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[2021] FCAFC 9
Federal Court of Australia (Full Court)
2021-02-12
Subdiv AJ, Anastassiou JJ
Original judgment source is linked above.
BACKGROUND 4 The appellant is a Lebanese national who arrived in Australia by boat at Christmas Island on 25 April 2013. 5 On 28 October 2016 the appellant applied for a SHEV. His claims are set out in a statement annexed to his application. In summary, they are: (1) the appellant suffers from a significant physical disability, presumed to be congenital nystagmus (also referred to as idiopathic infantile nystagmus) and from mental illness. He has been under a compulsory treatment plan under the Mental Health Act 2007 (NSW). His ability to recall dates is severely affected by his condition and medication; (2) the appellant left Lebanon because of fighting between Shia (Alawites) and Sunnis. He claimed that, because he was living on the streets, he was exposed to violence and, as a young man from a religious Sunni family, he was under pressure to join the Salafis and Al-Nusra to fight in Tripoli and Syria; (3) the appellant's father was violent, and hit, abused and made fun of him because of his disability. From time to time his mother also abused and made fun of him; (4) his schooling was traumatic, both at primary school and at the Islamic boarding school he subsequently attended where students subjected him to harassment and abuse because of his disability; (5) as a teenager, the appellant could not live at home because of the abuse to which he was subjected and preferred to live on the streets of Tripoli and Beirut. He found work but was not well paid and at times was forced to sleep on the street; (6) at some point in 2011, 2012 or 2013, the appellant was asked to come inside a Sunni mosque and to join the persons present who were discussing weapons and fighting in Syria. The appellant feared that he could be abducted, taken to Syria and never return; (7) in 2013, after meeting a smuggler in a taxi in Tripoli, the appellant obtained a passport and left for Australia; and (8) people in the appellant's village used to say that his father had killed someone in Acre, causing his family to fear retribution. As a person living on the street with a disability, the appellant claims that he is more vulnerable as a target for reprisal. 6 The appellant attended an interview with a delegate of the Minister. On 23 February 2017 the delegate refused to grant the appellant a SHEV. 7 On 1 March 2017 the decision refusing the grant of a SHEV was referred to the Authority for review. 8 On 23 March 2017 the appellant's then representative provided the Authority with a submission of the same date and a number of additional documents described, in the submission, as "evidence in support". Those documents included a letter dated 23 February 2017 from the Department of Immigration and Border Protection (Department) to the appellant's sister, notifying her that a decision had been made to grant her a SHEV (Visa Grant Letter). 9 On 11 April 2017 the Authority affirmed the decision not to grant the appellant a SHEV.
THE AUTHORITY'S DECISION 10 The Authority first addressed the information that was before it. In doing so, it observed that it had regard to the material referred by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act). It then referred, in turn, to the submission referred to in [8] above and each of the documents provided under cover of the submission, and determined in relation to each whether, having regard to the requirements of s 473DD of the Act, it would consider them. 11 Relevantly, in relation to the Visa Grant Letter, the Authority said: A copy of a letter from the Department of Immigration and Border Protection (the Department) advising the [appellant's] sister that she had been granted a protection visa. It was submitted on behalf of the [appellant] that the refusal of his application was inconsistent with the grant of a visa to his sister. The notification letter is dated 23 February 2017, and it does not appear that this information was before the delegate. I am not satisfied that there are exceptional circumstances which justify my consideration of this new information. I have no information about the reasons for which the [appellant's] sister was granted a protection visa, and there is nothing to indicate that her circumstances are in any way similar to those of the [appellant], apart from the assertion of the [appellant's] representative to this effect. I have not considered this information. 12 The Authority also obtained new information, namely a "2010 report by the World Health Organisation (Assessment Instrument for Mental Health Systems)" which, according to the Authority, contained a "factual, evidence based assessment by a reputable international agency of the availability of mental health services in Lebanon". The Authority was satisfied that there were exceptional circumstances justifying its consideration of the report because the question of potential harm faced by the appellant as a result of his mental health issues was raised before the delegate, who referred to independent information which broadly referred to the situation for people with disabilities in Lebanon but did not specifically address people with psychiatric illness. Given the significant differences between the potential risk of harm faced by people with physical disabilities and people with mental illness, the Authority was satisfied that there were exceptional circumstances justifying its consideration of that new information. 13 After setting out the appellant's claims for protection, the Authority then turned to consider whether the appellant was a refugee for the purposes of s 5H(1) of the Act. In doing so, the Authority observed that it was difficult to assess the appellant's credibility because of his mental illness and medication which, it was claimed, impaired his ability to remember dates and details. Because of the appellant's mental illness, the Authority had "taken the most generous possible views of his evidence" but, notwithstanding that, remained "not satisfied as to the factual basis of many of his key claims". 14 The Authority made the following findings: (1) it rejected the appellant's claims that his family in Lebanon was abusive and did not support him. The Authority found, based on the appellant's own evidence, that he had received assistance from his family in finding work and financial support and significant financial assistance from family members for his travel to Australia and that he came to Australia to be with members of his immediate family who live here and with whom he had remained in contact until recently; (2) in relation to the appellant's claims relating to his disability, the Authority found that while there were government failings in Lebanon in relation to support for people with a disability, it was not satisfied that, even if the appellant was affected by those failings, he was thereby subject to serious harm, including a denial of access to basic services threatening his capacity to subsist; (3) the Authority accepted that members of the appellant's family made fun of his disabilities. But, even accepting that the appellant was beaten by his father, in part because of his disabilities, the Authority found that the appellant does not face a real chance of harm from his father now or in the reasonably foreseeable future as his father has left Lebanon. The Authority was otherwise satisfied, given the appellant's ongoing relationships with his family, that any mistreatment or unkindness could not amount to persecution or significant harm now or in the reasonably foreseeable future; (4) the Authority accepted that the appellant attended a boarding school which he disliked and where he was mistreated and that this may have had a lasting and damaging impact on him but noted that those events were now in the past and that, as an adult, he does not face an ongoing risk of serious or significant harm in the context of the education system; (5) the Authority accepted that the appellant may have been restricted in his ability to access employment, because of his disability and possibly his lack of education and skills, and thus may have been subjected to some exploitation but found that the evidence indicated that he was consistently able to find employment and was not denied the capacity to earn a livelihood because of his disability or for any other reason; (6) the Authority accepted that the appellant was subjected to incidents of petty theft but found that the evidence was insufficient to support a conclusion that those incidents were directed to the appellant because of his disability or for any other reason specified in s 5J(1)(a) of the Act as opposed to being incidents of random petty crime; (7) the Authority was not satisfied that there was a real chance that the appellant would face harm as a consequence of Sunni militia seeking to recruit him, even taking into account his vulnerability as a person with a disability; (8) in relation to the claim by the appellant that he was at risk of harm because of conflict in Tripoli between Alawites and Salafists, the Authority found that there was some remote possibility that the appellant would be affected or even harmed in general or targeted sectarian violence if he was to return to Tripoli but that this risk did not rise to the level of a real chance. The Authority was not satisfied that there was a real chance that the appellant would face harm as a result of political or sectarian violence in Tripoli, or violence resulting from general insecurity, even taking into account his disability and that he might spend some time living on the street; (9) the Authority accepted that the appellant was receiving intensive treatment and support in Australia for his mental condition including under a compulsory treatment order, he may not be able to access such high quality and effective treatment in Lebanon and thus his condition may deteriorate. However, the Authority noted that the available evidence did not suggest that the appellant would be unable to access appropriate medical treatment and there was no evidence to suggest that he would be denied treatment or be restricted in his ability to obtain treatment for any of the reasons set out in s 5J(1)(a) of the Act. The Authority was also not satisfied, on the basis of the available information before it, that any involuntary admission of a patient with a condition such as that suffered by the appellant or any consequent treatment would constitute serious harm for the purposes of s 5J(5) of the Act. The Authority did not consider that being involuntarily detained for the purposes of psychiatric treatment, which might otherwise be refused and which might result in greater harm to the appellant or to others, constituted serious harm for the purposes of the Act, even in the absence of a regulating mechanism that complies with recommended best practice; (10) the Authority accepted that the appellant does not believe in Islam and would not practise if he was to return to Lebanon, which also appeared to be the case before he left Lebanon. The Authority noted there was no country information before it to suggest that Sunni Muslims who do not observe their faith face serious harm from any group in Lebanon including Sunni extremist groups; (11) the Authority was not satisfied that the appellant would face a real chance of harm in Lebanon because of inappropriate expression of political or religious views as a result of his mental illness, in particular because of the material he had posted on Facebook which was critical of Islam and of the Lebanese government; and (12) the Authority was not satisfied that there was a real chance that the appellant would face harm because of reprisal based on the claim that his father had killed a man. 15 The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and thus did not meet the requirements of s 36(2)(a) of the Act. 16 The Authority then considered complementary protection but concluded that the appellant did not face a real risk of significant harm on return to Lebanon and therefore did not meet the criterion in s 36(2)(aa) of the Act.
FEDERAL CIRCUIT COURT PROCEEDING 17 The appellant sought judicial review of the Authority's decision in the Federal Circuit Court. In his amended application he raised three grounds of review but only the first ground raised below is relevant to the appeal. By that ground the appellant contended that: The [Authority] misconstrued and misapplied section 473DD of the Migration Act 1958 (Cth) (the Act) in refusing to consider new information provided by the [appellant] in relation to the grant of protection visa to his sister. Particulars (a) The [appellant] provided the [Authority] with evidence that his sister has been a granted protection visa on 23 February 2017. (b) The [Authority] refused to consider that information under s 473DD on the basis that there were no exceptional circumstances to justify the consideration of the new information. The [Authority] stated that there was no information before it regarding the reasons for the grant of the protection visa. (c) It did not proceed to consider, pursuant to s 473DD(b)(i), whether this information was not, and could not have been, provided to the delegate before the relevant decision. Nor did it have regard whether the visa grant information constituted 'credible personal information which was not previously known' within the meaning of s 473DD(b)(ii). 18 In relation to that ground, the primary judge held that, while the Authority had based its decision on a conclusion that s 473DD(a) of the Act was not met, in doing so it had taken into account the matters provided for in s 473DD(b), including whether the information was available prior to the delegate's decision and whether it was information that might have affected the appellant's claims: see BXT17 at [28].
THE APPEAL 19 The further amended notice of appeal raises the following grounds: 1. The [Authority] lacked jurisdiction in respect of the Minister's delegate's decision concerning the appellant because he was not a 'fast track applicant', as defined in s 5(1) of the Act, and the Immigration Assessment Authority only has jurisdiction in respect of such people. 2. The [Authority] failed to apply s 473DD of the Migration Act 1958 (Cth) (the Act) when it found that there were no 'exceptional circumstances' to justify consideration of a very recent decision to grant [the appellant's] younger sister the very same visa that he was denied, in circumstances where it already had information before it that they had very similar protection claims as well as shared parents and a shared home until [the appellant] fled Lebanon; 3. The [Authority] failed to apply the statutory definition of cruel or inhuman treatment or punishment when considering how [the appellant] would be mistreated as a severely mentally ill person if he was homeless in Lebanon by replacing the objective test required by the Act with its own subjective assessment; 4. The [Authority] erred by incorrectly applying the lawful definition of serious harm, including by failing to consider whether prolonged deprivation of liberty by reason of involuntary detention for mental illness was persecution by reason that it was not appropriate and adapted. 20 As we have already observed, grounds 1, 3 and 4 were not raised before the primary judge.
Legal principles - leave to raise a new ground on appeal 21 The principles that govern when the Court will grant leave to rely on a new ground on appeal are settled. 22 In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (VUAX) at [46] a Full Court of this Court (Kiefel, Weinberg and Stone JJ) said that leave to argue a ground of appeal not raised before the primary judge should only be granted "if it is expedient in the interests of justice to do so". Their Honours observed (at [48]) that the Court may grant leave if a point that was not taken below, but which clearly has merit, is advanced and there is no real prejudice to the respondent in permitting it to be agitated. 23 However, as has also been observed, it is generally undesirable to grant leave to raise new grounds on appeal because it makes this Court a de facto court of first instance and renders the proceeding before the primary judge "little more than a preliminary skirmish": see VUAX at [47] quoting Coulton v Holcombe (1986) 162 CLR 1 at 7. As Wigney J observed in SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [31], to permit new grounds to be raised for the first time on appeal, in effect, defeats the statutory scheme in relation to judicial review of decisions of, in this case, the Authority. Parliament has conferred jurisdiction in respect of review applications on the Federal Circuit Court: see s 476A of the Act. Where new grounds are allowed to be advanced on appeal, that jurisdiction is then exercised by this Court. 24 At [48] of VUAX the Full Court noted that an explanation for the failure to raise the ground below is also required. In that regard, the question of whether the appellant was represented below is relevant: see Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at [92].
Ground 1 25 Ground 1 raises a jurisdictional issue. In short, the appellant contends that the Authority did not have jurisdiction to review the delegate's decision because, at the relevant time, he was not a fast track applicant as defined in s 5(1) of the Act. 26 Although this ground was not raised in the Federal Circuit Court, the Minister does not oppose a grant of leave to raise it for the first time on appeal. The hearing proceeded on that basis. In any event, we are satisfied, given the issue it raises and the attitude of the Minister, that leave should be granted to raise ground 1 for the first time on appeal.
Legislative framework 27 Ground 1 turns on whether the appellant is, or was at the time of the delegate's decision, a fast track applicant for the purposes of the Act. The appellant says he was not because he was at the relevant time no longer an unauthorised maritime arrival. Before proceeding further, it is convenient to set out the relevant legislative framework. 28 The term "fast track applicant" is defined in s 5(1) of the Act as: (a) a person: (i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and (ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and (iii) who has made a valid application for a protection visa in accordance with the determination; or (b) a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b). (Note omitted.) 29 The term "unauthorised maritime arrival" is defined in s 5AA of the Act which relevantly provides: (1) For the purposes of this Act, a person is an unauthorised maritime arrival if: (a) the person entered Australia by sea: (i) at an excised offshore place at any time after the excision time for that place; or (ii) at any other place at any time on or after the commencement of this section; and (b) the person became an unlawful non‑citizen because of that entry; and (c) the person is not an excluded maritime arrival. (1A) For the purposes of this Act, a person is also an unauthorised maritime arrival if: (a) the person is born in the migration zone; and (b) a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and (c) the person is not an Australian citizen at the time of birth. Note 1: For who is a parent of a person, see the definition in subsection 5(1) and section 5CA. Note 2: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa. Note 3: A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non-citizens). Note 4: For when a person is an Australian citizen at the time of his or her birth, see section 12 of the Australian Citizenship Act 2007. Note 5: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. (1AA) For the purposes of this Act, a person is also an unauthorised maritime arrival if: (a) the person is born in a regional processing country; and (b) a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and (c) the person is not an Australian citizen at the time of his or her birth. Note 1: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa. Note 2: This Act may apply as mentioned in subsection (1AA) even if either or both parents of the person holds a visa, or is an Australian citizen or a citizen of the regional processing country, at the time of the person's birth. Note 3: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Entered Australia by sea (2) A person entered Australia by sea if: (a) the person entered the migration zone except on an aircraft that landed in the migration zone; or (b) the person entered the migration zone as a result of being found on a ship detained under section 245F (as in force before the commencement of section 69 of the Maritime Powers Act 2013) and being dealt with under paragraph 245F(9)(a) (as in force before that commencement); or (ba) the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or (c) the person entered the migration zone after being rescued at sea. 30 Section 46A of the Act concerns visa applications made by unauthorised maritime arrivals. It relevantly provides: (1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who: (a) is in Australia; and (b) either: (i) is an unlawful non‑citizen; or (ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph. Note: Temporary protection visas are provided for by subsection 35A(3). … (2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination. 31 Section 198AJ concerns reports that the Minister is required to make about unauthorised maritime arrivals. It provides: (1) The Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after the end of a financial year, a report on the following: (a) arrangements made by regional processing countries during the financial year for unauthorised maritime arrivals who make claims for protection under the Refugees Convention as amended by the Refugees Protocol, including arrangements for: (i) assessing those claims in those countries; and (ii) the accommodation, health care and education of those unauthorised maritime arrivals in those countries; (b) the number of those claims assessed in those countries in the financial year; (c) the number of unauthorised maritime arrivals determined in those countries in the financial year to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol. (2) However, a report under this section need deal with a particular regional processing country in accordance with subsection (1) only so far as information provided by the country makes it reasonably practicable for the report to do so. (3) A report under this section must not include: (a) the name of a person who is or was an unauthorised maritime arrival; or (b) any information that may identify such a person; or (c) the name of any other person connected in any way with any person covered by paragraph (a); or (d) any information that may identify that other person.
Appellant's submissions 32 The appellant relied on detailed written submissions, which were supplemented by extensive oral submissions, outlining his approach to the construction of the Act and why he contends that he is not a fast track applicant for the purposes of the Act and thus not subject to the jurisdiction of the Authority. We summarise those submissions below. 33 The appellant submits that the only people in relation to whom the Authority has jurisdiction are those who meet the definition of "fast track applicant" because the Minister can only refer "fast track reviewable decisions" to the Authority which only has power to review such decisions. The appellant contends that, when the definitions of "fast track decision" and "fast track applicant" included in s 5(1) of the Act are read together, the Authority only has jurisdiction in respect of a decision to grant a protection visa to a person who is an unauthorised maritime arrival. If a person is no longer an unauthorised maritime arrival then the Authority has no jurisdiction in respect of that person. 34 The appellant submits that Parliament carefully limited the definition of "fast track applicant" to a person who is an unauthorised maritime arrival and that the tense used must not be overlooked. It is only those who are at the time of the protection visa refusal decision, or perhaps the referral to the Authority, an unauthorised maritime arrival who can be a fast track applicant in respect of whom there is a fast track decision that the Authority has power to review. The consequence of not being a fast track applicant at the relevant time is that the person is entitled to merits review in the Administrative Appeals Tribunal. 35 At the heart of the appellant's argument is the contention that a person can cease to be an unauthorised maritime arrival. The appellant submits that the Act, read as a whole, makes that clear. He relies in particular on two sections of the Act in which he contends that Parliament chose language which makes it plain that "unauthorised maritime arrival" status can come to an end. They are: (1) section 5AA which defines the term "unauthorised maritime arrival". The appellant notes that s 5AA(1A) deems a child of such a person to also be an unauthorised maritime arrival but says that the term used to determine the scope of the deeming effect is revealing. Section 5AA(1A) states that a person is so deemed if, among other things, "a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival". The appellant contends that the phrase "at the time of the person's birth" only carries meaning if the same parent could cease to be an unauthorised maritime arrival while in the migration zone (s 5AA(1A)(a)) and before one parent becomes a citizen (s 5AA(1A)(c)). If not, some of the words chosen by Parliament are redundant. He says that to do such violence to a phrase chosen by Parliament is against basic principles of statutory construction; and (2) section 198AJ which refers to reports concerning unauthorised maritime arrivals taken to a regional processing country which the Act mandates the Minister to table annually. The appellant notes that s 198AJ(3)(a) dictates that such a report must not include the name of a person who is or was an unauthorised maritime arrival and contends that, self-evidently, if a person can be an unauthorised maritime arrival in the past, i.e. "was", that designation must have an end point. The appellant says that it is notable that s 198AJ was introduced into the Act at the same time as the term "unauthorised maritime arrival". 36 The appellant submits that, given the meaning of statutory terms must be determined by reference to the language of the instrument viewed as a whole, citing Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], these provisions make it clear that Parliament intended for the designation "unauthorised maritime arrival" under the Act not to be for all time. 37 The appellant submits that this outcome is consistent with a brief exploration of the consequences of the idea that "unauthorised maritime arrival" status is endless. The appellant relies on the following example, which he describes as "one of the absurd outcomes of the construction previously urged by the Minister" and contrary to the language in s 5AA(1A) and s 198AJ of the Act, to illustrate the consequences he says will follow if the Minister's statutory construction is adopted: … suppose this Appellant, after release from detention, met and formed a relationship with another person on a visa. Suppose that new couple had a child 10 years later. By operation of s 5AA(1A), that child would be an 'unauthorised maritime arrival'. Then suppose that child departs Australia. Fifty years later, he or she returns to Australia on a tourist visa which he or she overstays and, as a result, is detained. On the Minister's previous construction, that adult would then be liable to be promptly removed to a 'regional processing country' by the terms of s 198AD. 38 On the assumption that a person can cease to be an unauthorised maritime arrival, the appellant identifies as the next issue for resolution when a person is "cleansed" of that designation. He contends that while Parliament was not explicit about this, when the Act is looked at as a whole, it is clear. 39 The appellant submits that the inquiry into when "unauthorised maritime arrival" status ends also starts with an analysis of the definition of "unauthorised maritime arrival" and especially s 5AA(1A) which, when read with s 198AJ, reveals the following features of the end point for "unauthorised maritime arrival" status: (1) the end point must be capable of occurring to both the mother and the father of a newborn in Australia because s 5AA(1A)(a) requires that the newborn be born in the migration zone and that section refers to "a parent", not a father. In other words, the end point cannot be when the mother is outside the migration zone (or outside a regional processing country (s 5AA(1AA)); (2) the end point must be an event that, Parliament had in its reasonable contemplation, could happen to either parent between conception and birth i.e. a period of approximately nine months. Otherwise, the section would not refer to "a parent"; and (3) the end point must be a legally significant event, within the purview of Parliament, under the Act which can equally occur in Australia and in a regional processing country. Otherwise, the references to the loss of status in both an Australian (s 5AA) and a regional processing country (s 198AJ) statutory context in the Act would be inexplicable. 40 The appellant submits that, having regard to those features, the only identifiable, legally significant points in time that are common to both Australia and each regional processing country are as follows: (1) death, which the appellant says is a very unlikely candidate for the end point given s 5AA(1A). He says that to read s 5AA(1A) as referring to death would require the presumption that Parliament had meant to remedy against the death of the father between conception and birth. The appellant contends that s 5AA(1AA) does not refer to the father losing "unauthorised maritime arrival" status; it refers to either parent losing that status within the nine month period between conception and birth and, while post-mortem birth by a mother is medically possible, it is a highly unlikely candidate to be the end point in the mind of Parliament; (2) removal, deportation or voluntary departure. The appellant says that this could occur in Australia or any regional processing country but it suffers a similar, but starker, problem in being reconciled with the text of the Act. The appellant contends that the reference to the term "parent", not father, in s 5AA(1A) is irreconcilable with this being the end point. For this to be the intended end point, Parliament would have had to refer only to the father because if the mother was removed, deported or departed, the unborn baby would, by definition, not be born in the migration zone as s 5AA(1A)(a) expressly contemplates; and (3) Australian citizenship for either parent. The appellant says that this is not a candidate for a similarly clear textual reason. He contends that if it was the end point it would deprive s 5AA(1A)(c) of a role in the Act which, when read with note 4 to s 5AA(1A), makes clear that a person born to an Australian citizen is not an unauthorised maritime arrival. The phrase "at the time of the person's birth" has no work to do if citizenship is the end point since that is covered explicitly by para (c). The appellant also notes that this is also not a candidate because a person cannot gain Australian citizenship in a regional processing country. 41 The appellant submits that this leaves one other candidate for a possible end point of the designation "unauthorised maritime arrival", namely gaining lawful status which he says reconciles neatly as an end point with each feature set out at [39] above. He submits that: (1) a person converts at law from being an unlawful non-citizen to a lawful non-citizen under the Act when the person obtains any visa, which can plainly happen to both the mother and the father of a newborn in Australia; (2) the granting of a visa, that is the gaining of "lawful non-citizen" status, is plainly an event that Parliament has in its reasonable contemplation and it could happen to either parent between conception and birth. An object of the Act as a whole is to provide "for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain" (s 4(1)); and (3) becoming lawful is also a legally significant event, within the purview of Parliament, under the Act which can equally occur in Australia and in a regional processing country. He says that s 198AHA governs arrangements made by the Commonwealth with a country undertaking regional processing functions, governs two such arrangements with regional processing countries designated under s 198AB (Nauru and Papua New Guinea), and gives "statutory authority for the executive to give effect to the arrangement made between the Commonwealth and [those countries]. … [by] enacting s 198AHA, the Parliament gave its permission to the executive to implement the arrangements", quoting from a submission made by the Commonwealth in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at [25]. The appellant says that, notably, those two arrangements expressly refer to unauthorised maritime arrivals being made "lawful during their stay" in the relevant country, that is, not necessarily on arrival. He says that by an agreement with Australia contemplated by, and in place at the time of introduction of, s 198AHA of the Act, each unauthorised maritime arrival taken to a regional processing country can gain "lawful" status. He contends that this explains the reference in s 198AJ to a person who "is or was an unauthorised maritime arrival" as, in Australia, the person ceases to be an unauthorised maritime arrival once they are "lawful" under the terms of the arrangement approved under s 198AHA. 42 The appellant submits that the notion that the gaining of "lawful" status brings "unauthorised maritime arrival" status to an end is confirmed by the application of four additional principles: (1) even though a note to a statutory provision cannot govern the meaning of the Act, it is part of the Act and can be instructive in an exercise of statutory construction, especially when it is consistent with the text of the provisions themselves. The appellant contends that in note 3 to s 5AA(1A), which states that "[a] person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non-citizens)", Parliament used the term "even if" in its usual sense, to stress that something will happen despite something else that might prevent it. Put another way, Parliament noted that a newborn retains the "unauthorised maritime arrival" status even though they are also deemed to hold a visa by s 78 of the Act. If the holding of a visa was not otherwise inconsistent with continuing to be an unauthorised maritime arrival, the phrase "even if" would have been misplaced, and note 3 would serve no clear purpose; (2) the only decision of this Court to have substantively considered the question of when "unauthorised maritime arrival" status ends in detail is DBE17 v Commonwealth of Australia [2018] FCA 1307; (2018) 361 ALR 423 (DBE17) in which, in the context of careful consideration of the question of whether "a person [is] fixed for all time with the statutory status of an 'unauthorised maritime arrival'" and after reciting and contemplating s 5AA expressly, the Court concluded at [44] that: In my opinion, the applicant and his parents could not … still fall within the definition of "unlawful maritime arrivals". Rather, they were lawful non-citizens. I do not see how the legislative scheme allows one individual to be, at the same point in time, both an unlawful maritime arrival and a lawful non-citizen. The appellant says that this Court has therefore already concluded that at least while a person holds a current, valid visa that person cannot, at law, be an unauthorised maritime arrival for the purposes of the Act; (3) it is orthodox that an explanatory memorandum is capable of assisting in the ascertainment of the meaning of a statutory term. The defined term "unauthorised maritime arrival" was introduced to replace the related but repealed statutory designation "offshore entry person". When the former largely replaced the latter in the Act, Parliament stated at note 22 of the explanatory memorandum to the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (Cth) that: The definition of offshore entry person is repealed as the definition of unauthorised maritime arrival, which is inserted by item 8 of Schedule 1 to the Bill, maintains the effect of the definition of offshore entry person so that a person who enters Australia by sea at an excised offshore place at any time after the excision time for that place, which may be prior to the commencement of this Act, and who became an unlawful non-citizen because of that entry will continue to have the same consequences under the Act as an offshore entry person. At the time of the introduction of the term "offshore entry person", Parliament explained the effect and "consequences" of that term in its revised explanatory memorandum to the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 (Cth) as follows: 19. The effect of this amendment is that a person is an offshore entry person and will retain the status of an offshore entry person, if the person has, at any time entered Australia at an excised offshore place after the excision time for that excised offshore place and became an unlawful non-citizen because of that entry. 20. This item ensures that an offshore entry person retains that status whenever they are in Australia as an unlawful non-citizen. This includes whether the offshore entry person is also a transitory person or whether or not their most recent entry to Australia was at an excised offshore place. (Original emphasis.) The appellant says that this perfectly reflects the analysis of the text of the Act for which he contends. To the extent there could be said to be ambiguity, Parliament by these explanatory memoranda made its intention clear: "unauthorised maritime arrival" status, like "offshore entry person" status before it, lasted only so long as the person was also an unlawful non-citizen. Accordingly, the Minister's construction that there is no end point to the status is inconsistent with the extrinsic materials; and (4) the appellant's construction is confirmed by application of the principle of legality. What is at stake in this proceeding is, at its core, a process which expressly and by design denied the appellant procedural fairness. If he was not a fast track applicant at the relevant time, he would have had his protection claims assessed by a merits review process which afforded him procedural fairness, a fundamental common law right. The appellant submits that by application of the principle of legality the task of statutory construction must seek out the construction which minimises encroachment upon or avoids unnecessarily diminishing common law rights. Reading the definition of "fast track applicant" and the associated term "unauthorised maritime arrival" in a way which minimises the scope of the group caught by the definitions and therefore the scheme which denies fundamental common law rights in the way he proposes is consistent with the principle of legality. 43 The appellant submits that once it is accepted that Parliament made "unauthorised maritime arrival" status contingent on the person remaining "unlawful", making sense of s 46A of the Act is simple. This is because, given Parliament's otherwise manifest intention that "unauthorised maritime arrival" status ends when a person holds any visa, s 46A(1) must necessarily carry with it the implication of the words "current or former" before the phrase "unauthorised maritime arrival", where "current" refers to s 46A(1)(b)(i) and "former" refers to s 46A(1)(b)(ii). He submits that orthodox principles of statutory construction permit words to be implied to explain the meaning of the legislature's text and that the implied words "current or former" did not need to be added by Parliament into s 46A(1) because Parliament has made the distinction clear through the remainder of the Act. However, implying them clarifies what would otherwise be a contradiction in s 46A with the remainder of the Act. 44 The appellant submits that the text of s 46A comfortably accommodates such an implication. He says that s 46A does not adopt the formulation of the definition of "fast track applicant" in its reference to "unauthorised maritime arrival" and that, unlike that definition, s 46A does not use the phrase "a person who is an unauthorised maritime arrival" but simply says "an unauthorised maritime arrival". He contends that the absence of tense in the reference in s 46A accommodates the implication required to read s 46A in a way that is consistent with the remainder of the Act. 45 The appellant submits that if s 46A and the definition of "fast track applicant" are read together, there is a further textual indication that Parliament understood that the "unauthorised maritime arrival" status was not for all time. In the definition of "fast track applicant", subpara (a)(i) requires that the person "is an unauthorised maritime arrival" and subpara (a)(ii) requires that the person be the subject of a s 46A(2) declaration. The appellant contends that if "unauthorised maritime arrival" status is for all time, the words "is an unauthorised maritime arrival" in the definition have no work to do since that is an inherent part of being subject to a s 46A(2) declaration. If, instead, "is an unauthorised maritime arrival" has work to do, namely as a textual indicator that the status must be contemporaneous, the purpose of the reference to s 46A(2) is to indicate that it is only those covered by s 46A(1)(b)(i) who can be fast track applicants and this confirms that only unlawful non-citizens are fast track applicants. 46 The appellant says that, put another way, in order to give the phrase "a person who is an unauthorised maritime arrival" work to do in the definition of "fast track applicant", it must add something to the inherent elements of being subject to s 46A(2). The only element that qualifier adds is the element of contemporaneity. He says that if "unauthorised maritime arrival" status is endless, one could remove the phrase "who is an unauthorised maritime arrival and" from the definition of "fast track applicant" with no effect. 47 The appellant submits that for the Minister's construction, namely that a person cannot be cleansed of the designation of "unauthorised maritime arrival", to be right at law, a red pen is required to make sense of the Act and its extrinsic materials. In particular, if the designation of "unauthorised maritime arrival" is endless: (1) Parliament's election to include in s 5AA(1A) "at the time of the birth" would have no work to do since a person could not be cleansed of the designation; (2) Parliament's choice of the phrase "is or was an unauthorised maritime arrival" in s 198AJ would be a nonsense since the words "or was" would be redundant or misleading; (3) Parliament's note 3 to s 5AA(1A) would make the phrase "even if" inapt since it would be describing the position of all "unauthorised maritime arrivals"; and (4) Parliament's explanatory memoranda concerning the time limit on the designation of "unauthorised maritime arrival" would have to be ignored. 48 The appellant says that any alternative construction to his own must offer logical answers to the following questions: (1) what is the purpose of the words "at the time of the person's birth" in s 5AA(1A)? (2) what is the purpose of the words "a person who is an unauthorised maritime arrival" in the definition of "fast track applicant" given that only unauthorised maritime arrivals can be subject to a declaration under s 46A, as referred to expressly in the definition of "fast track applicant"? (3) what is meant by the phrase "is or was an unauthorised maritime arrival" in s 198AJ? (4) what is the purpose of the phrase "even if" in note 3 to s 5AA(1A)? (5) what did Parliament mean when it recorded, in an explanatory memorandum, that the relevant status continued only while the person is an unlawful non-citizen? According to the appellant, only a construction that "unauthorised maritime arrival" status ends when the person becomes "lawful" is responsive to all of these questions. 49 The appellant submits that, by contrast to the Minister's position, his position takes account of all of the circumstances in which the legislature made use of the phrase "unauthorised maritime arrival", accords with the explanatory memoranda and the only previous detailed consideration given to this question by this Court, and leads to no obvious absurd outcomes. To the extent it requires tempering the language of the Act, it merely requires three words to be implied, but not written, into one section. 50 As to how the appellant's construction then applies to him, the appellant submits that "unauthorised maritime arrival" is defined in s 5AA of the Act as, broadly, someone who entered Australia by sea without a visa. He entered Australia by sea without a visa on 25 April 2013 but, crucially, he was released from detention on a bridging visa under the Act by 22 July 2016. The appellant contends that it follows that the Minister's own election to exercise his power in s 195A of the Act to make him a lawful non-citizen and to grant him successive bridging visas meant that he was not a "fast track applicant". Had the Minister instead either kept him detained or, more sensibly, granted him a residence determination under s 197AB, he would have retained his "unlawful non-citizen" and "unauthorised maritime arrival" status such that he would have fallen within the definition of "fast track applicant". 51 The appellant submits that Parliament made clear its intention to have unauthorised maritime arrivals dealt with under the fast track process while they were in detention or subject to a residence determination (and therefore still an unlawful non-citizen) by legislating for a fast track process. He says, plainly, it intended that that process be fast, not one that started 3 years, 9 months and 29 days after a person arrived as an unauthorised maritime arrival in Australia, as occurred in his case. A truly fast process is entirely consistent with a person being an unlawful non-citizen for its duration, and even with that person being detained under s 189 for its duration. 52 The appellant submits that of central importance to the resolution of this ground is that: he was granted a bridging visa on 28 October 2016, which is also the date of lodgement of his visa application, which was valid until, at the earliest, 3 April 2017; the decision to refuse to grant a protection visa to him was made on 23 February 2017 i.e. during the currency of the bridging visa; and during the currency of his bridging visa, his case was purportedly referred to the Authority for its consideration. As at either date, he held a current, valid visa and was a lawful non-citizen. It follows that he was not a fast track applicant and the Authority lacked power to review the decision concerning his visa application. 53 As we have already observed, these submissions were supplemented by oral submissions in which the appellant addressed the Court in four areas: first, the applicable principles of statutory construction; secondly, in relation to the sections of the Act which, on their plain meaning and having regard to the four identified principles of statutory construction, the appellant contends support his construction; thirdly, the sources external to the Act which support the appellant's construction; and fourthly, the four reasons why the Minister's construction is inconsistent with the Act. We do not propose to set those submissions out in detail. In effect, they restate the appellant's written submissions set out above.
Consideration 54 The appellant's submissions centre on the question of whether a person who is an unauthorised maritime arrival for the purposes of the Act can cease to be so once issued with a visa. The appellant says that, on a proper construction of the Act, that is so and, once that occurs, the person is "cleansed" of the designation of unauthorised maritime arrival and he or she cannot be a fast track applicant as defined in the Act and subject to the fast track review process in Pt 7AA of the Act. The Minister, unsurprisingly, does not agree and made detailed submissions as to why the appellant's construction of the Act is flawed. 55 We accept the Minister's submissions and, in doing so, prefer his construction of the Act. We set out below why the underlying premise on which the appellant's argument proceeds, that a person ceases to be an unauthorised maritime arrival on the grant of a visa, cannot be sustained, including by reference to the legislative history which led to the introduction of the concept of an unauthorised maritime arrival.
Offshore entry person 56 As the appellant observes, prior to the introduction of the classification of a person as an unauthorised maritime arrival, the Act included the concept of an offshore entry person which was inserted into the Act by the Migration Amendment (Excision from Migration Zone) Amendment Act 2001 (Cth) (Excision from Migration Zone Amendment Act). The amendments made by the Excision from Migration Zone Amendment Act applied to a visa application made after the excision time for the excised offshore place, as those terms were defined. 57 Relevantly, the Excision from Migration Zone Amendment Act introduced the following definitions into s 5(1) of the Act: excised offshore place means any of the following: (a) the Territory of Christmas Island; (b) the Territory of Ashmore and Cartier Islands; (c) the Territory of Cocos (Keeling) Islands; (d) any other external Territory that is prescribed by the regulations for the purposes of this paragraph; (e) any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph; (f) an Australian sea installation; (g) an Australian resources installation. excision time, for an excised offshore place, means: (a) for the Territory of Christmas Island - 2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or (b) for the Territory of Ashmore and Cartier Islands - 2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or (c) for the Territory of Cocos (Keeling) Islands - 12 noon on 17 September 2001 by legal time in the Australian Capital Territory; or (d) for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place - the time when the regulations commence; or (e) for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place - the time when the regulations commence; or (f) for an Australian sea installation - the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001; or (g) for an Australian resources installation - the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001. offshore entry person means a person who: (a) entered Australia at an excised offshore place after the excision time for that offshore place; and (b) became an unlawful non‑citizen because of that entry. 58 As a consequence of these amendments a person became an unlawful non-citizen upon entering Australia at one of the excised offshore places after the relevant excision time because at the time of entry into the migration zone he or she was not a lawful non-citizen i.e. did not hold a valid visa: see s 13 and s 14 of the Act. 59 The Excision from Migration Zone Amendment Act also inserted s 46A into the Act which at the time relevantly provided: (1) An application for a visa is not a valid application if it is made by an offshore entry person who: (a) is in Australia; and (b) is an unlawful non‑citizen. The effect of the introduction of s 46A was that an application for a visa made by an offshore entry person at the time when that person was in Australia and was an unlawful non-citizen was not valid. Inferentially, it was possible that a person could be an offshore entry person and a lawful non-citizen or an offshore entry person who was outside Australia. In either case, s 46A would not apply to that person. 60 At the same time as the enactment of the Excision from Migration Zone Amendment Act, the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) was enacted by which, among other things, the Act was amended to include: (1) section 198A which permitted an officer, as defined in s 5(1) of the Act, to take an offshore entry person from Australia to a country in respect of which a declaration was in force under s 198A(3); and (2) section 494AA which prevented the commencement or continuation of certain types of proceedings against the Commonwealth, namely (see s 494AA(1)): (a) proceedings relating to an offshore entry by an offshore entry person; (b) proceedings relating to the status of an offshore entry person as an unlawful non‑citizen during any part of the ineligibility period; (c) proceedings relating to the lawfulness of the detention of an offshore entry person during the ineligibility period, being a detention based on the status of the person as an unlawful non‑citizen; (d) proceedings relating to the exercise of powers under section 198A. For the purposes of s 494AA, "ineligibility period" was defined to mean "the period from the time of the offshore entry until the time when the person next ceases to be an unlawful non-citizen": s 494AA(4). In other words, the bar on commencement or continuation of a proceeding of the type specified in s 494AA(1)(a) and (c) operated until the person ceased to be an unlawful non-citizen, as opposed to the time at which he or she ceased to be an offshore entry person. A person could cease to be an unlawful non-citizen when, for example, he or she was removed to a third country in accordance with the newly introduced s 198A. 61 That the designation of offshore entry person did not cease upon removal from Australia was illustrated in P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1029. In that case, the plaintiff had come to Australia unlawfully in 2001 and was subsequently removed to Nauru. He was returned to Western Australia by the Department of Immigration, Multicultural and Indigenous Affairs for the purpose of giving evidence in a coronial inquest. Following his return, the plaintiff required medical treatment which was scheduled to take place on 30 September 2003. An injunction which had been granted before the plaintiff turned 18, and thus while he was still a minor, restraining his removal until the hearing and determination of a proceeding commenced by him in the High Court of Australia or until he turned 18 had, upon him turning 18, expired. The plaintiff thus sought interlocutory relief restraining the Minister from removing him to Nauru, an order in the nature of habeas corpus releasing him from detention and, alternatively, an order maintaining his present conditions of detention. That application was dismissed. 62 In the context of considering the application and, in particular, whether the plaintiff should remain in Australia for the purpose of pursuing legal proceedings, French J (as his Honour then was) observed (at [51]) that even if the plaintiff was not a transitory person as defined, he was an unlawful non-citizen and an offshore entry person. That is, his designation as an offshore entry person did not cease upon his removal to Nauru and upon return to Australia the plaintiff, who was still designated as an offshore entry person, once again became an unlawful non-citizen.
Transitory person 63 By the Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth) (Transitional Movement Act), the Act was amended to insert a definition of a "transitory person" in s 5(1). A "transitory person" was, among others, "an offshore entry person who was taken to another country under section 198A" but excluded "a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol". By that definition it is apparent that, even after being taken to another country, the person retained his or her designation as an offshore entry person. By the Transitional Movement Act, the Act was also amended to include: (1) section 46B which provides that a visa application is not valid if it is made by a transitory person who is in Australia and is an unlawful non-citizen; and (2) section 198B which permits an officer to bring a transitory person to Australia from a country or place outside Australia for a temporary purpose. Relatedly, s 198 was amended to include a requirement that the person be removed as soon as reasonably practicable after he or she no longer needs to be in Australia for that temporary purpose.
Other amendments to the Act 64 The next relevant amendment was made by the Migration Amendment (Detention Arrangements) Act 2005 (Cth) by which, among other things, s 195A was inserted into the Act. That section empowers the Minister to grant a visa "of a particular class" to a person in detention under s 189 of the Act if the Minister thinks it is in the public interest to do so although the Minister is not under any duty to consider whether to exercise that power, whether requested to do so by any person or in any other circumstances. Nothing in s 195A suggests that, upon the grant of a visa by the Minister to a person in detention, that person, if he or she is an offshore entry person, loses that designation. 65 The operation of s 195A was illustrated in Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 (M79). The plaintiff had arrived at Christmas Island by boat in February 2010 without a visa. He was an unlawful non-citizen, classified as an offshore entry person and prevented from making a valid application for a visa by s 46A(1) of the Act. As an unlawful non-citizen, the plaintiff was held in detention from the time of his arrival in Australia pursuant to s 189 of the Act. On 12 April 2012 the plaintiff was released upon the exercise by the Minister of his power under s 195A of the Act. The Minister granted the plaintiff a temporary safe haven visa, a class of visa created by s 37A(1) of the Act which permitted a stay for seven days, and a bridging E visa. The plaintiff sought a declaration that the Minister's decision to grant him a temporary safe haven visa was made without power or, alternatively, was made for an improper purpose. One of the questions for determination by the High Court was whether the plaintiff was validly granted the temporary safe haven visa. 66 At [12] a majority of the High Court (French CJ, Crennan and Bell JJ) explained the effect of granting the temporary safe haven visa and the bridging visa as follows: The grantees of the temporary safe haven visas and bridging E visas who were subject to refugee status assessment and independent merits review processes which were incomplete were intended to remain subject to those processes. The original end point of the incomplete assessment and review process no longer applied. That end point would have been a decision by the Minister whether or not to consider, under s 46A(2), lifting the bar to a valid application for a protection visa. It no longer applied because the grantees of the visas ceased to be unlawful non-citizens. However, the grant of the temporary safe haven visas engaged a new bar imposed by s 91K, which prevents the holder of such a visa, or a former holder who had not left Australia since the visa expired, from making a valid application for any other visa. That bar, like the bar created by s 46A(1), can be lifted. Section 91L confers upon the Minister a power, if he thinks it in the public interest to do so, to determine by written notice given to a particular non-citizen that s 91K does not apply to an application for a visa made within a seven-day period from when the notice is given. (Footnote omitted.) 67 At [24] their Honours said: Section 37A is to be read in conjunction with subdiv AJ of Div 3 of Pt 2 of the Act, which comprises ss 91H-91L. The operation of those provisions, barring the holders of temporary safe haven visas or former holders still in Australia from making a valid application for another visa, and the Minister's non-compellable power to lift that bar, have already been discussed. The purpose of the subdivision, stated in s 91H, is to impose the bar. 68 That is, as the Minister submits, the decision in M79 illustrates that an offshore entry person could be released from detention while still being subject to a bar. While the plaintiff, who was an offshore entry person, held a bridging visa, the bar in s 46A did not apply to him because at that time he was not an unlawful non-citizen. However, the bar in s 91K of the Act then took effect. 69 By the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) (Regional Processing Amendment Act), which provided for the power to take offshore entry persons from Australia to a regional processing country, the words "has, at any time," were inserted before the word "entered" in para (a) of the definition of "offshore entry person" in s 5(1) of the Act so that an offshore entry person was a person who: (a) has, at any time, entered Australia at an exercised offshore place after excision time for that offshore place; (b) became an unlawful noncitizen because of that entry. (Emphasis added.) 70 The revised explanatory memorandum to the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 (Cth) includes notes 19 and 20 set out at [42(3)] above in relation to the amendment to the definition of "offshore entry person" on which the appellant places reliance. But it is difficult to see how this part of the explanatory memorandum assists the interpretation contended for by him. Note 19 explains that the effect of the amendment to the definition of "offshore entry person" is that a person is an offshore entry person and will retain that classification if he or she has at any time entered Australia at an excised offshore place after the relevant excision time and became an unlawful non-citizen because of that entry. Note 20 emphasises the fact that the amendment ensures that a person remains an offshore entry person whenever in Australia as an unlawful non-citizen. That is so notwithstanding that the offshore entry person may also be a transitory person or whether or not they most recently entered Australia at an excised offshore place. 71 The Regional Processing Amendment Act also amended the definition of "transitory person" in s 5(1) of the Act to include the word "repealed" before the word "section" in para (a) of the definition and to add a new para (aa) so that "transitory person" meant at that time, among other things: (a) an offshore entry person who was taken to another country under repealed section 198A; or (aa) an offshore entry person who was taken to a regional processing country under section 198AD; or (Emphasis added.) 72 The final matter to note in relation to the Regional Processing Amendment Act is that it effected the repeal of s 198A and inserted s 198AD into the Act. Section 198AD expressly applied, subject to ss 198AE, 198AF and 198AG, to an offshore entry person detained under s 189 and provided that an officer must, as soon as reasonably practicable, take an offshore entry person to whom the section applies from Australia to a regional processing country. Section 198AD(4) contemplates that an offshore person may be returned to Australia. It provides: (4) If, in the course of taking an offshore entry person to a regional processing country, an officer considers that it is necessary to return the person to Australia: (a) subsection (3) applies until the person is returned to Australia; and (b) section 42 does not apply in relation to the person's return to Australia. 73 The appellant's argument that a person is no longer an offshore entry person once he or she ceases to be an unlawful non-citizen is inconsistent with s 198AD of the Act. That s 198AD permits an offshore entry person to be returned to Australia if an officer considers it necessary to do so supports a contrary construction, namely that a person does not lose the classification of offshore entry person when removed from Australia. Rather, upon removal from Australia their status changes from being an unlawful non-citizen to a non-citizen.
Unauthorised maritime arrival 74 The Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) (UMA Amendment Act) removed the definition and reference to "offshore entry person" from the Act and introduced the definition of "unauthorised maritime arrival" by inserting s 5AA into the Act. It was common ground between the parties that the concept of an unauthorised maritime arrival was intended to maintain the same function as that of an offshore entry person. That that is so is borne out by the amendments made to the Act by the UMA Amendment Act by which the words "offshore entry person" were to be omitted and replaced with the words "unauthorised maritime arrival" in a number of sections of the Act including, for example, ss 46A, 198, 198AA and 336F. 75 The UMA Amendment Act inserted s 5AA into the Act which relevantly includes: (1) For the purposes of this Act, a person is an unauthorised maritime arrival if: (a) the person entered Australia by sea: (i) at an excised offshore place at any time after the excision time for that place; or (ii) at any other place at any time on or after the commencement of this section; and (b) the person became an unlawful non-citizen because of that entry; and (c) the person is not an excluded maritime arrival. 76 On the one hand, the definition of an "unauthorised maritime arrival" inserted into the Act applies to a narrower class of persons than that of an 'offshore entry person". It is limited to persons who arrived by sea so that it is only those persons who were, at the time of the insertion of s 5AA into the Act, offshore entry persons who arrived by sea who were thereafter classified as unauthorised maritime arrivals. On the other hand, the definition applies to a wider class because, for persons entering Australia by sea after the commencement of s 5AA, it is not limited to arrival at an excised offshore place after the excision time for that place. It also applies to a person entering Australia by sea at any other place and at any time. 77 There is nothing in the definition of "unauthorised maritime arrival" which suggests that there is a point in time at which a person is no longer an unauthorised maritime arrival. A person is an unauthorised maritime arrival if he or she meets the criteria in s 5AA(1) of the Act. 78 The UMA Amendment Act also inserted s 198AI and s 198AJ into the Act. Section 198AJ, set out at [31] above, concerns reports which the Minister is required to make about unauthorised maritime arrivals. Section 198AJ(3)(a) provides that a report provided under the section must not include "the name of a person who is or was an unauthorised maritime arrival" (emphasis added). The appellant relies on this provision to support his argument that the designation of a person as an unauthorised maritime arrival ends when a visa is granted to that person. However, nothing in s 198AJ supports that argument. 79 Section 198AJ requires the Minister to lay before each House of Parliament a report for each financial year in relation to the matters specified in s 198AJ(1) for the group of unauthorised maritime arrivals in each regional processing country. Section 198AJ(3) sets out the matters which are not to be included in the report, namely personal identifiers of the persons in the group of unauthorised maritime arrivals who are the subject of the report and the name of any person connected in any way with any of those persons. 80 We accept the Minister's submission that it is not necessary to put a red pen through the words "or was" in s 198AJ(3)(a) to make sense of it. While what was intended by the inclusion of the words "or was" in s 198AJ(3)(a) is not clear, there is at least one possible explanation. As the reports to be provided for each financial year under s 198AJ address a group of unauthorised maritime arrivals, the protection afforded by s 198AJ(3) to the identity of those persons, which extends to persons who are and were unauthorised maritime arrivals, could, for example, relate to a person who was an unauthorised maritime arrival because he or she had passed away. 81 As noted above, the UMA Amendment Act also amended s 336F of the Act, which concerns the authorisation of disclosure of identifying information to foreign countries, by substituting "offshore entry person" with "unauthorised maritime arrival" where it appears in that section. As a result of that amendment, disclosure is not authorised in relation to a person who is an unauthorised maritime arrival who makes a claim for protection as a refugee or on the basis that the person will suffer serious harm: see s 336F(3) and (4). As the Minister submits, if the appellant's construction is correct, the protection afforded under s 336F of the Act in relation to disclosure of personal identifiers would not extend to people in his position, namely unauthorised maritime arrivals who had been granted bridging visas because, on his argument, those people would be former unauthorised maritime arrivals. On the other hand, the Minister's construction provides the protection afforded by s 336F of the Act to all persons designated as unauthorised maritime arrivals to whom s 336F(3) and (4) apply.
Fast track applicant 82 The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Maritime Powers Amendment Act) inserted the fast track assessment process into the Act. 83 The Maritime Powers Amendment Act inserted, among others, the definition of "fast track applicant" into s 5(1) of the Act. That definition, which is set out at [28] above, has two limbs, paras (a) and (b). Only para (a) is presently relevant. 84 The appellant says that the words "who is an unauthorised maritime arrival" in subpara (a)(i) of the definition are otiose and have no work to do because it can be inferred from subpara (a)(ii) that the person is an unauthorised maritime arrival. The appellant's argument ignores the fact that subpara (a)(i) of the definition identifies one particular group of unauthorised maritime arrivals by reference to their arrival date and location. The members of that group who also meet each of the criterion in subparas (a)(ii) and (a)(iii) of the definition are each a fast track applicant. Viewed in that context, those words have work to do. That there may have been an alternate way to draft this part of the definition of "fast track applicant" does not mean that the drafting selected by Parliament should be rejected. 85 Item 2 of Pt 1 of Sch 6 to the Maritime Powers Amendment Act inserted subs (1A) and (1AA) into the definition of "unauthorised maritime arrival" in s 5AA of the Act. Those subsections, on which the appellant places significant reliance, are set out at [29] above. 86 Sections 5AA(1A) and (1AA) concern the status of people born in Australia who are not, at birth, Australian citizens because their parents are non-citizens. They will also be unauthorised maritime arrivals if the conditions in the subsections are met. 87 The effect of s 5AA(1A) is that a person will be an unauthorised maritime arrival if: the person is born in the migration zone; a parent of that person is, at the time of his or her birth, an unauthorised maritime arrival because of s 5AA(1), no matter where that parent is at the time of the birth; and the person is not an Australian citizen at the time of birth. We make the following observations about s 5AA(1A): (1) if the child is an Australian citizen at the time of birth because, for example, one of his or her parents is an Australian citizen, the subsection will not apply. It applies only to children born to non-citizens; (2) it requires that a parent of the child is an unauthorised maritime arrival at the time of the person's birth. The appellant relies on the words "at the time of the person's birth" to support his argument that "unauthorised maritime arrival" status will end when a person is granted a visa because otherwise those words have no work to do. He says that the words were included to address situations where parents cease to be unauthorised maritime arrivals because of the grant of a visa. But those words have work to do in a number of situations. For example, a child may be born to a mother in Australia who is a non-citizen but is not an unauthorised maritime arrival at a time when the father is not in Australia. The father may subsequently arrive in Australia and, because he meets the criteria in s 5AA(1), be designated an unauthorised maritime arrival. In that case the words have work to do. The appellant also submits that because "a parent" could refer to both parents, each part of s 5AA(1A) must apply to both parents. We are not aware of any principle of statutory construction that requires that words in a section will have no work to do unless they apply to every possible person, in this case both parents. While the subsection will apply where both parents are unauthorised maritime arrivals at the time of the child's birth, it may also apply where that is not the case, for example, in a situation where a child is born to a mother who is an unauthorised maritime arrival at the time of birth but the father is in another country and has not yet arrived in Australia; (3) the notes to s 5AA(1A) suggest a contrary construction to that urged by the appellant: (a) note 2 provides that a parent of a person may be an unauthorised maritime arrival even if the parent holds or has held a visa, suggesting that the appellant's contention that unauthorised maritime status comes to an end on being granted a visa is not correct; and (b) note 3 provides that a person to whom s 5AA(1A) applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of s 78 of the Act. Section 78 concerns the status of a child born in Australia to parents who are non-citizens and provides, in effect, that if, at the time of the birth, one or each of the parents holds a visa (other than a special purpose visa) the child is taken to hold a visa of the same type. Note 3 suggests that the grant of a visa because of s 78 does not affect the child's status as an unauthorised maritime arrival. 88 Section 5AA(1AA) of the Act is in similar terms to s 5AA(1A) but concerns a person who is born in a regional processing country. It provides that a person is an unauthorised maritime arrival if: the person is born in a regional processing country; a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival because of s 5AA(1), no matter where that parent is at the time of the birth; and the person is not an Australian citizen at the time of birth. The notes to s 5AA(1AA) once again suggest that it cannot assist the appellant's construction that a person ceases to be an unauthorised maritime arrival when granted a visa: (1) note 1, like note 2 to s 5AA(1A), provides that a parent may be an unauthorised maritime arrival even if the parent holds, or has held, a visa. Our comments at [87(3)(a)] above apply equally here; and (2) note 2 provides that the Act may apply as set out in s 5AA(1AA) even if either or both parents holds a visa or is an Australian citizen or a citizen of the regional processing country at the time of the person's birth. In other words, even if one or both parents of the person born in the regional processing country is an Australian citizen at the time of the person's birth, s 5AA(1AA) may still apply to that person because the parent remains classified as an unauthorised maritime arrival as a result of his or her mode of arrival into Australia and despite becoming an Australian citizen. That the parents hold a visa or are Australian citizens means they are no longer unlawful non-citizens but they can still transmit their designation as an unauthorised maritime arrival to their child. 89 The amendments introduced into the Act by Pt 1 of Sch 6 to the Maritime Powers Amendment Act, which include s 5AA(1A) and s 5AA(1AA), operate retrospectively in relation to, among other things (see item 11 of Pt 2 of Sch 6): (b) the status of a person as an unauthorised maritime arrival or a transitory person at any time: (i) whether before, on or after the commencement day; and (ii) whether the person is born before, on or after the commencement day; 90 The qualification in s 5AA(1A) and s 5AA(1AA) that a parent of the person is an unauthorised maritime arrival at the time of the birth of the person removes any ambiguity or uncertainty about the timing of that requirement in those subsections that might otherwise arise given their retrospective operation. 91 By the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) (Protection Amendment Act): (1) section 46A(1)(b) in its then form (see [59] above) was repealed and s 46A(1)(b) as set out at [30] above was inserted into the Act; and (2) sections 91H and 91J, which are in Subdiv AJ of Div 3 of Pt 2 of the Act, were amended to exclude unauthorised maritime arrivals and transitory persons so that going forward Subdiv AJ, which also includes s 91K, would not apply to those classes of non-citizens. Section 91K provides that an application for a visa by a non-citizen to whom Subdiv AJ applies, other than an application for a temporary safe haven visa, is not a valid application. 92 On the appellant's argument, the words "current or former" would need to be implied into s 46A(1)(b) with "current" referring to s 46A(1)(b)(i) and "former" referring to s 46A(1)(b)(ii). He says that to do otherwise would mean that s 46A(1)(b) would contradict the remainder of the Act. There is no proper basis for reading those words into s 46A(1)(b) which operates on its terms and does not contradict any other section of the Act. In particular, an ordinary reading of s 46A(1)(b) accords with the plain meaning of s 5AA. 93 There is no simple, grammatical drafting error in s 46A which, if not corrected, would defeat its purpose and no reason to think that the legislature overlooked anything in its drafting. Rather, the implication of the words proposed by the appellant would dramatically change the operation of s 46A of the Act; it would make an insertion that is "too big, or too much at variance with the language in fact used by the legislature": see Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531 at [38]-[39]. 94 Nor is there anything in the explanatory memorandum to the Migration Amendment (Protection and Other Measures) Bill 2014 (Cth) that supports the appellant's contention that the words "current or former" are to be implied into s 46A(1)(b) of the Act. It includes: (1) in the outline: Schedule 3 of the Bill contains amendments relating to unauthorised maritime arrivals (as defined in the Migration Act) making a valid application for a visa. These amendments ensure that an unauthorised maritime arrival who is an unlawful non-citizen, a bridging visa holder or the holder of a temporary visa prescribed for the purposes of this provision will be prevented from making a valid application for a visa unless the Minister determines that it is in the public interest to allow them to do so. These amendments also provide that such a determination may have effect only for the period of time specified, have a different period of time specified for different classes of unauthorised maritime arrivals; and be varied or revoked by the Minister. The amendments will also ensure that where section 46A of the Migration Act applies to an unauthorised maritime arrival, section 91K of the Migration Act will no longer apply. The amendments make the statutory bar in section 46B, which applies to transitory persons, consistent with the amended bar in section 46A, to ensure that transitory persons are treated consistently with unauthorised maritime arrivals. These amendments will streamline the operation of the statutory bars and support the orderly management of visa applications. (2) in the notes in relation to s 46A(1)(b): 118. This amendment will broaden the statutory bar in section 46A of the Migration Act to also apply to unauthorised maritime arrivals who hold bridging visas or temporary visas which have been prescribed for the purpose of subparagraph 46A(1)(b)(ii). 119. Unauthorised maritime arrivals who are in Australia and are either unlawful non-citizens or hold a bridging visa or a temporary visa of a class prescribed for subparagraph 46A(1)(b)(ii) cannot make a valid application for a visa unless the Minister has made a written determination under subsection 46A(2). 120. The reason for broadening section 46A of the Migration Act is to allow for unauthorised maritime arrivals to be granted bridging visas (or other temporary visas) while their asylum claims are being assessed. Extending section 46A to include bridging visas and other temporary visas will support the orderly management of visa applications from unauthorised maritime arrivals and in some cases, their release from detention. These parts of the explanatory memorandum clearly explain the amendment to s 46(1)(b). Unauthorised maritime arrivals who are in Australia and are unlawful non-citizens or who hold a bridging visa or a temporary visa in the prescribed class cannot make a valid application for a visa unless the Minister has made a written determination under s 46A(2). 95 The transitional arrangements included in Pt 2 of Sch 3 to the Protection Amendment Act also support a construction of the Act that an unauthorised maritime arrival can hold a visa and yet retain his or her designation as an unauthorised maritime arrival. In particular, item 15 applies to an unauthorised maritime arrival to whom Subdiv AJ of Div 3 of Pt 2 of the old Act (the Act as in force immediately before the commencement time) applies immediately before the commencement time. Item 15 provides that on and after the commencement time Subdiv AJ of the old Act ceases to apply to the unauthorised maritime arrival and s 46A of the amended Act applies in relation to an application for a visa by the unauthorised maritime arrival made on or after the commencement time. 96 That the designation of a person as an unauthorised maritime arrival pursuant to s 5AA of the Act does not come to an end upon the grant of a visa was found to be the case by a Full Court of this Court (Perram, Robertson and Abraham JJ) in CLM18 v Minister for Home Affairs (2019) 272 FCR 639 (CLM18). In that case the appellant, who was a non-citizen within the meaning of s 5(1) of the Act, arrived in Australia by sea. As a person who entered Australia at an excised offshore place and who thus became an unlawful non-citizen, he was also taken, because of s 5AA of the Act, to be an unauthorised maritime arrival. The case concerned the circumstances in which the appellant, who was subject to the bar in s 46A(1), applied for a SHEV. It is not necessary to set out the facts relating to the appellant in any detail. The findings of the Full Court in CLM18 as to the appellant's designation which are relevant to the issue now before us are at [3]-[4] where Perram J (with whom Robertson and Abraham JJ agreed) said: 3 On his arrival at Christmas Island the appellant therefore acquired two legal statuses for he was both an unlawful non-citizen and an unauthorised maritime arrival. The consequence of the former was that s 189(1) required him to be held in immigration detention. The consequence of the latter was that he was "unable" to apply for any kind of visa because s 46A(1) deems any visa application made by an unauthorised maritime arrival not to be valid. The necessity for a visa application to be valid is significant as the Minister's power to issue a visa under s 65 is delimited by the requirement that the application be a valid one. 4 That the appellant was "unable" to apply for a visa is relevant because there exists a class of visa known as a Bridging E visa which may be issued to persons who are "unwilling or unable" to make a valid application for a visa: reg 2.25 of the Migration Regulations 1994 (Cth). Since the appellant was unable to make a valid application for a visa because of s 46A(1) the Minister, subject to other presently immaterial requirements, was empowered to issue the appellant a Bridging E visa and to do so without any application by him for that visa: reg 2.25. On 20 August 2013, the Minister issued the appellant a Bridging E visa and he was released from immigration detention, having been held therein for around ten months. The issue of this visa meant that the appellant became a lawful non-citizen within the meaning of s 13, but it did not relieve him of the status of being an unauthorised maritime arrival. That status turned only on him having entered Australia by sea at an excised offshore entry place and, at that time, having become in consequence an unlawful non-citizen. The status was not erased when the appellant subsequently ceased to be an unlawful non-citizen. 97 As the Full Court recognised, the appellant in that case, upon being granted a visa, became a lawful non-citizen within the meaning of s 13 of the Act but that did not mean that he was no longer an unauthorised maritime arrival, a designation which was dependent on the way in which he had entered Australia. The balance of the Full Court's reasons proceed on the basis that the appellant was an unauthorised maritime arrival, a matter about which there appeared to be no controversy in that case. Although the issues now raised before us were not raised before the Court in CLM18, the findings at [3]-[4] are clearly contrary to the position now put by the appellant. 98 Finally, it is necessary to address the decision in DBE17, a proceeding commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth) claiming damages for unlawful imprisonment. The applicant represented a class of people detained in immigration detention in Australia, or a part of Australia, for more than two working days between 27 August 2011 and 7 July 2017. Justice Mortimer described the class as intending to capture people who remain in Australia, mostly having being granted visas, but who arrived to Australia by boat seeking asylum and who were detained during some or all of the specified period. The application which was before the Court and which is the subject of her Honour's reasons in DBE17 was an application by the Commonwealth to strike out the whole or a part of the amended statement of claim on the basis that the Court had no jurisdiction to hear and determine the proceeding by reason of s 494AA of the Act. Her Honour concluded that was so: see DBE17 at [4]. 99 Commencing at [5] Mortimer J set out the background. The applicant was a child who, at the time of the proceeding, was five years old. Both of the applicant's parents entered Australia by boat without a valid visa with the consequences that they were unlawful non-citizens and unauthorised maritime arrivals for the purposes of the Act. When the applicant was born, he had the same migration status. Upon their entry into Australia, the applicant's parents were, because of their mode of entry, subject to mandatory detention and were not entitled to make a valid application for a visa unless the Minister exercised a personal discretionary power to allow them to do so. Eventually the Minister did so and exercised his power under s 195A of the Act and on 15 January 2015 granted visas to the applicant and his parents, thus changing their migration status to lawful non-citizens from that time. 100 At [9] her Honour noted that the proceeding was about whether the applicant's detention before he was granted a visa was lawful. In the course of considering whether the proceeding should be struck out because of the operation of s 494AA of the Act, her Honour posed the following question: is a person fixed for all time with the statutory status of an "unauthorised maritime arrival"? After referring to the definition of "unauthorised maritime arrival" in s 5AA of the Act, at [41] her Honour said: As the introductory words to the definition in s 5AA make clear, the definition applies to a person "for the purposes of" the Migration Act. For example, one of the purposes relates to the creation of a separate stream of decision-making for people who fall within the definition of "fast track applicant" and "fast track review applicant" in Part 7AA of the Act. Another purpose, of some relevance to the question in this interlocutory application, is the particular removal powers available in Subdiv B of Div 8 of Part 2, dealing with removal to a regional processing country. Those powers (eg s 198AD) are only exercisable in relation to an "unauthorised maritime arrival". Finally, the kind of visa to which a person is entitled may be conditioned by her or his status as an unauthorised maritime arrival. … 101 At [42] her Honour said: For so long as there is a purpose in the Migration Act to be served, or to be applied to, an individual, then the intention of the Act is that the status of an unauthorised maritime arrival will continue to be applicable to such a person. … 102 At [43]-[44] her Honour concluded in relation to the question she had posed as follows: 43 The applicant (and his parents) are now lawful non-citizens. It appears from the amended statement of claim at paragraph 17 (which for the purposes of this interlocutory application I take can be established) they were lawful non-citizens at the time this proceeding was commenced. The Minister did not dispute this factual aspect of the applicant's case. Indeed, the applicant and his parents had been lawful non-citizens for more than two years by the time this proceeding was commenced. A lawful non-citizen is a person who is within the terms of s 13 of the Migration Act, read with s 29. 44 In my opinion, the applicant and his parents could not, at the time they commenced this proceeding, still fall within the definition of "unlawful maritime arrivals". Rather, they were lawful non-citizens. I do not see how the legislative scheme allows one individual to be, at the same point in time, both an unlawful maritime arrival and a lawful non-citizen. 103 At [45] Mortimer J observed that, whether or not the distinction is important for aspects of the applicant's claim, it did not affect the conclusion that her Honour had reached that the privative effect of s 494AA operates by reference to the subject matter, by category, of the proceedings commenced or continued. That is, whilst her Honour formed a view about the question posed in the context of, and based on the submissions made, in that proceeding, she ultimately found that it was not decisive of the particular issue before her. 104 As is evident from the matters set out above, we are, with respect, unable to agree with the conclusion reached by Mortimer J in DBE17 that a person cannot be at the one time an unauthorised maritime arrival and a lawful non-citizen. We make the following observations about her Honour's reasoning in coming to that conclusion. 105 First, as the Minister explained, the question addressed at [37]-[45] of DBE17 was raised by Mortimer J and was the subject of oral submissions only at the hearing. Her Honour did not have the benefit of the detailed analyses undertaken in this proceeding. Secondly, her Honour's comments are obiter. Thirdly, while we accept the proposition identified by Mortimer J at [42] of DBE17 that for so long as there is a purpose in the Act to be served or to be applied to a person then the intention of the Act is that the designation as an unauthorised maritime arrival will continue to apply to that person, the purposes of the Act to be served or to be applied to a person as an unauthorised maritime arrival extend beyond those identified by her Honour. They include, for example, s 46A and s 336F of the Act which are continuing purposes. Fourthly, we do not consider that there is any tension in a person being, at the same point in time, both an unauthorised maritime arrival, because of the mode in which they came to Australia, and a lawful non-citizen because of the grant of a visa to that person. That a person may be both is, as explained above, recognised by the Act and was confirmed in CLM18.
Conclusion 106 The appellant's argument that he is no longer an unauthorised maritime arrival, and thus at the time the delegate's decision was referred to the Authority for review under Part 7AA of the Act he was not a fast track applicant, cannot succeed. That argument depends on a construction of the Act which cannot be sustained, namely that because he was granted a bridging visa and he was a lawful non-citizen his designation as an unauthorised maritime arrival came to an end. But, as the Court found to be the case in CLM18, the granting of a bridging visa to the appellant changed his immigration status from an unlawful non-citizen to that of a lawful non-citizen pursuant to s 13 of the Act. It did not mean that the appellant was no longer an unlawful maritime arrival, a designation which applies, and continues to apply, to him because he entered Australia by sea at one of the places mentioned in s 5AA(1)(a)(i) or (ii) and became an unlawful non-citizen because of that entry. 107 For those reasons ground 1 should be dismissed.
Ground 2 108 By ground 2 the appellant alleges that the Authority failed to apply s 473DD of the Act when it found there were no exceptional circumstances to justify its consideration of the Visa Grant Letter. 109 Since the hearing of the appeal, the High Court of Australia has delivered judgment in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (AUS17). As the decision in AUS17 concerns the construction of s 473DD of the Act, which is at the heart of the resolution of ground 2, we invited the parties to provide supplementary submissions on the impact of that decision on the issues raised by the appellant in ground 2. Both parties responded to that invitation. 110 Before considering those submissions, it is convenient to set out the relevant legislative framework and a summary of the decision in AUS17.
Legislative framework 111 Part 7AA of the Act is concerned with the fast track review process and provides for a "limited form of review" of certain decisions, referred to as "fast track reviewable decisions", to refuse protection visas to some applicants: see s 473BA. 112 Fast track reviewable decisions are referred by the Minister to the Authority as soon as reasonably practicable after the decision is made: s 473CA. The Authority is required to review a fast track reviewable decision referred to it under s 473CA: s 473CC. For that purpose, the Secretary is required to provide the Authority with the material prescribed by s 473CB which includes material provided by the referred applicant to the person making the decision before the decision was made: s 473CB(1)(c). 113 Section 473DB provides that the Authority's review is to be carried out by considering the material provided to it under s 473CB and, save as otherwise provided in Pt 7AA, without accepting or requesting new information or interviewing the referred applicant. The term "new information" means documents or information that were not before the Minister when the Minister made the decision under s 65 of the Act and which the Authority considers may be relevant: see s 473BB and s 473DC(1). 114 The prohibition in s 473DB of the Act is subject to 473DD of the Act which sets out when the Authority can consider new information. It provides: For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The decision in AUS17 115 As set out above, AUS17 concerns the construction of s 473DD of the Act. 116 In AUS17 the appellant, under cover of a submission, provided several documents to the Authority for the purpose of its review which had not been provided to the Minister. One of those documents was a letter which post-dated the delegate's decision and in which the author stated that the appellant and his family were known to him and recounted historical events corroborative of the appellant's claims. In its reasons the Authority noted that the letter was new information which it had not considered in making it decision on the review. Its reasons for doing so were as follows: I accept the letter of support from Appathuray Vinayagamoorthy could not have been provided to the delegate as it was written after the delegate's decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information. 117 At [10]-[12] the plurality of the High Court (Kiefel CJ, Gageler, Keane and Gordon JJ) said the following about the operation of s 473DD of the Act: 10 Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a). 11 Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met. 12 The result, as has been recognised by the Federal Court in numerous other cases is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a). (Footnotes omitted.) 118 At [18] the plurality found that the Authority had assessed the letter against the criterion in s 473DD(b)(i) and went on to assess it against the criterion in s 473DD(a) but, in the absence of anything to suggest that the letter was not capable of being assessed to meet the criterion in s 473DD(b)(ii), what the Authority should have done was to assess the letter against the criterion in s 473DD(b)(ii) and then to take that assessment into account in assessing the letter against the criterion specified in s 473DD(a). 119 At [24] Edelman J (who agreed with the orders proposed by the plurality and agreed generally with their Honours' reasons) observed that he did not consider that the reasoning procedure mandated by the plurality is demanded by the logic of s 473DD. His Honour considered that an available alternative approach was for the Authority to consider s 473DD(a) first, noting that if that criterion was not met then there would not be a further requirement for the Authority to consider either limb of s 473DD(b). His Honour observed that this alternative approach recognises that in some cases the criteria in s 473DD(b) may not be relevant to s 473DD(a), identifying as an example country information which could not be said to be personal information.
Parties' submissions on the effect of the decision in AUS17 120 The appellant submits that the Authority's analysis lacked consideration of one or both of the criteria in s 473DD(b) and that the very same error gave rise to the appeal in AUS17 being allowed. The Authority's reasons in relation to the relevant new information, being the Visa Grant Letter, refer only to the exceptional circumstances criterion in s 473DD(a) of the Act. 121 The appellant submits that the Authority's reasons do not use the language of either of the criteria in s 473DD(b) of the Act in relation to the Visa Grant Letter although he accepts that, while the analysis is not clear, an available reading of the Authority's reasons is that it acknowledged that the criterion in s 473DD(b)(i) was fulfilled but that it seems to have given no consideration to the criterion in s 473DD(b)(ii). 122 The appellant contends that the Visa Grant Letter fulfilled one or both of the criteria in s 473DD(b) of the Act but that fact was given no weight when the Authority formed the view that there were no exceptional circumstances to justify considering the new information. Nor did the Authority analyse either or both of the criteria in s 473DD(b) in its explanation as to why it formed the view that there were no exceptional circumstances to justify considering the new information. Instead, the Authority applied only the phrase "exceptional circumstances" which it used as a cover for a final and substantive conclusion as to the worth of the new information. 123 The appellant submits that nothing in AUS17 authorises the "exceptional circumstances" test in s 473DD(a) to be used as a licence for the Authority to pick and choose material for its consideration at will as occurred in this case. 124 The Minister submits that the decision in AUS17 provides guidance on the process that the Authority is to undertake when assessing new information against the criteria in s 473DD, referring, in particular, to the decision of the plurality at [11], but that no comment was made in AUS17 about how written reasons must be structured in following the process there set out. 125 The Minister submits that general principles relevant to this case include that reasons are to be read as a whole and that it would be sufficient for a decision-maker to consider a relevant issue and make findings on that issue in substance, even if they do not expressly mention a particular relevant section. 126 The Minister submits that the Authority dealt with the Visa Grant Letter in its decision record as follows: (1) it recognised that the letter was dated 23 February 2017, the same date as the delegate's decision and noted that it was not before the delegate. Although the Authority did not expressly mention s 473DD(b)(i) this plainly amounted to an assessment against the criteria in that subsection; (2) the Authority expressed its view about s 473DD(a), stating that exceptional circumstances were not met and then gave its reasons for that conclusion which included consideration of s 473DD(b)(ii), in substance; and (3) the Authority considered the substance of the new information, including that it amounted only to the simple fact that the appellant's sister had been granted a visa, but without any information about her claims and thus no indication that the sister's circumstances were similar to those of the appellant. This was an assessment of the personal information given and an assessment of whether the information might have affected the consideration of the appellant's case and amounted to consideration of s 473DD(b)(ii) as well as taking s 473DD(b)(ii) factors into account in the s 473DD(a) conclusion. 127 The Minister submits that, reading the substance of the relevant part of the Authority's decision record as a whole, it considered s 473DD(b)(i) and found it to be met. However, it did not consider that the Visa Grant Letter would have affected the consideration of the appellant's claims, which was an assessment that s 473DD(b)(ii) was not met. The Minister contends that these two considerations fed into the Authority's conclusion that there were no exceptional circumstances for the purposes of s 473DD(a). 128 Finally, the Minister submits that its contention that the Authority correctly approached the consideration of the Visa Grant Letter is supported by a review of the balance of its consideration of other new information at [5] of its decision record in that the approach in those paragraphs accords with the guidance in AUS17.
Balance of the appellant's submissions 129 In relation to ground 2 as framed, the appellant submits that the primary judge erred because her Honour did not have regard to the unintelligibility of the Authority's analysis of exceptional circumstances and/or illogicality of the identified basis to conclude that the appellant's sister's visa was not granted for reasons which overlapped with the appellant. The appellant puts this alleged error in four ways. 130 First, he submits that it is unintelligible that the other pieces of new information arose for consideration from exceptional circumstances, while the Visa Grant Letter did not. The appellant contends that the Authority used the breadth of the term "exceptional" as cover for picking information to consider at will. In that way its reasons for finding that two documents gave rise to exceptional circumstances justifying consideration and one did not were legally unreasonable. 131 Secondly, he submits that the material put before the Authority cannot lawfully or logically be dismissed or ignored by it, let alone the opposite be found because the Authority asserts that it is incorrect when there is no material to show it is incorrect. 132 Thirdly, he submits that the Authority failed to engage with the task under s 473DD, namely to determine whether to consider the new information, which is not to be confused with the latter task of considering the weight to be given to the new material. 133 Fourthly, he submits that the Authority had before it the submissions reciting that a visa had been granted to the appellant's sister, the similarity in the siblings' claims and the biographical information which verified some similarities, which it was required to consider. At [5] of its decision record, the Authority determined whether to consider the Visa Grant Letter but, even if it was not going to be considered, that did not absolve the Authority of the responsibility of dealing with the claims in the submission made on behalf of the appellant about the similarity of his protection claims to those of his sister. The appellant submits that by its failure to consider, at the deliberative stage, whether the grant of a visa to the appellant's sister was a reason to grant a visa to the appellant, including by exercising the power in s 473DC(3) to seek details about the similarity in their claims, the Authority erred.
Consideration 134 It is convenient first to consider whether the Authority erred in its application of s 473DD of the Act in determining whether to consider the Visa Grant Letter. 135 As a preliminary matter, we note that there was no issue between the parties that the Visa Grant Letter was "new information" within the meaning of s 473DC(1) of the Act. It is implicit in the Authority's decision record that it considered the Visa Grant Letter and the other documents addressed at [5] to be "new information". 136 The Authority considered the Visa Grant Letter in the second bullet point at [5] of its decision record (see [11] above). It found that while the Visa Grant Letter was not before the delegate, it was not satisfied that there were exceptional circumstances to justify its consideration of that new information. 137 In AUS17 the plurality of the High Court set out the way in which the Authority should approach the task of assessing new information for the purposes of s 473DD. Namely, that the Authority must assess new information first against the criteria in s 473DD(b)(i) and (ii), unless the new information in question is not capable of such assessment, and then against the criteria in s 473DD(a). If either or both of the criterion in s 473DD(b)(i) or (ii) is satisfied, that is a circumstance to be taken into account in assessing s 473DD(a) of the Act. Contrary to the Minister's submission, this is more than "guidance" on the process; the plurality mandated the way in which the assessment of new information is to be undertaken pursuant to s 473DD. 138 In assessing the Visa Grant Letter, the Authority first observed that it was dated 23 February 2017, the same date as the delegate's decision, and that it did not appear that it had been before the delegate. At [3] of its decision record the Authority noted that a delegate of the Minister had refused the grant of the SHEV to the appellant on 23 February 2017. Although the Authority did not expressly mention s 473DD(b)(i), we would infer that the Authority accepted that the Visa Grant Letter was not and could not have been provided to the Minister before he made his decision and that it thus met the criterion in s 473DD(b)(i) of the Act. The appellant seems to accept that such a finding is open. 139 Next, the Authority set out its view about s 473DD(a) of the Act. But it did so without first considering the criterion in s 473DD(b)(ii). True it is that in setting out why in its view there were not exceptional circumstances for considering the Visa Grant Letter, the Authority considered the substance of the Visa Grant Letter. It noted that it did not include information about the sister's claims or why she was granted a visa and that there was nothing before it to show that the sister's circumstances were similar to those of the appellant, beyond mere assertion by the appellant's representative to that effect. It effectively found that the Visa Grant Letter, which simply indicated that the sister had been granted a visa, was of no assistance to it. However, even accepting that this was an assessment of the personal information given and of whether the information might have affected the consideration of the appellant's case, it was undertaken as part of the consideration of whether there were exceptional circumstances for the purposes of s 473DD(a) of the Act and not as an anterior step. While the plurality in AUS17 does not set out how the Authority should, to adopt the Minister's term, "structure" its reasons or, put another way, how qualitatively it should address each of the criterion, they do require that the Authority assess the new information against each of the criterion in s 473DD(b)(i) and s 473DD(b)(ii), assuming it is capable of such assessment, and then take the outcome of that assessment into account in its subsequent assessment of the criterion in s 473DD(a): see AUS17 at [11]. 140 That the Authority may have considered the other items of new information in accordance with the requirements of s 473DD of the Act at [5] of its decision record does not, as the Minister puts it, support his contention that the Authority did so in the case of the Visa Grant Letter. In any event, that the Authority considered the criteria in s 473DD(b) before moving to a consideration of s 473DD(a) in the case of the other items of new information is not to the point. What is required is that the Authority assess the new information against both criterion in s 473DD(b) and then against the criteria in s 473DD(a), taking into account any finding it makes that one or other or both of the criterion in s 473DD(b) was met. 141 In the circumstances, the Authority fell into error in its consideration of the Visa Grant Letter pursuant to s 473DD because it did not consider the criterion in s 473DD(b)(ii) before it turned to s 473DD(a). Having found that the criterion in s 473DD(b)(i) was met, it moved directly to consider whether there were exceptional circumstances for the purposes of s 473DD(a). The primary judge did not reach the same conclusion but her Honour's decision was published prior to the decision in AUS17. 142 It is then necessary to consider whether the error is material, a matter about which neither party made submissions nor was there any agreement between the parties or concession, on the part of the Minister, that if error was found it was material. 143 In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]-[31] Kiefel CJ and Gageler and Keane JJ said: 29 That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance. 30 Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. … 31 Thus, as it was put in Wei v Minister for Immigration and Border Protection, "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision. (Footnotes omitted.) 144 In SZMTA v Minister for Immigration and Border Protection (2019) 264 CLR 421 at [2]-[4] Bell, Gageler and Keane JJ held that a breach by the Administrative Appeals Tribunal (Tribunal) of an obligation to disclose an invalid notification made under s 438 of the Act was a jurisdictional error "if, and only if, the breach is material". Their Honours explained that a breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to, in that case, the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome. At [4] their Honours observed that where materiality is put in issue in an application for judicial review of a decision, it is a question of fact on which the applicant for judicial review bears the onus of proof. 145 As noted above, neither party has made any submissions in relation to materiality. In that regard, the appellant has not discharged his onus. 146 Putting that to one side, in our opinion, the Authority's non-compliance with s 473DD was not material such that it amounts to a jurisdictional error. It did not operate to deny the appellant the possibility of a successful outcome. That is because in considering whether there were exceptional circumstances for considering the Visa Grant Letter, the Authority considered the substance of the Visa Grant Letter. It noted that it had no information about why the appellant's sister had been granted a protection visa; the letter itself did no more than state that fact. The Authority had no information that suggested that the appellant's sister's circumstances were similar to his beyond an assertion made by the appellant's representative. That explanation by the Authority amounts to an assessment of the credible, personal information provided and an assessment of whether the information might have affected the consideration of the appellant's claims. Had the Authority undertaken its task as it was required to, by considering the criterion in s 473DD(b)(ii) before turning to s 473DD(a), it is tolerably clear that it would have reached the same conclusion. 147 We turn to address the balance of the appellant's submissions none of which, in our opinion, demonstrate any error in the approach of the Authority or, to the extent the same argument was put below, the primary judge. 148 Contrary to the appellant's submissions, the Authority's reasons were logical and reasonable and there is nothing to suggest that, in considering each of the items of new information, it picked information to consider at will. It was not unintelligible that it found that the other items of new information arose for consideration from exceptional circumstances, while the Visa Grant Letter did not. 149 The appellant contends that in finding that there was nothing to indicate that his sister's circumstances were in any way similar to his, the Authority dismissed the material before it which stated that they did have similar circumstances and found the opposite based only on its own assertion that the material was incorrect. The only material before the Authority was the appellant's representative's submission in which it was asserted that the circumstances of the appellant's sister and the appellant were "so similar" that a decision to refuse to grant the visa to the appellant was "wholly inconsistent" with the decision to grant the appellant's sister the same visa. That rose no higher than a submission. There was no evidence before the Authority as to the appellant's sister's circumstances to support it. The Authority did not find the opposite as asserted or make any finding about the appellant's credibility. It simply did not accept the submission. 150 Contrary to the appellant's submissions, the Authority did not find that the appellant's representative's submission was false. It merely made a finding based on the lack of information, in the context of s 473DD, that there were no exceptional circumstances to justify it considering the Visa Gant Letter. It was not illogical or irrational for the Authority not to be satisfied that was so. 151 Nor did the Authority conflate the task required by s 473DD of the Act with the subsequent task of assessing the weight to be given to the information. As we have already observed, the Authority considered whether there were exceptional circumstances that would justify its consideration of the Visa Grant Letter. It did so informed by, and in the context of, the lack of any material in the Visa Grant Letter itself and the accompanying submission that demonstrated that Visa Grant Letter to be of any assistance. It was open to the Authority to do so in coming to its view. 152 The final submission made by the appellant is that the Authority erred in not considering the information about the grant of a visa to his sister at the deliberative stage. However, as the Minister submits, whether contained in the Visa Grant Letter or the representative's submission, this was new information. In order for it to be considered at the deliberative stage, it had to meet the requirements of s 473DD of the Act. The Authority was not satisfied that it did. This meant that the information contained in the Visa Grant Letter, including insofar as it was repeated in the representative's submission, could not be taken into account on the review. Contrary to the appellant's submission, in the circumstances, there was no failure to deal with a clearly articulated submission or claim.
Conclusion 153 For those reasons ground 2 is not made out.
Proposed ground 3 154 The appellant seeks leave to raise ground 3 for the first time on appeal. By that proposed ground the appellant contends that the Authority failed to apply the definition of "cruel or inhuman treatment or punishment" included in the Act when considering how he would be mistreated as a severely mentally ill person if he was homeless in Lebanon because the Authority replaced the objective test required by the Act with its own subjective assessment. 155 The principles applicable to when leave will be granted to rely on a new ground on appeal are set out at [21]-[24] above. We address each of the matters which inform the question of whether there should be a grant of leave in turn. 156 The Minister concedes that there is no prejudice that will arise if the Court grants leave to rely on the new ground which cannot be cured by a costs order. That said, a lack of prejudice is not of itself determinative of whether there should be a grant of leave. 157 The appellant offers two reasons for why proposed ground 3 was not raised below. First, while he was represented before the Federal Circuit Court, he relies on what he asserts to be the relative inexperience of counsel who appeared for him in that court, suggesting that she was not sufficiently experienced to identify this ground (or proposed ground 4). Secondly, he says that there is nothing to indicate that he did not raise the ground below deliberately. We are not persuaded that either of these reasons adequately explain why the ground was not raised below. The appellant was represented by a solicitor and counsel below and there is no basis upon which their competence should be called into question or upon which it could be suggested, or on which we would conclude, that because counsel had only been at the bar for a relatively short period, the appellant was not ably represented. 158 The final matter to consider is the merit of the proposed ground which we address below.
Appellant's submissions 159 The appellant submits that the Authority erred by failing to apply the statutory test for "cruel or inhuman treatment or punishment" under the Act in two ways: first, because it applied its own view of whether violence and verbal abuse, among other acts, was "a cruel or inhuman act"; and secondly, because it asked itself the wrong question. It should have asked itself whether something could, not would, reasonably be regarded as cruel or inhuman treatment. 160 The appellant submits that he suffers from a range of significant mental illnesses, which the Authority accepted. Under the heading "[c]omplementary protection", the Authority considered the risk of significant harm to him from those conditions if they caused him to be "living on the street" and, in that context, it accepted at [55] of its decision record that "he may face random incidents of street crime or violence and teasing and verbal insults and abuse" but it was "not satisfied that this would reach the threshold for any form of serious harm" (see [166] below). The reason given by the Authority for reaching this conclusion was that it did "not accept that the perpetrators of such behaviour have the necessary intention to inflict severe pain and suffering or extreme humiliation; nor in my view is such treatment a cruel and inhuman act intended to cause pain and suffering". 161 The appellant submits that the definition of "degrading treatment" in the Act makes clear that intentional extreme humiliation is required and that the first part of the definition of "cruel or inhuman treatment" in the Act requires intentional severe pain and suffering, both of which were dealt with in terms by the Authority. He submits that the error on the part of the Authority is in the way it applied the second the part of the definition of "cruel or inhuman treatment". 162 The appellant says that two elements of the second, alternative statutory definition of "cruel or inhuman treatment or punishment" are critical to the resolution of this proposed ground, both of which reveal error by the Authority. 163 First, the appellant contends that the correct question to ask is referable not to the subjective view of the decision-maker at large but to the decision-maker's view of what was objectively reasonable in all the circumstances. In this case the Authority purported to determine whether the second aspect of the definition was fulfilled solely by reference to what it "in [its] view" regarded as "a cruel or inhuman act intended to cause pain and suffering" in place of the statutory requirement to apply an objective test. 164 Secondly, the appellant contends that the correct question to ask is whether the nature of the mistreatment could, not would, reasonably be regarded as cruel or inhuman. He says that it is a question of whether the mistreatment has the potential to be so regarded, a lower threshold than whether it would be so regarded. He submits that the Authority erroneously applied the higher threshold when purporting to apply this aspect of the definition. 165 The appellant submits that the Authority was required by law to ask and answer the question: could the mistreatment identified reasonably be regarded as cruel or inhuman in nature? Instead, the Authority erroneously asked: is the mistreatment subjectively in the mind of this decision-maker cruel or inhuman? He contends that in failing to apply a correct understanding of the law, the Authority's decision was affected by jurisdictional error.
Consideration 166 This ground concerns the Authority's decision record at [55], in particular as emphasised below, where the Authority said: If he did spend any period of time living on the street because of mental illness or family conflict, I am not satisfied that there is a real risk that he would be subjected to significant harm, as defined, because of his physical or mental disabilities. Although I accept that he may face random incidents of street crime or violence, and teasing and verbal insults or abuse, I am not satisfied that this would reach the threshold for any form of serious harm, as I do not accept that the perpetrators of such behaviour have the necessary intention to inflict severe pain and suffering or extreme humiliation; nor in my view is such treatment a cruel or inhuman act intended to cause pain and suffering. Again, I am not satisfied on the evidence that if he returned to Lebanon the applicant would be at real risk of being subjected to significant harm. (The parties agree that the reference to "serious harm" in the second sentence of [55] should be read as "significant harm".) 167 The appellant contends that the Authority misapplied the definition of "cruel or inhuman treatment or punishment" included in s 5(1) of the Act which provides: cruel or inhuman treatment or punishment means an act or omission by which: (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature; but does not include an act or omission: (c) that is not inconsistent with Article 7 of the Covenant; or (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 168 The appellant's argument focuses on the second part of the second sentence at [55] of the Authority's decision record (emphasised above) where it set out why it had formed the view that random instances of street crime, teasing and verbal insults would not amount to serious harm. This was because the Authority did not "accept that the perpetrators … have the necessary intention to inflict severe pain and suffering or extreme humiliation" and because the Authority did not consider that "such treatment" is a cruel or inhuman act intended to cause pain and suffering. The appellant accepts that these findings address the definition of "degrading treatment or punishment", also included in s 5(1) of the Act, and para (a) of the definition of "cruel or inhuman treatment or punishment". 169 The appellant's argument is focused on the final phrase of the second sentence of [55] of the Authority's decision record, i.e. "nor in my view is such treatment a cruel or inhuman act intended to cause pain and suffering". There are, as the Minister submits, two ways to read that phrase, neither of which disclose any error. 170 As to the first, para (b) of the definition of "cruel or inhuman treatment or punishment" incorporates an element of intention. In the part of its reasons in issue, the Authority expressed its view that the actions to which the appellant may be subjected would also not be "a cruel or inhuman act intended to cause pain and suffering". In doing so, the Authority stated its conclusion about whether the conduct would amount to "degrading treatment and punishment" and in relation to paras (a) and (b) of the definition of "cruel or inhuman treatment", finding that the treatment to which the appellant might be subjected would not, on its assessment, have the necessary intention. Reading the relevant part of [55] in that way, the issues raised by the appellant in proposed ground 3 and the alleged errors do not arise. 171 As to the second, the reasons for a decision under review "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": see Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [59] quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 172 The Authority was clearly aware of the definition of "cruel or inhuman treatment or punishment". So much can be inferred from the fact that annexed to the Authority's decision record is an extract from s 5(1) of the Act which includes the relevant definition. The Authority was required to, and did, make a finding about whether the appellant could satisfy the definition. The statement that, in its view, the harm faced by the appellant would not be a cruel or inhuman act fulfilled that task. That is, the use of the expression "in [its] view" did not suggest that it substituted a subjective requirement for the objective criteria in the Act but, as the Minister submits and fairly read, reflected that the findings represented its own appraisal of whether those criteria were met. 173 For those reasons, proposed ground 3 lacks merit.
Conclusion on proposed ground 3 174 Having regard to the matters set out above, in our view it is not expedient in the interests of justice to permit the appellant to raise proposed ground 3 for the first time on appeal.
Proposed ground 4 175 By proposed ground 4 the appellant contends that the Authority incorrectly applied the definition of serious harm by failing to consider whether prolonged deprivation of liberty by reason of involuntary detention for mental illness was persecution because it was not appropriate and adapted. 176 The appellant also seeks to raise this ground for the first time on appeal. The principles as to when the Court will grant leave to raise a new ground on appeal are set out at [21]-[24] above. Our findings in relation to the issues of prejudice and explanation for the delay in raising the ground at [156]-[157] above apply equally to this proposed ground. 177 The appellant points to an additional reason as to why this ground was not raised below, namely because it relies principally on a decision of this Court, AJZ17 v Minister for Home Affairs [2019] FCA 1485 (AJZ17), which post-dated the hearing of the matter before the Federal Circuit Court by some 11 months and the development of the common law critical to the resolution of this ground had not been recorded as at the time of the hearing in that court. True it is that the decision in AJZ17 post-dates the hearing of the appellant's application in the Federal Circuit Court. However, as explained below, that decision does no more than apply longstanding authorities such that the appellant's reliance on it does not provide a compelling reason for why this ground was not raised in the Federal Circuit Court. 178 We turn then to consider the merits of the proposed ground.
Appellant's submissions 179 The appellant submits that the Authority failed to apply a correct understanding of the law in its application of the statutory test for "serious harm" under s 5J of the Act. 180 The appellant notes that the Authority observed at [42] of its decision record that in Australia he "has been admitted to hospital for psychiatric treatment on a number of occasions and has been subject to a compulsory treatment order" and then drew a distinction between, on the one hand, mistreatment from any future treatment or admission for the appellant's mental illness in Lebanon and, on the other, any involuntary detention for the appellant's mental illness. 181 The appellant submits the Authority erred at [42] of its decision record in its conclusion about "treatment and admission" in that it ignored that s 5J(5) of the Act is a non-exhaustive indicative list of what might constitute serious harm. Matters outside the list in s 5J(5) could be a basis for finding serious harm, which is the test in s 5J(4)(b) of the Act. The appellant submits that the error is not only revealed by the Authority's identification of the wrong subsection but that, in substance, the reasons disclose that it did not have regard to the relevant legal test. That is, to assess for itself as a question of "degree and proportion" whether the mistreatment set out in the country information was a sufficiently serious denial of human rights as to amount to serious harm. The appellant says this is apparent from the Authority's conclusion that "any consequential treatment they may receive" from "involuntary admission" for schizophrenia would not constitute serious harm which, he submits, simply cannot be an application of Australian law's understanding of "serious harm". 182 After posing a number of questions about potential treatment, which we do not intend to reproduce here, the appellant submits that on no version of the authorities concerning the correct interpretation of serious harm could it be said that an involuntary psychiatric patient can be subject to any treatment of the design of the treating doctor without regard to whether that treatment is appropriate and proportionate. In this way, the Authority demonstrated that it not only failed to identify the correct statutory provision and test but it also failed to apply the correct test. 183 In relation to "detention", the appellant refers to the following claims included in his statement dated 16 September 2016 submitted to the Department: 20. ... I believe that the Lebanese authorities would only lock me up in a psychiatric institution and deny me of my human rights, … … 32. I fear that because of my mental illness and disabilities I will be incarcerated into a mental asylum and deprived of my liberty, … 184 The appellant also refers to the submission dated 23 March 2017 from his representative to the Authority in which he says a submission was made that there was a real chance that he would be subjected to involuntary institutionalisation and associated abuses. 185 The appellant submits that in light of s 5J(5)(a) of the Act the Authority's reasons at [42] of its decision record, where it addressed involuntary detention, are "obviously wanting". He says that a threat to liberty is a stated example of conduct that can constitute serious harm and that while brief deprivations of liberty will not, on their own, amount to serious harm, the length and quality of the detention must be considered in order to make a lawful decision as to whether the relevant deprivation of liberty amounts to serious harm. 186 The appellant contends that involuntary detention in a public institution can only be the consequence of the operation of law and that laws can themselves give rise to persecution, relying on AJZ17 at [44]. He submits that the material before the Authority on the question of whether involuntary detention for psychiatric treatment in Lebanon might not be appropriate and adapted was clear. He contends that, in sum, the country information that was before the Authority meant that on return he was significantly more likely than not to be detained for more than five years with no legal supervision of that detention and subject to a policy of institutionalisation. The appellant submits, had the Authority considered the correct legal question, whether such detention was appropriate and adapted, it could have readily reached the conclusion that it was not. He says that a simple comparison with the appropriate and adapted treatment that he has received for the same conditions in Australia is revealing of the significance of the Authority's failure to identify and apply the correct test. 187 The appellant submits that the Authority's error is a failure to apply the correct law to the facts and that the error manifested differently in two respects: first, the Authority erred by not applying the test of "serious harm" in s 5J(4)(b), read in light of the case law, in relation to the analysis of his risk of mistreatment in his psychiatric treatment and admission; and secondly, the Authority erred by neither identifying nor applying the common law test for when discriminatory treatment is sufficiently serious to constitute persecution in respect of his detention.
Consideration 188 This ground concerns the Authority's decision record at [42] where, under the heading "Lack of access to appropriate psychiatric treatment", it said: The applicant has also claimed, somewhat in contradiction to the claim that he would be denied treatment, that he may be subjected to forms of treatment which would amount to serious harm, including involuntary incarceration in an institution, and that he would therein be subjected to various forms of harm. I note that in Australia the applicant has been admitted to hospital for psychiatric treatment on a number of occasions and has been subject to a compulsory treatment order. The article by El Chammay and Risha observes that while a fundamental principle of medical care is that a patient should consent to treatment, certain conditions can affect capacity. The article notes that the existence of some conditions justifies involuntary admission and treatment and these include acute psychotic episodes during schizophrenia. While the article identifies shortcomings in the regulation and oversight of involuntary admissions and treatment in Lebanon, I am not satisfied on the basis of the available information that the involuntary admission of a patient with a condition such as schizophrenia or any consequent treatment they may receive, constitutes serious harm for the purposes of s.5J(5). I do not consider that being involuntarily detained for the purposes of psychiatric treatment which might otherwise be refused, and which might result in a greater harm to the applicant or to others, constitutes serious harm for the purposes of the Act, even in the absence of a regulating mechanism that complies with recommended best practice. (Emphasis added.) 189 The first issue raised by the appellant concerns that part of [42] of the Authority's decision record emphasised above. The appellant complains that the Authority has, in referring to s 5J(5) of the Act, identified the wrong subsection. But that does not necessarily follow. 190 Section 5J concerns the meaning of "well-founded fear of persecution". It relevantly provides: (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. Note: For membership of a particular social group, see sections 5K and 5L. … (4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a): (a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and (b) the persecution must involve serious harm to the person; and (c) the persecution must involve systematic and discriminatory conduct. (5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. 191 Section 5J(5) of the Act provides examples of what might constitute serious harm for the purposes of s 5J(4)(b). That subsection was thus relevant to the Authority's determination of whether the claimed persecution involved serious harm. 192 The Authority found that being involuntarily detained for the purposes of psychiatric treatment, which might otherwise be refused and which might result in greater harm to the appellant or to others, did not constitute serious harm for the purposes of the Act. As the Minister submits this was not a finding confined to the examples set out in s 5J(5) but concerned whether the claimed persecution, by way of involuntary detention for psychiatric treatment, involved serious harm for the purposes of s 5J(4)(b) of the Act. 193 The appellant contends that the Authority did not sufficiently consider the conditions to which he might be exposed and whether they amounted to a serious denial of human rights and, in turn, serious harm. He says this is apparent from the Authority's conclusion at [42] of its decision record that "any consequent treatment they may receive" from "involuntary admission" would not constitute serious harm. However, that statement needs to be read in context. 194 At the commencement of [42] the Authority refers to the appellant's claim that he may be subjected to forms of treatment for his psychiatric illnesses which would amount to serious harm including involuntary incarceration in an institution where he would be subjected to various forms of harm. The Authority then notes that the appellant had been admitted to hospital for psychiatric treatment in Australia on a number of occasions and been subject to a compulsory treatment order. Thereafter, the Authority refers to a 2015 article by Kerbage, El Chammay and Richa "Mental health legislation in Lebanon: Nonconformity to international standards and clinical dilemmas in psychiatric practice" provided to it by the appellant, which it refers to as the "El Chammay and Risha" article. The Authority then draws its conclusion "on the basis of the available information", we infer, the Kerbage, El Chammay and Richa article. The examples of the types of treatment to which the appellant says he may be subjected and which are set out in his submissions simply did not arise for consideration. They were not referred to in the material before the Authority whose reasons can only be read by reference to that material. 195 Here, as is evident, at [42] of its decision record the Authority found that involuntary detention in a psychiatric facility for treatment would not amount to serious harm pursuant to s 5J(4)(b) and s 5J(5) of the Act. The Authority's consideration was in accordance with the principles set out in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 (WZAPN) where at [45] French CJ, Kiefel, Bell and Keane JJ said, in the context of s 91R(1)(b) of the Act, that the question of whether a risk of the loss of liberty constitutes serious harm requires a qualitative judgment which will "include an evaluation of the nature and gravity of the loss of liberty" and which invites a consideration of the circumstances and consequences of that detention. 196 The Authority also referred to the contents of the Kerbage, El Chammay and Richa article at [43] of its decision record where it said: While this article also posits the author's view that patients' rights are violated in Lebanese psychiatric institutions, giving as examples the use of physical constraint and unpaid labour "under the frame" of occupational therapy, and the applicant's representative's submission reflects claims in this regard, the article does not elaborate on the circumstances in which such treatment might occur and on the basis of the available information I am not satisfied that there is a real chance that the applicant would be subjected to harm of this kind if he were admitted as an involuntary patient to a psychiatric institution. 197 That is, based on the information before it, the Authority acknowledged shortcomings in the available treatment in Lebanon but was not satisfied that such treatment, and its shortcomings, would constitute serious harm. That finding was open to the Authority based on the material before it. 198 In any event the Authority's findings at [43] of its decision record represent an alternative assessment of the possibility of serious harm, assuming the correctness of the Kerbage, El Chammay and Richa article about the treatment of involuntary patients. There the Authority found that, even if the treatment referred to in the Kerbage, El Chammay and Richa article might occur, it was not satisfied, on the basis of the information before it, that there was a real chance that the appellant would be subjected to such treatment. Thus the appellant could not meet the criteria in s 5J(1) of the Act. 199 The final matter to address is the decision in AJZ17. In that case, the appellant alleged that the Federal Circuit Court had erred by failing to find that the Tribunal had erred in failing to consider whether any law that led him to be detained by the police or authorities as a result of action caused by his mental illness was appropriate and adapted such that it did not amount to discrimination qualifying as persecution for the purposes of s 36(2)(a) of the Act. That ground was upheld. 200 At [38]-[39] Moshinsky J found that the appellant had made a claim based on the implementation or enforcement of the general criminal laws of Kenya and that those laws would operate in a discriminatory way with respect to a person with a mental illness by not recognising or having regard to the impact of mental illness on his or her behaviour. His Honour then referred to Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 (Applicant S) at [42]-[45] where Gleeson CJ, Gummow and Kirby JJ stated that a law of general application is capable of being implemented or enforced in a discriminatory manner and that the criteria for determining whether a law or policy that results in discriminatory treatment amounts to persecution are those articulated by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. In particular, in Applicant S at [43]-[44] their Honours noted: 43. … the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is "appropriate and adapted to achieving some legitimate object of the country [concerned]". These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in [Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 303 [28]]. As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court's decision in [Minister for Immigration and Multicultural Affairs v Israelian (2001) 206 CLR 323]. Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective. 44 In Applicant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory. (Footnotes omitted.) 201 At [44] of AJZ17 Moshinsky J said: It is apparent from the foregoing authorities that in certain circumstances the implementation or enforcement of a law of general application may amount to persecution within the meaning of s 5J(1)(a). Where this is alleged, a preliminary question is whether the law results in discriminatory treatment. That may be the case where the law treats people who are relevantly different in a manner that is not appropriate and adapted to that difference: Ibrahim at [29]. If there is discriminatory treatment, the next stage in the inquiry is to consider whether the treatment amounts to persecution. The relevant test is whether the treatment is appropriate and adapted to achieving some legitimate object of the country concerned: Applicant S at [43], citing Applicant A at 258. 202 His Honour concluded (at [46]) that in the case before him the Tribunal did not give proper consideration to whether the relevant laws, Kenyan criminal laws, would be implemented or enforced in a discriminatory manner and that, rather than asking whether those laws would be implemented in a discriminatory way, the Tribunal assumed that because mental illness was not recognised, the law could not be discriminatory. Thus, Moshinsky J found that the Tribunal did not properly analyse or consider whether or not the feared treatment would constitute discrimination, an essential and preliminary step in determining whether treatment would constitute persecution for reason of a ground referred to in s 5J(1)(a) of the Act. 203 These principles have no application in this case. Here it is accepted that the appellant suffers from schizophrenia. The evidence before the Authority was that people suffering from some conditions, including schizophrenia, may be subjected to involuntary admission and treatment in Lebanon. Assuming that this describes a law of general application, there was no suggestion or evidence before the Authority that the law as applied in Lebanon would result in the appellant being treated differently to other people with the same or similar conditions or that people who are relevantly different would be treated in a manner that is not appropriate or adapted to that difference. That is, there was no suggestion or basis on which the Authority might conclude that the law in Lebanon is applied in a discriminatory way. It is only if there is discriminatory treatment that it becomes necessary to inquire whether the treatment amounts to persecution by considering whether it is appropriate and adapted to achieve a legitimate object of the country concerned. 204 Proposed ground 4 is without merit.
Conclusion on proposed ground 4 205 In our opinion, having regard to the matters set out above, it is not expedient in the interests of justice to permit the appellant to raise proposed ground 4 for the first time on appeal.
DISPOSITION 206 For those reasons, leave should be granted to raise ground 1 of the further amended notice of appeal for the first time on appeal, the appeal should be dismissed and the appellant's amended interlocutory application filed on 4 June 2020 should otherwise be dismissed. As the appellant has been largely unsuccessful on his interlocutory application and has not succeeded on the appeal, he should pay the Minister's costs of the interlocutory application and the appeal. 207 We will make orders accordingly. I certify that the preceding two hundred and seven (207) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Markovic, O'Callaghan and Anastassiou.
BXT17
Minister for Home Affairs
THE COURT: 1 This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Authority): see BXT17 v Minister for Immigration & Anor [2019] FCCA 1459 (BXT17). The Authority had affirmed a decision made by a delegate of the first respondent (Minister) not to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV). 2 By amended interlocutory application filed on 4 June 2020, the appellant seeks leave to rely on a further amended notice of appeal in which he seeks to raise four grounds of appeal set out at [19] below. Grounds 1, 3 and 4 were not raised in the Federal Circuit Court and, accordingly, it is in relation to those grounds only that a grant of leave is required. The Minister does not oppose leave being granted to the appellant to rely on ground 1 but opposes a grant of leave in relation to grounds 3 and 4. 3 For the reasons that follow, we would grant leave to the appellant to raise ground 1 of the further amended notice of appeal for the first time on appeal, decline to grant leave to the appellant to rely on grounds 3 and 4 and otherwise dismiss the appeal. Our reasons for reaching those conclusions follow.
(1997) 190 CLR 225
(2004) 217 CLR 387
(2019) 272 FCR 639
(1986) 162 CLR 1
(2018) 361 ALR 423
(2018) 264 CLR 123
(2015) 254 CLR 610
(1996) 185 CLR 259
(2015) 258 CLR 173
(2013) 252 CLR 336
(2016) 243 FCR 220
(2019) 264 CLR 421
(2014) 253 CLR 531
(2004) 238 FCR 588
(1998) 194 CLR 355
(2016) 257 CLR 42
(2000) 201 CLR 293
(2001) 206 CLR 323