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.