Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25

Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25 - HCA 2014 case summary — Zoe

[24]

The facts necessary to the disposition of the special case were agreed and may be summarised briefly.
The plaintiff is a national of Ethiopia who entered Australia at the Port of Gladstone on 29 March 2013. He entered without a visa, having been a stowaway aboard a vessel. Being an "unlawful non-citizen" within the meaning of ss 5(1) and 14 of the Migration Act, he was taken into immigration detention pursuant to s 189. He remained in immigration detention from 29 March 2013 to 10 February 2014. Between 27 June 2013 and 10 February 2014, he was held in community detention pursuant to a residence determination made under s 197AB(1) of the Migration Act.
On 19 April 2013, the plaintiff made a valid application for a protection visa. That application was refused on 3 July 2013. On 16 July 2013, the plaintiff applied to the Refugee Review Tribunal ("the RRT") for a review of the decision to refuse his protection visa application. On 3 October 2013, the RRT remitted his application to the Minister with a direction that the plaintiff satisfied the criterion under s 36(2)(a) of the Migration Act for the grant of a protection visa.
On 10 February 2014, a delegate of the Minister refused to grant the plaintiff a protection visa on the basis that the plaintiff did not satisfy the criteria prescribed by cl 866.222 of Sched 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). Those criteria, which were introduced by the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth), required, inter alia, that at the time of decision in relation to an application for a protection visa, the applicant held a visa that was in effect on his or her last entry to Australia and was immigration cleared on that last entry. The plaintiff did not meet those requirements. On the same day as his application was again refused by the Minister's delegate, the Assistant Minister for Immigration and Border Protection exercised her power under s 195A of the Migration Act and granted the plaintiff a Temporary Safe Haven (Class UJ subclass 449) visa and a Temporary (Humanitarian Concern) (Class UO) visa. By reason of the grant of those visas, the plaintiff became a lawful non-citizen and was released from immigration detention.
The plaintiff applied again to the RRT on 14 February 2014 for a review of the Minister's decision to refuse to grant him a protection visa. He commenced proceedings in the original jurisdiction of this Court on 19 December 2013. On 22 April 2014, by order of this Court made by consent, certiorari issued to quash the decision made by the delegate on 10 February 2014 to refuse to grant the plaintiff's application for a protection visa. The plaintiff's application for a protection visa remains undetermined.
The plaintiff's application remains undetermined because, on 4 March 2014, the Minister made a determination under s 85 that the maximum number of protection visas that could be granted in the year ending 30 June 2014 was 2,773. The effect of that determination, if valid, was that no more protection visas could be granted between 24 March 2014, when the maximum number of protection visas was reached, and 30 June 2014. Its effect, if valid, is that the plaintiff cannot be granted a protection visa in the current financial year.

[34]

The two sections were described in the relevant Second Reading Speech as a mechanism for managing "the migration program"[10]. The Minister, it was said, could "target the grant of visas in accordance with the priorities of the migration program."[11] In the Explanatory Memorandum, the new subdiv AA was described as establishing "a capping scheme to assist in the delivery of the annual migration program."[12]
Given their purpose of program management, it is not surprising that ss 85 and 86 do not apply to all classes of visa, for not all classes of visa can be related to what could be called migration programs. Subdivision AH is expressly excluded from application to five classes of visa discussed in the next section of these reasons**[13]. Even without those exclusions, s 85 could not logically apply to them. There is another class of visa, the bridging visa, not the subject of an express exclusion, to which s 85 is of doubtful application. Consideration of the purpose of ss 85 and 86 against the purpose of protection visas, supported in part by the decisional time limit mandated by s 65A(1), leads to the conclusion that ss 85 and 86, which predated that class of visa, do not apply to them[14]**.
Subdivision AH provides the immediate statutory context for ss 85 and 86. It comprises ss 85 to 91 inclusive. Section 87 qualifies s 86 so as not to prevent the grant of a visa to a person who applied for it on the ground that he or she is the spouse, de facto partner or dependent child of an Australian citizen, of the holder of a permanent visa or of a person usually resident in Australia whose continued presence in Australia is not subject to a time limit imposed by law. In the cognate proceeding, Plaintiff S297/2013 v Minister for Immigration and Border Protection[15], the plaintiff submitted that s 87 is in tension with s 36. The family members protected by s 87 comprise a narrower class of persons than the "member[s] of the same family unit" as a protection visa holder who may, on account of that membership, satisfy the criterion for the grant of a protection visa set out in s 36(2)(b). The definition of the class "member of the same family unit", which derives from the definition of the class "member of the family unit", is left by s 5(1) of the Act to the Regulations. That class presently includes, as well as those family members mentioned in s 87, grandchildren, stepchildren and other relatives**[16]. However, as the defendants correctly submitted, no constructional conclusion can be drawn from the definition in the Regulations as they stand from time to time**.
Section 88 allows visa processing to continue even though a limit under s 85 may be in place. It provides that the prevention of a grant of a visa by s 86 "does not prevent any other action related to the application for it." It is also consistent with the continuance of the obligation on the part of the Minister, pursuant to s 65(1)(b), discussed later in these reasons, to refuse to grant a visa if not satisfied of the matters set out in s 65(1)(a).
Section 89 provides:

[42]

Legislation enacted between 1992 and 1994 replaced the pre-existing dual visa and entry permit system with a visa system**[21]. The term "visa" now means a permission granted to a non-citizen by the Minister to travel to and enter Australia and/or remain in Australia[22]. A non-citizen in the "migration zone", who holds a visa that is in effect, is a lawful non-citizen[23]. A non-citizen in the migration zone who is not a lawful non-citizen is an "unlawful non-citizen"[24]. The latter category of person, of which the plaintiff is a member, attracts the provisions of the Migration Act relating to mandatory detention[25]** and removal from Australia**[26]**.
Section 31(1) provides for "prescribed classes of visas", that is to say, visas prescribed by the regulations**[27]. In addition to the prescribed classes, there are classes provided for in the Migration Act itself. All of them post-dated the enactment of ss 85 and 86. They are special category visas (s 32), special purpose visas (s 33), absorbed person visas (s 34), ex-citizen visas (s 35), protection visas (s 36), bridging visas (s 37), temporary safe haven visas (s 37A), criminal justice visas (s 38), enforcement visas (s 38A) and maritime crew visas (s 38B). They were introduced into the Migration Act at different times from and after 1994. Special purpose, absorbed person and ex-citizen visas were introduced by the Migration Legislation Amendment Act 1994 (Cth)[28], which commenced on 1 September 1994, as did the Migration Reform Act, which introduced protection visas and criminal justice visas[29]. Enforcement visas were created by the Border Protection Legislation Amendment Act 1999 (Cth)[30], which relevantly commenced on 16 December 1999. Maritime crew visas were created in 2007 by the Migration Amendment (Maritime Crew) Act 2007 (Cth)[31], which commenced on 1 July 2007. When the special purpose, absorbed person, ex-citizen, criminal justice and enforcement visas were created, express provision was made disapplying to them the provisions of subdiv AH of Div 3 of Pt 2 of the Migration Act and thus disapplying ss 85 and 86[32]. It is a common feature of those classes of visa that their grant does not depend upon application and they are not of a kind, nor do they serve purposes, to which annual numerical limits or targets, elements of migration programs, would be relevant[33]. The special purpose, absorbed person and ex-citizen visas are each "taken to have been granted" upon the satisfaction of certain conditions which it is not necessary to set out here[34]. Criminal justice visas are granted in aid of the administration of criminal justice[35]. Enforcement visas are granted in aid of law enforcement activities involving non-citizens in relation to fisheries and environmental protection legislation[36]**. Neither requires a prior application as a condition of its grant. The inapplicability of s 85 to those classes of visa is apparent. No modification or repeal, express or implied, of s 85 was necessary to support the conclusion that the power it confers could not extend to them. Indeed, the express exclusions, so far as they relate to s 85, may be seen as declaratory in the sense that they are statements of the obvious.
There is no express exclusion from s 85 for bridging visas created by the Migration Act[37]. Nevertheless, it is difficult to see how the power conferred by that section would serve any purpose applicable to them. They are temporary visas, ancillary to the provisions of the Migration Act relating to the application for, and grant or refusal of, a substantive visa. A bridging visa may be granted by the Minister to a non-citizen who, inter alia, has made a valid application for a protection visa and who is determined by the Minister, in the public interest, to be an eligible non-citizen**[38]. When an eligible non-citizen in immigration detention makes an application for a bridging visa of a prescribed class and the Minister does not, within the prescribed period, make a decision to refuse or grant the visa, "the non-citizen is taken to have been granted a bridging visa of the prescribed class ... at the end of that period."[39]** The deemed grant resembles that effected with respect to classes of visa expressly exempted from the application of s 85 and discussed above.
Classes of visa have been created by the Migration Act to which s 85 is inapplicable. That inapplicability derives from the functional incompatibility between the purposes served by those classes of visa and the purpose served by s 85. The latter purpose may be discerned more clearly by reference to the place of s 85 in the Migration Act as one of a group of provisions designed to provide mechanisms for controlling the volume of applications considered and grants of particular classes of visa made in any given financial year. The place of s 85 among those provisions, and, in particular, its relationship to s 39, is considered in the next section of these reasons.

[50]

A question whether s 39 confers a capping power on the Minister or simply attaches particular consequences to the exercise of the power conferred by s 85 was debated at the hearing of the special case. The precursors of s 39, expressed in materially similar language to s 39, save for the exclusion of protection visas, clearly provided for a determination to be made by the Minister. There was no other provision for the Minister to fix a maximum number of visas to be granted in a given financial year. Neither s 85 nor its precursors had been enacted when the precursors of s 39 were enacted. In the event, the debate seems to be about a distinction without a difference. If the Minister makes a determination of a maximum number of visas that may be granted in a specified financial year and does so by legislative instrument, which may include a notice in the Gazette**[48]**, the making of the determination is the common factum which attracts the legal consequences for which ss 39(2) and 86 respectively provide. The one determination may have legal consequences by operation of either s 39(2) or s 86. Sections 39, 85 and 86 may therefore be considered as part of the one statutory scheme now in existence for controlling the volume of grants of particular classes of visa made in a given financial year.
If the Minister's determination, fixing a maximum number of grants for a given year, relates to a class of visa for which a criterion has been prescribed pursuant to s 39(1) then, when the maximum is reached, all outstanding applications for the grant in that year of that class of visa are taken not to have been made. Section 86 would not be engaged. If the determination relates to a class of visa for which no criterion is prescribed under s 39(1), then applications for that class of visa remain on foot. As explained earlier in these reasons, by virtue of s 88, processing of the applications can continue but, by operation of s 86, no grant may be made in that financial year. A decision to refuse an application could and would have to be made if the conditions requiring such a decision, identified in s 65, which is discussed later in these reasons, were met.
The defendants also sought to support their preferred construction of s 85 by reference to the different consequences attaching, by ss 39(2) and 86 respectively, to a ministerial determination of a maximum number of visas to be granted in a given financial year. Under s 39(2), when the cap determined by the Minister has been reached for a class of visa, outstanding applications for visas of that class are taken not to have been made. The defendants submitted that there was a rationale, based upon that consequence, for the exclusion of protection visas from the application of s 39. They argued that had s 39 been applicable to protection visas, the consequential extinguishment of outstanding applications for such visas would have engaged the conditional obligations imposed by s 198 of the Migration Act to remove from Australia unlawful non-citizens who have not made a valid application for a substantive visa that could be granted when the applicant is in the migration zone**[49]**. That consequence was contrasted with the consequence imposed by s 86 on a determination under s 85, which would leave in place a pending application for a protection visa and thus not engage the removal process.
The defendants' argument should not be accepted. For an unlawful non-citizen in detention awaiting determination of a valid application for a protection visa, the application of ss 85 and 86, read with s 91, would have the consequence that the date of decision could be indefinitely deferred by the imposition of successive caps, thus prolonging the period that that applicant would remain in detention absent a request for removal or, as in the present case, the exercise of a non-compellable ministerial discretion to grant a visa pursuant to s 195A(2) of the Migration Act. That consequence, extending as it necessarily would to persons who, like the plaintiff, have satisfied the criterion in s 36(2)(a) that they are persons in respect of whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, is at odds with the purpose of the Act relating to Australia's obligations under the Convention and the purpose of protection visas as a mechanism for meeting those international obligations.
The defendants also submitted that the express exclusion of protection visas from the application of s 39 militated against their implied exclusion from the application of ss 85 and 86. That submission deploys a familiar interpretative argument. However, it must be considered in the wider context of the scheme of the Migration Act relating to protection visas and the purposes which they serve.

[51]

Section 39 is one of a number of provisions of the Migration Act which, for a variety of purposes, refer expressly to protection visas. Section 40 authorises regulations which provide that visas of "a specified class" may only be granted in specified circumstances**[50]. Applicants for protection visas enjoy a limited express exemption with regard to "circumstances" requiring the provision of certain kinds of personal identifier to an officer[51]. A limited exemption also exists in relation to s 41, which authorises regulations providing that a visa or visas of a specified class may be subject to specified "conditions"[52]. No condition can be imposed to prevent a visa holder from applying for a protection visa[53]**. A bar on repeat applications for protection visas is imposed by s 48A(1), which is subject to a ministerial dispensing discretion under s 48B, albeit, pursuant to s 50(c), the Minister is not required to base consideration of the repeat application on information provided in support of the earlier application. Section 65A, which has already been mentioned, imposes a decisional time limit in relation to applications for protection visas that are validly made or remitted to the Minister for reconsideration.
Subdivision AF of Div 3 of Pt 2 of the Migration Act (ss 72-76) provides for the grant of a bridging visa to an unlawful non-citizen who has made a valid application for a protection visa after arriving in Australia and is determined by the Minister to be an eligible non-citizen. The holder of a criminal justice entry visa, or the former holder of such a visa which has been cancelled, cannot apply for a visa "other than a protection visa"[54]. Similar provision is made in relation to the holder of an enforcement visa**[55]. Unlawful non-citizens held in immigration detention are subject to time limits in relation to visa applications, other than applications for bridging visas or protection visas[56]**.
Those provisions were all referred to by the defendants in their submissions. They contended that when Parliament wishes to exclude protection visas from the operation of particular provisions, it does so expressly. Those exclusions, the express exclusion in s 39, and the absence of any such exclusion in s 85, were said to support the application of s 85 to protection visas. What those exclusions indicate, however, is the particular purpose of protection visas in the statutory scheme.
More generally, protection visas were not created for purposes relevant to a migration program of the kind amenable to management by the powers conferred by ss 84, 85 and 39. Protection visas are a mechanism, albeit not the only mechanism, by which Australia can discharge its international obligations not to send back to their countries of origin persons falling under the protection of the Refugees Convention and the other international conventions underpinning s 36(2)(aa). That "non-refoulement" obligation may also be met by removal of a person claiming to be a refugee to a safe third country**[57]. The existence of that alternative is provided for in subdiv AI of Div 3 of Pt 2 of the Migration Act, entitled "Safe third countries". Its existence, however, is not relevant to the constructional question raised in this proceeding. Nor are the recently enacted provisions of the Migration Act relating to removal of unauthorised maritime arrivals to regional processing countries[58]**.
The express provisions of the Migration Act relating to protection visas reflect their special purpose. They point away from the interpretative submission advanced by the defendants based upon the difference in language between ss 39 and 85. General provisions of the Act should not be construed in a way that is inconsistent with that purpose, involving the discharge of international obligations, unless their text plainly requires such a construction. That approach is mandated by s 15AA of the Acts Interpretation Act 1901 (Cth), which provides:

[76]

Resolution of the central issue presented by the case depends upon the proper construction of the relevant provisions of the Act, in particular the provisions of subdiv AC of Div 3 of Pt 2 (ss 65-69), dealing with "Grant of visas", and the provisions of subdiv AH of Div 3 of Pt 2 (ss 85-91), dealing with "Limit on visas". As with any legislation, the Act, and these provisions in particular, "must be construed on the prima facie basis that [the] provisions are intended to give effect to harmonious goals"[69].
Section 65 obliges the Minister, after considering a valid application for a visa, either to grant or to refuse to grant the visa. Section 65A fixes a time limit within which the Minister must make decisions on protection visas. Section 91Y requires the Secretary of the Minister's Department to give to the Minister a report for tabling in the Parliament if that time limit is not met.
The central question in the case is whether the power given by s 85 to limit the number of visas of a specified class that may be granted in a financial year permits the Minister to limit the number of protection visas that may be granted. The Minister and the Commonwealth submitted that if the Minister may limit the number, the consequence is that, once that number has been granted, the Minister may not grant any other protection visas during the financial year, but also may not refuse to grant a visa on the ground that its grant would exceed the permitted number of visas.
Consideration of the text of the relevant provisions, their history, and the consequences of adopting the construction of the Act asserted by the Minister and the Commonwealth, requires the conclusion that s 65 (governing the grant or refusal of visas) is the leading provision of the Act, in the sense that s 85 (and the associated provisions of subdiv AH) is subsidiary to s 65. The provisions of s 65A (obliging the Minister to determine applications for protection visas within a limited time) reinforce this conclusion.

[85]

The Minister and the Commonwealth submitted that any tension between s 65 and subdiv AH was to be resolved by treating subdiv AH as providing comprehensively for the consequences of the Minister making a determination under s 85. They submitted that s 86 provides the chief consequence of a determination: that visas not be granted in excess of the limit fixed. They submitted that s 86 "prohibits the Minister from making the decision otherwise required by s 65(1)" (original emphasis). The duty in s 65 to grant or refuse to grant a visa was thus said to "give way to the prohibition in s 86". They further submitted that this construction of the Act was supported by reference to ss 88, 89 and 90. But the arguments advanced by the Minister and the Commonwealth did not demonstrate that this was a construction which would yield a harmonious construction of either the Act as a whole or the relevant provisions.
All of the submissions of the Minister and the Commonwealth proceeded from the premise that ss 39 and 85 give two separate powers for the Minister to limit the number of visas of a particular class which may be granted in any financial year. That is, the submissions proceeded on the footing that, if the Minister exercised the power given by s 85 to fix a limit, effect was to be given to that limit in accordance with s 86 regardless of whether the power under s 39 to make compliance with a limit a criterion for the grant of a visa could be, or had been, exercised. This premise should not be accepted.
If s 85 did not appear in the Act, the phrase used in s 39(1) - "whatever number is fixed by the Minister, by legislative instrument" - might have been construed as giving the Minister the power to fix the maximum number of visas of a particular class that may be granted in a financial year. But that construction of s 39(1) should not be adopted. Sections 39 and 85 should be construed as working together, not separately.
Section 85 provides the Minister with the power to limit the number of visas of a particular class which may be granted in a financial year. There is no reason to read the Act as providing two separate powers to limit the number of visas of a particular class. The words "whatever number is fixed by the Minister, by legislative instrument" are better read in s 39(1) as a reference to the exercise of the power conferred by s 85 to fix a limit rather than as granting any additional or different power to fix a limit. That is, the determination made under s 85 is the legislative instrument of which s 39(1) speaks.
Rejection of the separate powers premise for the arguments advanced by the Minister and the Commonwealth permits dealing with their reliance on ss 88, 89 and 90 briefly.
The Minister and the Commonwealth submitted that the provisions of s 88 (that s 86's prevention of the grant of a visa does not prevent any other action related to the application) point towards subdiv AH operating independently of s 39. Were that not so, they submitted, effect could not, or at least would not, be given to both s 39(2) (deeming the application not to have been made) and s 88 (permitting continued processing of applications). The submission should not be accepted. Section 39 has a particular operation with respect to s 65. Section 88 goes no further than saying that other action related to an application is not prevented by s 86. It may readily be supposed that, in some cases, processing of an application for a particular class of visa may continue during a financial year in which the grant of that visa would exceed the limit with a view to its speedy grant in the next financial year.
The Minister and the Commonwealth made a similar submission based on the provisions of s 89 (that the Minister's having neither granted nor refused to grant a visa of a class to which a determination under s 85 applies "does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa") and s 90 (that not considering or disposing of an application for such a visa does not demonstrate unreasonable delay). They submitted that ss 89 and 90 not only point towards subdiv AH operating independently of s 39 but also, in the case of protection visas, provide statutory authority for the Minister neither granting nor refusing to grant a valid application for a protection visa. Neither branch of the argument should be accepted.
Sections 89 and 90 were evidently directed**[73]** to the availability of judicial review of decisions made, or not made, in respect of visa applications. Their retention in the Act is readily explained as abundant caution against arguments that, despite the deeming worked by s 39(2), the failure to decide to grant or refuse to grant a visa of a class to which s 39 applied would attract an order for mandamus. It takes little imagination to devise an argument to that effect (whatever may be its merit) being founded on the repeal of either or both of ss 89 and 90.
It is necessary to return to the question of the tension between s 65 and subdiv AH.

[88]

If regard is had only to the text of the Act as it now stands, the better, and more obvious, construction of ss 39, 85 and 86 can be described in three related propositions. First, s 85 prescribes how the Minister may fix a limit on the number of visas of a particular class which may be granted in a financial year. Second, s 39(1) prescribes how effect is given to that determination (by making not exceeding the limit a criterion for the grant of a visa of the relevant class). Third, s 39 resolves the tension between s 65 and the fixing of a limit on the number of visas.
It is necessary to explain how s 39 resolves the tension. It does so in two steps. If an application relates to a visa of a specified class, ss 39(1) and 65(1)(a)(ii) prevent the grant of the visa. Without more, s 65(1)(b) would compel the Minister to refuse to grant the visa. But that consequence would be at odds with subdiv AH going no further than saying (in s 86) that the visa not be granted, yet saying (in s 88) that the limit on numbers does not affect processing of applications. Hence, s 39(2) takes a second step to resolve the tension, by deeming outstanding applications not to have been made.
Deeming the visa application not to have been made disengages the duty that s 65(1)(b) in particular (and hence s 65 in general) would otherwise impose on the Minister. It disengages that duty in a manner which is consistent with subdiv AH. Section 39 speaks to all cases where there is a valid application for a visa; s 86 speaks to all other circumstances in which, with or without a valid application**[77]**, the Minister may grant a visa. And disengaging the duty to determine a valid application would not be inconsistent with s 88 permitting "any other action related to the application" to proceed. The kind of "other action" embraced by the section would readily include action founded in the consent of the visa applicant, such as submission to medical examination.
What then of protection visas? Section 39 expressly excepts visas of that class from its reach.
Given that the Act provides a mechanism for resolving any tension with respect to any other kind of visa, the more natural construction of the Act is to treat s 65 as the leading provision and ss 85 and 86 as subordinate to it. The effect of reading the Act in this way is that the duty imposed by s 65, after considering a valid application for a visa, either to grant or to refuse to grant the visa, can be disengaged only by the operation of s 39. And if that is so, two conclusions follow.
First, neither s 85 nor s 86 directly intersects with the duty imposed by s 65. Second, the power to limit the number of visas of a particular class given by s 85 does not extend to protection visas. Reading the Act in this way gives each of its provisions "the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme"[78]. It achieves a harmonious construction.
Consideration of the history of the provisions reinforces these conclusions.

[89]

Describing the history of the relevant provisions is made more difficult by the renumbering of provisions effected by s 83 of the Migration Legislation Amendment Act 1994 (Cth). For the most part it will be convenient to refer to the provisions in the text of these reasons by their present numbers, and identify their original numbers by footnote.
It is necessary to trace the history of s 39, s 65 and the provisions of subdiv AH and to observe how those sections intersected with provisions dealing with persons making claims that they were owed protection obligations under the Refugees Convention.
Central to an understanding of the history is recognition of the important changes which were made to the Act by the Migration Reform Act 1992 (Cth) ("the 1992 Reform Act"). Many of the provisions of the 1992 Reform Act did not come into operation until 1994 and there were amendments made to some of its provisions before it came into operation. Nothing turns on either the delay in commencement or the details of the intervening amendments.
The 1992 Reform Act made three changes to the Act of most immediate significance. First, it introduced the binary classification of non-citizens as either "lawful non-citizens" or "unlawful non-citizens". Second, it provided for the mandatory detention of unlawful non-citizens. Third, it provided for a new class of visa: "protection visas".
Until the 1992 Reform Act came into operation, a person making claims to protection under the Refugees Convention was granted an entry permit, not a visa, after the Minister had determined that the person was a refugee. The 1992 Reform Act did away with the system which distinguished between visas and entry permits and treated all forms of permission to travel to, enter, or remain in Australia as visas.
Subdivision AH, permitting the specification of limits on the number of visas of a particular class that may be granted in a financial year, was inserted**[79]** in the Act before the enactment of the 1992 Reform Act. At the time of the insertion of subdiv AH, the Act also contained provisions permitting the Minister to fix limits on the number of entry permits of a particular class that might be granted in a financial year. Those provisions about limiting the number of entry permits had been inserted**[80]** in 1991 and were in a form generally similar to what is now s 39. In their then form, the provisions made no reference to entry permits relating to persons claiming protection under the Refugees Convention. The provisions were repealed by s 11 of the 1992 Reform Act and what is now s 39 was inserted**[81]** by s 10 of the same Act. As inserted, the new s 39 expressly excepted protection visas from its operation.
The express exception of protection visas from the 1992 Reform Act scheme for prescribing limits on the number of visas which may be granted is readily explained. First, the Act, as amended by the 1992 Reform Act, when read as a whole, contained what the whole Court has previously described**[82]** as "an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol". This being so, it would be surprising if the Act permitted limiting the number of protection visas which may be granted in a financial year to those who, having landed in Australia, had made a valid application for a protection visa.
Second, the assumption which underpinned the 1992 Reform Act was that all unlawful non-citizens would be detained until granted a visa or removed. Excepting protection visas from the power to limit the number of visas of a particular class that may be granted in a financial year is consistent with the speedy determination of whether an unlawful non-citizen claiming protection is to be granted a visa, and released from detention, or removed from detention under the Act by being removed from Australia. By contrast, reading the Act as permitting the Minister, by a discretionary decision limiting the number of protection visas that may be granted, to suspend the statutory duty to decide to grant or refuse to grant such a visa would prolong the detention of the visa applicant. The period of detention would depend upon the exercise of the Minister's discretion to limit the number of visas granted. As the whole Court has also said**[83]**, "[i]t is not readily to be supposed that a statutory power to detain a person permits continuation of that detention at the unconstrained discretion of the Executive".
That the duty imposed by s 65 (to grant or refuse to grant the visa sought) was not to be affected by a decision to limit the number of visas of a class that may be granted in a financial year except through the application of s 39 is a conclusion reinforced by the legislative history of s 65.
It is necessary to recall**[84]** that, from the enactment of the Migration Amendment Act (No 2) 1980 (Cth)[85] until the 1992 Reform Act, an entry permit was not to be granted to a non-citizen after entry to Australia unless certain conditions were fulfilled. One of the conditions permitting the grant of an entry permit was that the non-citizen was the holder of a temporary permit and that the Minister had determined that the person was a refugee within the meaning of the Refugees Convention. If the conditions for the grant of an entry permit were satisfied, the Minister was obliged**[86]** to grant it.
By contrast, as the Act stood before the 1992 Reform Act came into operation, what was then s 24 governed the grant or refusal of visas. That section provided expressly**[87]** that the Minister's obligation to grant a visa (if satisfied of the requirements for a grant) was subject to what were then ss 28 and 28B and are now ss 84 and 86. That is, the Minister's obligation to grant a visa was expressly made subject first, to the provision permitting general suspension of visa processing (then s 28, now s 84) and second, to the provision (then s 28B, now s 86) prohibiting grant of visas in excess of a limit determined in accordance with what was then s 28A and is now s 85.
In the form enacted by the 1992 Reform Act, s 65[88] makes no reference to the provision for general suspension of processing of visas of a particular class and makes no reference to the provisions permitting the specification of limits on the number of visas that may be granted. The omission from s 65 of any reference to these provisions (ss 84 and 86) is telling.

At a glance

Court

Decision date

Before

Source

Judgment (177 paragraphs)

Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25 (20 June 2014)

Parties

Legislation Cited (4)

Cases Cited (8)