The judgment in BAL19
23 The judgment in BAL19 concerned an application for constitutional writ relief in respect of a decision by the Minister for Home Affairs, pursuant to s 501(1) of the Migration Act, to refuse to grant a temporary protection visa to the applicant in circumstances where the Minister for Home Affairs accepted that Australia owed non-refoulement obligations in respect of the applicant. The first issue considered in the judgment, which is not relevant for present purposes, was whether the Minister for Home Affairs failed to consider and weigh the legal or practical consequences of removing the applicant from Australia when deciding to refuse to grant the visa. The second issue, which is of central relevance to the present proceedings, was "whether s 501 and its analogues in Pt 9 of the Act was a general provision that was displaced by, or inconsistent with, the criterion for a protection visa in s 36(1C)": BAL19 at [3]. A third issue, which is not relevant for present purposes, concerned outstanding visa criteria.
24 His Honour set out the legislative context at [4]-[13] of the judgment. As noted by the Minister in the present proceedings, his Honour omitted to refer to Note 1 under s 501 (in this section or elsewhere in the judgment). His Honour described the decision of the Minister for Home Affairs at [14]-[26]. In the decision, the Minister for Home Affairs stated that the applicant had not satisfied him that he passed the character test, relying on s 501(6)(d)(v): BAL19 at [22]. The Minister for Home Affairs then considered the exercise of the discretion, and concluded that the reasons for refusing to grant the visa outweighed those for granting it: BAL19 at [26].
25 Although the first issue (namely, the failure to consider the legal consequences of the decision) is not presently relevant, parts of his Honour's reasoning in relation to this issue provide context for his Honour's consideration of the second issue. In the course of considering the first issue, his Honour referred to the 2014 Amendment Act, and the explanatory memorandum for the Bill that became that Act (the 2014 Explanatory Memorandum). As his Honour noted, the 2014 Amendment Act, by Sch 5, introduced s 36(1C) into the Migration Act, together with a "comprehensive suite of definitions" of the other criteria for a protection visa: BAL19 at [32]. The 2014 Amendment Act also introduced s 197C, which his Honour regarded as important. His Honour noted that the 2014 Explanatory Memorandum made clear at [1236] that the new s 36(1C) was a reasonably precise reflection of Australia's international non-refoulement obligations in accordance with Art 33(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (the Refugees Convention). His Honour set out, at [34], Arts 32(1) and 33 of the Refugees Convention, which are in the following terms:
Article 32
Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
…
Article 33
Prohibition of expulsion or return ("refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
(Emphasis added in BAL19.)
26 His Honour also set out, at [35], the following extract from the second reading speech for the Bill that became the 2014 Amendment Act:
Schedule 5 of the bill will make clear that the removal power is available independent of assessments of Australia's non-refoulement obligations, which are addressed in the broader assessment process where a noncitizen meets the circumstances specified in the express provisions of section 198 of the Migration Act. This change is in response to a series of court decisions which have found that the Migration Act as a whole is designed to address Australia's non-refoulement obligations, which has had the effect of limiting the availability of the removal powers. Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations, rather it seeks to be able to effect removals in a timely manner once the assessment of the applicant's protection claims has been concluded.
Schedule 5 of the bill will also create a new, independent and self-contained statutory refugee framework which articulates Australia's interpretation of its protection obligations under the refugees convention. The government remains committed to ensuring it abides by its obligations in respect to the refugees convention and this change does not in any way compromise this commitment. The new statutory framework will enable parliament to legislate its understanding of these obligations within certain sections of the Migration Act without referring directly to the refugees convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope of the refugees convention well beyond what was ever intended by this country or this parliament. This parliament should decide what our obligations are under these conventions - not those who seek to direct us otherwise from places outside this country. The new framework clearly sets out the criteria to be satisfied in order to meet the new statutory definition of a 'refugee' and the circumstances required for a person to be found to have a 'well-founded fear of persecution', including where they could take reasonable steps to modify their behaviour to avoid the persecution.
Let me be clear, the government is not changing the risk threshold required for assessing whether a person has a well-founded fear of persecution. Under the new framework, refugee claims will continue to be assessed against the 'real chance' test, which has been the test adopted by successive governments, in line with the High Court's decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62.
The bill also clarifies the interpretation of various protection related concepts such as:
the standard of effective state and non-state protection;
the test for assessing whether a person can relocate to another area of the receiving country; and
the definition of 'membership of a particular social group'.
The new framework will also clarify those grounds which exclude a person from meeting the definition of a refugee or which, upon a person satisfying the definition of a refugee, render them ineligible for the grant of a protection visa.
(Emphasis added in BAL19.)
27 It is his Honour's consideration of the second issue (namely, the inconsistency issue) that is of central relevance for present purposes.
28 His Honour summarised at [57]-[60] the Minister for Home Affairs' submissions, which included that:
(a) section 36(1C) did not displace, as a source of power to refuse or cancel a protection visa, the availability of s 501 and its analogues;
(b) in respect of visas granted prior to the 2014 Amendment Act, it had been held that the power in s 501 could be used to refuse or cancel a protection visa, referring to Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 (Plaintiff M47) and other cases;
(c) the 2014 Amendment Act did not make any change to s 501 itself; it therefore continued as a source of power to refuse or cancel a protection visa;
(d) extrinsic materials could not alter the meaning of the Migration Act; the statement in the second reading speech (for the Bill that became that 2014 Amendment Act) that the amendments would "create a new, independent and self-contained statutory refugee framework which articulates Australia's interpretation of its protection obligations under the refugees convention" meant that the framework was self-contained from international law; and
(e) sections 36(1C) and 501 could operate together; s 501H made clear that s 501 was "in addition to" any other refusal powers.
29 His Honour contrasted the specific, and "much more restrictive", criterion in s 36(1C) for a protection visa with the broader grounds covered by s 501: BAL19 at [63]-[65]. His Honour noted, in particular, that s 36(1C) is not a discretionary power. His Honour stated that "[i]n enacting s 36(1C), the Parliament determined, consistently with Art 33(2) of the Refugees Convention, that a person would be eligible to be granted a protection visa if he or she is not a person whom the Minister considers, on reasonable grounds, to be a danger to the Australian community on the premise that the person had been convicted of a particularly serious crime": BAL19 at [64]. His Honour noted that the criterion in s 36(1C)(b) requires the existence of reasonable grounds for the Minister to consider that the person is actually a danger to the Australian community (as opposed to the criterion in s 501(6)(d)(v) of there being a risk that he or she would represent a danger to the Australian community), and that could occur only in the context of the Minister having reasonable grounds to consider that the person had been convicted of a particularly serious crime.
30 The particular importance of s 36(1C)(b), in his Honour's view, was that it gave effect to "the Parliament's stipulation that a person whom the Minister does not have reasonable grounds to consider had been convicted of a particularly serious crime, was eligible to be granted a protection visa, regardless of the danger he or she may be to the Australian community": BAL19 at [65]. His Honour stated:
The legislative purpose of that stipulation [i.e. s 36(1C)(b)] was to ensure that such a person would not be refouled (subject, of course, to other protective criteria in s 36(1B), (1C)(a) and (2)), despite the danger he or she may be to the Australian community, because that person, in those prescribed circumstances, consistently with Art 33(2) of the Refugees Convention, was not to be exposed to the real chance of persecution of which he or she had a well-founded fear.
31 His Honour contrasted this with s 501(6)(d)(v), which provides that a person does not pass the character test if there is a risk that he or she would represent a danger to the, or a segment of the, Australian community; that criterion operated by reference to the existence of a (i.e. any) risk that the person would represent a danger to the whole, or a segment of the, Australian community without any additional qualification of a past conviction or the existence of reasonable grounds to consider the existence of the risk: BAL19 at [66].
32 His Honour considered that there would be "no intelligible statutory purpose" for the mandatory criterion for a grant of a protection visa in s 36(1C), reflecting as it does the Parliament's interpretation of Art 33(2) of the Refugees Convention, if the Minister were free to apply a less stringent criterion under s 501(1) and its analogues, involving his exercising a very broad discretion, to refuse to grant the very same visa, referring to Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.
33 Having noted these matters, his Honour said that they raised the question whether the Minister can use the general power in s 501 or its analogues in Pt 9 to refuse to grant or to cancel a protection visa, on a basis other than that specifically provided in s 36(1C). (It is noted that, in framing the question in this way, his Honour referred to both the power to refuse and the power to cancel. In contrast, in the present proceedings, BFW20 restricts his argument to the power in s 501 to refuse an application for a protection visa.)
34 His Honour referred at [68] to the principle that, ordinarily, general provisions conferring a power in an Act will not apply to another power that the Act confers that also prescribes the conditions for its exercise, citing Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (Anthony Hordern) at 7 per Gavan Duffy CJ and Dixon J. The following passage from Anthony Hordern at 7 was set out:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
(Emphasis added in BAL19.)
In relation to the Anthony Hordern principle, his Honour also referred to David Grant & Co Pty Ltd (receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 276 per Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed at 269.
35 His Honour reasoned that the Parliament enacted ss 36(1C) and 197C, as part of a suite of measures in the 2014 Amendment Act, to define Australia's non-refoulement obligations and their limits: BAL19 at [69]. Importantly, in his Honour's view, "a person who satisfied the criterion in s 36(1C), together with the other criteria prescribed in s 36 and any relevant regulation, was entitled, as of right, to be granted a protection visa under s 65(1)(a), unless, relevantly, s 501 'prevented' its grant (s 65(1)(a)(iii))". His Honour referred to the criteria in s 36(1C)(b) and then stated at [71]:
Importantly, s 36 does not provide that an applicant for a protection visa who satisfies the criteria in s 36(1B), (1C) and (2) may nevertheless be refused the visa under s 501(1). If that were the intention of the Parliament, then the specific and narrow criteria in s 36(1B) and (1C) that give statutory effect to Australia's non-refoulement obligations would have no useful function since these could be overridden in every protection visa application by the use of the general power in s 501(1), regardless that the different criteria in s 36(1B) and (1C) had been met. And, equally, s 197C could then apply to a person who actually met the criteria in s 36(1B) and (1C) that the Parliament specifically enacted as objective preconditions for the grant of a protection visa, if the Minister were free to use a different power with different and less stringent standards (namely, that in s 501(1) or an analogue) in a manner that would put Australia in breach of its international obligations under Arts 32 and 33(2) of the Refugees Convention.
36 His Honour discussed Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (Nystrom), which relevantly held that the power to cancel a visa conferred by s 501(2) was not restricted by reference to the circumstances which would engage the exercise of the power of deportation under ss 200 and 201 of the Migration Act. His Honour stated at [73] that the applicable principles of statutory construction were explained by Gleeson CJ in Nystrom at [2] as follows:
The contention that ss 200 and 201 give a person in the position of the respondent a protection or immunity from the exercise of the power conferred by s 501 is a statement of a conclusion, rather than an expression of a reason for reaching that conclusion. If there is such a reason, it must be found in a process of statutory construction. The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention [Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130]. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said [Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Livestock Corporation [No 2] (1980) 44 FLR 455 at 468-469]. As explained by Heydon and Crennan JJ, and also by Gummow and Hayne JJ, neither proposition can be made good when regard is had to the legislative history and context.
(Emphasis added in BAL19.)
Reference was also made in BAL19 to Nystrom at [59] per Gummow and Hayne JJ and at [162]-[167] per Heydon and Crennan JJ.
37 In BAL19 at [74], his Honour referred to the protection criteria in the Migration Act as considered in SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577 (SZOQQ). Under s 36(2) as considered in SZOQQ, a criterion for a protection visa was that "the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol".
38 His Honour considered there to be an overlap between s 501(6)(d)(v) and s 36(1B) and (1C) because each provision deals with considerations of the same kind by reference to security, while other provisions in s 501(6) also direct attention to the considerations with which s 36(1C) deals: BAL19 at [75]. His Honour reasoned at [76]-[77]:
76 Prior to the enactment of the [2014 Amendment Act], the structure of the Act contemplated that the provisions of the Refugees Convention, and in particular Arts 32 and 33, applied generally in respect of decisions that could result in a person being refouled. Those Articles operated so as to prevent refoulement occurring until a decision had been made as to the application of all of Australia's non-refoulement obligations in respect of that person. Hence, in Plaintiff M47 251 CLR 1, the majority held that there was an overlap between Arts 32 and 33 and s 501(6)(d)(v) but that the latter provision was not inconsistent with Art 33. Kiefel J noted (Plaintiff M47 251 CLR at 161 [431]) that "PIC 4001(a) expresses no more than the requirements of s 501(1)".
77 However, as the Parliamentary materials for the [2014 Amendment Act] made clear, the enactment of s 36(1C) and the related amendments sought to codify Australia's protection obligations and, in tandem with that, s 197C excluded non-refoulement obligations from the class of relevant considerations that could inhibit the duty of an officer under s 198 to remove an unlawful non-citizen as soon as reasonably practicable. …
39 His Honour referred to Plaintiff M47 and the enactment of s 36(1B) in response to that decision. His Honour stated that that section now addresses the issue raised in Art 32 of the Refugees Convention and makes it a criterion for the grant of a protection visa: BAL19 at [79].
40 His Honour stated that Pt 9 of the Migration Act itself treats protection visas as a specific class of visa, the refusal or cancellation of which has its own bespoke consequences, referring to s 501F and s 500(4)(c)(i): BAL19 at [80]. His Honour stated at [81]: "Importantly, s 500(4)(c)(i) … refers to a decision to 'cancel a protection visa, relying on' ss 5H(2) or 36(1C). However, neither provision expressly creates a power to cancel a protection visa that has been granted." His Honour also referred to s 411(1)(c)(i) and (d)(i) and s 476A(1)(c). On the basis of these provisions, his Honour reasoned that ss 5H(2) and 36(1C) were each a "conferral of power", not merely a criterion: BAL19 at [83]. His Honour stated: "Thus, if after being granted a protection visa, a person is convicted of a particularly serious crime, he or she may be liable to a decision under s 36(1C) that his or her visa will be cancelled, since he or she may no longer meet that criterion."
41 His Honour stated that the 2014 Amendment Act changed the Migration Act in significant respects in relation to the powers and criteria under which a protection visa may be granted or cancelled: BAL19 at [84]. His Honour highlighted the following differences at [84]:
First, a decision to refuse (or cancel) a protection visa "relying on" or "because of" ss 5H(2) or 36(1C) is reviewable, by force of s 500(1)(c), in the Tribunal in a contested inter partes hearing, even though such a decision is based on a criterion for the visa not having been met, which otherwise would be a decision reviewable in an inquisitorial process under Pts 5, 7 or 7AA. A decision to refuse a protection visa under s 501 is reviewable as a decision made independently under that section and without overlapping with ss 5H(2) or 36(1C). Secondly, s 36(1B) and (1C) are now criteria that reflect the intent, but not the precise content, of what Arts 32 and 33 of the Refugees Convention provided and how they operated in the scheme of the Act before those amendments.
42 His Honour concluded his reasoning on this issue at [85]-[88]:
85 It is important to appreciate that, as the majority in Plaintiff M47 251 CLR 1 held, prior to the [2014 Amendment Act], the three Articles (1F, 32 and 33) of the Refugees Convention overlapped to some extent with the criteria in the character test in s 501(6) and, in particular, s 501(6)(d)(v), as supporting the Minister's then powers to refuse to grant or cancel a protection visa where the application or holder is a person to whom, but for the presence of the disentitling criteria in one of Arts 1F, 32 or 33, Australia would have owed protection and non-refoulement obligations. However, the [2014 Amendment Act] carefully codified the criteria for a protection visa in ss 35A(6) and 36 in order to divorce other parts of the Act and the Refugees Convention. In my opinion, those criteria deal exhaustively with the criminal history and behaviours of an applicant for (or holder of) a protection visa so as now to exclude the availability or operation of s 501 and its analogues, including the pre-existing s 501H, as a basis to refuse to grant a protection visa: Nystrom 228 CLR at 571-572 [2].
…
87 I also reject the Minister's argument that the general provisions in s 501, even in light of s 501H, still confer, after the [2014 Amendment Act], a discretion on the Minister to refuse to grant or cancel a protection visa. As the majority held in Plaintiff M47 251 CLR 1, prior to the [2014 Amendment Act], s 501 gave power to the Minister that was consistent with Arts 1F, 32 and 33 of the Refugees Convention because those articles were not statutory criteria for the grant of a protection visa. But that position is no longer the case, as I have explained. Now, for the reasons I have given, s 501(6)(d)(v) … is inconsistent with the specific criteria for a protection visa in s 36(1C).
88 I am of opinion that, since the [2014 Amendment Act], s 501(1) is not, and is not intended or expressed to be, relevant to determining whether or not a person, in accordance with ss 35A(6) and 36, is entitled to (or may be refused) under s 65(1) a protection visa as a refugee (as now defined in the Act) or to whom Australia otherwise owes protection obligations. Rather, s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to refuse to grant a protection visa: Anthony Hordern 47 CLR at 7; Nystrom 228 CLR at 571-572 [2].
(Emphasis added in BAL19.)
43 The following aspects of the reasoning in BAL19 may be noted:
(a) His Honour placed considerable weight on what he considered to be the purpose and effect of the amendments introduced by the 2014 Amendment Act. In his Honour's view, the enactment of s 36(1C) and the related amendments sought to "codify" Australia's protection obligations: see BAL19 at [77], [85]. His Honour also stated that the Parliament enacted ss 36(1C) and 197C, as part of a suite of measures, "to define Australia's non-refoulement obligations and their limits": BAL19 at [69].
(b) His Honour considered that the criteria in s 36(1C) would have "no intelligible statutory purpose" if the discretion in s 501(1) to refuse to grant a visa were applicable to a protection visa: BAL19 at [67], [71].
(c) In his Honour's view, the protection criteria in ss 35A(6) and 36 deal exhaustively with the criminal history and behaviours of an applicant for (or holder of) a protection visa, so as now to exclude the availability or operation of s 501 and its analogues as a basis to refuse to grant a protection visa: BAL19 at [73], [85].
(d) His Honour rejected the Minister's argument that the general provisions in s 501, even in light of s 501H, still confer, after the 2014 Amendment Act, a discretion on the Minister to refuse to grant or cancel a protection visa: at [87].
(e) His Honour relied on the Anthony Hordern principle and on the principles stated by Gleeson CJ in Nystrom at [2]: BAL19 at [68], [73], [88].