FEDERAL COURT OF AUSTRALIA

BAL19 v Minister for Home Affairs [2019] FCA 2189

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the first respondent made on 12 July 2019 to refuse to grant the applicant a protection visa be quashed.

2.    The first or second respondent determine, as soon as reasonably practicable, the applicant’s application for a protection visa in accordance with law.

3.    The first respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

RARES J:

Introduction

1    This is an application for Constitutional writ relief in respect of the decision that the first respondent, the Minister for Home Affairs, made personally on 12 July 2019 to refuse to grant a temporary protection (class 785) visa to the applicant in exercise of his power under s 501(1) of the Migration Act 1958 (Cth), even though the Minister accepted that Australia owed the applicant non-refoulement obligations.

2    The applicant is a 36 year old Sri Lankan citizen of Tamil ethnicity. He arrived in Australia on 20 March 2010 and has been in immigration detention ever since. He has had, and continues to have, significant physical and mental health conditions.

3    The material facts and the issues in dispute are in a narrow compass. Essentially, the first issue is whether the Minister failed to consider and weigh the legal and or practical consequences of removing the applicant from Australia when deciding to refuse to grant him the visa (the failure to consider issue). After I reserved my reasons, I asked the parties for further submissions on, first, whether s 501 and its analogues in Pt 9 of the Act was a general provision that was displaced by, or inconsistent with, the criterion for a protection visa in s 36(1C) (the inconsistency issue) and, secondly, whether there was any basis other than s 501 on which the Minister could have refused to grant the visa given that the applicant had satisfied the criterion in s 36(1C) and the Minister had found him to be a refugee (the outstanding criteria issue).

The legislative context

4    Relevantly, the Act provided in s 5H:

5H    Meaning of refugee

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

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

[…]

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

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

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

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

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

5    The expressions “serious Australian offence” and “serious foreign offence” are defined in s 5(1) as meaning an offence against the law in either Australia or a foreign country, where the offence involves violence against a person or serious property damage, or is a serious drug offence or an Australian offence against ss 197A or 197B of the Act (relating to immigration detention), and where the offence is punishable by imprisonment for life or for a fixed or maximum term of not less than 3 years. Section 5M provided:

5M    Particularly serious crime

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

(a)    a serious Australian offence; or

(b)    a serious foreign offence.

6    The Act defined a well-founded fear of persecution (in s 5J) as requiring that, first, effective protection measures are not available to the person in a receiving country (s 5J(2)), secondly, the reason for the fear must involve serious harm to the person (including, namely, a threat to his or her life or liberty, or significant physical harassment or significant physical ill-treatment) (s 5J(4)(b) and (5)(a), (b) and (c)) and, thirdly, the persecution must involve systematic and discriminatory conduct (s 5J(4)(c)).

7    Sections 31(2)(e) and (f) created classes of visa, namely the classes of permanent and temporary protection visas, as provided for in s 35A(2) and (3), and s 31(3) conferred a regulation-making power to prescribe criteria for a visa of a specified class. Section 35A(6) provided that the criteria for a class of protection visas were those in s 36 and any other criteria prescribed by regulation for the purposes of s 31.

8    Next, the Act relevantly provided:

36    Protection visas – criteria provided for by this Act

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

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

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

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

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

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

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

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

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

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

[…]

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

[…]

9    The Minister may cancel a visa under s 116(1)(a) and (aa) if satisfied that the original decision to grant it was based wholly or partly on either a particular fact or circumstance, or its existence, and that fact or circumstance respectively is either no longer the case or no longer exists, or did not exist.

10    Next, s 197C provided:

197C    Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

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

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

(emphasis added)

11    Section 198(2A) provided that if the Minister personally has made a decision under s 501 to refuse to grant a visa, and subsequently the unlawful non-citizen has not made a valid application for a substantive visa that can be granted to him or her while in the migration zone, “An officer must remove [the unlawful non-citizen] as soon as reasonably practicable”. Relevantly, a bridging visa is not within the definition of a “substantive visa” in s 5(1).

12    Next, s 501(1) and (6)(d)(v) relevantly provided:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate – natural justice applies

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

Note:    Character test is defined by subsection (6).

[…]

Character test

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

(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; or

(emphasis added)

13    The Migration Regulations 1994 (Cth) provide in cll 785.226 and 785.227 (Sch 2) that, among others, the following criteria must be satisfied at the time of the decision to grant or refuse a visa, namely, first, that the applicant satisfies the public interest criterion 4001 (PIC 4001) (cl 785.226(a)) and, secondly, the Minister is satisfied that the grant of the visa is in the national interest (cl 785.227). PIC 4001 provides:

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.

The Minister’s decision

14    At the outset of his reasons, the Minister stated that he had had regard to non-disclosable information within the meaning of s 5(1) of the Act in relation to both the application of the character test and in the exercise of his residual discretion (under s 501(1)) to refuse the visa. He noted that s 501G(1)(e) provided that he did not need to give that non-disclosable information to the applicant.

15    Later in his reasons, the Minister said that he had had regard to the content of that non-disclosable information in respect of his finding (at [73] and [74]) that, if the applicant engaged, in the future, in some of his past behaviours, that may result in significant harm to members of the Australian community. However, the content of the non-disclosable information is not relevant for the purpose of deciding this proceeding, since this finding was not in dispute.

16    The Minister identified the criterion in s 501(6)(d)(v) as the relevant aspect of the character test that the applicant had to satisfy the Minister he passed.

17    The Minister set out in his reasons, at length, many incidents (in addition to those in the non-disclosable information) in which the applicant had acted in a violent and or dangerous way, including in the over nine years while he had been in immigration detention, that could have fallen within the meaning of s 501(6)(d)(v). He accepted that the applicant was mentally ill at the time of his interview in 2011 with the Australian Security Intelligence Organisation (ASIO). The Minister found that in that interview, the applicant had asserted to ASIO that, while escaping from fighting in the Sri Lankan civil war in 2009 when he was legally blind, the applicant had worn a suicide belt that the Liberation Tigers of Tamil Eelam (LTTE) had provided to him. The Minister said that he gave no weight to what the applicant had told ASIO about the suicide belt in assessing whether the applicant would represent a danger to the Australian community. The Minister found (at [34]) that the applicant’s:

involvement in the incidents mentioned above, which occurred while he was in immigration detention, has resulted directly or indirectly from his serious mental illness, and that his mental health issues have been exacerbated by the detention environment.

(emphasis added)

18    The Minister stated that he had “had regard to submissions” that the applicant had been “diagnosed with a number of complex health issues” including diabetes, nystagmus (that was so severe that he was classified as legally blind) and mental conditions (both in Sri Lanka and Australia) such as chronic post-traumatic stress disorder, acquired brain injury, general psychosis with occasional visual and auditory delusions, situational depression and anxiety, dementia and schizophrenia.

19    The Minister found that the applicant’s behaviour had improved in recent years and that, if he were granted a visa, the applicant would be supported by doctors, friends and family. He also found that those persons and release from immigration detention would assist with the applicant’s rehabilitation and that his behaviour may continue to improve as a result. However, despite the recent apparent improvement, the Minister said that he still had concerns about the risk that the applicant’s serious mental health issues might continue to pose.

20    The Minister then considered medical reports about the applicant’s mental health conditions and his somewhat chequered history in taking his medications in accordance with their prescriptions. He found that there remained “a risk of [the applicant] engaging in harmful behaviour in the community, in correlation with his mental health issues” but was:

mindful that the fact that [the applicant’s] behaviour has improved and his prospects of rehabilitation once he leaves the detention environment do not exclude the possibility that his mental health might deteriorate again, especially given his history of non-compliance with prescribed medication.

(emphasis added)

21    The Minister concluded that, despite the recent improvements in the applicant’s behaviour and his prospects of rehabilitation:

there is still a risk that [he] would represent a danger to the Australian community by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, [sic: scil: the Australian] community.

(emphasis added)

22    For that reason, the Minister found that the applicant had not satisfied him that he passed the character test “by virtue” of s 501(6)(d)(v) of the Act.

23    Next, the Minister considered factors going to the exercise of his discretion under s 501(1). Among other matters, the Minister found that the applicant had been involved with the LTTE for 10 years from 1999 when he was 16 years of age.

24    The crucial portions of the Minister’s reasons for present purposes are as follows (there was no [96] in the reasons):

International non-refoulement obligations

91.     I have had regard to submissions made on [the applicant’s] behalf regarding his protection claims. I accept my Department’s finding that [the applicant], if returned to Sri Lanka, would face a well-founded fear of persecution at the hands of the Sri Lankan Security Forces and paramilitary groups.

92.     Accordingly, I accept the Department’s finding that [the applicant] is a person in respect of whom Australia has international non-refoulement obligations, and that removal of [the applicant] to Sri Lanka would breach those obligations. I also accept that there is currently no known prospect of removal to any other country.

93.     I have noted submissions made on behalf of [the applicant] that the combined effect of the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 and NKWF and Minister for Immigration and Border Protection [2017] AATA 813 mean that [the applicant] will be subject to indefinite detention as [the applicant] cannot return to Sri Lanka and has no rights to enter any other country.

94.     However, I considered that the above claim in relation to the prospects of indefinite detention does not accurately reflect the legal consequences of a refusal decision according to current case law. Rather, the statutory consequence of a decision to refuse to grant [the applicant] a visa is that, as an unlawful non-citizen, [the applicant] would become liable to removal from Australia under section 198 of the Act as soon as reasonably practicable, and in the meantime, detention under section 189. I am also aware that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful non-citizen.

95.     I have noted that the obligation to remove [the applicant] would not apply if, following my refusal to grant him a TPV, he is granted another visa. However, I am aware that as a result of a refusal decision under section 501(1), there will be significant restrictions on his ability to apply for another visa. In particular, I understand that [the applicant] will be prevented by section 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless I determine, under section 48B of the Act, that section 48A of the Act does not apply to him). Application for a visa other than a protection visa will be subject to section 501E of the Act, which will apply to [the applicant] as a result of my refusal decision under section 501(1). This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994)), which he could only apply for in response to an invitation.

97.     However, I am mindful that even if I refuse to grant [the applicant] a TPV, I have a personal non-compellable power in section 195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [the applicant’s] favour, he will be liable to removal as soon as reasonably practicable in accordance with section 198 of the Act, including to Sri Lanka, having regard to section 197C.

(bold emphasis added. The acronym “TPV” in [95] and [97] is short for “temporary protection visa”.)

25    The Minister noted at [110]-[111] that the Australian Human Rights Commission in February 2017 and an entity to which he referred as the “WGAD” had already found that the applicant’s continuing immigration detention was “arbitrary and inconsistent with article 9 of the International Covenant on Civil and Political Rights”. (The acronym “WGAD” appears to be a reference to the United Nations Working Group on Arbitrary Detention.)

26    The Minister ultimately concluded that the reasons for refusing to grant the visa outweighed those for granting it because:

115.     I could not rule out the possibility of [the applicant] engaging in serious conduct akin to his past conduct in immigration detention or the kind of conduct that he threatened to engage in. I found that the Australian community could be exposed to significant harm should [the applicant] engage in such conduct. I have found that the potential harm is so great that any likelihood that it would occur represents a significant risk to the Australian community.

116.     Further, in light of this risk, I considered that the Australian community would expect that [the applicant] would not be granted a visa.

117.     I found the above considerations in favour of refusal outweighed the countervailing considerations in [the applicant’s] case, including the potential harm for [the applicant] if he is returned to Sri Lanka (which engages Australia’s international non-refoulement obligations), the impact of his removal on his family members, the detrimental impact that continued detention would have on his mental health while he awaits removal from Australia, and the other concerns expressed by the AHRC and the WGAD regarding his detention.

118.     I am cognisant that where significant harm could be inflicted on the Australian community, even strong countervailing considerations are generally insufficient for me not to refuse the visa. In the present circumstances, I found that the risk posed by [the applicant] to the Australian community is unacceptable.

(emphasis added)

The failure to consider issue

(a) The Minister’s submissions

27    The Minister argued that “the discretionary stage of s 501(1) does not involve the determination by the Minister of “claims” made by the applicant”. Rather, he contended, s 501(1) involved him in the exercise of a personal discretion as to whether it was in the national interest to refuse a visa. He submitted that the amenability to judicial review of his decision to exercise his discretion under s 501(1) turned on the principles associated with the obligation of a decision-maker to have regard to mandatory relevant considerations.

28    The Minister accepted that he was obliged to consider the direct and immediate legal consequences of his decision were he to refuse to grant the visa, as held in Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at 168 [84] and NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at 4-5 [6]-[10]. He argued that this obligation did not extend to require consideration of remote practical consequences that might flow from the legal consequences of the decision itself. He contended that this was because factual matters personal to a particular visa applicant were distinct from the legal framework for the decision, although he acknowledged that there was not necessarily a bright line distinction between legal and practical consequences. The Minister posited that that if a consequence was “not truly an immediate legal consequence of the decision”, then the decision-maker did not necessarily have to consider it, since the contrary position would entail the decision-maker in examining every practical or possible consequence. He submitted that a construction of the Act that created such a wide range of mandatory considerations would stultify decision-making under s 501(1). He sought to distinguish the Full Court’s lack of attraction to the same argument in Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 at 48 [107] per North J and obiter dicta of Kenny and Perry JJ at 51-52 [129].

29    The Minister contended that the real issue was “the level of particularity at which the legal consequences of the decision to refuse the visa ought to be identified” and considered by the decision-maker. He disputed the applicant’s argument that he had to take into account that, if refouled to Sri Lanka, the applicant could be killed or significantly mistreated. The Minister argued that he had identified correctly that the legal consequence of refusing the visa would be that the applicant would be returned to Sri Lanka and that s 198 precluded consideration of Australia’s non-refoulement obligations at that stage. He contended that he had also adverted to the possibility of exercising his powers under s 195A to grant a visa to a person, if he considered that course to be in the public interest. He also submitted that he had considered the practical consequences of refoulement (at [91]), namely that, first, the applicant “would face a well-founded fear of persecution at the hands of the Sri Lankan Security Forces and paramilitary groups”, secondly, this would breach Australia’s non-refoulement obligations (at [92]) and, thirdly, there was potential for harm to the applicant (at [117]). The Minister argued that he did not need to consider the precise nature of the potential harm and, in particular, whether the applicant might be killed if returned to Sri Lanka, even though that is what he had claimed in his application for the visa.

(b) Consideration

30    The nature of the visa which an applicant seeks, the subject of the Minister’s consideration for the exercise of his discretion under s 501(1), is necessarily a mandatory relevant consideration. That is because the Minister must have regard to what the visa is, the grant or refusal of which, he is considering. That means that, in a case like the present, the Minister must, as a fundamental element in his decision-making, take into account or have regard to the criteria that an applicant for a protection visa must satisfy under ss 35A(6) and 36 of the Act in order for it to be granted: Reg v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J with whom Gibbs J agreed at 324; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-183 [103]-[112] per Rares J, approved in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267] per Jacobson, Lander and Foster JJ, and in Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217 at [29] per Rares, Burley and O’Bryan JJ.

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

32    Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No. 135 of 2014) (the 2014 Amendments) inserted s 36(1C) into the Act, together with a comprehensive suite of definitions of the other criteria for a person to be a refugee or found to be owed protection obligations in ss 5H-5M and, importantly, s 197C (see Sch 5, Pt 1, item 2 and Pt 2, items 7 and 9).

33    The Minister referred, at [93] of his reasons, to the Explanatory Memorandum for the Bill that came to be enacted as the 2014 Amendments that the then Minister for Immigration and Border Protection, the Hon. Scott Morrison MP, circulated to the House of Representatives.

34    The Explanatory Memorandum made clear at [1236] that the new s 36(1C) was a reasonably precise reflection of Australia’s international non-refoulement obligations in accordance with Art 33(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (the Refugees Convention). Articles 32 and 33 were not affected by the change to the definition of “refugee” in Art 1 of the 1967 Protocol Relating to the Status of Refugees. Articles 32(1) and 33 read:

Article 32

Expulsion

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

[…]

Article 33

Prohibition of expulsion or return (“refoulement”)

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

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

(emphasis added)

35    In the second reading speech for the Bill that became enacted as the 2014 Amendments, the Minister’s predecessor told the House of Representatives (Hansard: House of Representatives, 25 September 2014 at 10547-10548):

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

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

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

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

the standard of effective state and non-state protection;

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

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

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

(bold emphasis added)

36    The purpose for which the Parliament enacted s 197C appears to have been to prevent persons who had not been able, or perhaps not yet sought, to establish that Australia owed them non-refoulement obligations, subsequently invoking reliance on the possible, but unestablished, existence of those obligations after their protection claims or their other rights to seek a visa had been rejected and they were liable to removal from Australia as soon as reasonably practicable under s 198.

37    Here, the Minister accepted that Australia owed the applicant non-refoulement obligations because he had a well-founded fear of persecution at the hands of the Sri Lankan Security Forces and paramilitary groups (at [91]-[92]). That is, the Minister found, in substance, that the applicant was a refugee within the meaning of ss 5H and 36(2)(a). The Minister did not suggest that the applicant had not satisfied the other criteria in s 36(1A). Yet, at no point did the Minister refer to s 36(1C) or explain what he understood were Australia’s non-refoulement obligations in which s 36(1C) plays a crucial role.

38    The starting point of the Minister’s task under s 501(1) is, relevantly, the same as Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ discussed in the context of s 501(3) in Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 30 [57]. They said:

the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself” [R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, citing Sharp v Wakefield [1891] AC 173 at 179. See Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158].

(emphasis added)

39    In Hands v Minister for Immigration and Border Protection (2019) 364 ALR 423 at 424 [3], Allsop CJ, with whom Markovic and Steward JJ agreed at 436 [54] and [55], said:

it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

(emphasis added)

40    The Minister reasoned (at [94]) that refusing to grant the applicant a temporary protection visa had “the statutory consequence…that, as an unlawful non-citizen, [he] would become liable to removal from Australia under section 198 of the Act as soon as reasonably practicable, and in the meantime detention under section 189”, and that s 197C made irrelevant Australia’s non-refoulement obligations for the purposes of s 198. The Minister then said (at [95]) that he “noted” that the obligation to remove the applicant would not apply if he were granted another visa, and also that there were “significant restrictions on his ability to apply for another visa”.

41    The Minister referred to his awareness of the theoretical possibility that the applicant could apply for, first, a bridging visa and, secondly, if he (the Minister) exercised his non-compellable power under ss 48B and or 195A, another visa. However, the grant of a bridging visa would not prevent ss 197C and 198 operating to require the removal of the applicant as soon as reasonably practicable, because it is not a substantive visa.

42    Once the Minister personally refused to grant the applicant a temporary protection visa on the basis that he acted here, knowing that Australia actually owed non-refoulement obligations in respect of the applicant (as a refugee), no reasonable occasion could arise for the Minister to exercise his non-compellable powers to allow the applicant to apply for another substantive visa, absent a substantial and indefinite period of further immigration detention in which a change could occur and, in fact, had occurred to the risk on which the Minister had acted. That consequence must follow because of the Minister’s finding that the risk that the applicant currently posed, on which the Minister acted under s 501(1), necessarily entailed that no reasonable or rational person in the Minister’s position could grant the applicant any visa in the foreseeable future. That is because the grant of any visa would court the very risk that the Minister found decisive in refusing the protection visa. And, indefinite detention to see if, at an indeterminate future time, the applicant’s circumstances had changed materially, is unlawful and precluded by ss 197C and 198.

43    The Minister’s reasoning at [94]-[97] about the possibility of another visa being granted that could avoid a breach of Australia’s non-refoulement obligations in respect of the applicant was perfunctory and resembled the theme of Joseph Heller’s novel Catch 22 in which the writer explained:

There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he were sane he had to fly them. If he flew them he was crazy and didn’t have to, but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle. (ch. 5)

44    The Minister’s reasons at [94]-[97] and, especially at [115]-[118], did not engage with the immediate legal or practical consequence of his decision to refuse to grant the visa, namely, that the applicant had to be refouled under s 198A(2) to Sri Lanka as soon as reasonably practicable.

45    The Minister’s reasons did not explain how the risk that the applicant posed disentitled him to a protection visa when the Parliament expressly stipulated in s 36(1C) that a criterion for such a visa was that, first, a person who had not been convicted of a particularly serious crime here or overseas was eligible for the grant of the visa and, secondly, even a person had been convicted of such a crime was eligible, unless the Minister also considered, on reasonable grounds, that the person was, in fact, a danger to the Australian community.

46    The Minister’s reasons at [94]-[97] appear to be an attempt to lay the groundwork for keeping the applicant in indefinite immigration detention contrary to ss 197C and 198. That is why he simply referred to the possible grant of another substantive visa if he (the Minister) determined either to grant a visa under s 195A or, pursuant to s 48B, that s 48A would not operate to prevent an application for such a visa. Yet, that speculation about the possibility of the applicant being able to apply for another visa, did not begin to engage with the Minister’s decision, under s 501(1), to refuse to grant the protection visa because of the risk that he found the applicant to pose to the Australian community were he to hold a protection visa. That risk and the Minister’s concerns about it could not change if the applicant applied for any other visa.

47    The Minister had to engage in an “active intellectual process” in deciding whether any reasonable or rational change could occur to the applicant’s circumstances and the risk that the Minister found he posed in the period allowed by ss 197C and 198 for him, first, to lift the bar under ss 48B or 195A and, secondly, to grant or refuse the applicant any other visa: CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155 at [76] per Allsop CJ, Kenny and Snaden JJ, applying Telstra 176 FCR at 181-182 [106]. The Minister had to act in each of those respects “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself”: Graham 263 CLR at 30 [57]. As I said in Telstra 176 FCR at 182 [107]:

Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at [52] per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed (East Australian Pipeline 233 CLR 229 at [102]):

It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them.

(emphasis added)

48    No Minister, acting reasonably, having made the decision under s 501(1) to refuse the applicant the protection visa he had sought, could consider, at the same time, that an application for another visa had any prospect of being granted before the removal of the applicant had to occur as soon as reasonably practicable after that refusal. That is because the risk of harm to the Australian community from the grant of the visa, on which the Minister based his decision, is necessarily inherent in a grant of any other visa, since a visa allows its holder to be in the community.

49    The Minister’s duty required him to engage in an active intellectual process and to reason through the inevitable consequence of his findings (at [115]-[118]) that the potential harm that could occur by granting the, and necessarily any other, visa to the applicant “is so great that any likelihood that it would occur represents a significant risk to the Australian community” and (at [117]) that this risk was “unacceptable” (at [118]) (emphasis added). That reasoning exposed the lack of any active intellectual engagement with each of the legal and the practical consequences of the refusal to grant the protection visa when the Minister expressed his animadversions in [94]-[97] about the possibility of the grant of a bridging, or of some other substantive, visa: cf. Telstra 176 FCR at 181-182 [106]-[107]. It follows that the Minister’s reasons at [94]-[97], dealing with the possibility of the future grant of other visas, amounted to him taking into account an irrelevant consideration or constructively failing to exercise his power on a correct understanding of the law. The Minister had, but failed, to address squarely in his reasons that the inevitable consequence of his assessment of risk, if he were to refuse to grant the visa under s 501(1), was that the applicant would have to be refouled as soon as reasonably practicable in accordance with ss 197C and 198 because there was no reasonable basis on which the grant of any other visa could occur having regard to that assessment of risk.

50    Refoulement of the applicant to Sri Lanka as soon as reasonably practicable, even though Australia owed him protection obligations, would be the, or a reasonable, legal and the immediate practical, consequence of a decision to refuse the visa. Contrary to what he said in [95] and [97], were he to have refused the visa, the Minister had no reasonable, available alternative to refoulement as soon as reasonably practicable, but to act in accordance with the requirements of ss 197C and 198. The Minister’s reasons at [94]-[97] were perfunctory and cursory. They did not amount to an active intellectual process that engaged at all with, let alone with the legal or practical consequence of, what his assessment of risk necessarily would entail, if he refused the visa, namely that he would have to refoule the applicant in breach of this country’s international obligations as reflected in s 36(1C).

51    The Minister’s use of the reasoning in [94]-[97] was tantamount to saying that he had considered the consequences under ss 197C and 198 of refusing to grant the visa, but disregarded them: Telstra 176 FCR at 182 [107], applying East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ, 256 [102] per Gummow and Hayne JJ. The effect of this reasoning would be to prolong the immigration detention of the applicant to further deprive him of his liberty in this country. That prolongation could only occur (having regard to ss 197C and 198) if the Minister could be, or was, considering using his non-compellable powers under s 195A to grant a visa or under s 48B to allow the applicant to make what necessarily would be a futile application for a substantive visa (because even if allowed to be made, it necessarily would be refused), thus justifying the continued detention for the purposes of that consideration: cf. Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 198 [44], 200-201 [52]-[57] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. The applicant’s arbitrary detention, that both the Australian Human Rights Commission and the WGAD had found inconsistent with the applicant’s internationally recognised human rights would only be exacerbated by further delay.

52    The possibility that the Minister might consider using, or use, his non-compellable powers in that way in order to hold a person in immigration detention when there is no bona fide or rational possibility that those powers will be exercised so as to result in the grant of a visa, is beyond the Minister’s power: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27-29 per Brennan, Deane and Dawson JJ (see too at 12 per Mason CJ).

53    In [94], the Minister said, in effect, that the correct understanding of the law was as he set out at [95] and [97]. He did this as a basis for not addressing (or engaging in an active intellectual process), in making his decision under s 501(1), whether the legal or practical consequence of his decision would be that he would have to refoule the applicant in accordance with ss 197C and 198. That was a material error of law since, in acting under s 501(1), he had to take into account that the legal or practical consequence of a decision to refuse to grant the visa on the basis that his reasoning process in [115]-[119] inevitably would be refoulement: NBMZ 220 FCR at 4-5 [6]-[10] per Allsop CJ and Katzmann J, 39 [177]-[178] per Buchanan J; Taulahi 246 FCR at 168 [84] per Kenny, Flick and Griffiths JJ; Cotterill 240 FCR at 48 [107], 51-52 [129]. Nor did the Minister consider in any way the purpose of the Parliament in enacting s 36(1C) as its expression of the nation’s non-refoulement obligations in respect of the acceptable danger to the Australian community of a refugee other than by his using the generic description of “international non-refoulement obligations” in his reasons. That failure also represented a lack of engagement in an active intellectual process.

54    The Minister committed a material jurisdictional error. What the Minister said in [94]-[97] of his reasons demonstrated that he did not approach the exercise of the discretion under s 501(1) on the basis that a refusal would have the legal or practical consequence of refoulement (as the direct and immediate result) that ss 197C and 198 mandated, in spite of this country’s non-refoulement obligations owed to the applicant. He acted unreasonably (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 362-363 [63]) and did not address the correct question, namely what would happen to the applicant (i.e. the legal or practical consequence) if the visa were not granted because of the “unacceptable” risk that the Minister found and, as must then happen, he were returned to Sri Lanka where, the Minister also found, there is a real chance that the applicant would be persecuted as a person who had been involved with the LTTE for 10 years.

55    For the above reasons, the Minister’s decision was affected by a material jurisdictional error and must be set aside.

The inconsistency issue

56    After I raised with the parties the possible existence of the inconsistency and outstanding criteria issues, both made helpful written and oral submissions. At the resumption of the hearing on 19 December 2019, I granted leave to the applicant to amend his originating application to add a new ground that the refusal of the visa under s 501(1) was unlawful.

(a) The Minister’s submissions

57    The Minister argued that s 36(1C) did not displace, as a source of power to refuse or cancel a protection visa, the availability of s 501 and its analogues. He contended that, although a person might meet all the criteria for a visa in s 36, the Minister was not bound to grant the visa under s 65(1)(a) unless, relevantly, s 501 prevented its grant, in the sense that the Minister (or a delegate) had made a decision in exercise of the power in s 501 to refuse it.

58    He referred to authorities, including Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 that had held, in respect of visas granted prior to the 2014 Amendments, that the power in s 501 could be used to refuse or cancel a protection visa and, as Lindgren J held in SZLDG v Minister for Immigration and Citizenship (208) 166 FCR 230 at 246 [83], Art 33(2) of the Refugees Convention did not prevent the use of s 501 to do so either. The Minister contended that the 2014 Amendments did not make any change to s 501 itself and that, therefore, it continued as a source of power to refuse or cancel a protection visa.

59    He submitted that the Parliamentary materials could not alter the meaning of the Act. He argued that, when the then Minister said in the second reading speech for what became the 2014 Amendments that Sch 5 would “create a new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention”, the Minister meant that the framework was self-contained from international law. The Minister contended that his predecessor should not be understood to have suggested that the 2014 Amendments removed the “special” power to refuse or cancel visas in s 501 and its analogues and that, in any event, the Act itself had not done so. He submitted that ss 36(1C) and 501 could operate together and that a person who failed the character test for lesser reasons than those prescribed “in s 36(1C) may yet be owed non-refoulement obligations (the consequences of which under Australian law [are] a different matter)”. The Minister argued that s 36(1C) was a criterion for a visa that fed into s 65 and was unlike the power in s 501. He submitted that s 501H made clear that s 501 was “in addition to” any other refusal powers.

60    Finally, the Minister submitted that the applicant still had to satisfy two or more criteria in cll 785.226(a) (being PIC 4001) and 785.227 (being that the Minister “is satisfied that the grant of the visa is in the national interest”).

(b) Consideration

61    The criterion in s 36(1C) is both specific and substantively narrower than the discretions created by s 501 and its analogues in Pt 9 of the Act under which the Minister has a variety of discretions to refuse to grant or to cancel a visa of a person who does not satisfy the Minister that he or she passes the character test (as defined in s 501(6)). Hence, the discretionary power to refuse a visa under s 501(1) is unconstrained, except by the subject matter, scope and purpose of the Act, once the person has not satisfied the Minister that he or she passes the character test: cf. Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ. Other provisions, such as s 501(3), create additional criteria that, for example, require the Minister also to be satisfied that the refusal to grant, or the cancellation of, a visa is in the national interest. And, s 501(1), together with its analogues, appear to apply generally as a power exercisable in respect of all categories of visa.

62    In addition, the character test prescribes criteria that could include those amounting to a “particularly serious offence” as defined in s 5M. But the character test also includes much less serious situations. For example, s 501(7)(c) and (d) include within the definition of “substantial criminal record” one or more sentences to a term of, or totalling, 12 months imprisonment or more, and s 501(6)(d)(ii) and (11) refer to a risk of a person harassing or molesting another even though the conduct does not include actual or threatened violence.

63    However, s 36(1C) creates a specific criterion for one class of visa, namely a protection visa, that contains disqualifying grounds. Those grounds in s 36(1C) are much more restrictive than those available under s 501(1) (and its analogues) in the event that a person does not pass, or does not satisfy the Minister that he or she passes, the character test. In particular, s 36(1C) is not a discretionary power. The Minister, relevantly under s 36(1C)(b), must have objectively reasonable grounds to consider that a person, first, has not been convicted of a particularly serious offence and, secondly, is not a danger to the Australian community. In contrast, the aspect of the character test in s 501(6)(d)(v), which the Minister found the applicant had not satisfied him that he (the applicant) passed, cast an onus on the applicant to satisfy the Minister of a negative state of affairs. Yet, s 36(1C)(b) prescribed a mandatory criterion for a protection visa that the applicant here satisfied.

64    In enacting s 36(1C), the Parliament determined, consistently with Art 33(2) of the Refugees Convention, that a person would be eligible to be granted a protection visa if he or she is not a person whom the Minister considers, on reasonable grounds, to be a danger to the Australian community on the premise that the person had been convicted of a particularly serious crime. The criterion in s 36(1C)(b) required the existence of reasonable grounds for the Minister to consider that the person was actually (as opposed to the criterion in s 501(6)(d)(v) of there being a risk that he or she would represent) a danger to the Australian community, and that could occur only in the context of the Minister having reasonable grounds to consider that the person had been convicted of a particularly serious crime.

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

66    In contrast, s 501(6)(d)(v) provided that a person did not pass the character test if there were a risk that he or she would represent a danger to the, or a segment of the, Australian community. That criterion operated by reference to the existence of a (i.e. any) risk that the person would represent a danger to the whole, or a segment of the, Australian community without any additional qualification of a past conviction or the existence of reasonable grounds to consider the existence of the risk.

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

68    That raises the question whether the Minister can use the general power in s 501(1) or its analogues in Pt 9 of the Act to refuse to grant or to cancel a protection visa, on a basis other than that specifically provided in s 36(1C). Ordinarily, general provisions conferring a power in an Act will not apply to another power that the Act confers that also prescribes the conditions for its exercise. Gavan Duffy CJ and Dixon J held in Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (and see too: David Grant & Co Pty Ltd (receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 276 per Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed at 269):

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

(emphasis added)

69    The Parliament enacted ss 36(1C) and 197C, as part of a suite of measures in the 2014 Amendments, to define Australia’s non-refoulement obligations and their limits. Importantly, a person who satisfied the criterion in s 36(1C), together with the other criteria prescribed in s 36 and any relevant regulation, was entitled, as of right, to be granted a protection visa under s 65(1)(a), unless, relevantly, s 501 “prevented” its grant (s 65(1)(a)(iii)). As I explained (in respect of the analogous s 501A) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [82]-[87], s 501(1) does not prevent the grant of a visa within the meaning of s 65(1)(a)(iii); it creates a discretionary power to refuse one in certain defined circumstances.

70    The criteria that s 36(1C)(b) prescribes require the Minister to act on “reasonable grounds” in considering whether a person is a danger to the Australian community, if, and only if, the Minister also considers on reasonable grounds that the person has been convicted by a final judgment of a particularly serious crime. That is, the Minister can only act under s 36(1C)(b) if facts exist which are sufficient to induce a reasonable person in the position of the Minister to consider that the applicant for the protection visa has been so convicted and also is a danger to the Australian community: George v Rockett (1990) 170 CLR 104 at 112 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Liversidge v Anderson [1942] AC 206 at 244-245 per Lord Atkin.

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

72    As Heydon and Crennan JJ (with whom Gleeson CJ agreed at 57 [1]) explained in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 611 [144]-[147] (and see too at 591 [66] per Gummow and Hayne JJ), the special powers of the Minister to refuse or cancel a visa in ss 501-503 have existed since 1992 (with different section numbering). They noted that the current structure of the power involving the character test, under which the applicant or visa holder has the onus of satisfying the Minister that he or she passes the character test, first became part of the Act in 1999.

73    Gleeson CJ explained why, in the circumstances there (prior to the 2014 Amendments), s 501(2) and ss 200 and 201 (which gave the Minister power to deport non-citizens who had been in Australia less than a total of 10 years and who had been convicted and sentenced in Australia to imprisonment for not less than one year) created two independent sources of power. He explained the applicable principle of statutory construction thus (228 CLR at 571-572 [2] and see too at 589 [59] per Gummow and Hayne JJ and 615-616 [162]-[167] per Heydon and Crennan JJ):

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

(emphasis added)

74    In SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577 at 589 [30]-[35], Keane J, with whom French CJ at 581 [1], Hayne, Crennan, Kiefel, Bell and Gageler J agreed at 582 [2]-[6], held that in its form prior to the 2014 Amendments, the Act did not confine Australia’s protection obligations to persons who had not been convicted of a “particularly serious crime” (that was an expression then defined in s 91U) for the purposes of the then form of s 36(2)(a) (which set a criterion for a protection visa as being available for grant to a non-citizen to whom the Minister was satisfied Australia owed protection obligations under the Refugees Convention as amended by the 1967 Protocol) (see 251 CLR at 585-586 [21]-[23]). Keane J held (at 589 [30]) that s 36(2)(a) and Art 33 created protection obligations that were not affected by the definition of “particularly serious crime” in s 91U. That is the context in which the Parliament subsequently enacted the 2014 Amendments.

75    There is an overlap between s 501(6)(d)(v) and s 36(1B) and (1C) because each provision deals with considerations of the same kind by reference to security, while other provisions in s 501(6) also direct attention to the considerations with which s 36(1C) deals. An overlap between Arts 32 and 33, on the one hand, and provisions of the character test in s 501(6) existed before the 2014 Amendments, but that overlap operated differently, as each of French CJ, Hayne J and Kiefel J separately explained with reference to Arts 32 and 33(2) (Plaintiff M47 251 CLR at 36-39 [36]-[45] per French CJ, 81-83 [188]-[194] per Hayne J, 160 [423] per Kiefel J, and see too at 149-150 [388]-[390] per Crennan J).

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

77    However, as the Parliamentary materials for the 2014 Amendments made clear, the enactment of s 36(1C) and the related amendments sought to codify Australia’s protection obligations and, in tandem with that, s 197C excluded non-refoulement obligations from the class of relevant considerations that could inhibit the duty of an officer under s 198 to remove an unlawful non-citizen as soon as reasonably practicable. The definition of “non-refoulement obligations” that the 2014 Amendments inserted in s 5(1) was substantively wider than that in Arts 32 and 33, and was with the following terms (the reference to “Covenant” being to the International Covenant on Civil and Political Rights):

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

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

(i)    the Refugees Convention; or

(ii)    the Covenant; or

(iii)    the Convention Against Torture; and

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

78    In Plaintiff M47 251 CLR 1, the majority held that delegated legislation cannot be repugnant to or inconsistent with the Act which confers the power to make it. In that case, their Honours considered another public interest criterion, PIC 4002, that had been inserted into the Migration Regulations by a regulation made under s 31(3) of the Act. There, French CJ, Hayne, Crennan and Kiefel JJ held that cl 866.225 of Sch 2 to the Migration Regulations was invalid to the extent that it had prescribed satisfaction of PIC 4002 as a criterion for the grant of a protection visa (251 CLR at 41-42 [54] and 48 [71] per French CJ, 77 [174]-[176], 79 [180], 91 [212] per Hayne J, 147-148 [381]-[382] per Crennan J, 152-153 [399] and 162-163 [434] per Kiefel J).

79    The Parliament responded to the High Court’s decision in Plaintiff M47 251 CLR 1 (that had held PIC 4002 invalid) by enacting s 36(1B) (in item 1 of Sch 3 to the Migration Amendment Act 2014 (Cth) (No. 30 of 2014), which now addresses the issue raised in Art 32 of the Refugees Convention and makes it a criterion for the grant of a protection visa.

80    Relevantly, Pt 9 of the Act itself treats protection visas as a specific class of visa, the refusal or cancellation of which has its own bespoke consequences. In particular, s 501F provides that if the Minister makes a decision under ss 501, 501A, 501B or 501BA to refuse to grant or cancel a visa, then all other visas, and applications for a visa, are taken to have also been refused or cancelled at the same time, except if the other visa, or application, is or is for a protection visa (or other prescribed visa). And, s 500 prescribes when decisions under particular provisions of the Act are or are not reviewable under Pts 5 or 7 in the Administrative Appeals Tribunal. Relevantly, s 500(4) provides:

500    Review of decision

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

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

(b)    a decision under section 501;

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

(i)    subsection 5H(2) or 36(1C); or

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

(emphasis added)

81    Importantly, s 500(4)(c)(i) (which item 22 of Sch 5 of the 2014 Amendments inserted) refers to a decision to “cancel a protection visa, relying on” ss 5H(2) or 36(1C). However, neither provision expressly creates a power to cancel a protection visa that has been granted. Also, s 411(1)(c)(i) and (d)(i) (that items 19 and 20 inserted) provide that a decision, respectively, to refuse to grant or cancel a protection visa is reviewable in the Tribunal other than a decision that was made (in the case of a refusal) “relying on”, or (in the case of a cancellation) “because of”, ss 5H(2) or 36(1C). And s 476A(1)(c) only confers original jurisdiction on this Court in relation to a migration decision that is a privative, or purported privative, clause decision made personally by the Minister under ss 501, 501A, 501B, 501BA, 501C or 501CA, but not under, because of, or relying on, the provisions specified in ss 500(4)(a) or (c), namely ss 200, 201, 5H(2), 36(1C) or (2C)(a) or (b) for which presumably the Federal Circuit Court has jurisdiction under s 476(1).

82    The context in which the Parliament enacted the 2014 Amendments suggests that it intended to define what Australia’s protection obligations and non-refoulement obligations were and to segregate decisions involving them to applications for, and the holders of, protection visas. Since ss 411(1)(d)(i) and 500(4)(c)(i) expressly provide, respectively, that a visa can be cancelled “because of” or “relying on” ss 5H(2) and 36(1C) and the Act regulates the rights to seek review of such a decision, the Minister had power to cancel an existing protection visa: cf. Plaintiff M47 251 CLR at 83 [193]-[194] per Hayne J, 169 [457] per Kiefel J, 150 [390] per Crennan J (see too at 39-40 [47]-[49] per French CJ) And the Act now does so on a different basis, because even if s 501(6)(d)(v) were able to continue to be seen as based, in part, on Arts 32 or 33 of the Refugees Convention, it is not based on s 36(1C). Nor can s 501(6)(d)(v) operate in harmony with s 36(1C) for the reasons I have given.

83    The construction of ss 5H(2) and 36(1C), as a conferral of power, at which I have arrived is also consistent with the presumptions in s 33(1) and (3) of the Acts Interpretation Act 1901 (Cth), so that each provision is not merely a criterion. Thus, if after being granted a protection visa, a person is convicted of a particularly serious crime, he or she may be liable to a decision under s 36(1C) that his or her visa will be cancelled, since he or she may no longer meet that criterion. So much follows because the Minister must form a state of mind that supports or denies the entitlement to the protection visa, the subject of each of ss 5H(2) and 36(1C) and can do so from time to time, as occasion requires. Kiefel J explained that the construction of the then form of 500(1)(c) (i.e. in its form prior to both the 2014 Amendments and those made in 2011) “recognises that the Minister has the power to refuse a protection visa, inter alia, on the ground that the applicant poses a danger to national security” (see Plaintiff M47 251 CLR at 159-160 [422]). The wording of s 500(1)(c) that her Honour was considering was: “a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely Articles 1F, 32 or 33(2)” (emphasis added). She said (at 169 [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 added)

84    The position after the 2014 Amendments is substantively different. The 2014 Amendments changed the Act in significant respects in relation to the powers and criteria under which a protection visa may be granted or cancelled. The judicial construction of provisions in the Act given prior to the 2014 Amendments in respect of protection visas, cannot operate as binding on the construction of the Act as it now stands: McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at 661 [40] per McHugh, Gummow and Heydon JJ. First, a decision to refuse (or cancel) a protection visa “relying on” or “because of” ss 5H(2) or 36(1C) is reviewable, by force of s 500(1)(c), in the Tribunal in a contested inter partes hearing, even though such a decision is based on a criterion for the visa not having been met, which otherwise would be a decision reviewable in an inquisitorial process under Pts 5, 7 or 7AA. A decision to refuse a protection visa under s 501 is reviewable as a decision made independently under that section and without overlapping with ss 5H(2) or 36(1C). Secondly, s 36(1B) and (1C) are now criteria that reflect the intent, but not the precise content, of what Arts 32 and 33 of the Refugees Convention provided and how they operated in the scheme of the Act before those amendments.

85    It is important to appreciate that, as the majority in Plaintiff M47 251 CLR 1 held, prior to the 2014 Amendments, the three Articles (1F, 32 and 33) of the Refugees Convention overlapped to some extent with the criteria in the character test in s 501(6) and, in particular, s 501(6)(d)(v), as supporting the Minister’s then powers to refuse to grant or cancel a protection visa where the application or holder is a person to whom, but for the presence of the disentitling criteria in one of Arts 1F, 32 or 33, Australia would have owed protection and non-refoulement obligations. However, the 2014 Amendments carefully codified the criteria for a protection visa in ss 35A(6) and 36 in order to divorce other parts of the Act and the Refugees Convention. In my opinion, those criteria deal exhaustively with the criminal history and behaviours of an applicant for (or holder of) a protection visa so as now to exclude the availability or operation of s 501 and its analogues, including the pre-existing s 501H, as a basis to refuse to grant a protection visa: Nystrom 228 CLR at 571-572 [2].

86    I reject the Minister’s argument that cl 785.226 validly specified PIC 4001 as a criterion for a protection visa. I am of opinion that PIC 4001 is broader than s 36(1C) and, therefore, like PIC 4002 in Plaintiff M47 251 CLR 1, is inconsistent with s 36(1C). In Harrington v Lowe (1996) 190 CLR 311 at 324-325, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said that a regulation-making power “does not authorise the making of regulations which (i) vary or depart from, and thus are inconsistent with [see Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 260] the positive provisions of the Act”. The Act now has a criterion for the grant of a protection visa in s 36(1C)(b) that specifies the circumstances and nature of, first, the convictions and, secondly, the danger to the Australian community that will disqualify a person from eligibility for the grant of a protection visa. The inclusion in cl 785.226(a) of PIC 4001 effects a substantive variation or departure from each of s 36(1C) and s 501, itself. The prescription of the criteria in PIC 4001, as mandatory for every applicant for a protection visa, is inconsistent with the nature of the discretions to refuse to grant or a cancel a visa that s 501 conferred directly on the Minister.

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

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

The outstanding criteria issue

89    As I have explained, cl 785.226(a) is invalid in respect of its prescription of PIC 4001 as a criterion for a protection visa. However, the Minister has not yet assessed the national interest criterion in cl 785.227 and so there is at least a further step to perform before s 65(1) will operate to mandate the grant of or refusal to grant the visa that the applicant seeks.

90    Nevertheless, this conclusion is another reason why the Minister’s decision is invalid independently of my findings on the failure to consider issue. Prima facie, the application for the protection visa must be assessed in accordance only with the mandatory criteria in s 36 and cl 785.227 and the Minister cannot refuse the grant of the visa under s 501(1) or any other provision in Pt 9 of the Act. That is because the Minister has found that the applicant is a refugee having met the criteria in s 36 and is, subject to any relevant application of cl 785.227, entitled to be granted a protection visa in accordance with s 65(1).

Conclusion

91    In all of the circumstances, the Minister’s decision under s 501 must be quashed and the Minister must be required to make a prompt decision on the application for a visa according to law. He must also pay the applicant’s costs.

Associate:

Dated:    24 December 2019