Ground 1
15 It is appropriate to set out a little more of reg 2.43(1) to understand the correct construction of subpara (p)(ii):
Subdivision 2.9.2 - Cancellation generally
2.43 Grounds for cancellation of visa (Act, s 116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
…
(oa) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa) - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));
…
(p) Subclass 051 (Bridging (Protection Visa Applicant)) visa - that the Minister is satisfied that the holder:
(i) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa)); or
(ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or
(iii) is the subject of a notice (however described) issued by Interpol for the purposes of locating the holder or arresting the holder; or
(iv) is the subject of a notice (however described) issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder:
(A) has committed an offence against a law of another country; and
(B) is likely to commit a similar offence; or
(v) is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning that the holder is a serious and immediate threat to public safety …
16 Regulation 2.43(1)(p)(ii) applies where the Minister is satisfied that the "holder" of, relevantly, a Bridging E visa "has been charged with an offence". There was no dispute that the Appellant was the "holder" of a Bridging E visa. There was no dispute that, when he made the cancellation decision, the Minister was satisfied that the Appellant had been charged with offences, being those which existed at the time the Bridging E visa was granted.
17 The Appellant submitted, however, that the effect of the regulation, when read in context, was that the Minister had to be satisfied that the Appellant "has been charged with an offence" whilst being the "holder" of the visa, rather than being charged with offences before the visa was granted.
18 This understanding of the operation of the regulation was said to arise clearly from the language of the regulation, particularly by the reference to "the holder". It was submitted that the word "holder" was "an active word indicating some currency". It was said:
The clear inference to draw from this usage is that the conduct in question - the charging with an offence - occurs during the currency of the period in which the person is the holder of the [Bridging E visa], not at some time prior to the person being the holder of a [Bridging E visa].
19 That submission is rejected. The word "holder" simply identifies who it is that the Minister must be satisfied has been charged.
20 The language of subpara 2.43(1)(p)(ii), read in context, is clear: it does not matter when the charge occurred. All that matters is whether the holder of the visa "has been charged" at some time. This conclusion is consistent with obiter dictum of the Full Court of this Court in Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43 at [41]-[42] per Besanko, Flick and McKerracher JJ, and is supported by the distinction between the language "has been" (in subparas (i) and (ii) of reg 2.43(1)(p)) and "is" (in subparas (iii) to (v)). Other matters of context supporting this conclusion are referred to next in the course of addressing the Appellant's submissions in favour of his position that subpara (ii) contained the contended "temporal limitation" referred to in paragraph [17] above.
21 The Appellant submitted that there were a number of indications supporting his construction.
22 First, the Appellant relied upon "Ministerial Direction 63 - Bridging E visas: Cancellation under section 116(1)(g) - regulation 2.43(1)(p) or (q)" (Direction 63) given on 4 September 2014, which it was said was consistent with the Appellant's interpretation of reg 2.43(1)(p)(ii). In particular, the Appellant relied on cl 4.3(5) which provides:
Bridging E visa holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigration status. Similarly, where Bridging E visa holders are charged with the commission of a criminal offence or are otherwise suspected of engaging in criminal behaviour or being of security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.
23 The meaning of reg 2.43(1)(p)(ii) cannot be controlled by a later Ministerial Direction made under s 499 of the Act. The way in which cl 4.3(5) has been drafted may suggest that the draftsperson had in contemplation convictions and charges which occur whilst the relevant person holds a visa. That does not assist in determining the scope of the regulations, the terms of which are not obviously so confined.
24 Secondly, the Appellant submitted that a cancellation results in a deprivation of liberty so there must be a "clear expression of an unmistakable and unambiguous intention to abrogate a fundamental freedom", citing Coco v The Queen [1994] HCA 15; 179 CLR 427 and Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; 163 FCR 414. It was said that this "interpretive principle requires that any ambiguity be resolved in favour of not abrogating that fundamental freedom".
25 The regulation does not deprive a person of liberty. The legislature's "clear expression of an unmistakable and unambiguous intention to abrogate a fundamental freedom" is found in ss 189 and 196 of the Act which require that an unlawful non-citizen be detained, that is, taken into and kept in detention: Graham v Minister for Immigration and Border Protection [2018] FCA 1012 at [87]-[91]; Tanioria v Commonwealth of Australia (No 3) [2018] FCA 1623 at [17]-[25].
26 The "interpretive principle" has no work to do in reg 2.43(1)(p)(ii), which is merely identifying a matter about which the Minister is to be satisfied if he or she exercises his or her discretion to cancel a visa under s 116(1)(g).
27 Thirdly, the Appellant submitted that the "temporal limitation" for which he contended was supported by contrasting the language of reg 2.43(1)(p)(ii) with reg 2.43(1)(oa). It was observed that para (oa) referred to the Minister being satisfied that the visa holder:
… has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).
28 It was contended that the words in parentheses are not, but could have been, included in reg 2.43(1)(p)(ii). Whilst that is correct, it could equally be said that the legislature could have used the words in reg 2.43(1)(p)(ii), "has been, whilst holding the visa", if the provision was intended to have the contended "temporal limitation".
29 On the other hand, an examination of reg 2.43(1)(oa) together with both subparas (i) and (ii) of reg 2.43(1)(p) is useful in confirming what we otherwise see to be the clear meaning of subpara 2.43(1)(p)(ii). Subparagraph (i) of reg 2.43(1)(p) provides:
Subclass 051 (Bridging (Protection Visa Applicant)) visa - that the Minister is satisfied that the holder:
(i) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa)) …
30 Subparagraph 2.43(1)(p)(i) was amended when paras 2.43(1)(oa) and (ob) were introduced. The amendment and the reasons for it were explained in the Explanatory Statement to the Migration Amendment (2014 Measures No. 2) Regulation 2014 (Cth): Select Legislative Instrument No. 199, 2014. The Explanatory Statement included:
Schedule 3 - Character and general visa cancellation
...
Item [6] - At the end of Subparagraph 2.43(1)(p)(i)
This item adds the words "(other than if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa))" at the end of subparagraph 2.43(1)(p)(ii) [sic - (i)] of Subdivision 2.9.2 of Division 2.9 of Part 2 of the Migration Regulations.
Subparagraph 2.43(1)(p)(ii) [sic - (i)] provides that for the purposes of paragraph 116(1)(g) of the Migration Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country.
The effect of this amendment is to make it clear that a prescribed ground for the cancellation of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa is that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country. This ground will apply if the holder of the bridging visa is convicted of the offence at any time during their stay in Australia, not necessarily while holding the bridging visa that is now subject to consideration for cancellation. However, this would not apply if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa), inserted by item [5], above.
(emphasis added)
31 The effect of para 2.43(1)(oa) and subpara 2.43(1)(p)(i) in circumstances where a person holding a 444 visa (like the Appellant) has been convicted rather than merely charged is as follows:
(1) Rather than cancelling the 444 visa under s 116(1)(e) on the basis the Minister was satisfied the Appellant was or might be a risk to the health, safety or good order of the Australian community (a satisfaction which might be reached, amongst other things, having regard to the Appellant's arrest and subsequent charging), the Minister could cancel the 444 visa on the basis of s 116(1)(g) and reg 2.43(1)(oa) if she or he was satisfied simply of the existence of the conviction. The Minister would not need to reach a state of satisfaction about risk, although, if he did, he could cancel under s 116(1)(e).
(2) The Minister could grant a Bridging E visa, for example, to facilitate the Appellant seeking merits review in the Tribunal and subsequent judicial review, without the Appellant becoming an unlawful non-citizen liable to immigration detention as a consequence of the 444 visa cancellation.
(3) If the Minister had then wanted to cancel the Bridging E visa he would not have been able to use the fact of the Appellant's convictions to do so because of the words in parentheses in reg 2.43(1)(p)(i). The convictions were used to cancel the 444 visa, but could not be used a second time to cancel the Bridging E visa. Satisfaction of the existence of a different conviction to those relied upon to cancel the 444 visa could have been used to cancel the Bridging E visa and it would not have mattered when those different convictions occurred.
32 The statutory scheme allows for the satisfaction of the existence of convictions to be used, of itself, as a basis for cancelling a 444 visa or the other visas to which reg 243(1)(oa) applies. However, it does not allow the satisfaction of the existence of those convictions to be used a second time as a basis for cancelling a subsequent Bridging E visa.
33 There is, necessarily, no equivalent regime so far as concerns charges rather than convictions. The reason reg 2.43(1)(p)(ii) does not contain the words in parentheses in reg 2.43(1)(p)(i) is that satisfaction of the existence of charges is not, of itself, a sufficient ground to cancel a 444 visa under s 116(1). There is no equivalent to para (oa) that relates to charges rather than convictions.
34 The Minister cancelled the Appellant's 444 visa under s 116(1)(e), concluding on the basis of information which had come to him, including the charges, that the Appellant was a risk to the health, safety or good order of the Australian community. Regulation 2.43(1) does not contemplate cancellation on the basis of satisfaction of the existence of charges. Nor is the existence of charges, of itself, sufficient to cancel a 444 visa under s 116(1)(g). It was accordingly unnecessary and inappropriate to include in subpara (ii) of reg 2.43(1)(p) equivalent words to those in parentheses in subpara (i).
35 What this demonstrates is that the words "has been convicted" in reg 2.43(1)(p)(i) are necessarily capable of referring to convictions which pre-date the grant of the Bridging E visa and to convictions whilst a person is the holder of a Bridging E visa. The words in parentheses contemplate that charges which predate the holding of the Bridging E visa would fall within the meaning of "has been convicted". The words "has been charged" in subpara (ii) must carry an equivalent meaning. There is no "temporal limitation" in reg 2.43(1)(p)(ii). This confirms that the words have their ordinary meaning when read in the statutory context. There is no implicit "temporal limitation".
36 Fourthly, the Appellant contended that the regulation, if it were not read as containing a "temporal limitation", would lead to absurd results. The absurdity was said to arise because the Minister might cancel on the basis of charges which existed decades earlier, even if the person had been acquitted. However, equally absurd results could flow if the regulation were to be read as containing the contended temporal limitation. The Minister might grant a Bridging E visa only to learn the next day that the visa holder had, unbeknownst to the Minister, been charged a week earlier with a series of serious offences.
37 In support of his submission that the regulation allowed for absurd results, the Appellant relied upon BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72; 252 FCR 97 ('BGM16'). In that case, the Full Court held that s 91WA(1)(a) of the Act applies only if a bogus document is provided as part of, or in connection with, an application for a protection visa: at [8] (Siopis J); [14], [105] (Mortimer and Wigney JJ).
38 Section 91WA(1)(a) provided:
The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a) the applicant provides a bogus document as evidence of the applicant's identity, nationality or citizenship; …
39 The Minister had submitted that the scope of the provision was unconstrained by any temporal or circumstantial limits: at [46]. The Full Court rejected that submission, noting at [47]:
If the Minister's construction is accepted, a person who has "provided" a bogus document to enter a nightclub 20 years ago in a third country would be within this provision.
40 The Full Court considered the ordinary meaning was tolerably clear once the purpose and context of the provision were considered together with the text: at [44].
41 BGM16 does not provide any real assistance to resolution of the correct construction of reg 2.43(1)(p)(ii) beyond the uncontroversial proposition that the regulation must be construed in its statutory setting.