(b) Consideration
61 The criterion in s 36(1C) is both specific and substantively narrower than the discretions created by s 501 and its analogues in Pt 9 of the Act under which the Minister has a variety of discretions to refuse to grant or to cancel a visa of a person who does not satisfy the Minister that he or she passes the character test (as defined in s 501(6)). Hence, the discretionary power to refuse a visa under s 501(1) is unconstrained, except by the subject matter, scope and purpose of the Act, once the person has not satisfied the Minister that he or she passes the character test: cf. Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ. Other provisions, such as s 501(3), create additional criteria that, for example, require the Minister also to be satisfied that the refusal to grant, or the cancellation of, a visa is in the national interest. And, s 501(1), together with its analogues, appear to apply generally as a power exercisable in respect of all categories of visa.
62 In addition, the character test prescribes criteria that could include those amounting to a "particularly serious offence" as defined in s 5M. But the character test also includes much less serious situations. For example, s 501(7)(c) and (d) include within the definition of "substantial criminal record" one or more sentences to a term of, or totalling, 12 months imprisonment or more, and s 501(6)(d)(ii) and (11) refer to a risk of a person harassing or molesting another even though the conduct does not include actual or threatened violence.
63 However, s 36(1C) creates a specific criterion for one class of visa, namely a protection visa, that contains disqualifying grounds. Those grounds in s 36(1C) are much more restrictive than those available under s 501(1) (and its analogues) in the event that a person does not pass, or does not satisfy the Minister that he or she passes, the character test. In particular, s 36(1C) is not a discretionary power. The Minister, relevantly under s 36(1C)(b), must have objectively reasonable grounds to consider that a person, first, has not been convicted of a particularly serious offence and, secondly, is not a danger to the Australian community. In contrast, the aspect of the character test in s 501(6)(d)(v), which the Minister found the applicant had not satisfied him that he (the applicant) passed, cast an onus on the applicant to satisfy the Minister of a negative state of affairs. Yet, s 36(1C)(b) prescribed a mandatory criterion for a protection visa that the applicant here satisfied.
64 In enacting s 36(1C), the Parliament determined, consistently with Art 33(2) of the Refugees Convention, that a person would be eligible to be granted a protection visa if he or she is not a person whom the Minister considers, on reasonable grounds, to be a danger to the Australian community on the premise that the person had been convicted of a particularly serious crime. The criterion in s 36(1C)(b) required the existence of reasonable grounds for the Minister to consider that the person was actually (as opposed to the criterion in s 501(6)(d)(v) of there being a risk that he or she would represent) a danger to the Australian community, and that could occur only in the context of the Minister having reasonable grounds to consider that the person had been convicted of a particularly serious crime.
65 The particular importance of s 36(1C)(b) is that it gives effect to the Parliament's stipulation that a person whom the Minister does not have reasonable grounds to consider had been convicted of a particularly serious crime, was eligible to be granted a protection visa, regardless of the danger he or she may be to the Australian community. The legislative purpose of that stipulation was to ensure that such a person would not be refouled (subject, of course, to other protective criteria in s 36(1B), (1C)(a) and (2)), despite the danger he or she may be to the Australian community, because that person, in those prescribed circumstances, consistently with Art 33(2) of the Refugees Convention, was not to be exposed to the real chance of persecution of which he or she had a well-founded fear.
66 In contrast, s 501(6)(d)(v) provided that a person did not pass the character test if there were a risk that he or she would represent a danger to the, or a segment of the, Australian community. That criterion operated by reference to the existence of a (i.e. any) risk that the person would represent a danger to the whole, or a segment of the, Australian community without any additional qualification of a past conviction or the existence of reasonable grounds to consider the existence of the risk.
67 There would be no intelligible statutory purpose for the mandatory criterion for a grant of a protection visa in s 36(1C), reflecting as it does the Parliament's interpretation of Art 33(2) of the Refugees Convention, if the Minister were free to apply a less stringent criterion under s 501(1) and its analogues, involving his exercising a very broad discretion, to refuse to grant the very same visa: Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.
68 That raises the question whether the Minister can use the general power in s 501(1) or its analogues in Pt 9 of the Act to refuse to grant or to cancel a protection visa, on a basis other than that specifically provided in s 36(1C). Ordinarily, general provisions conferring a power in an Act will not apply to another power that the Act confers that also prescribes the conditions for its exercise. Gavan Duffy CJ and Dixon J held in Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (and see too: David Grant & Co Pty Ltd (receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 276 per Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed at 269):
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
(emphasis added)
69 The Parliament enacted ss 36(1C) and 197C, as part of a suite of measures in the 2014 Amendments, to define Australia's non-refoulement obligations and their limits. Importantly, a person who satisfied the criterion in s 36(1C), together with the other criteria prescribed in s 36 and any relevant regulation, was entitled, as of right, to be granted a protection visa under s 65(1)(a), unless, relevantly, s 501 "prevented" its grant (s 65(1)(a)(iii)). As I explained (in respect of the analogous s 501A) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [82]-[87], s 501(1) does not prevent the grant of a visa within the meaning of s 65(1)(a)(iii); it creates a discretionary power to refuse one in certain defined circumstances.
70 The criteria that s 36(1C)(b) prescribes require the Minister to act on "reasonable grounds" in considering whether a person is a danger to the Australian community, if, and only if, the Minister also considers on reasonable grounds that the person has been convicted by a final judgment of a particularly serious crime. That is, the Minister can only act under s 36(1C)(b) if facts exist which are sufficient to induce a reasonable person in the position of the Minister to consider that the applicant for the protection visa has been so convicted and also is a danger to the Australian community: George v Rockett (1990) 170 CLR 104 at 112 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Liversidge v Anderson [1942] AC 206 at 244-245 per Lord Atkin.
71 Importantly, s 36 does not provide that an applicant for a protection visa who satisfies the criteria in s 36(1B), (1C) and (2) may nevertheless be refused the visa under s 501(1). If that were the intention of the Parliament, then the specific and narrow criteria in s 36(1B) and (1C) that give statutory effect to Australia's non-refoulement obligations would have no useful function since these could be overridden in every protection visa application by the use of the general power in s 501(1), regardless that the different criteria in s 36(1B) and (1C) had been met. And, equally, s 197C could then apply to a person who actually met the criteria in s 36(1B) and (1C) that the Parliament specifically enacted as objective preconditions for the grant of a protection visa, if the Minister were free to use a different power with different and less stringent standards (namely, that in s 501(1) or an analogue) in a manner that would put Australia in breach of its international obligations under Arts 32 and 33(2) of the Refugees Convention.
72 As Heydon and Crennan JJ (with whom Gleeson CJ agreed at 57 [1]) explained in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 611 [144]-[147] (and see too at 591 [66] per Gummow and Hayne JJ), the special powers of the Minister to refuse or cancel a visa in ss 501-503 have existed since 1992 (with different section numbering). They noted that the current structure of the power involving the character test, under which the applicant or visa holder has the onus of satisfying the Minister that he or she passes the character test, first became part of the Act in 1999.
73 Gleeson CJ explained why, in the circumstances there (prior to the 2014 Amendments), s 501(2) and ss 200 and 201 (which gave the Minister power to deport non-citizens who had been in Australia less than a total of 10 years and who had been convicted and sentenced in Australia to imprisonment for not less than one year) created two independent sources of power. He explained the applicable principle of statutory construction thus (228 CLR at 571-572 [2] and see too at 589 [59] per Gummow and Hayne JJ and 615-616 [162]-[167] per Heydon and Crennan JJ):
The contention that ss 200 and 201 give a person in the position of the respondent a protection or immunity from the exercise of the power conferred by s 501 is a statement of a conclusion, rather than an expression of a reason for reaching that conclusion. If there is such a reason, it must be found in a process of statutory construction. The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention [Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130]. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said [Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Livestock Corporation [No 2] (1980) 44 FLR 455 at 468-469] . As explained by Heydon and Crennan JJ, and also by Gummow and Hayne JJ, neither proposition can be made good when regard is had to the legislative history and context.
(emphasis added)
74 In SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577 at 589 [30]-[35], Keane J, with whom French CJ at 581 [1], Hayne, Crennan, Kiefel, Bell and Gageler J agreed at 582 [2]-[6], held that in its form prior to the 2014 Amendments, the Act did not confine Australia's protection obligations to persons who had not been convicted of a "particularly serious crime" (that was an expression then defined in s 91U) for the purposes of the then form of s 36(2)(a) (which set a criterion for a protection visa as being available for grant to a non-citizen to whom the Minister was satisfied Australia owed protection obligations under the Refugees Convention as amended by the 1967 Protocol) (see 251 CLR at 585-586 [21]-[23]). Keane J held (at 589 [30]) that s 36(2)(a) and Art 33 created protection obligations that were not affected by the definition of "particularly serious crime" in s 91U. That is the context in which the Parliament subsequently enacted the 2014 Amendments.
75 There is an overlap between s 501(6)(d)(v) and s 36(1B) and (1C) because each provision deals with considerations of the same kind by reference to security, while other provisions in s 501(6) also direct attention to the considerations with which s 36(1C) deals. An overlap between Arts 32 and 33, on the one hand, and provisions of the character test in s 501(6) existed before the 2014 Amendments, but that overlap operated differently, as each of French CJ, Hayne J and Kiefel J separately explained with reference to Arts 32 and 33(2) (Plaintiff M47 251 CLR at 36-39 [36]-[45] per French CJ, 81-83 [188]-[194] per Hayne J, 160 [423] per Kiefel J, and see too at 149-150 [388]-[390] per Crennan J).
76 Prior to the enactment of the 2014 Amendments, the structure of the Act contemplated that the provisions of the Refugees Convention, and in particular Arts 32 and 33, applied generally in respect of decisions that could result in a person being refouled. Those Articles operated so as to prevent refoulement occurring until a decision had been made as to the application of all of Australia's non-refoulement obligations in respect of that person. Hence, in Plaintiff M47 251 CLR 1, the majority held that there was an overlap between Arts 32 and 33 and s 501(6)(d)(v) but that the latter provision was not inconsistent with Art 33. Kiefel J noted (Plaintiff M47 251 CLR at 161 [431]) that "PIC 4001(a) expresses no more than the requirements of s 501(1)".
77 However, as the Parliamentary materials for the 2014 Amendments made clear, the enactment of s 36(1C) and the related amendments sought to codify Australia's protection obligations and, in tandem with that, s 197C excluded non-refoulement obligations from the class of relevant considerations that could inhibit the duty of an officer under s 198 to remove an unlawful non-citizen as soon as reasonably practicable. The definition of "non-refoulement obligations" that the 2014 Amendments inserted in s 5(1) was substantively wider than that in Arts 32 and 33, and was with the following terms (the reference to "Covenant" being to the International Covenant on Civil and Political Rights):
non-refoulement obligations includes, but is not limited to:
(a) non-refoulement obligations that may arise because Australia is a party to:
(i) the Refugees Convention; or
(ii) the Covenant; or
(iii) the Convention Against Torture; and
(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
78 In Plaintiff M47 251 CLR 1, the majority held that delegated legislation cannot be repugnant to or inconsistent with the Act which confers the power to make it. In that case, their Honours considered another public interest criterion, PIC 4002, that had been inserted into the Migration Regulations by a regulation made under s 31(3) of the Act. There, French CJ, Hayne, Crennan and Kiefel JJ held that cl 866.225 of Sch 2 to the Migration Regulations was invalid to the extent that it had prescribed satisfaction of PIC 4002 as a criterion for the grant of a protection visa (251 CLR at 41-42 [54] and 48 [71] per French CJ, 77 [174]-[176], 79 [180], 91 [212] per Hayne J, 147-148 [381]-[382] per Crennan J, 152-153 [399] and 162-163 [434] per Kiefel J).
79 The Parliament responded to the High Court's decision in Plaintiff M47 251 CLR 1 (that had held PIC 4002 invalid) by enacting s 36(1B) (in item 1 of Sch 3 to the Migration Amendment Act 2014 (Cth) (No. 30 of 2014), which now addresses the issue raised in Art 32 of the Refugees Convention and makes it a criterion for the grant of a protection visa.
80 Relevantly, Pt 9 of the Act itself treats protection visas as a specific class of visa, the refusal or cancellation of which has its own bespoke consequences. In particular, s 501F provides that if the Minister makes a decision under ss 501, 501A, 501B or 501BA to refuse to grant or cancel a visa, then all other visas, and applications for a visa, are taken to have also been refused or cancelled at the same time, except if the other visa, or application, is or is for a protection visa (or other prescribed visa). And, s 500 prescribes when decisions under particular provisions of the Act are or are not reviewable under Pts 5 or 7 in the Administrative Appeals Tribunal. Relevantly, s 500(4) provides:
500 Review of decision
(4) The following decisions are not reviewable under Part 5 or 7:
(a) a decision under section 200 because of circumstances specified in section 201;
(b) a decision under section 501;
(c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on:
(i) subsection 5H(2) or 36(1C); or
(ii) paragraph 36(2C)(a) or (b) of this Act.
(emphasis added)
81 Importantly, s 500(4)(c)(i) (which item 22 of Sch 5 of the 2014 Amendments inserted) refers to a decision to "cancel a protection visa, relying on" ss 5H(2) or 36(1C). However, neither provision expressly creates a power to cancel a protection visa that has been granted. Also, s 411(1)(c)(i) and (d)(i) (that items 19 and 20 inserted) provide that a decision, respectively, to refuse to grant or cancel a protection visa is reviewable in the Tribunal other than a decision that was made (in the case of a refusal) "relying on", or (in the case of a cancellation) "because of", ss 5H(2) or 36(1C). And s 476A(1)(c) only confers original jurisdiction on this Court in relation to a migration decision that is a privative, or purported privative, clause decision made personally by the Minister under ss 501, 501A, 501B, 501BA, 501C or 501CA, but not under, because of, or relying on, the provisions specified in ss 500(4)(a) or (c), namely ss 200, 201, 5H(2), 36(1C) or (2C)(a) or (b) for which presumably the Federal Circuit Court has jurisdiction under s 476(1).
82 The context in which the Parliament enacted the 2014 Amendments suggests that it intended to define what Australia's protection obligations and non-refoulement obligations were and to segregate decisions involving them to applications for, and the holders of, protection visas. Since ss 411(1)(d)(i) and 500(4)(c)(i) expressly provide, respectively, that a visa can be cancelled "because of" or "relying on" ss 5H(2) and 36(1C) and the Act regulates the rights to seek review of such a decision, the Minister had power to cancel an existing protection visa: cf. Plaintiff M47 251 CLR at 83 [193]-[194] per Hayne J, 169 [457] per Kiefel J, 150 [390] per Crennan J (see too at 39-40 [47]-[49] per French CJ) And the Act now does so on a different basis, because even if s 501(6)(d)(v) were able to continue to be seen as based, in part, on Arts 32 or 33 of the Refugees Convention, it is not based on s 36(1C). Nor can s 501(6)(d)(v) operate in harmony with s 36(1C) for the reasons I have given.
83 The construction of ss 5H(2) and 36(1C), as a conferral of power, at which I have arrived is also consistent with the presumptions in s 33(1) and (3) of the Acts Interpretation Act 1901 (Cth), so that each provision is not merely a criterion. Thus, if after being granted a protection visa, a person is convicted of a particularly serious crime, he or she may be liable to a decision under s 36(1C) that his or her visa will be cancelled, since he or she may no longer meet that criterion. So much follows because the Minister must form a state of mind that supports or denies the entitlement to the protection visa, the subject of each of ss 5H(2) and 36(1C) and can do so from time to time, as occasion requires. Kiefel J explained that the construction of the then form of 500(1)(c) (i.e. in its form prior to both the 2014 Amendments and those made in 2011) "recognises that the Minister has the power to refuse a protection visa, inter alia, on the ground that the applicant poses a danger to national security" (see Plaintiff M47 251 CLR at 159-160 [422]). The wording of s 500(1)(c) that her Honour was considering was: "a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely Articles 1F, 32 or 33(2)" (emphasis added). She said (at 169 [457]):
The Migration Act, by s 500(1)(c), provides for a review to be conducted by the AAT of a decision of this kind. This strongly implies that the grounds provided by the three Articles of the Refugees Convention, which may be relied upon by the Minister in refusing to grant a protection visa, are not criteria respecting the grant of a visa under s 65(1)(a)(ii); rather, what is contemplated is that the procedure concerning refusal on these grounds is subject to review by a tribunal chosen for that purpose.
(emphasis added)
84 The position after the 2014 Amendments is substantively different. The 2014 Amendments changed the Act in significant respects in relation to the powers and criteria under which a protection visa may be granted or cancelled. The judicial construction of provisions in the Act given prior to the 2014 Amendments in respect of protection visas, cannot operate as binding on the construction of the Act as it now stands: McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at 661 [40] per McHugh, Gummow and Heydon JJ. First, a decision to refuse (or cancel) a protection visa "relying on" or "because of" ss 5H(2) or 36(1C) is reviewable, by force of s 500(1)(c), in the Tribunal in a contested inter partes hearing, even though such a decision is based on a criterion for the visa not having been met, which otherwise would be a decision reviewable in an inquisitorial process under Pts 5, 7 or 7AA. A decision to refuse a protection visa under s 501 is reviewable as a decision made independently under that section and without overlapping with ss 5H(2) or 36(1C). Secondly, s 36(1B) and (1C) are now criteria that reflect the intent, but not the precise content, of what Arts 32 and 33 of the Refugees Convention provided and how they operated in the scheme of the Act before those amendments.
85 It is important to appreciate that, as the majority in Plaintiff M47 251 CLR 1 held, prior to the 2014 Amendments, the three Articles (1F, 32 and 33) of the Refugees Convention overlapped to some extent with the criteria in the character test in s 501(6) and, in particular, s 501(6)(d)(v), as supporting the Minister's then powers to refuse to grant or cancel a protection visa where the application or holder is a person to whom, but for the presence of the disentitling criteria in one of Arts 1F, 32 or 33, Australia would have owed protection and non-refoulement obligations. However, the 2014 Amendments carefully codified the criteria for a protection visa in ss 35A(6) and 36 in order to divorce other parts of the Act and the Refugees Convention. In my opinion, those criteria deal exhaustively with the criminal history and behaviours of an applicant for (or holder of) a protection visa so as now to exclude the availability or operation of s 501 and its analogues, including the pre-existing s 501H, as a basis to refuse to grant a protection visa: Nystrom 228 CLR at 571-572 [2].
86 I reject the Minister's argument that cl 785.226 validly specified PIC 4001 as a criterion for a protection visa. I am of opinion that PIC 4001 is broader than s 36(1C) and, therefore, like PIC 4002 in Plaintiff M47 251 CLR 1, is inconsistent with s 36(1C). In Harrington v Lowe (1996) 190 CLR 311 at 324-325, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said that a regulation-making power "does not authorise the making of regulations which (i) vary or depart from, and thus are inconsistent with [see Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 260] the positive provisions of the Act". The Act now has a criterion for the grant of a protection visa in s 36(1C)(b) that specifies the circumstances and nature of, first, the convictions and, secondly, the danger to the Australian community that will disqualify a person from eligibility for the grant of a protection visa. The inclusion in cl 785.226(a) of PIC 4001 effects a substantive variation or departure from each of s 36(1C) and s 501, itself. The prescription of the criteria in PIC 4001, as mandatory for every applicant for a protection visa, is inconsistent with the nature of the discretions to refuse to grant or a cancel a visa that s 501 conferred directly on the Minister.
87 I also reject the Minister's argument that the general provisions in s 501, even in light of s 501H, still confer, after the 2014 Amendments, a discretion on the Minister to refuse to grant or cancel a protection visa. As the majority held in Plaintiff M47 251 CLR 1, prior to the 2014 Amendments, s 501 gave power to the Minister that was consistent with Arts 1F, 32 and 33 of the Refugees Convention because those articles were not statutory criteria for the grant of a protection visa. But that position is no longer the case, as I have explained. Now, for the reasons I have given, s 501(6)(d)(v) (and PIC 4001 for that matter) is inconsistent with the specific criteria for a protection visa in s 36(1C).
88 I am of opinion that, since the 2014 Amendments, s 501(1) is not, and is not intended or expressed to be, relevant to determining whether or not a person, in accordance with ss 35A(6) and 36, is entitled to (or may be refused) under s 65(1) a protection visa as a refugee (as now defined in the Act) or to whom Australia otherwise owes protection obligations. Rather, s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to refuse to grant a protection visa: Anthony Hordern 47 CLR at 7; Nystrom 228 CLR at 571-572 [2].