Application of principles
24 In this case, in order to make the provision read in a manner that would confine the excluded category to instances where there was some commonality (whether as to the factual basis of the protection claims or the nature of harm from which the applicant seeks to be protected) between the past claim and the claim made in Australia there would need to be considerable adjustment to the language. It is not implicit in language referring only to the earlier claim for protection that it says something about the relationship with the character of the claim made in Australia. It would be necessary to introduce significant additional wording in order to refer to the claim for protection that has been assessed and refused in Australia and thereby qualify para (a)(iii) by reference to a comparison between the two claims.
25 There are many possibilities as to the type of connection that might be required between a past failed application in another country and a subsequent application in Australia that is also unsuccessful. The appellant posits that the two applications must be based on materially the same facts and the exclusion does not apply if it is based upon new facts that have arisen since the refusal of the claim to protection in another county. However, language of that kind would mean that further facts of the same kind as those found to be an insufficient foundation for a claim would be sufficient even where, in substance, they raise the same basis for a claim. If all that was required was some additional event that occurred after the claim was refused then the exclusion would barely have any field of operation. If the required connection was as to the reason for the fear of harm then issues would arise as to how similar the claims needed to be. Further, questions may arise concerning what is to occur where the reason for the harm, as alleged to be the basis for the claim in Australia, extend back to before the earlier claim but that reason was not raised in support of the earlier claim. There would also be issues as to how to treat an instance where a prior claim was rejected on credibility grounds. In short, there are many issues that would be raised by seeking to express the nature and extent of a connection between the two claims that determined whether the exclusion was to apply. Put another way, even assuming that a general purpose is manifest by the Explanatory Memorandum that the exclusion only applies if the claim in Australia is a 'further' claim of the same kind as the earlier unsuccessful claim, any such purpose is not stated with sufficient precision to indicate the language that might be added to give effect to that purpose.
26 Indeed, the argument for the appellant did not suggest any words that might be added. Rather, it articulated the result that it was submitted ought to have been expressed in para (a)(iii) without assuming the burden of stating how that outcome might be achieved by the application of principles of statutory construction. This is no mere technicality. The established rules of construction are an important expression of the constitutional relationship between the arms of government and ensure that the Courts give effect in an objective way to the manifestation of the intention of the legislature through the particular words used: Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [28].
27 The argument for the appellant focussed upon the word 'claim'. It was said that the word claim could be construed to mean claim based on the same material facts as the claim made in Australia. However, it is necessary to consider the compendious phrase used to express the exclusion. It operated by reference to the making of a claim to protection in a country other than Australia that was refused. The context makes plain that it is the past act of making that claim, being a prior claim to protection in another country, that is the basis for the category of exclusion expressed in para (a)(iii). Likewise in para (a)(ii) and (a)(iv) the nature of the claim being referred to is explained in terms that focus on the act of making the past claim. There being no reference in these provisions to the subsequent claim it is difficult to see how provisions that describe the nature of the past claim as the basis for the exclusion may be read as incorporating something about the subsequent claim.
28 Nor does the manner in which the definition of excluded fast track review applicant is deployed in the substantive provisions assist. As we have observed, it operates as a qualification to the definition of fast track applicant. The defined term 'fast track review applicant' is defined to mean 'a fast track applicant who is not an excluded fast track review applicant'. The fast track review provisions of Part 7AA apply to decisions made in respect of fast track review applicants: s 473BB and s 473CA. There is no manifestation of any purpose concerning the extent of the exclusion effected by the definition.
29 Further, even in the case of para (a)(ii) of the definition of excluded fast track review applicant where there are additional words to describe the nature of the earlier application, there is no expression of a requirement for a particular link to the subsequent application that has been refused. The exclusion operates simply by reference to the nature of the first claim in Australia that was refused or withdrawn. The language invites no comparison with the nature or extent of the subsequent claim.
30 It may be accepted that a particular normative perspective might question the logic of excluding an applicant from the fast track merits review process simply because the applicant has, at some time in the past, made a claim for protection of the kind described in para (a)(ii), (iii) or (iv). The fact that a person has at some prior time in their life made an unrelated claim of an entirely different kind for protection from a very different kind of harm may be viewed as not presenting a compelling basis for treating the application of that person in a different manner, when it comes to merits review, than another person making the same claim. The claim may have been made many years before on the basis of entirely different circumstances. In such an instance, the fact of the earlier claim provides no necessary foundation for concluding that there is 'forum shopping' or some other lack of merit in the claim.
31 However, it might be said that a provision which views with circumspection all those who have made previous unsuccessful claims irrespective of whether they are connected to their current claims and does not extend to them a limited merits review for that reason is within the broad purpose stated in the Explanatory Memorandum. The provision might be characterised by some as harsh or extreme in its consequences, but it would remain an exception that might be justified by the stated purpose. Therefore, contrary to the submission advanced for the appellant, the operation contended for by the Minister does not result in an outcome that might be described as illogical or absurd such that it is plainly inconsistent with a manifest purpose that might be given effect by reading in words to the definition (assuming, contrary to the view we have already expressed, that such words might be formulated in accordance with the proper application of principles of construction).
32 Finally, it is to be noted that the evident intention of the protection provisions in the Act as being to give effect to international treaty obligations does not point to a different conclusion. It may be accepted that where there is ambiguity, a construction which accords with the obligations of Australia under an international treaty should be favoured, at least where there is a basis to conclude that the law was intended to give effect to those obligations: Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 38; and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287 (Mason CJ and Deane J). Further, the use of the same words as are to be found in the international convention or treaty may manifest an intention that within the domestic legislative instrument the words are to be given the same acquired meaning as they have been understood to hold when used in the international instrument: Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 265.
33 However, this is not a case of ambiguity. Further, the question posed by the present appeal does not concern the criteria to be established for obtaining a protection visa. It may be accepted that the terms of the protection provisions in the Act were introduced for the express purpose of conforming to the requirements of the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees: see SZTAL at [1] (Kiefel, Nettle and Gordon JJ), [67]-[71] (Edelman J). However, the exclusion of some applicants from the merits review process does not deprive them of the ability to seek refuge of the kind provided for by the Act. Nor could it deprive an unsuccessful applicant of the right to seek review for jurisdictional error in accordance with the constitutional writ jurisdiction. Indeed, the primary judge in this case considered whether any such error had been demonstrated and found no error. That aspect of the decision is not challenged on appeal. The appeal is confined to the aspect of the delegate's decision which involved the formation of the opinion that the appellant was an excluded applicant.