FEDERAL COURT OF AUSTRALIA
BFW20 by his Litigation Representative BFW20A v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562
ORDERS
BFW20 BY HIS LITIGATION REPRESENTATIVE BFW20A Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The questions reserved for consideration be answered as follows:
Question (a)
Since the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189, are the respondents legally permitted to rely on a possible future exercise of power under s 501 of the Migration Act 1958 (Cth) in defence of ground 1 of the amended application?
Answer
No
Question (b)
Should the Court decline to follow the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189 on the basis that it is plainly wrong?
Answer
No
Question (c)
If questions (a) and (b) are decided adversely to the respondents, should a writ of mandamus issue to the Minister?
Answer
Yes
2. A writ of mandamus issue to the Minister requiring the Minister or his delegate to determine according to law the applicant's application for a safe haven enterprise visa made on 23 December 2015 on the basis that s 501(1) does not empower the refusal of the application.
3. There be liberty to the applicant to apply to vary order 2 to provide for a period within which the Minister is required to determine the applicant's application.
4. The matter be otherwise adjourned to a date to be fixed on application by the applicant.
5. There be liberty to apply as to any order for costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLVIN J:
1 The applicant is 28 years of age and has a mental disability of a kind which means that he cannot live independently. He is presently held in immigration detention. A number of years ago, together with his mother, he sought the grant of a protection visa under the terms of the Migration Act 1958 (Cth). His application is still pending. The Minister is presently undertaking a character assessment with a view to considering whether to refuse his visa application.
2 Section 501(1) of the Migration Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test (as specified in s 501(6)). On its face, s 501(1) is expressed to apply generally to all instances where a person seeks the grant of a visa of any kind. Divorced from any further context it might be thought to apply to an application for the grant of a protection visa.
3 However, Parliament's laws are not to be interpreted in a literal way, without regard to their context. As an important expression of the constitutional relationship between the arms of government, the laws of Parliament are to be interpreted by the Courts according to established rules of construction so as to give effect in an objective way to the manifestation of the intention of the legislature through the particular words used: Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [28]. Those rules require the Courts to give statutory language its contextual meaning: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14].
4 On 24 December 2019, Rares J determined that, considered in its context, s 501(1) does not apply to the specific instance where an application is made for a protection visa: BAL19 v Minister for Home Affairs [2019] FCA 2189.
5 The decision in BAL19 had important consequences for the manner in which the Minister was required to deal with the applicant's pending protection visa application. Speaking generally, once this Court declared that s 501(1) did not apply to a protection visa, the Executive in administering the law was bound to give effect to the meaning and proper content of the law of Parliament as so determined: Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16; (2007) 158 FCR 325 at [3] (Allsop J, Stone and Edmonds JJ agreeing). '[A]n essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers': Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ); see also Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 at [39]-[49] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
6 Likewise, the Courts in determining and applying the law, must not assume the exercise of administrative power entrusted to the Executive. So, 'the court needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals': Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 37 (Brennan J).
7 Of course, where a particular decision is considered to have been made in error, the Executive can pursue the matter further in the Courts by taking an appeal in the matter concerned. The Minister did so in respect of the decision in BAL19.
8 Even if the Minister had not brought an appeal, it would still have been open to the Minister, in the course of subsequent administration of the law, to form a bona fide view to the effect that the decision was wrong and then seek to have that view brought before the Courts for adjudication: Urban Consolidation and Development Pty Ltd v Commissioner of State Revenue [2010] VSC 49 at [8] (Pagone J), as approved in Chief Commissioner of State Revenue v Platinum Investments Management Ltd (No 2) [2011] NSWCA 197 at [10]-[11] (Campbell JA, Macfarlan JA, Handley AJA). Any such view would be expected to be formed with appropriate circumspection having regard to the fundamental importance of the separation of powers.
9 The manner in which that may be done, consistently with the proper and separate roles of the Courts and the Executive, and its consequences will depend upon the circumstances. For example, the claim that the contentious decision was wrongly decided could be raised by an application for declaratory relief in the context of ongoing administrative action that required the law to be applied. Such an application may lead to the stating of a question for consideration by an appellate Court. It may involve the application of the inconsistent view in a particular case in the expectation of a challenge to that course. In that event, in some instances, it may be appropriate for funding to be provided for legal representation to an affected party to enable the matter to be tested in the Courts in circumstances where that party would otherwise have the benefit of the law being administered in the terms adjudicated by the contentious decision. But it must involve the Executive actively pursuing steps to have the issue determined by the Courts.
10 What the Executive cannot do is to take the unilateral decision to proceed to administer the relevant law on the basis of some view that it has formed, whether based on legal advice or not, that the decision, though seen to be binding, was wrong. And then, only if and when complaints are raised about the Executive not administering the law according to the determination by the Court, maintain by way of defence that the decision was wrong. The Executive must approach the matter on the basis that it has no authority, outside raising the matter in the Courts, to itself determine that it is appropriate, in administering a law, to depart from the considered interpretation of that law by the Courts.
11 In those circumstances, the reality is that where the Executive forms the view that a particular decision is wrong and seeks to have the issue revisited by the Courts, the judicial consideration of the correctness of the contentious decision cannot be undertaken instantly. As a matter of practicality, in all likelihood, steps will need to be taken in the administration of the law in the meantime. So, pending any further determination by the Courts, it will be necessary for the Executive to consider the appropriate steps to be taken where the contentious decision gives rise to significant consequences for the ongoing administration of the law.
12 Those steps may involve the Executive making a decision or otherwise acting on the basis of a view that the contentious decision is wrong. The taking of that step, on the basis of a bona fide view formed in the context of a pathway or process by which the Courts are to be invited to consider the merits of that position, is not itself unlawful. Indeed, the Courts could not require the Executive to make a decision that conformed to the contentious decision on the basis that it was beyond power for any such decision to be made until the outcome of the appeal was known: Urban Consolidation and Development at [8]. However, that is not to say that the Courts lack the power to review a decision or act made by the Executive contrary to the contentious judicial decision. The Executive can make the relevant decision or undertake the relevant act and seek to justify it before the Courts, but it could not by raising doubt as to the correctness of a judicial determination of the law, thereby deprive the Court of its judicial authority to review the lawfulness of that decision or action until the outcome of the challenge to the contentious decision was known.
13 Further, where the consequences of delay are not undue, it may be appropriate for pending administrative action to be held in abeyance until the challenge to the contentious decision is considered by the Courts. However, those steps would not be justified on the basis that there is power on the part of the Executive, outside judicial scrutiny, to determine what is required as a matter of law pending the outcome of any appeal challenging a contentious decision. Rather, such a course would be permitted because it reflected the Executive's considered assessment as to the procedural processes that the Courts are likely to follow pending the hearing of the appeal, such as by adjourning or deferring the hearing of any challenge to a failure to exercise the power until after the appeal. The distinction is important because it means that the lawfulness of such steps remains a matter for the Courts.
14 So, it is necessary and appropriate for the Executive to consider and form a view as to the steps to be taken during the period of uncertainty pending the further consideration by the Courts of a contentious judicial decision and then implement those steps. To do so is not to ignore the law as interpreted by the Courts. It is to facilitate compliance with the law which itself recognises the ability to challenge the correctness of a particular decision.
15 However, where there is a need for the Executive to make further decisions or take further action pending adjudication by the Courts as to the correctness of the contentious judicial decision then those decisions or action must be taken with due regard to the prospect that the contentious judicial decision may be upheld as correct. The Executive cannot simply proceed as if the view that it is advocating to the effect that an existing judicial decision is wrong will be a view that ought to succeed and then act accordingly. Nor can it proceed on the basis that it is entitled, without scrutiny, to hold matters in abeyance until the outcome of the challenge to the contentious judicial decision is known.
16 Ultimately, the arbiters as to the lawfulness of the interim steps that are appropriate pending a challenge by the Executive to a contentious judicial decision are the Courts. It is commonplace for the Courts to consider the orders that should be made to govern the period of uncertainty that arises before the outcome in a particular case or indeed the outcome of a decision in another case that might have broader consequences. The law as to the approach to be adopted by the Courts in such instances is considerable. The available procedures are many and include the making of orders for an adjournment on terms, the grant of a stay, the grant of an injunction, the consolidation of proceedings, the imposition of a requirement for the provision of undertakings or security, orders for expedition and orders for stated cases or references to Full Courts or to other Courts.
17 So, the position may be summarised as follows:
(1) It is a matter for the Courts to supervise, if required, the lawfulness of steps to be taken during the period of uncertainty until a challenge to a Court decision can be adjudicated.
(2) Even so, the Executive may be expected to form a view as to what is appropriate in the circumstances. If it has brought a bona fide challenge to a particular decision that would otherwise govern the administrative action to be taken, then in that exceptional circumstance it is proper for the Executive to form and give effect to a view as to the action that is appropriate in all the circumstances as an interim measure.
(3) If there is a dispute as to whether that interim measure is appropriate, an interested or affected party is entitled to approach the Courts for an adjudication as to how the law should be applied during the period of uncertainty.
(4) It is for the Courts to determine, in effect, the law that is applicable pending the resolution of the uncertainty. In doing so, the Courts may be expected to have regard, amongst other things, to the manner in which laws as to the validity of administrative action or the re-exercise of powers might apply if the challenge to the contentious decision was subsequently upheld.
(5) There is an important distinction between the procedural steps that the Courts might supervise as to when a decision will be made and what may be appropriate in the interim on the one hand and the ultimate determination on the other. Where the Court proceeds to make a final determination it does so by reference to the law as then applicable not be reference to the law as it may be determined.
18 An instance where there was the prospect of continuing detention that might be particularly harmful to an individual may be reason why the Court does not consider it appropriate, as an interim measure, to allow the matter to be held in abeyance pending the determination of any challenge to a contentious judicial decision. In doing so, the Court will no doubt measure the extent of any likely delay (including the possibility of further appeals).
19 Therefore, if an issue arises concerning the propriety of action being taken by the Executive in the administration of a law that arises because the judicial interpretation of the law is questioned by the Executive, there are at least three relevant inquiries.
20 First, is the Executive actively and properly seeking an adjudication by the Courts to the effect that the existing determination is incorrect? If not, it is the law as determined by the Courts that is to be applied by the Executive. In the unlikely event that the Executive is simply acting unilaterally to give effect to its own view of the law which is contrary to the law as plainly determined by the Courts then that could not be a proper basis upon which the Executive could justify action or inaction taken in disregard of the law as determined by the Courts.
21 Second, if there is an active and proper challenge to an existing determination, is the Executive justified in administering the law on an interim basis in a particular manner (or in keeping matters in abeyance) even though such steps do not involve giving effect to an existing determination? Whether the Executive is so legally justified is a matter for the Courts. However, policy matters remain within the province of the Executive. Therefore, this inquiry may involve scrutiny of the interim measures being taken by the Executive to determine whether, according to the laws and procedures of the Courts, those measures are legally appropriate given the nature of the uncertainty created by the challenge and the consequences that would flow if the challenge was successful. However, in undertaking that task it is not for the Courts to step into the policy arena. The Courts should act upon the Executive's view of matters that fall within the purview of the repository of administrative power.
22 Third, should the Courts require the Executive to give effect to the contentious decision notwithstanding the steps being taken by the Executive to challenge the decision? Whether a Court will do so in a particular instance will depend primarily upon whether the Court is undertaking an interim or final adjudication. If the Court is making a final determination then the Court must determine the lawfulness of the Executive's action on the basis of the law then prevailing. In doing so, issues may arise as to whether a particular decision is binding (and could only be challenged on appeal) or may not be followed because it is plainly wrong (as to which, see below).
23 The foregoing principles are the means by which content is given to the fundamental constitutional principles that the Executive cannot flout the plain application of the meaning of a law as determined by the Courts and the Courts cannot usurp the exercise of the administration of the law as entrusted to the Executive. Their importance manifests keenly where, as here, the law to be applied may have significant consequences for the liberty of individuals.
24 In this instance, we are concerned with what should occur for the applicant pending the challenge by the Minister to the correctness of the decision in BAL19 in circumstances where the Minister does not seek an adjournment of the hearing of the present proceedings or any other procedural orders pending the outcome of those challenges.
Appeals and other proceedings concerning BAL19
25 The Minister has brought an appeal against BAL19. The hearing of the appeal has been adjourned pending the resolution of another matter presently before the Full Court in which the correctness of BAL19 is in issue, presently listed for hearing on 21 May 2020.
26 The appeal listed for 21 May is brought in respect of the decision of Banks-Smith J in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1207. The decision in KDSP concerned the exercise of the power conferred by s 501A to refuse or cancel a visa and in which power had been exercised in respect of a protection visa. The decision was delivered on 5 August 2019, well prior to the decision in BAL19. It appears that the issues addressed in BAL19 have been raised for the first time in the appeal. For both that reason and the fact that the appeal is concerned with s 501A there is the possibility that the appeal may not determine the correctness of BAL19 insofar as it concerns the power conferred by s 501(1) (being the provision that is relevant in the present case). It may be that the correctness of the decision is not ultimately determined until the appeal against the decision in BAL19 which is to be heard at some later date.
27 In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394, Wigney J considered a case in which the Administrative Appeals Tribunal had made a decision by applying BAL19. The Tribunal set aside a decision made by a delegate of the Minister refusing to grant a protection visa in the purported exercise of the power conferred by s 501(1). In the Tribunal, counsel for the Minister, quite properly, accepted that the decision in BAL19 required the Tribunal to set aside the decision, but argued that the Tribunal could not make its own decision granting a protection visa because the only power the subject of the review was the power conferred by s 501(1). The Tribunal concluded that it could substitute a decision granting a protection visa to the applicant and made a decision to that effect. The Minister sought review in the Federal Court and sought expedition. PDWL as respondent sought an order that he be released from immigration detention.
28 The Minister argued that the power to detain PDWL could continue to be exercised on the basis of a genuine belief that the decision of the Tribunal was made without jurisdiction and therefore a nullity. The argument was not accepted and an order was made for the release of PDWL from detention: but see the issues subsequently identified by Anderson J in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 at [70]-[80] as to the jurisdiction to make such an order.
29 In the recent decision in EPU19 v Minister for Home Affairs [2020] FCA 541, there had been a challenge to the purported exercise of the power conferred by s 501 to refuse to grant the applicant a protection visa on the basis that he did not pass the character test. The Minister had, in the course of the proceedings, conceded that the law required the decision under review to be quashed for reasons unrelated to BAL19. An issue then arose as to whether, in light of the decision in BAL19, it was appropriate for the relief consequent upon the Minister's concession to be expressed in terms that required the Minister to grant a protection visa to the applicant (subject only to satisfaction of health criteria). Counsel then appearing for the Minister accepted that the Minister was bound by the decision in BAL19 even though an appeal was pending. The order made by Steward J was in the usual form and directed the Minister to determine the matter according to law (an exercise that would be expected to reflect the basis upon which the order had been made).
30 The matter came back before Steward J on an application in which it was alleged, in effect, that BAL19 was not being given effect in the reconsideration of the application. His Honour declined to find that the Minister had been deliberately delaying the making of a decision to avoid the reach of BAL19: at [44]. However, his Honour did vary the orders to require the Minister to determine whether or not to grant a protection visa in respect of the application according to law on or before 8 May 2020.
31 Finally, there was an attempt before Banks-Smith J to rely upon BAL19 to support an application for injunctive relief in GKQK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 37. However, her Honour found that the decision in issue did not concern an application for a protection visa and therefore BAL19 did not apply.
The present application and the formulation of separate questions
32 In the present instance, the decision in BAL19, if upheld, would mean that the protection visa application should be considered by the Minister on the basis that there was no power conferred by s 501(1) to refuse the application. In that context, it is significant that the applicant was a secondary applicant to an application by his mother for a protection visa. His mother's application was granted in July 2017. Further, in accordance with the policies by which such applications are administered, consideration is not given to the exercise of the presently contentious power to refuse to grant a visa under s 501(1) unless most of the criteria for a protection visa are met by the applicant.
33 Therefore, on the law as adjudicated by BAL19 there is a real prospect that the applicant may be granted a protection visa with the consequence that his immigration detention would come to an end. So much is reflected in the following written submission advanced by the Minister:
To hold that mandamus should go, notwithstanding the prospect of BAL19 being overruled, would substantially undermine the utility of the appeals in which the correctness of BAL19 is being argued. It would mean that even if the Minister succeeds on those appeals he will, in the interim, have been irreversibly forced to act on (what would then be recognised as) a wrong view of the law. The applicant, along with other applicants presently in similar circumstances, will have secured an adventitious victory simply by reason of the particular point in time in which their proceedings fell to be determined.
34 Elsewhere, counsel for the Minister described the eventuality of the grant of a protection visa to the applicant based upon BAL19 in the period pending the adjudication of its correctness as a 'windfall'. The countervailing argument is that if BAL19 is eventually upheld as correct in its finding that the power to refuse to grant a visa under s 501(1) does not apply to an application for a protection visa then it is probable that the applicant will have been held in immigration detention for a considerably longer period than would have been the case had the law been observed.
35 In the present proceedings, the applicant seeks orders requiring the determination of his application for a protection visa and relief on the basis that his detention is not authorised by the Migration Act and has not been for some time. One of the claims he makes is that the decision in BAL19 means he is entitled to relief by way of mandamus to compel the Minister to consider his protection visa application on the basis that the power conferred by s 501(1) does not apply to his application. Other claims will involve a consideration of the detailed history of his application which stretches back to December 2015 which is when his visa application was made.
36 In those circumstances, when the matter was first brought on urgently, the Minister indicated that two weeks would be required before evidence and submissions could be filed on the whole of the applicant's application. There would then need to be an opportunity for the applicant to respond and for all matters to be argued. The issues raised are not without complexity. There is always the possibility that the applicant may need to seek further information concerning past consideration. A delay measured in months appeared likely. The Minister did not seek an adjournment of the matter pending the outcome of appeals to which I have referred or any other procedural order. Rather, the Minister urged that the matter be listed according to a timetable that allowed the matter to be determined finally with due expedition.
37 The applicant pressed for the listing of the matter for hearing within days. To follow that course would mean that the Minister would have to face the application without a proper opportunity to file evidence as to the considerable history of the matter. In the alternative, the applicant pressed for the determination of separate questions which it was submitted could be determined immediately and, if determined favourably to the applicant, would entitle the applicant to the grant of relief that would require his protection visa application to be promptly determined and, if granted, would allow for his relatively prompt release from detention.
38 Taking account of (a) the nature of the particular factual circumstances advanced to support the application (see below); (b) the fact that the issues raised by the part of the application that rests upon the decision in BAL19 are of limited compass; and (c) the consequences for the applicant of further delay (including possible consequences for his personal liberty), I indicated that I would make orders for the proposed questions to be separately determined on an urgent basis. Following conferral between counsel, orders were made for the separate determination of the following questions:
(a) Since the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189, are the respondents legally permitted to rely on a possible future exercise of power under s 501 of the Migration Act 1958 (Cth) in defence of ground 1 of the amended application?
(b) Should the Court decline to follow the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189 on the basis that it is plainly wrong?
(c) If questions (a) and (b) are decided adversely to the respondents, should a writ of mandamus issue to the Minister?
39 The third question was stated based upon the following agreed facts:
(1) Since 24 December 2019, the time taken by the first respondent or his delegate to consider the applicant's visa application is wholly attributable to the consideration by the first respondent or his delegate of whether to exercise power under s 501 of the Migration Act 1958 (Cth) and the process to have the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189 overturned by the Full Court of the Federal Court.
(2) The respondents intend to lead evidence as to the time taken to consider the applicant's visa application from 23 December 2015, which is intended to address matters including:
(a) the reasons that the consideration of the applicant's application has taken the time that it has taken;
(b) the visa criteria that remain outstanding for consideration (including cl 790.227 of sch 2 to the Migration Regulations 1994 (Cth)); and
(c) why the Minister or his delegate has not already considered the outstanding criteria.
40 The purpose of the second fact was to identify that there were additional factual matters that the Minister contended the Court would need to consider before relief by way of mandamus could be granted if questions (a) and (b) were decided adversely to the Minister (and to identify in broad terms the nature of those factual matters).
41 The separate questions reflect the matters raised by the Minister to justify the position adopted by his Department as to its current approach to the visa application of the applicant. Those views were set out in the following letter (dated 7 February 2020) from the office of the Australian Government Solicitor to the lawyers acting for the applicant:
Your letter … has been forwarded to me and I have been instructed to respond on behalf of the Department of Home Affairs.
[The applicant's protection visa application] continues to be processed. As you are aware notice was given that consideration was being given to the application being refused relying on the power in s 501(1) of the Migration Act 1958 (the Act).
The Department is, of course, aware of the judgment in BAL19 and accepts that the reasons would apply to this visa application process as it involves a protection visa as defined in s 35A of the Act. However, that judgment is being appealed and the Department does not accept the correctness of that judgment.
I also draw to your attention that the judgment in BAL19 will be the subject of argument in KDSP…which is listed for a resumed hearing before the Full Court of the Federal Court on 18 March 2020 [since deferred].
Therefore, I am presently instructed that the Department does not confirm that s 501(1) will not be relied on in the present matter at some time in the future.
I further direct your attention to paragraph 89 of the judgment in BAL19. Even if the correctness of that judgment is accepted, Justice Rares recognised that there was at least a further step to perform before s 65(1) would operate and I am instructed that your client is in an identical situation to the applicant in that matter, in that there has been no assessment of cl 785.227.
Therefore, putting aside the issue of whether s 501(1) is available in the present matter, the assertion made at paragraph 5 of your letter that [the applicant] is eligible for the immediate grant of a [protection visa] is not accepted.
42 Clause 785.227 concerns a national interest criterion that must be met by an applicant for a protection visa. There is no indication in the factual material before the Court of any basis upon which such a criterion might lead to the refusal of the grant of a visa to a person in the circumstances of the applicant. In any event, I note that the applicant does not maintain that the appropriate relief is for an order of a kind that would require the grant of a protection visa.
43 The relief originally sought by the applicant if the questions were decided favourably to the applicant's position was a writ of mandamus requiring the Minister or his delegate to determine, forthwith and according to law, the applicant's application for a safe haven enterprise visa made on 23 December 2015 on the basis that s 501 of the Migration Act does not prevent the grant of the visa within the meaning of s 65(1) of that Act. In the course of argument it was accepted that as there were further steps to be taken in the consideration of the application and the issue currently joined concerned the delay occasioned by the Minister's view concerning the application of s 501(1), it was not appropriate for a forthwith order to be made. Instead it was submitted that the order should specify an appropriate period which was said to be 14 days.
Question (a): Does the law permit the Minister to defer consideration of the visa application on the basis of a possible future exercise of power under s 501(1)?
44 For the applicant it was submitted that the authority to keep him in detention was conferred by s 196(1) of the Migration Act which, relevantly for present purposes, required him to be kept in detention until he was granted a visa or removed from Australia. It was submitted that in those circumstances, the Minister was under a duty to determine the visa application as soon as reasonably practicable, relying on the reasoning in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219. It was then submitted that the Minister had failed to determine the protection visa application of the applicant 'as soon as reasonably practicable' because the application was simply put on hold while the appeals concerning BAL19 were pending.
45 Plaintiff S4/2014 concerned a case where the Minister had made inquiries for a period of two years as part of a process of considering whether to lift the bar upon applying for a protection visa that is imposed upon certain applicants by s 46A of the Migration Act. At the end of the process, the Minister's Department concluded that the plaintiff was a refugee. However, the Minister, of his own motion, chose not to make a decision whether to lift the bar and instead granted a form of visa that prevented the plaintiff from applying for a protection visa. It was claimed that the Minister was required to consider whether to lift the bar. The High Court found that the grant of the visa was found to be invalid.
46 The reasoning in the case was concerned principally with the nature of the authority to detain. It was found that the statutory authority to detain was coupled with the statutory obligation to effect removal 'as soon as reasonably practicable': at [23]. Further, detention under and for the purposes of the Act 'is limited by the purposes for which that detention is being effected' and therefore it will always be necessary to identify the purpose for the detention: at [26]. The Court found that the detention was for the complex purpose of determining whether to lift the bar and thereafter (depending on the outcome) either for removal or for processing the permitted application for a protection visa: at [27].
47 By the above steps, the High Court reasoned that because the detention could only be carried out for the purposes identified, 'the purposes must be pursued and carried into effect as soon as reasonably practicable': at [28]. The duration of detention had to be fixed by reference to what is 'both necessary and incidental to the execution of those powers' being the powers for which the person was being detained: at [29]. Departure from the detention purpose could be justified only if the Migration Act were construed as permitting detention at the discretion of the Executive and it was not to be so construed: at [34].
48 However, and significantly, the Court went on to say that '[t]he powers to consider whether to permit the application for, and the grant of, a visa had themselves to be pursued as soon as reasonably practicable': at [35]. It is that statement that the applicant relies upon for its submission that the Minister's consideration of the protection visa application of the applicant was required to be undertaken as soon as reasonably practicable.
49 In the alternative, the applicant in the present case submitted that if the power to consider whether to grant a protection visa to the applicant had to be considered within a reasonable period of time then the failure by the Minister to consider the application while the appeals concerning BAL19 were proceeding was a failure to conform to that requirement. A delay for that reason was not reasonable because it was a failure to give effect to the determination of the Court as to the proper interpretation of the law.
50 The Minister advanced three reasons to support the submission that the Minister was entitled to rely on a possible future exercise of power under s 501(1) despite the decision in BAL19, namely:
(1) The statutory power being administered allowed the Minister to decide the application within a reasonable period of time and that period was to be adjudged having regard to the fact that appeals were pending in which the correctness of BAL19 was challenged.
(2) The Minister was not ignoring BAL19 but rather was not applying it at a time when the appeals were pending.
(3) If the Minister's conduct was not countenanced then the Court would be in the 'invidious position' of having to consider the issue as to the correctness of BAL19 that is presently in issue in the pending appeals.
(1) The alleged nature of the statutory power being administered
51 The power to grant a visa under the Migration Act is to be found in s 65. It provides that the Minister 'is to grant the visa' if after considering a valid application, the Minister is satisfied as to certain matters. Section 65 takes the form of a statutory obligation to grant the visa if each of the components of the conditions to be met are satisfied: Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 at [25].
52 For the Minister, it was submitted that because s 65 does not specify a time within which the requisite state of satisfaction as to each of those components must be formed then the necessary determination by the Minister must be made within a reasonable time, relying on Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 at [37] (Crennan, Bell, Gageler and Keane JJ).
53 The decision in Plaintiff S297/2013 was considered in some detail in ASP15 v Commonwealth of Australia [2016] FCAFC 145; (2016) 248 FCR 372 at [20]-[23] (Robertson, Griffiths and Bromwich JJ). The Minister submitted that it was part of the ratio of ASP15 that Plaintiff S297/2013 led to the conclusion that the Minister's decision was to be made within a reasonable time because no time limit was specified. Further, it was said that ASP15 found that what amounts to reasonable time is ultimately a matter for determination by the Court having regard to the factual circumstances of the particular case which included the fact of the pending appeals in which BAL19 was challenged. Finally it was submitted that the binding aspect of ASP15 required the application of what the Court there described as the 'authoritative' decision in Thornton v Repatriation Commission [1981] FCA 71 at [23]. In Thornton it was said that the relevant inquiry as to whether the reasonable time limit had been exceeded by a particular delay was 'whether there are circumstances which a reasonable man might consider render this delay justified and not capricious'.
54 It was then submitted that it was 'eminently reasonable' for the Minister not to determine the visa application of the applicant pending the outcome of the appeal in KDSP. It was said to be a considered and justified position. In effect the justification advanced was that if the applicant was able to require the Minister to determine his application during the window in which BAL19 applied then he could obtain a potential windfall because his application 'falls to be decided in the brief period of time in which the appeals challenging the correctness of BAL19 are yet to be resolved'.
55 The Minister submitted that Plaintiff S4/2014 was not concerned with the exercise of the Minister's power under s 65 and the decision in ASP15 was binding or alternatively should be applied by a single judge because it was considered dicta of a Full Court.
56 In ASP15 the Court considered appeals in respect of a claim that the Minister had committed the tort of false imprisonment by unlawfully detaining the appellants. They had been detained for a number of years and then granted temporary protection visas and released from prison. By notices of contention in the appeal, the Minister maintained that even if he had failed to consider the protection visa applications within a reasonable period of time or as soon as practicable those matters did not mean that the detention became unlawful: at [15]. In that context, the Full Court considered the time limit that applied for a protection visa decision.
57 The Court referred to the finding in Plaintiff S297/2013 that, by implication, the decision was to be made within a reasonable time: at [20]. The Court distinguished the passage in Plaintiff S4/2014 relied upon by the applicant in these proceedings. It did so on the basis that it was a case where the obligation under s 198(2) of the Migration Act had been triggered because the bar on applying for a protection visa had not been lifted. As s 198(2) required a person to be removed 'as soon as reasonably practicable' because he had not made a valid application for a visa that could be granted while in Australia's migration zone that was said to confine its operation: at [36]-[37]. Therefore, the precise submission advanced by the applicant in these proceedings was considered and rejected.
58 The Court then dealt with the argument on the basis that the statutory obligation was to make a decision in a reasonable time, but found that detention did not become unlawful if that time had been exceeded: at [41]. Therefore, it might be said that the decision does not depend upon which view was correct because ultimately the decision was that if the required standard was not met the detention was thereby rendered unlawful. However, the Minister's submission that it is a considered decision on the issue must be accepted and for that reason I accept that the power requires the decision to be made within a reasonable period of time an obligation to be understood as being explained in the terms expressed in Thornton.
59 Nevertheless, for the following reasons, the Minister's submissions that there has been no breach of that obligation must be rejected.
60 The questions which have been stated are substantive questions. They are not concerned with the interim measures that the Court might accept as appropriate pending the determination of the challenge to BAL19. The Minister does not ask the Court to accept any such interim measures. The Minister did not seek an adjournment or a deferment. Instead, the Minister has pressed for determination of the application on an expedited basis. Therefore, the Court is not concerned with the interim period of uncertainty pending adjudication. Rather, the substantive application falls for determination (at least to the extent of the stated questions).
61 As the time for adjudication has arrived, answers to substantive questions (a) and (b) depend upon the Court's assessment of the law and in particular the correctness of BAL19. If BAL19 is correct then the Minister is not justified in relying on s 501(1), if it is not correct then the Minister is so justified.
62 The sequence of events that have caused the applicant to be pressing for the consideration of his application at this time do not alter the law now to be applied. At this time, that law is determined by whether BAL19 is plainly wrong. The existence of the appeals does not alter the law that is now required to be administered. The reasonableness of delays in the consideration of the protection visa application is not to be adjudged by reference to the Minister's view that the decision in BAL19 is wrong. That is not the state of the law. On a substantive determination of the question (as distinct from a consideration of an appropriate interim position pending any such determination) it is not a matter that could justify the Minister delaying consideration of the application according to law.
63 What the Minister claims is that the statutory power conferred under the Migration Act could itself justify the Minister taking account of the fact that he is challenging the correctness of a decision as to the law that he is administering. That is a misconception because it seeks to construe the powers conferred by the Act as justifying non-observance of the limits of those powers. If the Court adjudges that BAL19 is not plainly wrong and should be applied then it is not reasonable for the Minister to delay adjudication of the protection visa application. The reasonableness of his actions is to be measured by reference to what the law requires him to do.
64 It was open to the Minister to have sought an adjournment of the hearing of the present application pending the outcome of the appeals concerning BAL19. In that instance the law to be applied would be the procedural law and the reasonableness of the Minister's actions in delaying would be assessed on the basis that, as a matter of law, he is entitled to form a view as to the appropriate interim measures to be put in place. In the present case there would have been significant matters to overcome in justifying further delay in making the decision given the circumstances of detention of the applicant (see below). No doubt after having considered that course, the Minister recognised that it was appropriate for this matter to proceed to a final hearing with due expedition such that the outcome might be adjudicated prior to the appeals concerned with the correctness of BAL19. It is agreed that the current delay is solely by reason that the Minister is awaiting the outcome of the appeal of BAL19. The consequence is that the reasonableness of the current delay is to be adjudged according to the Court's substantive determination of whether s 501(1) applies and therefore may be a reasonable basis for delay.
(2) BAL19 allegedly not ignored because of the pending appeals
65 The Minister submits that Indooroopilly recognises the prospect of an appeal challenging a decision. Further, it is said that the decision in Urban Consolidation and Development (as approved in Platinum Investment Management) makes clear that the Executive does not ignore a Court decision by taking steps in administering legislation, in good faith, to challenge the correctness of the decision. The Minister submits, on the basis of those authorities, that pending the outcome of the appellate process the Minister could not be compelled by the exercise of the Court's discretionary power to issue mandamus to make a decision on the protection visa application.
66 The submission reduces to the proposition that while the appeals are pending the Court cannot require the Minister to observe the Court's view of the law. Rather, it is the Minister's view of the law that prevails during the period of uncertainty until the pending appeals are determined. For reasons I have given, that submission should be rejected.
67 The decision in Urban Consolidation and Development does no more than recognise that the Executive can seek to challenge the correctness of a Court decision, including in subsequent proceedings. Further, it can approach the exercise of an administrative power on the basis of a bona fide view as to the law that is contrary to a Court decision if that is done in a context where the Executive is seeking to bring the matter before the Courts in order to challenge the correctness of the decision. However, when the matter does come before the Courts for adjudication, it is entirely a matter for the Courts to determine the lawfulness of what has happened and is happening.
68 In Urban Consolidation and Development, Pagone J was asked to make a declaration that a notice of determination issued by the Commissioner of State Revenue was a nullity because it did not apply a judicial decision. The effect would have been that the Commissioner was required to give effect to the decision in all future assessments and could not, by issuing an assessment on a bona fide and considered view that the judicial decision was wrong, give rise to a justiciable controversy in which the correctness of the decision might be challenged. It is not surprising in those circumstances that Pagone J said, after recognising the circumstances in which it was appropriate for the Executive to seek to dispute the correctness of a judicial decision (at [8]):
The Court should not require the Commissioner, in the exercise of the Court's discretionary powers, to apply a decision which the Commissioner in good faith, and in the exercise of his statutory duties, seeks the Court to overturn on appeal. The law would be brought into disrepute if the executive, acting in good faith, was compelled by the Court's discretionary jurisdiction to apply the law as declared by a judgment which the Commissioner, acting in good faith, seeks dutifully to overturn on appeal.
69 The above views reflect the fact that the declaration sought by the taxpayer would have prevented the Commissioner from exercising the power at all. There would be no means by which the judicial decision could be challenged in the course of the administration of the law. However, that is not to say that once the decision has been made and is before the Courts for final determination, the Commissioner could point to the prospect of some future determination of the point in a pending appeal in other proceedings as a reason why the Commissioner's view of the law should be upheld. Nor does it mean that the Commissioner could simply refuse to make any assessment for so long as that appeal was pending without that position being amenable to scrutiny by the Courts.
70 The fact that the Executive is taking action pending a challenge to the correctness of a particular decision that is being considered in other proceedings may be a reason why the Court may defer determination of a proceeding in which the contentious view of the law arises. That outcome will be achieved using the interim measures at the Court's disposal, such as its power to adjourn or defer the hearing of a particular matter. But where, as here, the Court is hearing the substantive question, it must be determined according to the Court's view of the law. The authorities relied upon do not provide a basis for the Court making a substantive determination affected by the fact that there is an appeal pending. To do so would be to allow the Executive's view that the contentious decision is incorrect to form part of the Court's substantive determination. The second submission should be rejected.
(3) The alleged invidiousness of considering the correctness of BAL19
71 It is not uncommon for the Courts to consider submissions to the effect that a particular decision should not be followed because it is wrongly decided. The Courts have clear principles to deal with the circumstances in which such a course is appropriate (see below). Decisions about such matters can be pursued further on appeal. What would be invidious is if the Minister could deprive the applicant of an ability to approach the Court and question the Minister's approach while the appeals as at the correctness of BAL19 are pending. The substantive rights of the applicant cannot depend upon the existence of a view on the part of the Minister, even a bona fide view, as to whether a particular decision has been wrongly decided.
72 The submission should be rejected as a basis upon which the substantive question whether the Minister should be permitted to apply his view of the BAL19 should be determined. Rather, the substantive question requires a consideration as to whether BAL19 was plainly wrong, being the second question reserved for consideration.
Question (b): Is the decision in BAL19 plainly wrong?
73 The second question raises the application of a further principle that is fundamental to the effective administration of the law, namely one judge should follow the considered decision of another judge unless of the view that the decision is plainly wrong: Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75]; and Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492. Indeed, there is a judicial duty to do so: CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at [49]. It is a duty that arises unless a judge is 'convinced' that the earlier decision is plainly or clearly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135].
74 As was said in Batterham v QSR Limited [2006] HCA 23; (2006) 225 CLR 237 at [73]-[74] (Kirby J):
Comity as between judicial institutions of equivalent status is not merely a formula for courtesy. It has an institutional purpose. Writing of judicial comity in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs, French J observed, in words that I would endorse:
The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges.
To similar effect are the words of Brennan J in this Court in Attorney-General (Cth) v Finch [No 2]. And as McHugh J suggested in Re Tyler; Ex parte Foley, uniformity and regularity in the making of judicial decisions is a matter of great importance to the administration of the law. Absent such an approach, confidence in the administration of justice might dissolve or be impaired.
(footnotes omitted)
75 Speaking in the context of appellate decisions, Allsop P (as the Chief Justice then was) emphasised in Gett v Tabet [2009] NSWCA 76 at [286] 'the need for restraint in departing from previous decisions in order to foster stability and predictability in the law and the administration of justice. It is important in exercising this restraint to establish and maintain a clear standard for the reconsideration involved'. These matters mean that there must be both a strong conviction of error that can be demonstrated by reasoning and a persuasion that notwithstanding the importance of the underlying principles of certainty, stability and predictability it is proper for one judge to depart from an earlier decision: at [283]-[301]. There must be a 'compelling reason': RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526 at [104] (Nettle JA).
The overall reasoning in BAL19
76 At the heart of the reasoning in BAL19 are four matters. First, Parliament has enacted the protection visa provisions of the Migration Act in order to codify and give effect to Australia's obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (Convention).
77 Second, the protection visa provisions have within them provisions that deal with the circumstances in which matters of character may mean that a person is not entitled to a protection visa and those provisions overlap as to their subject matter and terms with the 'character test' that defines the extent of the general power conferred by s 501(1) to refuse or cancel a visa.
78 Third, the circumstances in which matters of character may mean that an applicant fails to satisfy the criteria for a protection visa are considerably narrower than the circumstances in which the character test that applies to s 501(1) may not be satisfied.
79 Fourth, under the protection visa provisions, if a person fails to satisfy the Minister that they meet the relevant character requirements then the person does not meet the criteria to qualify for the grant of a visa (and the application must be refused) whereas, under s 501(1), a failure by a person to satisfy the Minister that they pass the character test enlivens a broad discretion to refuse to grant the visa (and the application may still be granted).
80 Therefore, if the general discretionary power conferred by s 501(1) was to apply to an application for a protection visa then the effect would be that even though a person qualified for a protection visa according to the provisions in the Migration Act that codify the obligations under the Convention, the person could be refused a protection visa in the exercise of the general discretionary power. The result would be a substantial undermining of the protections afforded by the Convention in circumstances where Parliament had manifested a clear intention to give effect to the Convention in the codified form of the protection visa provisions.
81 In those contextual circumstances, by the particular reasoning expressed in BAL19, the general terms of s 501(1) were found not to empower the Minister to refuse to grant a protection visa. Instead, in effect, the general power was to be read down as being subject to the more specific protection visa provisions as to the circumstances in which the grant of a protection visa may be refused.
82 The reasoning in BAL19 concerning s 501(1) extended to what Rares J described as its 'analogues' being other general provisions conferring power on the Minister to refuse a visa or cancel any visa once granted. Those provisions deploy the character test (defined in s 501(6)) in different ways to describe the circumstances in which the power may arise. In particular, the Minister may cancel a visa once granted: s 501(2). There is a provision that confers power to refuse to grant a visa or to cancel a visa in circumstances where the Minister suspects that the person does not pass the character test and the Minister is satisfied that refusal or cancellation is in the national interest: s 501(3). There is also a provision that requires the Minister to cancel a visa if a person does not pass the character test because the person has a substantial criminal record (as defined) or has committed sexually based offences involving a child: s 501(3A). There are other provisions that allow for the Minister to set aside decisions as to visa applications and substitute decisions to refuse to grant a visa or decisions to cancel a visa and provisions that allow the Minister to revoke earlier decisions: s 501A, s 501B, s 501BA, s 501C, s 501CA.
83 Where a protection visa has been granted and subsequent consideration is given to its cancellation, complex issues can arise as to the nature and extent of the powers conferred and whether they can be re-exercised by reference to events the subject of past assessments: Minister for Home Affairs v Brown [2020] FCAFC 21.
84 For present purposes it is not necessary to consider whether the extension of the reasoning to the analogue provisions might be described as plainly wrong provided the conclusion as to s 501(1) is not demonstrated to be plainly wrong (in the sense I have described). The power that the Minister is purporting to consider as a source of statutory authority to refuse to grant a protection visa to the applicant is that expressed in s 501(1).
The protection visa provisions
85 The protection visa provisions contemplate applications for permanent protection visas (s 35A(2)), temporary protection visas (s 35A(3)), safe haven enterprise visas, being a class of temporary visa (s 35A(3A)) and other protection visas as prescribed by regulations (s 35A(4)). The particular criteria for protection visas are specified in s 36. They include a disqualifying criterion that applies if the Minister considers on reasonable grounds that the person is a danger to Australia's security or, having been convicted of a particularly serious crime, is a danger to the Australian community: s 36(1C). For the purposes of the Migration Act, a particularly serious crime includes a 'serious Australian offence' or a 'serious foreign offence': s 5M. Those two terms are themselves defined in some detail but require the offence to involve violence, or to be a serious drug offence, or involve serious damage to property (or, in the case of a serious Australian offence, to be a specified offence committed whilst in immigration detention) and must be punishable in Australia by a term of imprisonment of at least 3 years: s 5.
86 Further, one qualifying criteria for a protection visa is that the Minister has substantial grounds for believing that removal of the person from Australia to a receiving country will cause that person significant harm: s 36(2)(aa). However, that provision is taken not to be satisfied if the person has committed 'a crime against peace, a war crime or a crime against humanity' or 'a serious non-political crime' or is considered by the Minister on reasonable grounds to be, speaking generally, a danger to Australia's security or to the Australian community: s 36(2C).
87 Therefore, the reasoning of Rares J to the effect that the criteria for a protection visa include detailed character provisions is borne out by the legislative provisions.
Overlapping subject matter with the character test referred to in s 501(1)
88 The circumstances in which a person does not pass the character test (which is defined in s 501(6)) also deal with criminality. However, the provision captures a much broader category of criminal conduct. For example, they encompass a person who has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c). Further, the term of imprisonment is to be counted so as to include periods when a person, as a consequence of conviction, is ordered to participate in a residential program for drug rehabilitation or for the mentally unwell: s 501(9). Expressed in those terms it plainly captures criminality that would not qualify as a particularly serious crime.
89 Also, the definition of the circumstances in which a person does not pass the character test includes where the person has been charged with or indicted for the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern: s 501(6)(f). These terms overlap with those used in s 36(2C).
90 Further, as noted by Rares J in BAL19 at [64], in the case of a protection visa, there is a disqualifying criteria that applies where the Minister considers, on reasonable grounds, the person to be a danger to the Australian community in instances where the person has been convicted of a particularly serious crime. Whereas, under s 501(6)(d)(v), a person fails the character test if there is a risk that the person would represent a danger to the Australian community or to a segment of that community by being involved in disruptive activities or violence that threatens harm.
91 Therefore, the circumstances in which a person will fail to pass the character test and thereby enliven the power in s 501(1) to refuse to grant a visa overlap, but do not conform, with the circumstances specified in the criteria for a protection visa.
92 Rares J concluded from a comparison between the terms of the protection visa provisions concerning matters of character on the one hand and the manner in which the character test was expressed in s 501(6) on the other hand that there 'would be no intelligible statutory purpose for the mandatory criterion for a grant of a protection visa in s 36(1C) … 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': at [67].
93 Issue was taken by the Minister with the reasoning that there would be no intelligible basis for the provision. The amendment was said to be responsive to the decision in SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12; (2013) 251 CLR 577 in which the High Court considered the effect of Art 33(2) of the Convention. Article 33(2) qualifies the protection against refoulement afforded to persons seeking refuge in Convention countries by excluding its application to a refugee who has been convicted of a serious crime or constituted a danger to the community of the country expelling or returning the refugee. The High Court construed the provision as not forming part of the test for determining whether a person was someone to whom protection obligations were owed. However, as discussed below, the amendments by which s 36(1C) was introduced were described as having a broader codifying purpose and changes were not confined to the introduction of s 36(1C). Therefore, although other purposes for s 36(1C) might be identified, the broader underlying issue remains as to whether a statutory codification of protection obligations within the statutory provisions dealing with the criteria for protection visas (which included provisions dealing with character) might sit consistently with the availability of a broad discretion of the kind conferred by s 501(1).
94 I note that s 501 was introduced by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). The explanatory memorandum for the Bill that introduced the amendments, presented them as being of general application. There was no indication that they were directed towards any specific instances and in particular no express indication that they were intended to apply to applications for protection visas: see paras 43-58. The second reading speech also described the purpose of the Bill as being 'to ensure that the Government can effectively discharge its fundamental responsibility to prevent the entry and stay in Australia of non-citizens who have a criminal background or have criminal associations'. Again, a description of the provisions as being of general application.
95 However, the Minister submitted that prior to the introduction of s 36(1C) (and other changes made at that time) s 501(1) had been held to apply to protection visa applications. As there was no suggestion that this approach to the interpretation of s 501(1) was to be altered, those authorities should continue to be applied. These matters are addressed below.
Specific and general powers
96 Rares J also referred to established principle to the effect that an explicit statutory provision that prescribes the mode in which a specific power may be exercised operates to exclude general provisions which might otherwise have been relied upon for the exercise of the same power: at [68]. With due respect, there are issues with the application of those authorities as between the provisions that set out the criteria for a protection visa and s 501(1) which confers a discretion to refuse a visa application if the applicant does not pass the character test specified in s 501(6). The difficulty arises because there is no specific power to grant a protection visa. Rather, the source of the power to grant a visa is to be found in the general provision in s 65 which confers upon the Minister the power to grant a visa if the Minister is satisfied as to certain matters there specified. Section 65 is not confined to protection visas.
97 Therefore, s 65 is not aptly described as a source of specific power for protection visas. As a general source of power for the grant of all visas it may be expected that it would operate with s 501 in the same manner for all types of visas. Therefore, the principles identified in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 and subsequent cases may not be germane.
98 However, there remains the principle of statutory construction to the effect that each provision of an enactment is to be construed in a manner that is consistent with the language and purpose of all the provisions of the statute such that they give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[70]. It is that broader principle that underpins the particular instance invoked by Rares J: Plaintiff S4/2014 at [43]. So, there was no error in Rares J considering whether a construction of s 501(1) that would allow its application in the case of a protection visa would be harmonious with the terms of the protection visa provisions. That is especially so when account is taken of the Parliament's stated intention to give effect to the Convention (an instrument which does not allow the refusal of protection to refugees on the basis of the exercise of a discretion that arises if the general language of the character test expressed in s 501(6) applies).
99 The Minister submitted that there was no ambiguity introduced by the statutory language. However, the ambiguity is introduced by the overlap in the subject matter of the protection visa provisions on the one hand (expressing criteria which if met may lead to the Minister being required to issue a visa) and the terms of s 501(1) on the other hand (expressing a broad discretion of a kind that mean that issues as to character that would not be sufficient to cause an applicant not to meet the criteria nevertheless give rise to a discretion to refuse the grant of the visa).
Protection visa provisions as a codification of the Convention
100 Further, consistently with the reasoning of Rares J, the current terms of the protection visa provisions fall to be construed in a context where they were introduced by two pieces of legislation by which Parliament manifested its express intention. First, as to what are commonly known as the 'complementary protection' provisions, they were introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) for the express purpose of conforming the terms of the Migration Act to the requirements of the Convention: SZTAL at [69]-[71] (Edelman J), see also at [1] (Kiefel CJ, Nettle and Gordon JJ). Second, the refugee protection provisions were introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth) (Amendment Act) so as to create 'a new, independent and self-contained statutory framework which articulates Australia's interpretation of its protection obligations under the Refugees Convention': see the explanatory memorandum for the Bill that led to the Amendment Act (EM), para 10. As stated in the EM, it was 'not the intention of the Government to resile from Australia's protection obligations under the Refugees Convention but rather to codify Australia's interpretation of these obligations within certain sections of the Migration Act'.
101 As recently noted by Allsop CJ, construction of the protection visa provisions so as to reflect the commitment to the Refugees Convention conforms to the EM, the second reading speech for the Amendment Act and the established principle expressed by Gleeson CJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [29] to the effect that legislation enacted pursuant to the assumption of international obligations under a treaty or international convention should be construed, in cases of ambiguity, to favour a construction which accords with Australia's obligations: FCS17 v Minister for Home Affairs [2020] FCAFC 68 at [20], see also at [59]-[61] (White and Colvin JJ).
102 As to the protection visa provisions in the Amendment Act, the second reading speech stated that they:
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.
103 Neither the EM nor the second reading speech made reference to any possibility that an application for a protection visa might be refused in the exercise of the power conferred by s 500(1). On the contrary, they referred to the establishment of procedures to fast-track any review process by establishing the Immigration Assessment Authority with a primary function to conduct a review on the papers, only considering material which was before the Minister's Department when it made the refusal decision under section 65 of the Migration Act.
104 The significant point exposed by the reasoning of Rares J is that if the ample discretionary power conferred by s 501(1) could be exercised so as to refuse the grant of a protection visa then such a provision would allow the Minister to refuse to grant a protection visa in circumstances where the applicant met the requirements of the self-contained statutory code that Parliament had enacted for the express purpose of giving effect to the Convention. A separate and further question might arise concerning other provisions in s 501 (and the related provisions that follow) which apply to any holder of a visa. However, those provisions might be expected to operate somewhat differently (assuming they apply to the holder of a protection visa) in circumstances where a person's claim to asylum had been recognised by the grant of a protection visa. Irrespective of the position as to those other provisions (not in issue on the present application) the force behind the overall reasoning of Rares J as to s 501(1) must be acknowledged.
The source of the power to grant a visa
105 As has been noted, although the protection visa provisions circumscribe the criteria to be satisfied by applicants for such visas, the power to grant a visa is conferred by s 65 of the Migration Act. It provides that the Minister after considering a valid application for a visa 'is to grant the visa' 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[.]
106 Of particular significance for present purposes is the requirement that the Minister be satisfied that 'the grant of the visa is not prevented by section … 501 (special power to refuse or cancel)'. Rares J reasoned that the grant of a protection visa is not 'prevented' by s 501 because it creates a discretionary power to refuse in defined circumstances. Reliance was placed upon his Honour's own decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [82]-[87].
107 The decision in CPJ16 concerned a case where the Minister had refused an application for a protection visa by exercising the presently contentious power under s 501(1). On review, the Administrative Appeals Tribunal remitted the application to the Minister for reconsideration with a direction that the application not be refused under s 501(1). The Minister sought an order quashing the Tribunal's decision for jurisdictional error. The applicant sought mandamus compelling the Minister to determine the application in accordance with s 65 with the direction from the Court that the application was not to be refused under s 501(1).
108 By the time of hearing before Rares J, the Minister had commenced a process for the consideration of the exercise of the power conferred by s 501A (a provision pursuant to which the Minister, acting in the national interest, may set aside the Tribunal's decision and refuse to grant the visa). Significantly, s 501A is not referred to in s 65. In those circumstances, the Minister argued that it was a provision that fell within the words 'any other provision of this Act' as used in s 65 and therefore whether it was to be exercised was a factor about which the Minister was to be satisfied before exercising the power conferred by s 65: at [80]. It is to be noted that s 501H(2) provides that a reference in Part 5 to a decision made under s 501 includes a reference to a decision made under s 501A (and other such provisions). However, s 65 is in Part 2. In those circumstances an issue arises as to whether the express reference to s 501 in s 65 might be taken to exclude the application of the other provisions.
109 Nevertheless, in the context of the submission made, Rares J reasoned in CPJ16 that it could not be said that the grant of a visa was 'prevented' by s 501A(2) unless and until the Minister refused to grant the visa, but that prospect was a relevant consideration for the Minister to take into account when exercising his power under s 65 (because the exercise of the power would render any decision to grant futile): at [82].
110 Therefore, it appears that in BAL19, his Honour proceeded on the view that the Minister could not be satisfied for the purposes of s 65 that the grant of a protection visa 'is not prevented' by s 501(1) unless and until that power has been exercised. Such an approach would confine the operation of the reference to s 501(1) in s 65(1)(a)(iii) to those instances where the application had been refused. However, once refused there would be no valid application and therefore no occasion for the exercise of a power under s 65. Therefore, it is a construction that would make the reference to s 501 in s 65(1)(a)(iii) redundant. Accordingly, with great respect, it is a construction the correctness of which may be doubted.
111 Nevertheless, for reasons already given, this aspect of the reasoning in BAL19 is not essential to the conclusion reached concerning the scope, at least, of s 501(1). At its heart, that reasoning identifies a lack of harmony between two matters. First, the specific criteria as to character to be met by an applicant for a protection visa. Second, a general provision which enables an application to be refused on the basis of a different formulation as to matters of character that confers a discretion to refuse the application even though the specific criteria as to character for a protection visa are met. If, on the basis of that disharmony, a conclusion is reached that the general provision in s 501(1) does not apply in the case of a protection visa then the consequence is that s 65 applies on that basis. The result would be that the reference to s 501 in s 65(1)(a)(iii) is to a provision that itself does not apply in the case of a protection visa. Therefore, where the power in s 65 is being considered in relation to a protection visa, there is no prospect that the power in s 501(1) could be exercised so as to prevent the grant of the visa.
112 Such an approach would render harmonious the general power in s 501(1) with the provisions that Parliament intended to give effect to the Convention. It is a construction that it may be reasonable to prefer because, otherwise, s 501(1) would denude the detailed protection visa character criteria of much of their significance because s 501(1) would confer a broad discretion (of a kind not to be found in the Convention) to refuse an application for a protection visa where there was a failure to meet the character test specified in s 501(6).
Section 501H
113 Section 501H provides that a power under s 501 (and certain other provisions) 'to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act … to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person'. Like the provisions to which it refers, s 501H operates as a general provision in respect of all kinds of visa applications. However, it does not enlarge the powers conferred by the provisions to which it refers. So, if an harmonious construction of the protection visa provisions and s 501(1) leads to the conclusion that s 501(1) does not operate so as to, in effect, alter the nature of the character criteria to be met in order to obtain a protection visa (or confer discretionary power to refuse by reason of circumstances that are inconsistent with the character criteria) then s 501H does not manifest an intention that s 501(1) should apply despite such inconsistency. If s 501(1) is read as being subject to the specific provisions that apply to protection visas (and its general terms read down to that extent) then it is that confined operation that is referred to by s 501H.
The significance of the Amendment Act to the Migration Act
114 Rares J recognised that in decisions delivered before the Amending Act, the power conferred by s 501(1) had been considered to apply to applications for protection visas. Even so, the way in which s 65 and s 501 interacted in the case of protection visa applications had not been without difficulty.
115 In SZLDG v Minister for Immigration and Citizenship [2008] FCA 11; (2008) 166 FCR 230, Lindgren J observed at [18]:
In the time that has passed from 5 December 2006 to date, various officers of the Department have been occupied with questions relating to the waiver of the requirement of an Iranian police clearance certificate and to the applicant's character more generally. The Departmental documents in evidence show that there were different views held within the Department concerning the relationship between ss 65 and 501 of the Act, and that there were changes in the administrative arrangements within the Department for dealing with applications that raised overlapping ss 65 and 501 issues.
116 Lindgren J concluded that the power in s 501 could be exercised to refuse to grant a protection visa. His Honour's reasoning was as follows (at [77]-[83]):
It has been held that Art 1F(b) of the Convention is not to be construed under the influence of the character test in s 501(6) of the Act, and that Art 1F is an independent exclusion of the application of the Convention provisions: see Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs [[2002] FCAFC 326;] (2002) 126 FCR 453 at [42] per Merkel J with whom Madgwick and Conti JJ agreed, and at first instance, NADB v Minister for Immigration and Multicultural Affairs [[2002] FCA 200;] (2002) 189 ALR 293 at [46] and [47] per Hely J.
A similar observation may be made in relation to Art 33(2) in respect of its denial of the benefit of Art 33(1) of the Convention.
A s 65 delegate who is not also a s 501(1) delegate is concerned to satisfy himself or herself that Australia has protection obligations to the applicant under the Convention, and is therefore concerned with Art 1F and Art 33(2) (and through them with the relevant provisions of Subdiv AL of Div 3 of Pt 2 of the Act, in particular with ss 91T and 91U of the Act).
A s 65 delegate who is not also a s 501(1) delegate does have the limited role in relation to s 501 referred to in s 65(1)(a)(iii). That role is one of being satisfied that 'the grant of the visa is not prevented by section ... 501 (special power to refuse or cancel)'. Since s 501 does not in terms prevent the grant of a visa, s 65(1)(a)(iii) must be referring to a refusal under s 501(1) (or a cancellation under s 501(2)) by the Minister or by the Minister's delegate. Accordingly, Ms Watson was required to satisfy herself that the grant of a Temporary Protection visa to the applicant was not prevented by a refusal by the Minister or the Minister's s 501(1) delegate.
Section 501H … makes it clear that the power of the Minister or of the Minister's s 501(1) delegate to refuse to grant a visa to a person who does not satisfy the Minister or that delegate, as the case may be, that the person passes the character test, is intended to operate independently of the power given to the Minister or the Minister's s 65 delegate by s 65(1)(b) to refuse to grant a visa because the Minister or that delegate is not satisfied that Australia does not owe an applicant protection obligations under the Convention, such as because of the operation of Art 1F.
…
With respect, it is erroneous to think that the 'protections' of the receiving country found in Arts 1F and 33(2) of the Convention apply to the exclusion of s 501 of the Act. Section 65(1)(a)(iii) expressly requires a s 65 delegate to be satisfied that the grant of a visa is not prevented by a decision to refuse under s 501, and 501H provides, relevantly, that the power to refuse to grant a visa given by s 501(1) is 'in addition to' any other power under the Act to refuse to grant a visa. It follows that a s 65 delegate cannot be satisfied of the matters referred to in s 65(1)(a) where a s 501(1) delegate has refused to grant a visa after not being satisfied that the applicant passes the s 501 character test.
117 Article 1F of the Convention provides:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
118 In interpreting Art 1F it has been held that there is no implication that there must first be a determination as to whether a person is a refugee: Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533. Nor is there any need to balance the protection provisions with the disqualifying provision in Art 1F: Applicant NADB of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 326; (2002) 126 FCR 453 at [41]. Therefore, the commission of a crime of the kind specified in Art 1F is, of itself, a basis upon which protection may be denied to a person seeking asylum. However, the Convention does not specify a basis of the kind that could be said to be reflected in the character test to be found in s 501(6).
119 A separate argument was advanced in Applicant NADB in reliance upon Art 7 of the Convention and the character test in s 501(6). Art 7 provides that a Contracting State shall accord to refugees the same treatment as is accorded to aliens in general. The argument was to the effect that the character test in s 501(6) should have been applied rather than Art 1F in order to afford the applicant the same treatment as other aliens. That argument was not accepted: at [42].
120 Therefore, no aspect of the reasoning in Applicant NADB supported the conclusion reached by Lindgren J which rested solely upon the previous form of the statutory provisions viewed without any consideration of arguments of a kind considered by Rares J.
121 Nevertheless, there is authority to the effect that prior to the Amending Act, the power conferred by s 501(1) might be exercised to refuse an application for a protection visa: Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 at [115] (Lander J, Carr and Sundberg JJ agreeing). However, it was not claimed in that case that s 501(1) did not apply to a protection visa. Rather, the claim made was that there had been reviewable error in the Minister exercising the discretion conferred by s 501 without considering a medical report about the torture suffered by the appellant. In that context, the Court reasoned (at [97]-[118]):
Whilst evidence that the appellant had been tortured in Nigeria would have been relevant to the appellant's application for a protection visa, it was not relevant to the decision made by the Minister as to whether the appellant passed the character test pursuant to s 501.
The real question is whether that evidence was relevant to the exercise of the Minister's discretion.
The Minister's discretion appears to be unfettered. There is nothing in the Act which compels the Minister to have regard or not have regard to any facts or circumstances. Even though the exercise of the power of the Minister is in respect of an application for a particular visa, and only the applicant's history is relevant to the question of the applicant passing the character test, that does not mean that the Minister could not and should not consider other matters personal to the applicant in exercising the Minister's discretion.
It would not be appropriate to attempt to exhaustively indicate what matters might be relevant for the Minister to consider before exercising the statutory discretion.
…
Section 501 is designed to provide a procedure whereby persons who have been granted visas or persons who would otherwise be entitled to the grant of a visa may have that visa cancelled or refused if those persons are undesirable persons to travel to or remain in Australia. Persons will be undesirable if they fail to pass the character test.
…
The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of [a] relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia.
…
The extent of the power and the consequences of its adverse exercise need to be mentioned. There is nothing in s 501 which would preclude the Minister from exercising the power in s 501(1) where the applicant is seeking a protection visa.
If an applicant does not pass the character test and if the Minister exercises his or her discretion adversely to the applicant the consequence is that a person who would otherwise be eligible for the grant of a visa is refused: s 501(1).
The Minister may exercise the power under s 501 to cancel an existing visa even where no application is before the Minister, if the Minister reasonably suspects that the person does not pass the character test and the person in fact does not satisfy the Minister that the person passes the character test: s 501(2).
A decision under s 501 to refuse to grant a person a visa has other effect by force of the Act. It prevents the person applying for a visa, except a protection visa or a visa specified in the regulations, whilst in the migration zone: s 501E. It has the effect of refusing any other application for any other visa, except a protection visa or a visa specified in the regulations: s 501F(2).
Moreover a decision under s 501 to refuse to grant a person a visa cancels any other visa, except a protection visa or a visa specified in the regulations: s 501F(3).
There are no visas specified in the regulations under those sections.
There is a matter about the effect of the exercise of the power in s 501 which should be noted. The power given under s 501(1) can be exercised, apparently, where the applicant is seeking a protection visa. There is nothing in the subsection or the other subsections of s 501 to suggest otherwise. However, if a person who is the holder of a protection visa is applying for a visa other than a protection visa the person's application may be refused but the protection visa will not thereby be automatically cancelled: s 501F(3).
There is nothing in s 501(2) or the other subsections in s 501 that would prevent the Minister exercising the power in that subsection in respect of a person who has been granted a protection visa. In the end result the Minister can exercise the powers in s 501 in respect of a person applying for a protection visa or the holder of a protection visa to refuse the application or cancel the visa. However, that person may still, subject to s 48A, apply for a protection visa: s 501E.
A person who holds a protection visa does not have that visa cancelled unless the Minister exercises the power under s 501(2). Such a person will not have the protection visa cancelled if the Minister exercises the power under s 501(1). Whilst the holders of protection visas are protected to the extent mentioned in s 501F, if an adverse decision is given under s 501(1) on an application for a visa other than protection visas, those who have applied for a protection visa which has been refused but have been granted a Bridging Visa pending the disposal of judicial review applications and appeals from those applications, enjoy no such protection.
Effectively, putting aside those persons who are entitled to a protection visa, an adverse decision under s 501(1) means that the person is left without any visa or any chance of a grant of any visa whilst in the migration zone. The person is liable to be detained (s 189) and liable to be removed from the country: s 198.
In this case, evidence that the appellant had been tortured was a matter relevant to the exercise of the Minister's discretion even if that evidence was not sufficient to support a claim of a well founded fear of persecution which would have made the appellant eligible for a protection visa.
(emphasis added)
122 Three things may be noted. All of the reasoning is obiter and is expressed in a context in which argument of the kind addressed in BAL19 was not considered. Second, at the key point in the reasoning the Court states that the power under s 501(1) can 'apparently' be exercised where the applicant is seeking a protection visa. Third, the reasoning seems to be influenced by a view that a person could still seek a protection visa. Hence the repeated reference to s 501E and the language in the next to last paragraph 'putting aside those persons who are entitled to a protection visa'. In my view, Akpata is not authority for the unqualified proposition that before the Amending Act, s 501(1) had been held to apply to applications for protection visas. In any event, I am not persuaded that it was plainly wrong for Rares J to approach the decision on the basis that the introduction of the Amendment Act as a codification gave rise to different questions.
123 There is an oblique reference in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [44]-[45] (Bromberg, Davies and Mortimer JJ) to the possibility of the discretion in s 501(1) being engaged in respect of a pending application for a protection visa again in a context where the matters considered by Rares J were not in issue.
124 Certain of the passages in Plaintiff M47/2012 reflect a view that, under the terms of the Migration Act before the Amendment Act, s 501(1) applied in the case of an application for a protection visa, a matter referred to by Rares J: at [58]. However, that case turned on the answer to a very different question, namely whether a regulation as to a criterion that had to be met in order to obtain a protection visa was invalid because it was inconsistent with the extent of review available in the Administrative Appeals Tribunal. The criterion was not met if an applicant for a protection visa, though determined to be a refugee, was assessed by ASIO to be a risk to security.
125 Significantly, part of the plaintiff's argument depended upon a claim that s 501 conferred a power to cancel a protection visa. Heydon J summarised the different ways the matter was put by the plaintiff: at [311]-[314]. One possible source of the power to refuse the plaintiff a visa was said to be s 501(1). The plaintiff submitted that there was an aspect of inconsistency between the contentious regulation on the one hand and the right to review an exercise of such power on the other hand that supported the claim that the regulation was invalid. A decision that could be made by ASIO that operated, in effect, to bind the Minister and the Administrative Appeals Tribunal on review, was said to be inconsistent with the Act. Therefore, the parties were not joined as to the matters considered by Rares J because the plaintiff's case was that s 501 applied.
126 Further, some judges gave significance to the manner in which the Convention had been carried into effect at the time. For example, French CJ described the Migration Act as creating a statutory scheme, 'the purpose of which is to give effect to Australia's obligations under the Convention and to provide for cases in which those obligations are limited or qualified': at [65]. Gummow J noted that the 'Convention has not been enacted as a whole or directly into Australian law': at [100]. This became significant for his Honour's reasoning: at [123], [136]. Kiefel J (as the Chief Justice then was) observed that s 500 to s 503 may be viewed as something of a scheme and 'is not limited to decisions concerning protection visas': at [426]-[427]. However, the form of that observation may reflect the nature of the argument by the plaintiff that depended upon those provisions applying to protection visas. In any event, the reasoning was influenced by views as to the extent to which the Convention was carried into effect by the form of the protection visa provisions at the time.
127 Since Plaintiff M47/2012 there have been significant changes to the protection visa provisions effected by the Amendment Act.
128 Other aspects of the reasoning deal with the terms of s 500 which, at the time afforded a right to seek review of decisions 'to refuse or cancel protection visas relying on Articles 1F, 32 or 33(2) of the … Convention'. The terms of s 500 have since been amended and now differentiate between decisions under s 501 and decisions under the protection visa provisions. They deal with rights of review under Part 7 which applies only to protection visa applications. Those contextual references may lend support to a view that the powers conferred by s 501 apply to protection visa applications. These aspects were not considered by Rares J and were not the subject of argument before me.
129 It was not submitted that Plaintiff M47/2012 was binding in any way upon Rares J as to the issues that he decided. Rather, it was submitted that the decision showed that before the changes introduced by the Amendment Act it had been held that s 501 applied to protection visas and there was nothing to indicate that Parliament intended to alter that position by the Amendment Act. Assuming that to be the case, the reasoning of Rares J advances the changes in the law made by the Amendment Act as the basis for the conclusion that a different operation was intended, particularly their intended codifying character. Views may differ as to whether that is a sufficient contextual foundation for the conclusions reached by his Honour. However, to approach the issue as a task that requires contextual construction informed by the extrinsic materials in order to reach an harmonious construction of the provisions in the Act was orthodox. With great respect, for reasons I have given, some aspects of the reasoning may be questioned. But I am not persuaded that the fundamental foundation for those views is plainly wrong.
130 Rares J also reasoned that if s 501(1) and its analogues did not apply to the protection visa provisions because there would be a lack of harmony with a manifest intention to codify the Convention in a manner that was intended to give effect to the Convention then public interest criteria 4001 expressed in the Migration Regulations 1994 (Cth) which concerns passing the character test could not validly apply to the protection visa provisions. If the premise otherwise stands then it has not been demonstrated that such reasoning is plainly wrong.
131 For reasons I have given, it is not necessary to consider the wider aspects of the reasoning by Rares J which extend to the analogues. However, one apparent problem for the reasoning in BAL19 insofar as it applies to the analogue expressed in s 501(3A) is the language used in s 501BA. It provides expressly that the Minister may set aside a decision under s 501(3A) made by a delegate of the Minister or the Administrative Appeals Tribunal and instead cancel a visa if the Minister is satisfied that the person does not pass the character test and cancellation is in the national interest. Section 501BA(5) then provides expressly that such a decision 'is not reviewable under Part 5 or 7'. Part 7 of the Migration Act only applies to decisions in respect of protection visa applications. There is a similar reference in s 501F(5). Therefore, the inclusion of the references to Part 7 in s 501BA(5) and s 501F(5) manifest an intention that a decision may be made by the Minister to cancel a protection visa under that provision.
132 However, for reasons I have given, the reasoning of Rares J in BAL19 insofar as it concerns s 501(1) is not plainly wrong in the requisite sense.
Question (c): Should mandamus issue?
133 For the following reasons, by reason of the answers I have indicated to the first and second questions, the applicant has demonstrated a proper basis for the issue of a writ of mandamus requiring the Minister to determine according to law his application for a protection visa on the basis that s 501(1) does not apply to his application.
134 It was submitted by the Minister that the reasonableness of any time taken by the Minister to consider the protection visa application is a matter that can only be adjudged if all the circumstances since the making of that application are known. However, the question is not whether the overall delay is reasonable or even whether past delay has been reasonable. The question is whether, delay for the purpose of awaiting the appeals concerning the decision in BAL19 is reasonable. Given the answers to questions (a) and (b), the terms of the letter dated 7 February 2020 and the agreed facts set out above, it is apparent that the ongoing deferment of consideration of the protection visa application would not be reasonable because it is a delay which does not conform to the lawful requirements for making the decision. Those requirements as adjudicated by BAL19 do not allow for the exercise of the power conferred by s 501(1). Therefore, to delay for the purpose advanced by the Minister would not conform to the implied requirement concerning the time within which the protection visa application should be considered.
135 It is then claimed that it still falls for the national interest criterion (referred to in the letter) to be considered. It is then submitted that there 'is no material upon which the Court can judge whether, having regard to the existence of this criterion, any steps taken by the Minister with respect to it and any steps taken with respect to it are such that a reasonable time for consideration of the visa application has or has not expired'. Putting to one side any consideration of the propriety of such a submission pregnant as it is with an unfounded implied claim that the national interest criteria might be reasonably considered to apply to a person such as the applicant, the Minister's position has been that both s 501(1) and the national interest criteria are each reasons for the protection visa application not being finally determined. The answers to questions (a) and (b) deal with the first matter. Even assuming that the national interest criteria must be considered, the Minister is not proceeding to do so because of the claims about the incorrectness of BAL19. Those claims having been determined, the basis for mandamus has been established. Its effect will be to require the Minister to promptly address any national interest issue.
136 Further, the purpose of any immigration detention, in this instance pending consideration of the application for a protection visa, has to be carried into effect as soon as reasonably practicable. Therefore, consideration of the application (being a statutory task to be undertaken within a reasonable period of time) must be undertaken as soon as reasonably practicable: Plaintiff S4/2014 at [34]-[35]. Whilst it is reasonable for further time to be taken in the consideration of the application, the statutory purpose of detention continues and may do so even for a very considerable period: Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285. However, that statutory purpose is not currently being carried into effect. The applicant is being detained on the basis of an incorrect view of the law, namely that the Minister can give consideration to the exercise of the power under s 501(1) in respect of the applicant. It is appropriate in those circumstances for the relief sought by way of mandamus to be granted. The grant of that relief will bring the current position in relation to the justification for the ongoing detention to an end.
137 As the relief that I propose to grant will not require the decision to be made within a particular time then the fact that it is agreed that the Minister seeks to adduce further evidence before any such order is made does not stand in the way of mandamus expressed in terms that deal with delay relating to the s 501(1) point.
138 Having regard to the terms of the letter and the position adopted by the Minister on the present application as well as the nature of the alleged factual basis for the claim, I consider it appropriate to make an order adjourning the further hearing of the matter until an appropriate date by which time the Minister will be able to provide an affidavit as to the steps taken to give effect to the order to be made and orders can then be made as to the further conduct of the proceedings. At this stage where the only delay has related to the challenge to BAL19, I do not consider it appropriate for the order to require the Minister to act by a particular date. Rather, the appropriate course, in my view, is for there to be a further hearing at which consideration can be given to whether an order of that kind should be made. I would grant liberty to apply to vary the order to provide for a particular time by which any decision on the protection visa application should be made.
The alleged circumstances supporting the application as a whole
139 The following account reflects matters the subject of the terms of an affidavit filed in support of the application as a whole. There was no objection to the affidavit material on the basis that it was relied upon solely for the purposes of the determination of the separate questions. Therefore, it does not reflect the terms of any findings made for the proceedings generally.
140 The applicant came to Australia from Pakistan. He has an intellectual disability which he has experienced since birth. He speaks only in single words and has an extremely low range of intellectual ability and generally adaptive behaviour compared to those of his age. He has been described as being child-like in his behaviours. He is dependent upon his mother.
141 The applicant's father was murdered by the Taliban and he came to Australia with his mother to seek refuge.
142 The applicant and his mother were required to be kept in immigration detention until they were granted a visa or removed or deported from Australia: s 196. However, the applicant and his mother were made the subject of a residence determination under s 197AB which allowed them to reside at a specified place instead of being held at a place of detention. Nevertheless, the Migration Act continued to apply to the applicant and his mother as if they were being kept in immigration detention at a place of detention: s 197AC.
143 In those circumstances, in the ordinary course, it would have been reasonable to expect that the applicant would have been granted a protection visa when his mother's application for a protection visa was granted in July 2017. However, in the meantime, the applicant was charged with two offences (Charges). One count was a sexual offence and the other was for aggravated assault. He was held in custody. His residence determination was revoked. He was then found to be mentally unfit to stand trial and a declaration was made that he be held under supervision. The limiting term imposed for the purpose of the relevant legislation applying to his supervision was four years.
144 In December 2017, a judge of the District Court of South Australia, after receiving reports as to the mental health of the applicant and submissions from the prosecution and the Minister, made orders for the applicant to be released on licence. The conditions of the licence (Release Conditions) were to the effect that the applicant was to remain in the care of the Minister's Department 'for the duration of his status as an unlawful non-citizen' and during that period was to reside where directed by the Commonwealth and 'shall comply with any treatment and care plan implemented by the place at which [he] resides'. The Release Conditions provide that he also be held under the supervision of a Community Corrections Officer assigned by the Parole Board and that he is to comply with the directions of the parole officer as to non-medical matters.
145 There is a further condition that if the Commonwealth ceases to have custody of the applicant then arrangements are to be made for his transfer to a secure facility. The Release Conditions also confer a discretion on the Director of Forensic Medical Health to transfer the applicant's case management to a local Community Mental Health Team. It is submitted that the Release Conditions would enable the applicant to be released into the care of his mother according to the terms of case management determined by a Community Mental Health Team if he was not held in immigration detention.
146 Pursuant to the Release Conditions the applicant has been held in immigration detention. Reports were provided to the Minister to the effect the detention at the Adelaide Immigration Transit Accommodation (AITA) is unsuitable for the applicant. As a result arrangements were made for the applicant to be accommodated under the terms of a proposal agreed with Minda Inc an established provider of services to people with disabilities. The proposal was for his accommodation within a secure three-bedroom house until relocation to Minda's Brighton site. The proposal detailed the extent of specialist care to be provided.
147 Therefore, since December 2017 the outcome of the Charges has been known and detailed medical reports have been available as to the mental health of the applicant. He remained in residential care with Minda Inc until February 2020 when notification was received that the case could not continue and arrangements for alternative facilities were being investigated. The possibility of that facility being in Melbourne rather than Adelaide (where the applicant's mother resides) was raised by the Department. Since 10 March 2020, the applicant has been detained at AITA.
Conclusion, orders and costs
148 The separate questions should be answered as follows:
(1) Since the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189, are the respondents legally permitted to rely on a possible future exercise of power under s 501 of the Migration Act 1958 (Cth) in defence of ground 1 of the amended application?
Answer: No
(2) Should the Court decline to follow the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189 on the basis that it is plainly wrong?
Answer: No
(3) If questions (a) and (b) are decided adversely to the respondents, should a writ of mandamus issue to the Minister?
Answer: Yes
149 There should be an order that a writ of mandamus issue requiring the Minister or his delegate to consider according to law the applicant's application for a safe haven enterprise visa made on 23 December 2015 on the basis that s 501(1) does not empower the refusal of the application. There should be leave to the applicant to apply to vary the order to fix a date for the making of a decision of the application and the application should be otherwise adjourned to a date to be fixed on application by the applicant.
150 I will reserve liberty to apply as to any order for costs.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin. |
Associate:
