5 July 1999 the Tribunal affirmed the decision of the delegate under section 415(2)(a) of the Act.  The decision and reasons for decision of the Tribunal are annexed and form part of this case stated.”

Statutory Framework

4                     The Migration Act 1958 (Cth) (“the Act) uses the expression “non-citizen” to cover all persons who are not Australian citizens (s 5).  The expression “migration zone” in the Act means, for present purposes, the area consisting of the Australian States and Territories (s 5).

5                     Sections 13(1) and 14(1) of the Act provide as follows:

“13(1)A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.

  14(1)  A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.”

6                     Division 3 of the Act is concerned with visas for non-citizens.  Section 29(1) provides:

“29(1)Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

(a)               travel to and enter Australia;

(b)               remain in Australia.”

7                     Section 31 provides in subsection (1) that there are to be prescribed classes of visas and in subsection (3) that the regulations may prescribe criteria for a visa or visas of a specified class including the class specified by s 36 of the Act.

8                     Section 36 of the Act provides:

“36(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.”

9                     The Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 are described in the Act as “The Refugees Convention as amended by the Refugees Protocol.”  I shall hereafter refer to them together as “the Refugees Convention.”

10                  The Act deals with the Minister’s decision on a visa application in s 65 which provides:

“65(1)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 … any … 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.”

11                  The Migration Regulations 1994 (“the Regulations”) by Part 2 and Schedule 2 prescribe criteria for visas.  Part 866 of Schedule 2 is concerned with protection visas.  Item 866.22 prescribes criteria to be satisfied at the time that a decision is made on an application for a protection visa.  The first of the criteria specified by clause 866.22 is that:

“The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the refugees convention.”

12                  For the purpose of Part 866 of Schedule 2 of the Regulations the “refugees convention” is defined to mean the Refugees Convention.  Other criteria prescribed in item 866.22 include health and public interest criteria.

13                  Section 411 of the Act provides that certain decisions made under the Act, including a decision to refuse to grant a protection visa, are reviewable by the Refugee Review Tribunal (“the Tribunal”).  The powers of the Tribunal when conducting a review are specified by       s 415 of the Act which provides:

 “(1)    The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all powers and discretions that are conferred by this Act on the person who made the decision.

(2)               The Tribunal may:

(a)               affirm the decision; or

(b)               vary the decision; or

(c)               if the decision relates to a prescribed matter – remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d)               set the decision aside and substitute a new decision.

(3)               If the Tribunal:

(a)               varies the decision; or

(b)               sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4)        To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations”

CONSIDERATION

14                  The contentions of the applicant were unequivocally based on the assumption that if he is a person to whom Australia has protection obligations under the Refugees Convention he has a right of asylum in Australia.  This assumption is not well founded.  The Refugees Convention provides a definition of the term “refugee” in Article 1, but does not create any general right in a refugee to enter and remain in the territory of a Contracting State.  This was recognised by Lord Mustill in T v Immigration Officer [1996] AC 742 at 754 where his Lordship observed:

“… although it is easy to assume that the appellant invokes a ‘right of asylum’, no such right exists.  Neither under international law nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge.  Subject only to qualifications created by statute this country is entirely free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries.”

15                  The position is the same in Australia under both international law and municipal law.  The position under the Refugees Convention is mentioned above.  As is explained below, the Act does not give to a person who falls within the definition of “refugee” in the Refugees Convention any right to enter or remain in Australia.

16                  The applicant understandably has not sought to challenge the constitutional validity of the Act generally.  By s 51(xix) of the Constitution the Commonwealth Parliament is given power, subject to the Constitution, to make laws with respect to “aliens”.  The term “alien” within the meaning of the Constitution is synonymous with the term “non-citizen” within the meaning of the Act (Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178).

17                  As Brennan, Deane and Dawson JJ, with whom Mason CJ agreed in this regard, observed in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 25-26:

“The legislative power conferred by s 51 (xix) with respect to ‘aliens’ is expressed in unqualified terms.  It prima facie encompasses the enactment of a law with respect to non-citizens generally.  It also prima facie encompasses the enactment of a law with respect to a particular category or class of non-citizen, such as non-citizens who are illegal entrants or non-citizens who are in Australia without having presented a visa or obtained an entry permit.  Such a law may, without trespassing beyond the reach of the legislative power conferred by s 51(xix), either exclude the entry of non-citizens or a particular class of non-citizens into Australia or prescribe conditions upon which they may be permitted to enter and remain; and it may also provide for their expulsion or deportation.”

18                  However, the grant of legislative power with respect to “aliens” is a grant of power “subject to [the] Constitution.”  The Constitution incorporates the doctrine of the separation of judicial power from legislative and executive powers.  The High Court has authoritatively determined that no part of the judicial power of the Commonwealth can be conferred otherwise than in accordance with Chapter III of the Constitution (The Queen v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254).  As a consequence any law purporting to vest any part of the judicial power of the Commonwealth in the Commonwealth Executive will be unconstitutional and invalid.

19                  As the applicant has sought to equate the exercise of power to refuse to grant to a non-citizen a protection visa with the exercise of adjudgment and punishment of criminal guilt, it is appropriate to refer briefly to Commonwealth criminal jurisdiction.  In Chu Kheng Lim’s case Brennan, Deane and Dawson JJ stated at 27:

“There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character.  The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth.  That function appertains exclusively to and ‘could not be excluded from’ the judicial power of the Commonwealth.”  [citations omitted].

20                  It may be noticed at once that the regulation of the entry of non-citizens into Australia is of an entirely different nature and has an entirely different history from the functions of adjudgment and punishment of criminal guilt.

21                  In Chu Kheng Lim’s case, Brennan, Deane and Dawson JJ at 29 observed that the “power to exclude or expel even a friendly alien is recognised by international law as an incident of sovereignty over territory.”  At 30-31 their Honours observed that:

“In this Court, it has been consistently recognised that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorizing the Executive to restrain an alien in custody to the extent necessary to make the deportation effective.”

At 32 their Honours went on:

“Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch. III’s exclusive vesting of the judicial power of the Commonwealth in the courts which it designates.  The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth.  When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident.”  [emphasis added]

22                  Somewhat surprisingly, no reference was made by counsel for the applicant to the above authorities when advancing the submission that the decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the delegate”) to refuse to grant the protection visa sought by the applicant, and the decision of the Tribunal to affirm that decision, are invalid as purported attempts to exercise the judicial power of the Commonwealth.  This submission is, in the light of the special case, to be understood as a submission that the provisions of the Act which purportedly authorise the making of the decisions of which complaint is made, are invalid because they purport to confer jurisdiction to exercise judicial power on persons not holding judicial office under Chapter III of the Constitution.

23                  As I have already mentioned, the assumption made by the applicant that s 36 of the Act gives an unqualified right to remain in Australia to every person to whom Australia has protection obligations under the Refugees Convention is unsustainable.  The assumption would be unsustainable even were it the case that such a right exists under international law.

24                  The Refugees Convention was ratified by the Commonwealth Executive on 17 December 1990 and it entered into force for Australia on 16 January 1991.  However, provisions of an international convention or treaty to which Australia is a party do not form part of Australian municipal law unless incorporated into that law by statute (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273).  It is for the Parliament not the Executive to change the law of Australia.

25                  It was contended by the applicant that the Refugees Convention has been incorporated into Australia’s municipal law by s 36 of the Act.  Consequently, it was contended that Australia’s protection obligations under the Refugees Convention are no longer just obligations under international law; they are a source of rights and obligations under Australian municipal law.  For the purpose of considering the validity of these contentions I will assume, contrary to the fact, that the Refugees Convention creates a general right in a refugee to enter and remain in the territory of a Contracting State.

26                  In Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298, a decision of the Full Court of this Court, Gummow J at 305 gave consideration to the various issues which may arise in Australian courts when consideration is given to the relationship between an instrument embodying an international obligation of Australia and a municipal statute dealing with the same subject matter.  Relevantly for present purposes, his Honour observed at 535:

“Finally, in other cases, an expression used in a law made by the Parliament may have given to it expressly in that law the meaning it bears in a particular convention.  The provisions of the Migration Act 1958 (Cth) concerning refugee status as they stood at the time of Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; 61 ALR 609 and Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412, provide an example.  ….

In cases falling within this last category, where the treaty or other international obligation is “referred to” within the meaning of s 15 AB (2)(d) of the Acts Interpretation Act 1901 (Cth) …, consideration may be given to it not only to determine provisions which are ambiguous or obscure, but for the wider purposes spelled out in s 15 AB(1).”

27                  The provisions of the Act concerning refugee status are no longer in the form considered in Mayer’s case and Chan’s case.  The Act in the form then under consideration provided under s 6A for the Minister to make a determination as to whether a person “… has the status of a refugee within the meaning of the [Refugees] Convention ….”  However, the principles of interpretation referred to by Gummow J in Magno’s case are in no way affected by the changes made to the relevant provisions of the Act.

28                  Contrary to the submissions made by the applicant, nothing said by Gummow J in Magno’s case suggests that the Act, either in one of its earlier forms or in its present form, has incorporated the Refugees Convention into Australian municipal law so as to make it a direct source of rights and obligations under that law.  What s 36 of the Act does do is to make it clear that protection visas are intended to be available only to persons to whom Australia has, as a matter of international law, protection obligations under the Refugees Convention.  That is, s 36 refers to the Refugees Convention for the purpose of defining by reference to its terms a criterion for the grant of a protection visa under the Act.

29                  However, reference in s 36(2) to “[a] criterion” implicitly recognises the possibility of additional criteria being prescribed for protection visas (see s 31(3)).  Nothing in the Act limits the criteria which may be prescribed pursuant s 31(3) to criteria which are consistent with Australia’s international obligations under the Refugees Convention.  There is no challenge made in this proceeding to the validity of s 31(3) of the Act or of the criteria prescribed thereunder.

30                  Although s 36(2) of the Act is expressed in objective terms (ie. “that the applicant … is a non-citizen in Australia to whom Australia has protection obligations …”), s 65(1) of the Act (which is set out above) imposes an obligation on the Minister, when considering a valid application for a visa, to grant the visa if satisfied of the various matters specified in the subsection.  Two things may be noted about s 65(1).  First, it specifies matters additional to the prescribed criteria concerning which the Minister must be satisfied before he or she grants any visa.  Not surprisingly, as the subsection is of general application, these matters are not derived from the Refugees Convention.  Secondly, because the subsection imposes an obligation on the Minister to grant a visa if satisfied of the matters specified in the subsection, the objective nature of the criterion for the grant of a protection visa set out in s 36(2) is, in practical reality, transformed into a criterion based on the Minister’s satisfaction.  Once         ss 36(2) and 65(1) are read together, it can be seen that the criterion specified in s 36(2) is, in the practical operation of the Act, the same criterion as the first of the criteria specified in item 866.22 of the Schedule 2 of the Migration Regulations (see para 10).

31                  It may thus be seen that it is only in circumstances in which the Minister, or, on review of his or her decision, the Tribunal, has the satisfaction required by s 65(1) of the Act that an applicant for a visa may be granted the visa.  This situation highlights a second unsustainable premise behind the principal submission of the applicant.  That premise is that if s 65(1)(b) of the Act is invalid, the applicant will have a legal entitlement to a protection visa, and thus an entitlement to remain in Australia.

32                  Section 36 of the Act does not give an entitlement to a protection visa to every “non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”  As is explained above, all entitlements to visas under the Act are dependent upon Ministerial satisfaction (s 65(1)).  A non-citizen in the migration zone who does not hold a visa that is in effect is an “unlawful non-citizen” within the meaning of the Act (s 14(1)).  Section 189 of the Act places an obligation on every officer (as defined by s 5 of the Act) who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen to detain that person.  A person detained under       s 189 must be kept in immigration detention until he or she is removed from Australia, deported or granted a visa (s 196(1)).  That is, as the grant of a visa is the grant of an authority to enter and remain lawfully in Australia, in the absence of a grant of a visa, a non-citizen cannot lawfully enter or remain in Australia.

33                  There are other difficulties in the way of accepting the submissions of the applicant.  In the course of argument counsel for the applicant said:

“The power of the Minister to grant a visa is properly an administrative power.  In granting the visa the Minister simply exercises due executive or administrative power.  The applicant submits to the contrary though that in refusing to grant a visa the Minister purports to exercise judicial power.”

34                  Later the argument appeared to be narrowed somewhat when counsel contended that it was only in respect of the criterion specified in s 36(2) of the Act that the Minister would be exercising judicial power if he or she were not satisfied that the criterion was met.  That criterion, it was contended, has a special significance because an unsuccessful applicant for a protection visa may lose his or her liberty or life if returned to his or her country of nationality.

35                  Counsel was not able to refer to any authority for the proposition that a person may be found to have exercised administrative power where he or she reaches one conclusion but to have exercised judicial power where he or she reaches the opposite conclusion.  The proposition is plainly untenable.  If a person is exercising judicial power, he or she is required to act judicially.  That is, the process of adjudication must be appropriate to an exercise of judicial power.  It cannot be the case that the nature of the process by which a determination is to be reached is governed by the nature of the determination once reached.

36                  Nor can the contention be accepted that because the refusal to grant a protection visa may put the applicant for the visa at risk of liberty or life should he or she return to his or her country of nationality, the applicant is entitled to judicial consideration of his or her application.  As the first respondent correctly pointed out, the consequence that an applicant for a protection visa may be exposed to loss of liberty or life should he or she return to his or her country of nationality is a consequence of the applicant’s existing circumstances and status as an unlawful non-citizen.  It is not a consequence created by the refusal to grant a protection visa.  The applicant’s position is not comparable to that of a person charged with a criminal offence who can only be deprived of his or her liberty if convicted by a court exercising judicial power.  In any event, as is mentioned above, the nature and history of the exercise of criminal jurisdiction is quite different from that of the power to grant or withhold visas.

37                  It is principally because an applicant for a protection visa has no existing right to enter or remain in Australia, but only such rights as are given to him or her by the Act, that the applicant’s contention that paragraph 65(1)(b) of the Act is invalid, and paragraph 415(2)(a), in so far as it applies to a decision to refuse to grant a protection visa, is invalid is unsustainable.  The Minister, or on review the Tribunal, in granting or refusing to grant a visa is not making a binding determination as to the applicant’s existing rights (Attorney-General (Cth) v Breckler (1999) 163 ALR 576 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at para 41-42).

38                  The interpretation of laws and instruments such as international conventions is not an exclusively judicial function.  As Kitto J pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149:

“The making of a binding declaration of right is an instance of the exercise of judicial power.  … But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments.  A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation.  The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power ….”  [citations omitted].

39                  Nor is it the case that the making of findings of fact is an exclusively judicial function.  The Full Court of the High Court in Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656 at 665-6 observed:

“Although findings of fact are a common ingredient in the exercise of judicial power, such findings may also be an element in the exercise of administrative, executive and arbitral powers ….  So too with the formation and expression of value judgments.”  [citations omitted].

40                  No aspect of the power granted to the Minister by s 65(1)(b) or to the Tribunal by       s 415(2)(a) has been demonstrated to involve the exercise of the judicial power of the Commonwealth.

41                  It may be observed that the decision to grant or to withhold visas, or their equivalent, has for a long time been seen to be an appropriate exercise of executive power both in this country and internationally.  The argument that the Tribunal exercises the judicial power of the Commonwealth has been rejected, in my view, correctly, by a number of judges of this Court (N44 v Minister for Immigration and Multicultural Affairs [1999] FCA 1127; Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415; Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; Lu v Minister for Immigration and Multicultural Affairs [2000] FCA 40 and Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 485).

42                  The questions in the special case should, in my view, each be answered, “No.”

Associate:

Dated:                                      22 June 2000

REASONS FOR JUDGMENT

LEHANE J:

43                  I have had the advantage of reading, in draft, the reasons for judgment of Branson J.  I agree with those reasons and with the answers her Honour proposes.

Associate:

Dated:              22 June 2000