HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJPLAINTIFF M47/2012 PLAINTIFF
AND
DIRECTOR GENERAL OF SECURITY & ORS DEFENDANTS
Plaintiff M47/2012 v Director General of Security
[2012] HCA 46
5 October 2012
M47/2012
ORDER
Question 2A of the Further Amended Special Case dated 20 June 2012 should be amended and the questions stated in the Special Case (as so amended) should be answered as follows:
Question 1
In furnishing the 2012 assessment, did the First Defendant fail to comply with the requirements of procedural fairness?
Answer
No.
Question 2
Does s 198 of the Migration Act 1958 (Cth) authorise the removal of the Plaintiff, being a non-citizen:
2.1to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
2.2 whom ASIO has assessed poses a direct or indirect risk to security;
to a country where he does not have a well-founded fear of persecution for the purposes of Article 1A of the Refugees Convention as amended by the Refugees Protocol?
Answer
It is not necessary to answer this question.
Question 2A
If the plaintiff's application for a protection visa is refused by reason of the plaintiff's failure to satisfy public interest criterion 4002 within the meaning of clause 866.225 of Schedule 2 of the Migration Regulations 1994, is that clause to that extent ultra vires the power conferred by section 31(3) of the Migration Act 1958 (Cth) and invalid?
Answer
The prescription of public interest criterion 4002 as a criterion for the grant of a protection visa is beyond the power conferred by s 31(3) of the Act and is invalid.
Question 3
Do ss 189 and 196 of the Migration Act 1958 (Cth) authorise the Plaintiff's detention?
Answer
The plaintiff is validly detained for the purposes of the determination of his application for a protection visa.
Question 4
Who should pay the costs of the special case?
Answer
The defendants.
Representation
R M Niall SC with C L Lenehan, K L Walker and M P Costello for the plaintiff (instructed by Allens Lawyers)
S P Donaghue SC with C J Horan, F I Gordon and N M Wood for the defendants (instructed by Australian Government Solicitor)
Interveners
J G Renwick SC with K M Richardson intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))
J K Kirk SC with S J Free and A E Munro intervening on behalf of Plaintiff S138/2012 (instructed by King & Wood Mallesons)
D S Mortimer SC with A D Pound and K E Foley intervening on behalf of the Australian Human Rights Commission (instructed by Australian Human Rights Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Plaintiff M47/2012 v Director General of Security
Citizenship and migration – Migration – Refugees – Protection visas – Inconsistency between Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) – Plaintiff found to be a refugee but refused protection visa due to adverse security assessment by Australian Security Intelligence Organisation – Clause 866.225(a) of Sched 2 to Regulations prescribes public interest criterion 4002 as criterion for grant of protection visa – Public interest criterion 4002 requires that applicant not be assessed by Australian Security Intelligence Organisation to be risk to security – Whether prescription of public interest criterion 4002 as criterion for grant of protection visa beyond power conferred by s 31(3) of Act.
Administrative law – Procedural fairness – ASIO interviewed plaintiff – ASIO issued adverse security assessment in relation to plaintiff – Plaintiff therefore did not meet requirements for protection visa – Whether ASIO denied plaintiff procedural fairness.
Citizenship and migration – Mandatory detention – Plaintiff held in detention as unlawful non-citizen – No third country currently available to receive plaintiff – Whether ss 189 and 196 of Act authorise plaintiff's detention.
Words and phrases – "character test", "decision ... relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2)", "inconsistent", "protection obligations", "security".
Australian Security Intelligence Organisation Act 1979 (Cth), ss 4, 37.
Migration Act 1958 (Cth), ss 31(3), 36(2), 65, 189, 196, 500, 501, 504(1).
Migration Regulations 1994 (Cth), Sched 2, cl 866.225(a), Sched 4, item 4002.
FRENCH CJ.
Introduction
This case concerns a regulation made under the Migration Act 1958 (Cth) ("the Migration Act"). The regulation requires that the Minister for Immigration and Citizenship ("the Minister") refuse to grant a refugee a protection visa if the Australian Security Intelligence Organisation ("ASIO") assesses the refugee to be directly or indirectly a risk to security. The merits of such an assessment cannot be challenged. The plaintiff, who applied for a protection visa, was refused a visa pursuant to the regulation. He challenges the validity of the regulation, the fairness of the assessment process, and the lawfulness of his continuing detention under the Migration Act.
The Minister is given power under the Migration Act to refuse to grant a refugee a visa on grounds related to security which are recognised by the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) ("the Convention"). In such a case the Minister's decision can be reviewed on its merits unless, in the national interest, the Minister issues a certificate declaring the refugee to be an excluded person. In that event the Minister has to exercise the power personally and lay the certificate before the Houses of Parliament.
Critical to the disposition of this case is the question whether the regulation, which effectively vests in ASIO the power to refuse a visa on security grounds, is consistent with the scheme of the Migration Act, including the responsibility it imposes on the Minister and the Minister's officers, the system of merits review which it establishes and the personal responsibility and accountability of the Minister for decisions precluding review. As appears from the following reasons, the answer to that question is no. The regulation is invalid. The plaintiff is entitled to have his application for a protection visa considered according to law. In the meantime he can lawfully be detained pursuant to s 196 of the Migration Act.
Factual and procedural background
At about 11.10pm on 29 December 2009 the plaintiff, a national of Sri Lanka, entered the Australian territory of Christmas Island on a special purpose visa. The visa expired at midnight. It has not been renewed nor has any other visa been granted. Since midnight on 29 December 2009, therefore, the plaintiff has been an unlawful non-citizen within the meaning of s 14 of the Migration Act and has been held in immigration detention pursuant to ss 189 and 196 of that Act.
The plaintiff applied for a protection visa under s 36 of the Migration Act. A delegate of the Minister concluded that the plaintiff had a well-founded fear of persecution on the basis of his race and political opinion if he were to be returned to Sri Lanka. As a former member of the Liberation Tigers of Tamil Eelam ("LTTE") he was at risk of being targeted by the Sri Lankan Government and/or paramilitary groups in Sri Lanka. As a person who had refused to rejoin the LTTE he was at risk of persecution from Tamil separatist groups. The delegate also found, and it is common ground in these proceedings, that should the plaintiff be returned to Sri Lanka there is a real chance that he would be subject to abduction, torture or death. The plaintiff was therefore a refugee within the meaning of the Convention. On 18 February 2011, in spite of finding the plaintiff to be a refugee, the delegate refused the application for the grant of a protection visa. The reason for that refusal was that on 11 December 2009, ASIO had issued to the Department of Immigration and Citizenship ("the Department") an assessment of the plaintiff under s 37 of the Australian Security Intelligence Organisation Act 1979 (Cth) ("the ASIO Act"). The assessment stated that:
"ASIO assesses [the plaintiff] ... from the Oceanic Viking caseload to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979."
Because of that assessment the plaintiff did not meet public interest criterion 4002 set out in the Migration Regulations 1994 ("the Regulations") for the grant of a protection visa. That criterion requires that an applicant for a protection visa is not assessed by ASIO to be directly or indirectly a risk to security. The Refugee Review Tribunal ("the RRT"), unable to look behind the security assessment[1], affirmed the delegate's decision not to grant the plaintiff a protection visa.
[1]ASIO Act, s 36(b) read with definition of "prescribed administrative action" in s 35(1).
The plaintiff was interviewed by officers of ASIO on or about 4 November 2011 so that they could make a new security assessment. That interview was audio recorded and a transcript of it was before the Court. On or about 9 May 2012, ASIO furnished the Department with a new security assessment ("the 2012 assessment") that the plaintiff was directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act. The 2012 assessment superseded the assessment made in 2009. As a result of the 2012 assessment the plaintiff continues to be unable to satisfy public interest criterion 4002.
The Australian Government does not intend to remove the plaintiff to Sri Lanka. There is presently no other country to which he can be sent. Steps taken by the Minister and by the Federal Government to find a country to which the plaintiff can be removed pursuant to s 198 of the Migration Act have been unsuccessful. On the basis of what appears in the Special Case it is unlikely that a country will be found willing to accept the plaintiff within the foreseeable future.
The plaintiff says that the public interest criterion which led to the refusal of his application for a protection visa is invalid. He contends that it is inconsistent with the provisions of the Act which in effect cover the refusal of protection visas on the basis of national security concerns and which provide for a process of review by the Administrative Appeals Tribunal ("the AAT"). The plaintiff says also that he was denied procedural fairness by ASIO in connection with the 2012 assessment. He argues that his detention under s 196 of the Migration Act is unlawful because, absent any prospect of his removal to another country, it does not serve any legitimate purpose under that Act. The plaintiff has filed an application in this Court seeking, among other relief, an order absolute for a writ of habeas corpus against the officer in charge of the Melbourne Immigration Transit Accommodation where he is presently held, and the Secretary of the Department.
On 6 June 2012, Hayne J directed that a Special Case filed by the parties be set down for hearing by a Full Court on 18 June 2012 and reserved four questions for the Court. A fifth question was added, by leave, at the hearing.
Questions reserved in the Special Case
The questions reserved for the Full Court in the Special Case were:
"1.In furnishing the 2012 assessment, did the First Defendant fail to comply with the requirements of procedural fairness?
2.Does s 198 of the Migration Act 1958 (Cth) authorise the removal of the Plaintiff, being a non-citizen:
2.1to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
2.2whom ASIO has assessed poses a direct or indirect risk to security;
to a country where he does not have a well-founded fear of persecution for the purposes of Article 1A of the Refugees Convention as amended by the Refugees Protocol?
2A.If the answer to question 2 is 'Yes' by reason of the plaintiff's failure to satisfy public interest criterion 4002 within the meaning of clause 866.225 of Schedule 2 of the Migration Regulations 1994, is that clause to that extent ultra vires the power conferred by section 31(3) of the Migration Act1958 (Cth) and invalid.[[2]]
3.Do ss 189 and 196 of the Migration Act 1958 (Cth) authorise the Plaintiff's detention?
4.Who should pay the costs of the special case?"
[2]Question 2A was added by leave at the hearing of the proceeding.
Australia's obligations under the Convention
In any dispute about the application of an Australian law which gives effect to an international Convention, the first logical step is to ascertain the operation of the Australian law[3]. However, where, as in the case of the Migration Act, the Act uses terminology derived from or importing concepts which are derived from the international instrument, it is necessary to understand those concepts and their relationships to each other in order to determine the meaning and operation of the Act.
[3]NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 at 71 [61] per Callinan, Heydon and Crennan JJ, Gummow ACJ generally agreeing at 55 [1]; [2006] HCA 54; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 311-312 [92] per Hayne and Heydon JJ; [2008] HCA 31.
The Migration Act contains what was described in the Offshore Processing Case[4] 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."
The Act does not translate into Australian domestic law the obligations of the Contracting States under the Convention. It focusses upon the definition of "refugee" in the Convention as the criterion of operation of the protection visa system[5]. Nevertheless, the Convention informs the construction of the provisions of the Migration Act and the Regulations which respond to the international obligations which Australia has undertaken under it[6]. It is necessary in this case to refer to those obligations before turning to the Act and Regulations.
[4]Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 339 [27]; [2010] HCA 41.
[5]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 16 [45] per McHugh and Gummow JJ; [2002] HCA 14, quoted in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 14-15 [34] per Gummow ACJ, Callinan, Heydon and Crennan JJ; [2006] HCA 53.
[6]See ss 15AB(1) and 15AB(2)(d) of the Acts Interpretation Act 1901 (Cth), referred to in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 15 [34].
Australia's obligations under the Convention are owed to the other State parties to the Convention. They are obligations which require Australia to afford a degree of protection to the persons to whom the Convention applies. The word "protection" appears in the preamble to the Convention which begins with a recitation of the principle affirmed by the Charter of the United Nations and the Universal Declaration of Human Rights that "human beings shall enjoy fundamental rights and freedoms without discrimination."[7] Obligations accepted by the signatories to the Convention appear in a number of Articles which require Contracting States to treat refugees within their territories no less favourably than their nationals in relation to the enjoyment of various rights and freedoms and social benefits[8].
[7]Charter of the United Nations, Preamble; Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), Art 7.
[8]Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 196 [117] per Gummow, Hayne, Crennan and Bell JJ; [2011] HCA 32.
A number of observations about the nature of the Convention and the obligations it imposes on Contracting States were set out in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[9]. They included the following:
•the obligations created by the Convention are owed by the Contracting States to each other and not to refugees[10];
•the Convention does not detract from the right of a Contracting State to determine who should be allowed to enter its territory[11];
•the determination of the status of refugee is a function left by the Convention to the competent authorities of the Contracting States which may select such procedures as they see fit for that purpose[12];
•the Convention sets out the status and civil rights to be afforded within Contracting States to those accorded the status of refugee[13].
It is also well settled that the Convention does not impose an obligation upon Contracting States to grant asylum to refugees arriving at their borders or a right to reside in those States[14]. Nor may any individual assert a right under customary international law to enter or remain in the territory of a State of which that individual is not a national[15].
[9](2005) 222 CLR 161; [2005] HCA 6.
[10](2005) 222 CLR 161 at 169 [16] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ.
[11](2005) 222 CLR 161 at 169-170 [16].
[12](2005) 222 CLR 161 at 170 [17].
[13](2005) 222 CLR 161 at 170 [19].
[14]T v Home Secretary [1996] AC 742 at 754 per Lord Mustill; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 273 per Gummow J; [1997] HCA 4; Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at 45 [137] per Gummow J, 72 [203] per Hayne J; [2000] HCA 55; Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 15 [42] per McHugh and Gummow JJ; NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at 169 [14] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ. See also Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, (2011) at 1335.
[15](2005) 222 CLR 161 at 169 [14] and authorities there cited. See also SZ v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 342 at 345-346 [14] per Branson J, Beaumont and Lehane JJ agreeing at 343 [1] and 351 [43].
The protections for which the Convention provides are conferred on persons who answer the description "refugee". Article 1 is headed "Definition of the Term 'Refugee'". The well-known words of Art 1A(2)[16] define a refugee as a person who:
"owing to [a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".
The reach of that definition is qualified by Arts 1C to 1F inclusive, which provide that the Convention ceases to apply or does not apply to a person in the circumstances specified in those sections[17]. How a refugee is to be defined or accorded recognition as such, or to be entitled to continue to avail himself of protection, is expressly and exhaustively the subject of Art 1[18].
[16]Article 1A(2) refers to s A of Art 1. Sections C to F of Art 1 are similarly designated in these reasons.
[17]NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at 176 [43].
[18]Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 19 [48] per Gummow ACJ, Callinan, Heydon and Crennan JJ.
It was not suggested that any of the disqualifying sections of Art 1 was capable of application to the plaintiff. Article 1F relates to persons who have committed crimes against peace, war crimes, crimes against humanity or serious non-political crimes outside the country of refuge, or who have been guilty of acts contrary to the purposes and principles of the United Nations. The Minister's delegate, in refusing the plaintiff's application for a protection visa, found she did not have serious reason to consider that the plaintiff should be excluded from the protection of the Convention under Art 1F. The defendants expressly conceded that Art 1F had no application to the plaintiff.
Articles 32 and 33 deal with expulsion and refoulement of refugees and impose "significant obligations" on the Contracting States[19]. Under Art 32 the Contracting States agree that they shall not expel a refugee lawfully in their territory save on grounds of national security or public order[20]. Such expulsion shall only be in pursuance of a decision reached in accordance with due process of law[21]. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before a competent authority or a person or persons specially designated by the competent authority[22].
[19]NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at 170 [20].
[20]Convention, Art 32(1).
[21]Convention, Art 32(2).
[22]Convention, Art 32(2).
The defendants submitted that Art 32 had no application to the plaintiff who, being in Australia without a visa, was not a refugee "lawfully in [Australian] territory". That issue need not be resolved in this case which, in the end, concerns the construction and interaction of provisions of the Migration Act and the Regulations. As appears later in these reasons, the Migration Act provides for the refusal or cancellation of a protection visa relying upon Art 32[23]. A visa holder whose visa is cancelled may be lawfully within Australia for the purposes of domestic law and of Art 32 of the Convention at least until his or her visa is cancelled. The mere designation of an applicant for a visa, who does not hold a visa, as an "unlawful non-citizen" under domestic law does not resolve the question whether that person is lawfully within Australia for the purposes of Art 32 of the Convention.
[23]Migration Act, s 500(1).
Article 33 incorporates the "non-refoulement" obligation and provides:
"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."
The prohibition on refoulement in Art 33(1) is qualified by the condition in Art 33(2). By reason of that qualification, Art 33(1) would not prevent the return of a refugee, who is a security risk, to a country where his life or freedom could be threatened for a Convention reason. As submitted by the defendants, the condition in Art 33(2) differs in terms from and sets a higher standard than the "national security or public order" grounds which engage Art 32[24]. The defendants conceded that the facts before the Court do not support the conclusion that the condition in Art 33(2) has been satisfied so as to permit the removal of the plaintiff to Sri Lanka consistently with the Convention.
[24]Stenberg, Non-Expulsion and Non-Refoulement, (1989) at 219‑221; Lauterpacht and Bethlehem, "The scope and content of the principle of non-refoulement: Opinion", in Feller, Türk and Nicholson (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection, (2003) 87 at 134; Goodwin-Gill and McAdam, The Refugee in International Law, (2007) at 234-237.
Articles 32 and 33 have different functions. As Professor Shearer has written, Art 32 applies to a refugee who resides lawfully in a Contracting State. It precludes expulsion other than in accordance with due process of law. That process may include extradition. Article 33 applies to refugees lawfully or unlawfully within a Contracting State but embraces all measures of return including extradition to a country where their lives or freedom would be threatened[25]. Consistently with the text of those Articles and their place in the Convention, they apply to persons who are refugees. They do not qualify the reach of Art 1. The protection they provide is premised upon a person first falling within the definition of a refugee under Art 1[26].
[25]Shearer, "Extradition and Asylum", in Ryan (ed), International Law in Australia, 2nd ed (1984) 179 at 205, quoted with approval in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at 171 [21].
[26]Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, (2011) at 1295, 1301, 1369; Hathaway, The Rights of Refugees Under International Law, (2005) at 304-305; Fitzpatrick and Bonoan, "Cessation of refugee protection", in Feller, Türk and Nicholson (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection, (2003) 491 at 530; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 at 158 [38] per Goldberg, Weinberg and Kenny JJ; Stenberg, Non‑Expulsion and Non‑Refoulement, (1989) at 92, 174; R v Secretary of State for the Home Department, Ex parte Sivakumaran [1988] AC 958 at 1001 per Lord Goff of Chieveley.
The statutory framework ‑ grant and refusal of protection visas
The plaintiff was at all times, after midnight on 29 December 2009, an "unlawful non-citizen"[27]. That term is defined in the Migration Act as a person in the migration zone who is not a lawful non-citizen[28]. A lawful non-citizen is a "non-citizen in the migration zone who holds a visa"[29]. Some classes of visa are created by the Migration Act[30]. Other classes of visa are prescribed by the regulations[31]. The regulations may prescribe criteria for a visa or visas of a specified class[32].The protection visa for which the plaintiff applied is provided for in s 36(1). Section 36(2)(a) specifies as a criterion for a protection visa that the applicant 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".
The term "protection obligations" is not defined in the Migration Act.
[27]The word "unlawful" is a statutory designation not referable to any breach of the law.
[28]Migration Act, s 14(1).
[29]Migration Act, s 13(1).
[30]Sections 32-38B (referred to in s 31(2)) provide for classes of visa in addition to the prescribed classes.
[31]Migration Act, s 31(1) and definition of "prescribed" in s 5(1) as "prescribed by the regulations".
[32]Migration Act, s 31(3) read with s 504.
Prior to amendments to the Migration Act in 1999[33], s 36 did no more than specify protection visas as a class of visa in s 36(1) and state the criterion in s 36(2). Sections 36(1) and 36(2)(a) are in relevantly the same terms as ss 36(1) and 36(2) when those provisions were considered in NAGV[34]. The Court has not been asked to depart from what was said in that decision.In a joint judgment, six Justices held that the phrase "to whom Australia has protection obligations":
•describes no more than a person who is a refugee within the meaning of Art 1 of the Convention[35];
•removes any ambiguity that it is to Art 1A only that regard is to be had in determining whether a person is a refugee, without considering whether the Convention does not apply or ceases to apply by reason of one or more of the circumstances described in the other sections in Art 1[36].
[33]Border Protection Legislation Amendment Act 1999 (Cth).
[34](2005) 222 CLR 161 at 168 [11].
[35](2005) 222 CLR 161 at 176 [42].
[36](2005) 222 CLR 161 at 177 [47].
The Court rejected the proposition that a person who had a right to reside in and enjoy effective protection in a third country and who could be returned to that country consistently with Art 33, was not a person in respect of whom Australia had protection obligations. The 1999 amendment to s 36 was among a number of amendments to the Migration Act made to deal with non-citizen asylum seekers who have a right to enter and reside in another country.
Section 65, which applies to visa applications generally, provides that after considering a valid application for a visa, the Minister, if satisfied that the health and other criteria for the grant of the visa have been satisfied and that the grant is not otherwise prevented by ss 40, 500A and 501 of the Migration Act (or any other provision of Commonwealth legislation), "is to grant the visa"[37]. If not so satisfied, the Minister is "to refuse to grant the visa."[38] In respect of protection visas, the satisfaction required of the Minister under s 36(2)(a) has been described as "a component of the condition precedent to the discharge of [the] obligation" imposed by s 65[39].
[37]Migration Act, s 65(1)(a).
[38]Migration Act, s 65(1)(b).
[39]Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at 34-35 [107] per Gummow J, citing Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 306 [41]; [2000] HCA 19.
A visa, once granted, may be cancelled under s 116(1) if, inter alia, the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community[40]. The Minister may also cancel a visa if "a prescribed ground for cancelling a visa applies to the holder."[41] Regulation 2.43(1)(b) of the Regulations prescribes as a ground for cancellation that:
"the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979."
That ground reflects the terms of public interest criterion 4002. However, cancellation of a protection visa under s 116 is not mandatory on that ground[42]. That was not always the case. The Minister must cancel the visa if the Regulations prescribe circumstances in which a visa must be cancelled[43]. Prior to March 2006, reg 2.43(2) provided that the Minister was required to cancel a visa if the holder of a visa was subject to a security assessment in the terms described in reg 2.43(1)(b). However, following an amendment to the Regulations in March 2006[44] the only circumstance in which a Minister is required to cancel a protection visa under s 116 is where the Minister for Foreign Affairs has personally determined that the visa holder's presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction. The reason given for the amendment to the Regulations was that it was necessary to[45]:
"[ensure] that Australia's international legal obligations in respect of holders of certain protection and humanitarian visas are not adversely affected."
[40]Migration Act, s 116(1)(e).
[41]Migration Act, s 116(1)(g).
[42]Migration Act, s 116(3) read with reg 2.43(2) and the definition of "relevant visa" in reg 2.43(3) which includes a subclass 866 visa, ie a protection visa.
[43]Migration Act, s 116(3).
[44]Migration Amendment Regulations 2006 (No 1), Sched 1, Items [1]-[4].
[45]Explanatory Statement, Migration Amendment Regulations 2006 (No 1), Attachment B, Sched 1, Item [1].
Section 501 provides that the Minister may refuse to grant or may cancel a visa if the applicant for the visa or the visa holder does not satisfy the Minister that he or she passes the character test[46]. Section 501(6) sets out the circumstances under which "a person does not pass the character test". Those circumstances include possession of a substantial criminal record[47], association with persons or with a group or organisation whom the Minister reasonably suspects has been, or is, involved in criminal conduct[48], and want of good character on account of the person's past and present criminal and/or general conduct[49]. A person also does not pass the character test if:
[46]Migration Act, s 501(1) and (2).
[47]Migration Act, s 501(6)(a).
[48]Migration Act, s 501(6)(b).
[49]Migration Act, s 501(6)(c).
"(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way."
As has happened in this case, the refusal or cancellation of a visa, if no other visa is granted, renders the applicant or visa holder, as the case may be, an unlawful non-citizen and engages the application of the mandatory detention regime.
Statutory framework – detention of unlawful non-citizens
The mandatory detention regime applicable to unlawful non-citizens is to be found in Div 7 of Pt 2 of the Migration Act. The obligation to detain unlawful non-citizens is imposed by s 189(1) which provides:
"If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person."
As soon as reasonably practicable after an officer detains a person under s 189 the officer must ensure that the person is made aware of the provisions of s 195 under which a detainee may apply for a visa and s 196 which provides for the duration of detention. The language of s 196(1) which is said to, in effect, support indefinite detention under some circumstances is as follows:
"An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
(a) removed from Australia under section 198 or 199; or
(b) deported under section 200; or
(c) granted a visa."
That section, on its face, prevents the release of an unlawful non-citizen from detention (otherwise than for removal for deportation) unless the non-citizen has been granted a visa. Subsections (4) and (4A) mandate the continuance of the detention of persons detained as a result of the cancellation of their visas under s 501 or pending their deportation under s 200, unless a court finally determines that the detention is unlawful. Those provisions apply[50]:
"whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future".
Section 198 provides for the removal from Australia of unlawful non-citizens "as soon as reasonably practicable" when one or other of a number of events set out in s 198 have occurred. One of those events is that the non-citizen is a detainee who has made a valid application for a substantive visa which has been refused, the application has been finally determined and the non-citizen has not made another valid application for a substantive visa that can be granted while the applicant is in the migration zone[51]. As will be shown in these reasons, the plaintiff's application for a visa has not been finally determined because public interest criterion 4002, which was relied upon for its refusal, is invalid.
Statutory framework ‑ refusal or cancellation of protection visas relying on Articles 1F, 32 or 33(2)
[50]Migration Act, s 196(5)(a).
[51]Migration Act, s 198(6).
The plaintiff's current detention has resulted from the refusal of his application for a protection visa. That refusal was on the ground that he did not satisfy public interest criterion 4002. As appears from reserved question 2A, the validity of that criterion is challenged. That challenge rests upon its asserted inconsistency with provisions of the Migration Act providing for the refusal of protection visas on grounds, which include national security grounds, and which attract statutory review processes in the AAT. It is necessary to consider those provisions.
The relevant provisions provide for review by the AAT of decisions made by the Minister to refuse to grant a protection visa or to cancel a protection visa "relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2)"[52]. The provisions may be summarised as follows:
•Section 500(1)(c) which provides for review by the AAT of such a decision, other than a decision to which s 502 applies.
•Section 500(3) which provides that a person is not entitled to make an application to the AAT for the review of such a decision unless the person would be entitled to seek review of the decision under Pt 7 (ie in the RRT) if the decision had been made on another ground.
•Section 500(4)(c) which provides that such a decision is not reviewable under Pt 7 of the Act.
•Section 500(5)(c) which provides that the President of the AAT, giving a direction as to the persons who are to constitute the AAT for the purpose of a proceeding for review of such a decision, must have regard, inter alia, to "the degree to which the matters to which that proceeding relates concern the security, defence or international relations of Australia". The allocation of responsibility for such review to the AAT has been linked to the seriousness of the matters likely to be raised in such reviews[53].
•Section 502 which provides that if the Minister, acting personally, intends to make such a decision and decides that "because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person", the Minister may, as part of the decision, issue a certificate declaring the person to be an excluded person. Such a decision has to be made personally and notice of it laid before each House of Parliament.
•Section 503 which provides that a person in relation to whom such a decision has been made is not entitled to enter Australia or to be in Australia at any time during a period determined under the Regulations.
[52]Migration Act, s 500(1)(c).
[53]Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107 at 110.
The plaintiff submitted that the power to refuse to grant a visa relying on one or more of Arts 32 or 33(2) was to be found in s 501.The submission did not refer to Art 1F[54]. The defendants accepted at the hearing that the criteria authorising expulsion or refoulement of a refugee under Arts 32 or 33(2) were subsumed within the criteria for the character test under s 501(6)(d)(v). In later written submissions however, the defendants argued that the Migration Act provides no power to make decisions refusing a protection visa relying on Arts 32 or 33(2) and that in that respect ss 500-503 were enacted upon a false premise. As appears below, that submission should not be accepted. It is necessary now to consider the significance of the references to Arts 1F, 32 and 33(2) in ss 500, 502 and 503.
[54]As appears below, a decision refusing a protection visa under s 36(2) may rely upon Art 1F. A decision cancelling a protection visa in reliance upon Art 1F may be made under s 501.
The plurality in NAGV suggested, but did not decide, that Arts 32 and 33(2) may have been included in ss 500, 502 and 503 "for more abundant caution or as epexegetical of Art 1F in its adoption by the Act, with operation both at the time of grant and later cancellation of protection visas."[55] Their Honours did not discuss how Art 1F could be relied upon in relation to the cancellation of a protection visa, nor how Arts 32 and 33(2) could be invoked in relation to refusal or cancellation of a protection visa. Consideration of those matters requires reference to the legislative history of ss 500-503.
The legislative history of ss 500-503
[55](2005) 222 CLR 161 at 179 [57].
The precursor of s 500(1)(c) was introduced into the Migration Act as part of a new section 180(1) by the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth). Sections 180A, 180B and 180C, which were enacted by the same legislation, were the precursors of ss 501, 502 and 503. The new section 180(1) was said, in the Explanatory Memorandum to the Bill, to "[allow] applications to be made to the AAT for review of criminal deportation decisions under s 55[56] and decisions of the Minister under new section 180A."[57]
[56]Such decisions are now made under ss 201 and 203.
[57]Australia, House of Representatives, Migration (Offences and Undesirable Persons) Amendment Bill 1992, Explanatory Memorandum at 2 [6].
The new section 180(1) was said to provide the AAT with determinative jurisdiction to review decisions under the new section 180A to refuse or cancel a visa or entry permit on the grounds provided for in that section. That review is subject to the case in which the Minister has issued a certificate that the person affected by the decision be an excluded person[58]. The purpose of the new section 180(1)(c)[59] was[60]:
"to extend the jurisdiction of the AAT to review decisions to refuse or cancel protection visas relying on Articles 1F, 32 or 33(2) of the Refugees Convention."
Noting that protection visas would come into existence on the commencement of the Migration Reform Act 1992 (Cth), the Explanatory Memorandum continued[61]:
"The Articles of the Refugees Convention referred to in new paragraph 180(1)(c) have the effect of removing the obligation to provide protection as a refugee to a person who has committed crimes against peace, war crimes, crimes against humanity, serious non-political criminal offences, or otherwise presents a threat to the security of Australia or to the Australian community."
[58]Australia, House of Representatives, Migration (Offences and Undesirable Persons) Amendment Bill 1992, Explanatory Memorandum at 2 [7].
[59]Now s 500(1)(c).
[60]Australia, House of Representatives, Migration (Offences and Undesirable Persons) Amendment Bill 1992, Explanatory Memorandum at 3 [10].
[61]Australia, House of Representatives, Migration (Offences and Undesirable Persons) Amendment Bill 1992, Explanatory Memorandum at 3 [10].
The purpose of the new section 180(1) was linked in the Explanatory Memorandum to criminal deportation decisions and decisions to refuse or cancel visas under s 180A[62]. The explanation of the new section 180(1)(c) is consistent with the proposition that the grant of a protection visa might be refused under s 36(2) or refused or cancelled pursuant to s 180A by application of criteria derived from Arts 1F, 32 or 33(2) of the Convention. The Second Reading Speech was to similar effect. The Minister said[63]:
"Protection visas will be granted on the basis that the applicant is entitled to protection under the United Nations convention and protocol relating to the status of refugees. Decisions to refuse protection visas will be reviewable by the Administrative Appeals Tribunal where adverse determinations are made against persons such that character concerns are sufficiently serious to engage those articles of the convention which provide for the exclusion of an individual from the provisions of the convention, article 1F, or for the expulsion of a refugee, articles 32 and 33(2). Such decisions will only be reviewable by the Administrative Appeals Tribunal on and after 1 November 1993." (emphasis added)
Against that background consideration may be given to the textual indications of the source of power under the Migration Act to make a decision refusing or cancelling a protection visa relying on one or more of Arts 1F, 32 and 33(2).
[62]Australia, House of Representatives, Migration (Offences and Undesirable Persons) Amendment Bill 1992, Explanatory Memorandum at 2 [6].
[63]Australia, House of Representatives, Parliamentary Debates (Hansard), 17 December 1992 at 4122.
The power to refuse or cancel a visa relying on Arts 1F, 32 and 33(2)
Section 500(1)(c) and the cognate provisions of ss 502 and 503 raise the question ‑ where does the Migration Act provide the power for decisions to be made to refuse or cancel a protection visa in such a way as to rely upon one or other of Arts 1F, 32 and 33(2)? One approach to determining that question is to consider the ways in which such decisions could be made under the Act. Taking the words "rely on" in their dictionary sense of "rest upon with assurance"[64], a decision can be said to "rely on" one or more of the Articles in the following ways:
•the Article provides a statutory ground for the decision which is a ground adopted by the Migration Act and which is applied by the decision-maker;
•the Article embodies a criterion or standard which is congruent with a relevant (but not necessarily mandatory) factor in the exercise of the decision-making power and which the decision-maker applies in reaching the decision.
To give effect to ss 500, 502 and 503, the power to make such decisions must be found within existing grants of power under the Act or by implication from the terms of ss 500, 502 and 503.
[64]The Oxford English Dictionary, 2nd ed (1989), vol XIII at 576, "rely" sense 5.
In NAGV, in the joint judgment, reference was made to the "adoption by the Act" of Art 1F with operation both at the time of grant and later cancellation of protection visas[65]. That adoption is clear enough in relation to the grant of protection visas. Article 1F may be said to have been so "adopted" because it limits the reach of the definition of refugee in Art 1. It thereby gives content to the criterion in s 36(2)(a), which depends upon the subsistence of protection obligations owed by Australia under the Convention to the visa applicant. In a direct way therefore, a decision to refuse the grant of a protection visa by reason of the application of Art 1F can be described as a decision "to refuse to grant a visa relying on Art 1F".
[65](2005) 222 CLR 161 at 179 [57].
As further appears from NAGV, and the earlier discussion of Arts 32 and 33 in these reasons, those Articles do not qualify the reach of Art 1 and therefore do not play a part in the application of the criterion in s 36(2)(a). There is no provision of the Migration Act which gives direct effect to those Articles as providing grounds for the refusal or cancellation of a protection visa. It is necessary, therefore, to turn to s 501 and the application of the character test to determine whether, and if so in what ways, decisions to refuse or cancel a protection visa made under that section may be said to rely on one or more of Arts 1F, 32 and 33(2).
If the criterion under s 36(2)(a) of the Migration Act and all other prescribed criteria are satisfied, the Minister is nevertheless required to refuse the grant of a protection visa if the visa applicant does not pass the character test in s 501[66]. The applicant would be treated as a person to whom Australia has protection obligations under the Convention but, being refused a visa, would be an unlawful non-citizen[67]. The applicant would continue to be entitled to the benefit of the non-refoulement obligation under Art 33 unless the condition in Art 33(2) were satisfied. In that case there would be nothing in the Convention to prevent his return to the country from which he came.
[66]Migration Act, s 65(1)(a)(iii) which, read with s 65(1)(b), out of abundant caution requires the Minister to refuse to grant a visa if not satisfied that the grant of the visa is not prevented by s 501.
[67]Migration Act, s 14(1).
As noted earlier in these reasons, the defendants accepted that the disentitling criteria in Arts 32 and 33(2) which would lift Convention bars to the expulsion or refoulement of a refugee are subsumed within the character test. "National security or public order" is a ground for expulsion under Art 32. The existence of reasonable grounds for regarding the refugee as a danger to the security of the host country is a criterion for forfeiting the benefit of Art 33(1). Those criteria fall within the concept in s 501(6)(d)(v) of a person who would represent a danger to the Australian community or to a segment of that community.
The defendants argued, in submissions filed after the hearing, that when ss 500, 502 and 503 were enacted the Parliament was under the misapprehension, only dispelled by the decision of this Court in NAGV, that a protection visa could be refused for failure to meet the criterion in s 36(2) by reason of the disentitling conditions in Arts 32 and 33(2). The defendants submitted that those Articles have no part to play in the application of s 36(2) and that there is no other provision of the Migration Act authorising refusal of a protection visa in reliance upon them. That is to say ss 500, 502 and 503 were enacted upon a false premise. That submission should be rejected. The false premise which is asserted does not emerge with any clarity from the Explanatory Memorandum or the Second Reading Speech. As noted earlier, there are indications to the contrary. In any event, the task of a court construing a statutory provision is to give meaning to every word in the provision. It is a long-established rule of interpretation that "such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent"[68]. That task in this case directs attention to ss 36 and 501 of the Migration Act.
[68]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71] per McHugh, Gummow, Kirby and Hayne JJ; [1998] HCA 28, citing R v Berchet (1688) 1 Show KB 106 [89 ER 480], quoted in The Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ; [1905] HCA 11.
In relation to s 501, it is sufficient for present purposes to proceed on the basis, conceded by the defendants, that there is an overlap between the criteria in Arts 32 and 33(2) and the criteria in s 501(6)(d)(v) of the Migration Act. A Minister refusing a visa or cancelling a visa in reliance upon s 501(6)(d)(v) may do so on a basis which also satisfies the disentitling criteria under one or other of Arts 32 or 33(2). A cancellation decision may also be made in reliance upon criteria which would satisfy Art 1F.
A refusal or cancellation of a visa under s 501, based upon a finding that meets one or more of the disentitling criteria under Arts 1F, 32 or 33(2), will have consequences for Australia's obligations under the Convention and therefore for the application of other provisions of the Migration Act. This reflects the characterisation of the Migration Act in the Offshore Processing Case as containing provisions which are directed to the purpose of responding to Australia's international obligations under the Convention[69]. The consequences for Australia's Convention obligations of decisions relying upon one or more of Arts 1F, 32 or 33(2) include the following:
•a visa cancellation by reference to criteria in the character test which also satisfy Art 1F would have the result that the visa holder is no longer treated as within Art 1 and therefore no longer treated as a person to whom Australia owes protection obligations;
•the refusal to grant a visa by reference to the character test on grounds which also satisfy Art 33(2) would have the result that the visa applicant, although satisfying the requirements of Art 1, is no longer treated as a person who has the benefit of the non-refoulement obligation in Art 33(1);
•a cancellation of a visa by reference to criteria which also satisfy Arts 32 or 33(2) would have the result that the former visa holder, although satisfying the requirements of Art 1, may be treated as a person subject to expulsion pursuant to Art 32 or refoulement pursuant to Art 33(2) as the case may be.
[69](2010) 243 CLR 319 at 339 [27].
Expulsion or refoulement following a decision to refuse or cancel a visa under s 501 can be effected by the mechanisms of the domestic law, which may include deportation under Div 9 of Pt 2 of the Migration Act or removal under Div 8 of Pt 2.
Save for cases in which the Minister has issued a certificate under s 502, a decision to refuse or cancel a visa on national security grounds congruent with the disentitling criteria in Arts 32 or 33(2) is subject to review by the AAT on the application of the person affected[70]. A decision of the AAT on such an application is subject to statutory "appeal" to the Federal Court exercising original jurisdiction on a question of law[71]. The decision of the Federal Court on the statutory appeal is subject to appeal to the Full Court of the Federal Court.
[70]Migration Act, s 500(1)(c).
[71]Administrative Appeals Tribunal Act 1975 (Cth), s 44(1).
The defendants submitted that if the power to make decisions relying upon Arts 32 and 33 is to be located in s 501, s 500(1)(c), providing for review of such decisions, becomes largely redundant because s 500(1)(b) provides for review by the AAT of decisions of a delegate of the Minister made under s 501. Even if that were correct it would not be determinative. As Lord Macnaghten said in Commissioners for Special Purposes of Income Tax v Pemsel[72]:
"Nor is surplusage or even tautology wholly unknown in the language of the Legislature."
In any event, the two provisions have different applications. Section 500(1)(b) provides for review by the AAT of decisions made by a delegate of the Minister under s 501. Section 500(1)(c) allows for review of decisions made to refuse a visa under s 36 by reason of Art 1F. It also applies to decisions made by the Minister personally under s 501, acting in reliance upon one or more of Arts 1F, 32 or 33(2), where the Minister does not declare the person affected to be an "excluded person" under s 502.
[72][1891] AC 531 at 589.
The plaintiff submitted, in the alternative, that the power to make decisions to refuse or cancel a visa relying on one or more of Arts 1F, 32 or 33(2) is to be implied from the terms of ss 500, 502 and 503. The plaintiff does not need to rely upon that alternative submission. Nevertheless, something should be said about it.
Where a statute expressly confers upon a person or a body a power or function or a duty, any unexpressed ancillary power necessary to the exercise of the primary power or function, or discharge of the duty, may be implied[73].
[73]Fenton v Hampton [1858] 11 Moo 347 at 360 [14 ER 727 at 732], cited in The Trolly, Draymen and Carters Union of Sydney and Suburbs v The Master Carriers Association of New South Wales (1905) 2 CLR 509 at 523 per O'Connor J; [1905] HCA 20; Attorney-General v Great Eastern Railway Co [1880] 5 App Cas 473 at 478 per Lord Selborne LC, 481 per Lord Blackburn; Egan v Willis (1998) 195 CLR 424 at 468 [83] per McHugh J; [1998] HCA 71.
The present case is not one requiring the implication of ancillary powers. Sections 500, 502 and 503 create a scheme relating to the review of certain classes of decisions. The scheme thus created is ancillary to the exercise of the power, which it assumes, to make the decisions to which those provisions refer. An analogous situation, but one which differs in important respects from the present, was considered in Minister for Immigration and Ethnic Affairs v Mayer[74]. That was a decision made prior to the introduction of the visa system in 1992. It was a condition of the grant of an entry permit under the former s 6A of the Migration Act that the Minister had determined, by instrument in writing, that the applicant had the status of a refugee. This Court held, by majority, that the section impliedly conferred upon the Minister the function of making a determination. The making of the determination was thereby "a decision under an enactment" for the purposes of the obligation to provide reasons pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
[74](1985) 157 CLR 290; [1985] HCA 70.
In drawing the implication which they did from s 6A of the Migration Act, Mason, Deane and Dawson JJ said that a legislative provision operating upon a specified determination of a Minister or other officer, could readily be construed as impliedly conferring upon the Minister or officer the statutory function of making the particular determination. Their Honours said[75]:
"Such a construction is likely to be clearly warranted in a case where the determination upon which the legislative provision operates is a determination to be made for the purposes of the particular provision and at a time when and in the circumstances in which the provision is called upon to operate, where no other statutory source of obligation to consider whether the determination should be made or of authority to make it is apparent and where the legislative provision will be without effective content if no authority to make the requisite determination exists."
[75](1985) 157 CLR 290 at 303.
The present case differs in two respects:
•There are identified statutory sources of power to make decisions to refuse or cancel visas relying on one or more of Arts 1F, 32 and 33.
•Section 6A, from which the implication in Mayer was drawn, conditioned the substantive power to grant a permit on the ministerial determination of refugee status. The condition embodied the power to make the determination.On the other hand ss 500, 502 and 503 are ancillary to, or consequential upon, the exercise of the power to make decisions of the class referred to in those provisions.
The question whether the prescription of public interest criterion 4002 is a valid exercise of the regulation-making power under the Migration Act directs attention to the source and scope of that power.
The regulation-making power
The regulation-making power under s 504 of the Migration Act authorises the Governor-General to make regulations, "not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act." Section 504 does not in terms provide that the regulations may prescribe criteria for visas. Section 31(3) does that. Section 504 is nevertheless the source of the regulation-making power.
Regulations made under s 504 must be "not inconsistent with" the Migration Act. Even without that expressed constraint delegated legislation cannot be repugnant to the Act which confers the power to make it[76]. Repugnancy or inconsistency may be manifested in various ways[77]. An important consideration in judging inconsistency for present purposes is "the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned."[78] A grant of power to make regulations in terms conferred by s 504 does not authorise regulations which will "extend the scope or general operation of the enactment but [are] strictly ancillary."[79] In considering whether there has been a valid exercise of the regulation-making power "[t]he true nature and purpose of the power must be determined"[80].
[76]Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 588 per Dixon J; [1929] HCA 36.
[77]For an historical account of the concept of repugnancy in a variety of contexts see Leeming, Resolving Conflicts of Laws, (2011) at 84-139.
[78]Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 at 410; [1951] HCA 42.
[79]Shanahan v Scott (1957) 96 CLR 245 at 250 per Dixon CJ, Williams, Webb and Fullagar JJ; [1957] HCA 4.
[80]Williams v City of Melbourne (1933) 49 CLR 142 at 155 per Dixon J; [1933] HCA 56.
The plaintiff relied upon those general propositions in support of his submission that public interest criterion 4002 is repugnant to the Migration Act and its scheme. Before considering the regulatory framework under which the criterion was prescribed it is necessary to say something about s 498 of the Migration Act.
Section 498(1) of the Migration Act provides:
"The powers conferred by or under this Act shall be exercised in accordance with any applicable regulations under this Act."
That provision does not authorise the making of regulations which abrogate, modify or qualify the scope of the powers conferred by the Migration Act[81]. Nor does s 498 provide a gateway for construction of the Migration Act by reference to regulations made under it. Generally speaking an Act, which does not provide for its own modification by operation of regulations made under it, is not to be construed by reference to those regulations[82]. That would be a case of the tail wagging the dog. That general principle does not exclude the possibility that a regulatory scheme proposed and explained at the time that Parliament enacted the Act under which the scheme was to be made could constitute material relevant to determination of the statutory purpose. No occasion for reference to the Regulations in that way arises in this case.
[81]Some statutes provide for regulations of that character: eg Extradition Act 1988 (Cth), s 11 considered by this Court in Oates v Attorney-General (Cth) (2003) 214 CLR 496 at 508-509 [30]-[31]; [2003] HCA 21; Minister for Home Affairs (Cth) v Zentai (2012) 289 ALR 644 at 649-650 [15]-[17] per French CJ, 661 [59] per Gummow, Crennan, Kiefel and Bell JJ; [2012] HCA 28. See also O'Connell v Nixon (2007) 16 VR 440 at 448 [32] per Nettle JA, Chernov and Redlich JJA agreeing, that Parliament, requiring by s 8AA of the Police Regulation Act 1958 (Vic) that an appeal be subject to the regulations, elevated the regulation-making powers under the Act to enable modification and restriction of what was otherwise provided for in unrestricted terms in the Act itself.
[82]Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 244 per Mason CJ and Gaudron J; [1988] HCA 5.
Regulations ‑ the public interest criteria
The Regulations provide for classes of visa which are set out in Sched 1 to the Regulations and are in addition to the classes of visa created by the Migration Act itself[83]. The criteria prescribed by the Regulations, for each class of visa, are in addition to those prescribed by the Act. They are to be found in Sched 2 to the Regulations[84]. Criteria in Sched 2 may incorporate by numerical reference criteria bearing the relevant numbers and set out in Scheds 3, 4 and 5[85].
[83]Regulations, reg 2.01.
[84]Regulations, reg 2.03(1).
[85]Regulations, reg 2.03(2).
Schedule 1 to the Regulations prescribes criteria, in Item 1401, for Protection (Class XA) visas and specifies as a subclass an "866 (Protection)" visa. The designation of that subclass identifies the part of Sched 2 that applies in relation to the Protection (Class XA) visa[86]. That is the part headed "Subclass 866 Protection". That part of Sched 2 sets out, in Div 866.2, primary criteria to be satisfied at the time of the application for a protection visa[87] and other primary criteria to be satisfied at the time of the decision[88]. Secondary criteria are set out in Div 866.3. One of the primary criteria is in cl 866.225, which provides:
"The applicant:
(a)satisfies public interest criteria 4001, 4002 and 4003A; and
(b)if the applicant had turned 18 at the time of application ‑ satisfies public interest criterion 4019."
Each number referred to in cl 866.225 refers to a criterion bearing that number in Sched 4.
[86]Regulations, reg 2.02(2).
[87]Regulations, Sched 2, Subdiv 866.21.
[88]Regulations, Sched 2, Subdiv 866.22.
Schedule 4 to the Regulations is entitled "Public interest criteria and related provisions". Public interest criteria 4001 and 4002 are in the following terms:
"4001 Either:
(a)the person satisfies the Minister that the person passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.
4002 The applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979."
Public interest criterion 4003A is not material for present purposes. Public interest criterion 4002 does not create a mechanism, of the kind contemplated by s 505, for third party assessment informing the Minister's decision. It is itself a criterion. As a matter of construction, the term "is not assessed" in public interest criterion 4002 must be taken to refer to the absence of any current adverse assessment by ASIO that a person is directly or indirectly a risk to security. That is to say, if ASIO has made such an assessment at one time and thereafter made a fresh assessment that the applicant is not a risk to security, the applicant will, while that later assessment stands, satisfy the criterion in public interest criterion 4002.
Criteria similar, but not identical, to public interest criteria 4001 and 4002 were prescribed when the Regulations were first made in 1994. Public interest criterion 4002 then read:
"The applicant is not assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security."
That criterion was replaced with the present criterion in 2005[89]. The amendment substituted the words "competent Australian authorities" with "Australian Security Intelligence Organisation" in order to make it clear that ASIO was the only Australian authority able to provide security assessments to the Department[90]. The amendment also broadened the definition of "security" from "Australian national security" to security "within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979" such that[91]:
"to prevent the grant of a visa, an assessment as a risk to security need not necessarily be restricted to Australian national security, but may relate to the carrying out of Australia's responsibilities to foreign countries in security-related matters."
[89]Migration Amendment Regulations 2005 (No 10), Sched 3, Item [2].
[90]Explanatory Statement, Migration Amendment Regulations 2005 (No 10), Attachment B, Sched 3, Item [1].
[91]Explanatory Statement, Migration Amendment Regulations 2005 (No 10), Attachment B, Sched 3, Item [2].
An assessment made by ASIO for the purpose of public interest criterion 4002 is done in the exercise of a statutory function under the ASIO Act. It is necessary therefore, to look to the statutory framework within which such assessments are made.
Statutory framework ‑ adverse security assessments
ASIO is continued in existence by the ASIO Act[92]. Its functions include furnishing Commonwealth agencies with "security assessments relevant to their functions and responsibilities."[93] The word "security" is defined broadly in s 4. It relevantly includes:
[92]ASIO Act, s 6.
[93]ASIO Act, s 17(1)(c) read with s 37(1).
"(a)the protection of, and of the people of, the Commonwealth and the several states and territories from:
...
(iii)politically motivated violence;
(iv)promotion of communal violence;
...
whether directed from, or committed within, Australia or not; and
...
(b)the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a)".
The term "security assessment" is defined in s 35(1) and means:
"a statement in writing furnished by the Organisation to a Commonwealth agency expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question." (emphasis added)
"Prescribed administrative action" is also defined in s 35(1) and includes:
"(b)the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act".
The term "adverse security assessment" means[94]:
"a security assessment in respect of a person that contains:
(a)any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and
(b)a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person."
[94]ASIO Act, s 35(1).
Part IV of the ASIO Act makes provision for persons to be notified of assessments and for merits review of assessments by the AAT. However, merits review is precluded in relation to a security assessment provided in connection with the exercise of any power or the performance of any function in relation to a person under the Migration Act or the Regulations under that Act[95]. There are certain exclusions from that non-application which are not relevant for present purposes. In the result, merits review is not available in relation to an adverse security assessment made for the purposes of public interest criterion 4002.
[95]ASIO Act, s 36 read with the definition of "prescribed administrative action" in s 35(1).
Whether public interest criterion 4002 is invalid
The Migration Act creates a statutory scheme, the purpose of which is to give effect to Australia's obligations under the Convention and to provide for cases in which those obligations are limited or qualified. It provides, in ss 36 and 65, for the grant of protection visas to persons to whom Australia owes protection obligations. It provides for the refusal or cancellation of such visas in respect of persons to whom Australia owes obligations where:
•the person may nevertheless be expelled from the country for "compelling reasons of national security" pursuant to Art 32;
•the person may be removed from the country where "there are reasonable grounds for regarding [the person] as a danger to the security of the country in which [the person] is" pursuant to Art 33(2).
The Act provides procedural protection by way of merits review of decisions to refuse or cancel a visa relying on Arts 32 or 33(2). That protection is not available in those "national interest" cases in which the Minister makes a decision personally to refuse or cancel a visa pursuant to s 501 and issues a certificate under s 502. That is the statutory scheme by reference to which the validity of public interest criterion 4002 is to be judged.
Since at least 2005, the scope of the security concerns which may attract an adverse security assessment for the purposes of public interest criterion 4002 have extended to those concerns which relate to Australia's responsibilities to foreign countries in security-related matters. The extent to which such concerns may enliven the disentitling conditions of Arts 32 and 33(2) was considered by the Supreme Court of Canada in Suresh v Canada (Minister of Citizenship and Immigration)[96]. The Supreme Court recognised that "the security of one country is often dependent on the security of other nations."[97] In so doing, the Court acknowledged that historically it had been argued that threats to the security of another State would not enliven the disentitling condition under Art 33[98]. The Court said, however[99]:
"Whatever the historic validity of insisting on direct proof of specific danger to the deporting country, as matters have evolved, we believe courts may now conclude that the support of terrorism abroad raises a possibility of adverse repercussions on Canada's security".
[96][2002] 1 SCR 3.
[97][2002] 1 SCR 3 at 52 [90].
[98][2002] 1 SCR 3 at 49 [86].
[99][2002] 1 SCR 3 at 50 [87]
As to the level of threat sufficient to lift the prohibition against refoulement, the Court said that[100]:
"The threat must be 'serious', in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible."
A similar approach to the level of threat was adopted by the Supreme Court of New Zealand in Zaoui v Attorney-General (No 2)[101]. The word "security" as defined in the ASIO Act does not in terms set a threshold level of risk necessary to support an adverse assessment for the purposes of public interest criterion 4002.
[100][2002] 1 SCR 3 at 51 [90].
[101][2006] 1 NZLR 289 at 310 [45].
The relationship between Art 33(2), s 500 and public interest criterion 4002 was considered in two single judge decisions of the Full Court of the Federal Court. Both of those decisions were made before the decision of this Court in NAGV. In Director General Security v Sultan[102], Sundberg J rejected a submission that public interest criterion 4002 should not be construed so as to detract from the jurisdiction conferred on the AAT by s 500 of the Migration Act. His Honour rejected that contention on the basis that s 500 and public interest criterion 4002 deal with different matters[103]. In Kaddari v Minister for Immigration and Multicultural Affairs[104], Tamberlin J, in the context of a challenge to the validity of public interest criterion 4002, expressed his agreement with that view[105]. In concluding that public interest criterion 4002 is valid, his Honour said[106]:
"It cannot be said that the criterion attempts to add new and different means of carrying out the provisions of the Act or to depart from or vary an exclusive plan which the legislature has adopted."
[102](1998) 90 FCR 334.
[103](1998) 90 FCR 334 at 339.
[104](2000) 98 FCR 597.
[105](2000) 98 FCR 597 at 601 [27].
[106](2000) 98 FCR 597 at 602 [31].
In VWOK v Minister for Immigration and Multicultural and Indigenous Affairs[107], a case concerning the validity of a public interest criterion relating to conviction for an offence punishable by at least 12 months imprisonment, similar reasoning was applied by the Full Court of the Federal Court to uphold the validity of that criterion.
[107](2005) 147 FCR 135.
Despite the support for the validity of public interest criterion 4002 which might be derived from the decisions of the Federal Court in Sultan and Kaddari, and analogical argument which might be derived from VWOK, the relationship between public interest criterion 4002 and the provisions of ss 500-503 of the Migration Act spells invalidating inconsistency. That is primarily because the condition sufficient to support the assessment referred to in public interest criterion 4002 subsumes the disentitling national security criteria in Art 32 and Art 33(2). It is wider in scope than those criteria and sets no threshold level of threat necessary to enliven its application. The public interest criterion requires the Minister to act upon an assessment which leaves no scope for the Minister to apply the power conferred by the Act to refuse the grant of a visa relying upon those Articles. It has the result that the effective decision-making power with respect to the disentitling condition which reposes in the Minister under the Act is shifted by cl 866.225 of the Regulations into the hands of ASIO. Further, and inconsistently with the scheme for merits review provided in s 500, no merits review is available in respect of an adverse security assessment under the ASIO Act made for the purposes of public interest criterion 4002. Public interest criterion 4002 therefore negates important elements of the statutory scheme relating to decisions concerning protection visas and the application of criteria derived from Arts 32 and 33(2). It is inconsistent with that scheme. In my opinion cl 866.225 of the Regulations is invalid to the extent that it prescribes public interest criterion 4002.
Because public interest criterion 4002 is invalid, the refusal of the plaintiff's application for a protection visa was affected by jurisdictional error. As a result there has, at this time, been no valid decision on the plaintiff's application for a protection visa. While that application is pending, the plaintiff can lawfully be detained pursuant to s 196 of the Migration Act. It is not necessary, for present purposes, to determine whether his detention can lawfully be continued if his application for a protection visa is refused and there is no other country to which he can be removed.
The procedural fairness question
It may be accepted that the requirements of procedural fairness are attracted to the making of a security assessment under the ASIO Act. The content of those requirements is not necessarily to be answered solely by reference to the terms of the ASIO Act and the potential effect of an assessment upon the interests of the person about whom it is made. A security assessment may be used for a variety of purposes involving the exercise of different statutory powers. Such an assessment may be relied upon for more than one purpose under the Migration Act. The content of procedural fairness will depend upon the part played by the assessment in the exercise of the power in which it is considered and the nature of that power. Whether or not procedural fairness was accorded in this case depends upon the way in which the assessment is used and upon the decision ultimately made. The question remains hypothetical unless, and until, the assessment is used to support a decision adverse to the plaintiff, other than a decision involving the application of public interest criterion 4002.
Conclusion
I would amend Question 2A and answer the reserved questions in the terms proposed by Hayne J[108].
[108]Reasons of Hayne J at [227].
GUMMOW J. In R (European Roma Rights Centre) v Immigration Officer at Prague Airport[109] Lord Bingham of Cornhill described[110] the tension in domestic statute law which governs the administration of immigration control between, on the one hand, the powers of the sovereign state to admit, exclude and repel aliens, and, on the other hand, the humane practice, reflected in treaty obligations, to admit aliens, or some of them, seeking refuge from persecution elsewhere. His Lordship spoke of this tension with reference to a range of materials, including what had been said in this Court in Applicant A v Minister for Immigration and Ethnic Affairs[111] and Minister for Immigration and Multicultural Affairs v Ibrahim[112].
[109][2005] 2 AC 1.
[110][2005] 2 AC 1 at 27-32. Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell agreed with the reasons of Lord Bingham on this issue.
[111](1997) 190 CLR 225 at 247-248, 273-274; [1997] HCA 4.
[112](2000) 204 CLR 1 at 45-46 [137]‑[138]; [2000] HCA 55. See also Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 15-17 [41]-[48]; [2002] HCA 14; NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at 169‑171 [13]‑[21]; [2005] HCA 6.
The plaintiff acknowledges that his construction would result in a person in his position being entitled to reside in Australia notwithstanding that the person had not been granted a visa. It is a construction that does not sit with the objects and scheme of the Act[488]. The plaintiff submits that a material change to the Act since the decision in Al-Kateb is the insertion of subdiv B in Div 7 of Pt 2, which provides for the making of "residence determinations"[489]. The introduction of the residence determination scheme, it is argued, removes any "imperative" that an unlawful non-citizen be detained until removed, deported or granted a visa[490].
[488]The Act, ss 4, 13-14, 189.
[489]Inserted by the Migration Amendment (Detention Arrangements) Act 2005 (Cth).
[490]Al-Kateb (2004) 219 CLR 562 at 576 [17] per Gleeson CJ, 638 [226] per Hayne J.
Subdivision B in Div 7 of Pt 2 confers power on the Minister to determine that one or more persons are to reside at a specified place instead of being detained at a place covered by the definition of "immigration detention" in s 5(1)[491]. The Minister is not subject to a duty to consider whether to exercise the power to make a residence determination[492]. The Minister may at any time vary or revoke a residence determination[493]. A person residing at a specified place subject to a residence determination is deemed to be in immigration detention. Section 197AC(4) provides that if a residence determination is in force in relation to a person and a provision of the Act requires the person to be released from immigration detention, or no longer requires or permits the person to be detained, "the residence determination ... is revoked ... and the person is, by that revocation, released from immigration detention".
[491]The Act, s 197AB.
[492]The Act, s 197AE.
[493]The Act, s 197AD.
The plaintiff is an unlawful non-citizen whose circumstances bring him within the provisions of ss 198(2) and 198(6). He has made an application for a protection visa which has been finally determined. The Act does not preclude his removal from Australia to a country in which he does not have a well-founded fear of persecution. At a practical level, it is to be expected that an officer effecting the removal of the plaintiff would act on the advice of officers within DIAC, who are equipped to assess whether removal would be consistent with Australia's international obligations. In the event that an officer purported to remove the plaintiff from Australia to a country in which the plaintiff is at risk of persecution, the determination to do so would be subject to judicial review.
Before turning to the authority for the plaintiff's continued detention, reference should be made to his submission that his removal from Australia to any third country would place Australia in breach of the obligations that it owes to Contracting States under the Convention unless the conditions of Art 32 were met.
Contrary to the plaintiff's submission, he is not a person to whom Art 32 applies. His submission that he is "lawfully in" Australia is advanced in the face of a deal of authority to the contrary. The plaintiff's argument accepts that "lawfully" as it appears in Art 32 "fundamentally refers to domestic law", but goes on to contend that "lawfully" has "an autonomous, international meaning". In the plaintiff's submission, treating "lawfully" in Art 32 as coterminous with domestic laws risks "unreasonable outcomes". He instances the outcome in R (ST) v Home Secretary[494] in this respect. In that case, the claimant, an Eritrean refugee, had been present in the United Kingdom under temporary permissions for 13 and a half years while her application for asylum was determined and her rights of appeal and review were pursued. The Supreme Court held that she was not lawfully within the United Kingdom for the purposes of Art 32. The plaintiff invites the Court not to adopt the reasoning in R (ST) v Home Secretary. His argument depends upon a more generous construction of the obligation under Art 32 in Professor Hathaway's commentary[495] and to a lesser degree in Professor Davy's work[496]. Professor Hathaway's analysis is discussed in R (ST) v Home Secretary, and the absence of consensus among the commentators on the point is noted[497].
[494][2012] 2 WLR 735; [2012] 3 All ER 1037.
[495]Hathaway, The Rights of Refugees Under International Law, (2005) at 175-179.
[496]Davy, "Article 32: Expulsion", in Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (2011) 1277 at 1304-1305.
[497][2012] 2 WLR 735 at 748-749 [34]; [2012] 3 All ER 1037 at 1052-1053. See Goodwin-Gill and McAdam, The Refugee in International Law, 3rd ed (2007) at 524-525 and Davy, "Article 32: Expulsion", in Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (2011) 1277 at 1299, 1304.
Lord Hope of Craighead considered that Art 32 contemplates that the refugee "is not merely present in the territory of the contracting state, but that he is there lawfully."[498] The implication from the use of the word "lawfully" being that the refugee's presence in the territory of the Contracting State is "not just being tolerated"[499]. His Lordship considered that the use of the same phrase in Arts 18 and 26, which deal with self-employment and freedom of movement respectively, supports construing Art 32 as requiring presence to be lawful according to the domestic law of the Contracting State. In this connection, his Lordship said[500]:
"It seems unlikely that the contracting states would have agreed to grant to refugees the freedom to choose their place of residence and to move freely within their territory before they themselves had decided, according to their own domestic laws, whether or not to admit them to the territory in the first place."
[498]R (ST) v Home Secretary [2012] 2 WLR 735 at 747 [32]; [2012] 3 All ER 1037 at 1052.
[499]R (ST) v Home Secretary [2012] 2 WLR 735 at 747 [32]; [2012] 3 All ER 1037 at 1052.
[500]R (ST) v Home Secretary [2012] 2 WLR 735 at 750 [37]; [2012] 3 All ER 1037 at 1054.
Their Lordships' analysis in R (ST) v Home Secretary[501] is consistent with the decision of the House of Lords in R v Home Secretary; Ex parte Bugdaycay[502]. It accords with the decisions of courts in the United States[503]. It is consistent with the apparent approval in NAGV of Professor Shearer's analysis of the distinctly different character of Arts 32 and 33(2), the former assuming the "prior admission of the refugee to a status of lawful residence"[504]. It accords with Stephen J's analysis in Simsek v Macphee[505] and the decision of the Full Federal Court in Rajendran v Minister for Immigration and Multicultural Affairs[506]. The analysis in R (ST) v Home Secretary should be accepted.
[501]R (ST) v Home Secretary [2012] 2 WLR 735; [2012] 3 All ER 1037.
[502][1987] AC 514.
[503]Chim Ming v Marks 505 F 2d 1170 at 1172 (1974); Kan Kam Lin v Rinaldi 361 F Supp 177 at 185-186 (1973).
[504]NAGV (2005) 222 CLR 161 at 171 [21] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ, citing Shearer, "Extradition and Asylum", in Ryan (ed), International Law in Australia, 2nd ed (1984) 179 at 205.
[505](1982) 148 CLR 636 at 644-645 per Stephen J; [1982] HCA 7.
[506](1998) 86 FCR 526 at 530-531.
The obligation which Contracting States undertake by Art 32 is with respect to refugees whose presence in their territory is lawful under domestic law. A non-citizen is lawfully present in Australia if he or she holds a visa that is in effect[507]. A non-citizen who does not hold a visa that is in effect is an unlawful non-citizen[508]. The plaintiff is not "lawfully in" Australia within the meaning of Art 32. Australia would not be in breach of the obligations that it owes to Contracting States by removing the plaintiff to a country in which he is not at risk of persecution.
[507]The Act, s 13(1).
[508]The Act, ss 13 and 14.
The lawfulness of the plaintiff's continued detention
The challenge to the lawfulness of the plaintiff's detention centres on the construction of ss 189, 196(1)(a) and 198. These provisions are in Pt 2 of the Act, which deals with "Control of arrival and presence of non-citizens". Sections 189 and 196 are in Div 7 of Pt 2, which deals with the "Detention of unlawful non-citizens". Section 198 is in Div 8 of Pt 2, which deals with "Removal of unlawful non-citizens". Subsections 198(2) and (6) each require that an officer[509] remove an unlawful non-citizen from Australia as soon as reasonably practicable in the circumstances stated. The plaintiff's circumstances fall within each provision and it follows that he is subject to the obligation of removal. The authority relied upon for his detention pending that removal is s 196(1), which provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed from Australia under ss 198 or 199[510], deported under s 200, or granted a visa.
[509]"Officer" is defined in s 5(1) of the Act as any person included in the class of persons authorised in writing by the Minister to be officers for the purposes of the Act.
[510]Section 199 is concerned with the removal upon request of the spouse and dependent children of an unlawful non-citizen who is about to be removed.
In Al-Kateb, the provisions of ss 189(1), 196(1) and 198(2) were found to authorise and require the detention of an unlawful non-citizen notwithstanding that removal from Australia was not reasonably practicable in the foreseeable future[511]. The plaintiff accepts that if an affirmative answer is given to the second question in the Special Case, his circumstances are governed by the decision in Al-Kateb. The plaintiff contends that Al-Kateb was wrongly decided and should not be followed.
[511](2004) 219 CLR 562 at 595 [74] per McHugh J, 640 [232] per Hayne J, 658-659 [290], 661 [298] per Callinan J, 662-663 [303] per Heydon J.
The obligation to remove Mr Al-Kateb arose under s 198(1), as Mr Al‑Kateb had requested that he be removed from Australia. The difficulty was that Mr Al-Kateb did not have a right of entry to any country and no country was willing to receive him. The plaintiff's circumstances are relevantly similar to those of Mr Al-Kateb in that the only country to which the plaintiff has a right of entry is the country in which he risks persecution and no other country is willing to receive him.
A preliminary question is whether, as the defendants submit, the factual basis for any reconsideration of the issue that divided the Court in Al-Kateb is not presented by the Special Case.
The following facts are agreed in the Special Case. The defendants do not propose or intend to remove the plaintiff to Sri Lanka and at present there is no other country to which the plaintiff can be sent. The Secretary of DIAC and the Minister have taken steps to locate a country that would be willing to receive the plaintiff. On 10 February 2010, DIAC sought the UNHCR's assistance in connection with the resettlement of seven refugees, including the plaintiff. The UNHCR declined to provide the assistance sought on the ground that it was contrary to its policy to refer refugees for resettlement to a third country in circumstances in which the refugees had been brought to Australia by the Australian government. Moreover, the cases were unlikely to meet any of the referral criteria in the UNHCR's Resettlement Handbook.
In May 2010, the Foreign Minister approached the governments of three countries requesting resettlement assistance in relation to persons, including the plaintiff. One country indicated it could not assist and the other two countries said that the request would be considered. In March 2011, the Department of Foreign Affairs and Trade advised that positive responses would not be forthcoming from either of those two countries.
DIAC made inquiries to ascertain if the plaintiff has any relatives living in third countries. He does not.
An annual consultation dealing with questions of the resettlement of persons is held in Geneva ("the ATCR"). At the July 2011 ATCR, the Assistant Secretary, Humanitarian Branch of DIAC ("the Assistant Secretary"), held discussions with the representatives of three further countries concerning the resettlement of persons, a majority of whom were refugees under Australian law and who had received adverse security assessments. Following those discussions, the Assistant Secretary wrote to the representatives of eight countries asking that their respective governments consider the resettlement of persons, a majority of whom were refugees under Australian law and who were subject to adverse security assessments. The Assistant Secretary conveyed Australia's willingness to make the substance of the adverse security assessments available to the security agencies of the receiving countries. On 7 June 2012, when the amended Special Case was settled, four countries had declined the request and responses had not been received from the remaining four.
As at 7 June 2012, it was the Assistant Secretary's intention to raise the resettlement of persons in the position of the plaintiff with the representatives of additional countries at the July 2012 ATCR.
The Special Case should be determined upon the understanding that no country from which a response was awaited at 7 June 2012 has to-date agreed to receive the plaintiff. Conscientious endeavours to find a third country that is willing to receive the plaintiff have been pursued by DIAC for not less than two years and eight months to no avail. It is open to the Court to draw from the facts stated and the documents identified in the Special Case any inference of fact which might have been drawn from them if proved at trial[512]. The inference to be drawn from the facts of the Special Case is that removal of the plaintiff from Australia is not likely to be practicable in the foreseeable future.
[512]High Court Rules 2004 (Cth), r 27.08.5.
The defendants submit that leave should not be given to re-open the correctness of the decision in Al-Kateb. They submit that the power to disturb settled authority is to be exercised with restraint[513] and they make the following submissions by reference to the considerations identified in John v Federal Commissioner of Taxation[514]. First, the construction of ss 189, 196 and 198 had been ventilated and analysed in a series of decisions in the Federal Court culminating in the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs vAl-Masri[515], prior to the decision in Al‑Kateb. Secondly, there was no material difference in the reasoning of the Justices constituting the majority. Thirdly, no inconvenience had been occasioned by the decision. Fourthly, the Act has been administered on the basis of the decision since 2004.
[513]Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at 71 [55] per Gleeson CJ, Gaudron and Gummow JJ; [1999] HCA 67.
[514](1989) 166 CLR 417 at 438-439 per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ; [1989] HCA 5.
[515](2003) 126 FCR 54.
Differing interpretations of the detention power under s 196(1)(a) had been adopted by judges at first instance in the Federal Court. Those differing approaches were ventilated and analysed in Al-Masri. The Full Court of the Federal Court concluded that the power to detain under s 196(1)(a) was subject to implied limitation in circumstances in which there is no real likelihood of removal in the reasonably foreseeable future. This Court, by a slim majority, rejected that interpretation in Al-Kateb. It is therefore not correct for the purposes of the first of the John considerations to characterise Al-Kateb as a decision "rest[ing] upon a principle carefully worked out in a significant succession of cases."[516] Neither are the third or fourth John considerations apt to the circumstances of this case. To say that the decision has not produced inconvenience is glib. To observe that the decision has been acted upon is not to identify some aspect of those circumstances that militates against reconsideration[517].
[516]John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438 per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ.
[517]John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-439 per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ.
Al-Kateb is a recent decision on a question of statutory interpretation. The composition of the Court has changed since it was decided and it is necessary to be mindful of Gibbs J's statement in the Queensland v The Commonwealth (the "Second Territory Senators Case") that a Justice is not entitled to ignore the decisions and reasoning of the Court "as though the authority of a decision did not survive beyond the rising of the Court"[518]. Barwick CJ in that case favoured a less emphatic approach, but these were observations made in the context of a constitutional case in which the doctrine of stare decisis may be less rigidly applied[519]. In Wurridjal v The Commonwealth, French CJ considered that the evaluation of the factors for and against re-opening previous decisions should be "informed by a strongly conservative cautionary principle"[520]. His Honour's remarks were not in this respect confined to cases concerning the interpretation of the Constitution.
[518](1977) 139 CLR 585 at 599; [1977] HCA 60.
[519](1977) 139 CLR 585 at 593.
[520]Wurridjal v The Commonwealth (2009) 237 CLR 309 at 352 [70]; [2009] HCA 2.
The plaintiff's primary challenge to the reasoning of the majority in Al‑Kateb is upon the application of the principle of legality. That longstanding principle of interpretation[521] was explained by Gleeson CJ, in dissent, in Al-Kateb in this way[522]:
"Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment."
[521]See Potter v Minahan (1908) 7 CLR 277 at 304 per O'Connor J; [1908] HCA 63; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492 [30] per Gleeson CJ; [2003] HCA 2; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 582 [17], 583 [20] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 10; R v Home Secretary; Ex parte Simms [2000] 2 AC 115 at 131 per Lord Hoffmann. See also J Spigelman, "Principle of legality and the clear statement principle", (2005) 79 Australian Law Journal 769; and Lord Steyn, "The Intractable Problem of The Interpretation of Legal Texts", (2003) 25 Sydney Law Review 5 at 17-19.
[522]Al-Kateb (2004) 219 CLR 562 at 577 [19].
The statement of the principle in Coco v The Queen[523] is set out in Gummow J's reasons. In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission, in their joint reasons, Gleeson CJ, Gaudron, Gummow and Hayne JJ stated that the principle had been "strictly applied" by this Court since Re Bolton; Ex parte Beane[524]. Their Honours suggested that this statement was subject to one possible exception. This was a reference to Corporate Affairs Commission (NSW) v Yuill[525], a case concerned with the abrogation of legal professional privilege under the Companies (New South Wales) Code. The statutory scheme here under consideration is one said to admit of mandatory administrative detention for an indefinite period that may extend to the balance of the detainee's life. Putting to one side the constitutional validity of such a scheme, the application of the principle of legality requires that the legislature make plain that it has addressed that consequence and that it is the intended consequence.
[523](1994) 179 CLR 427 at 437; [1994] HCA 15.
[524]Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553 [11]; [2002] HCA 49, citing Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12; Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24; Coco v The Queen (1994) 179 CLR 427; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3.
[525]Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553 [11], citing Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; [1991] HCA 28.
In Al-Kateb, Gleeson CJ observed that the Act makes no express provision for the suspension and possible revival of the obligation imposed by s 196 by reference to the practicability of effecting removal under s 198. Nor does the Act make express provision for indefinite, or permanent, detention where the assumption of the reasonable practicability of removal is falsified[526]. Applying the principle of legality, his Honour held that indefinite, perhaps permanent, administrative detention was not to be dealt with by implication[527]. Gummow J identified temporal elements in the language of ss 196(1) and 198. His Honour considered that "practicable" connotes that which can be put into practice and which can be effected or accomplished. The qualification "reasonably" introduces an assessment or judgment of a period suitable to the purpose of the legislative scheme, that purpose being to facilitate the person's removal from Australia but not with such delay as to have the appearance of detention for an unlimited time[528].
[526]Al-Kateb (2004) 219 CLR 562 at 576 [18].
[527]Al-Kateb (2004) 219 CLR 562 at 577-578 [21].
[528]Al-Kateb (2004) 219 CLR 562 at 608 [121].
In Koon Wing Lau v Calwell[529], provisions of the War-time Refugees Removal Act 1949 (Cth)[530] which, if read literally, permitted a deportee to be held in custody for the balance of his or her life, were interpreted as subject to temporal limitation. Dixon J considered that, read together, the provisions authorised custody for the purposes of fulfilling the obligation to deport. In the event that the deportee was not placed on board a vessel "within a reasonable time", the deportee "would be entitled to his discharge on habeas"[531].
[529](1949) 80 CLR 533; [1949] HCA 65.
[530]The War-timeRefugees Removal Act 1949 (Cth) provided in s 5 that:
"The Minister may, at any time within twelve months after the commencement of this Act, make an order for the deportation of a person to whom this Act applies and that person shall be deported in accordance with this Act."
Section 7(1) provided that:
"A deportee may ‑ (a) pending his deportation and until he is placed on board a vessel for deportation from Australia; (b) on board the vessel until its departure from its last port of call in Australia; and (c) at any port in Australia at which the vessel calls after he has been placed on board, be kept in such custody as the Minister or an officer directs."
[531]Koon Wing Lau v Calwell (1949) 80 CLR 533 at 581.
The majority in Al-Kateb considered that the words "as soon as reasonably practicable" were "too clear" or "intractable" to admit of an implied temporal limit or qualification. It must be accepted that minds may reasonably differ on matters of statutory construction. However, in my view, the reasoning of two members of the majority is weakened by the absence of discussion of the principle of legality in the context of a conclusion that the scheme abrogates fundamental rights in this degree. Those fundamental rights are not confined to Australian citizens.[532]
[532] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 19 per Brennan, Deane and Dawson JJ; [1992] HCA 64; Abebe v The Commonwealth (1999) 197 CLR 510 at 560 [137] per Gummow and Hayne JJ; [1999] HCA 14.
As Heydon J observes, the question of whether leave is required to overrule this Court's previous decisions may be an open one[533]. It is sufficient to say that if leave is required, I would grant it. In my opinion, the decision in Al‑Kateb should not be followed. I would adopt Gleeson CJ's construction of the scheme of ss 189, 196(1) and 198. This conclusion makes it unnecessary, and for that reason inappropriate, to deal with the submissions as to the constitutional validity of a scheme providing for mandatory administrative detention for an indefinite period[534].
[533]See Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 at 313, 316; [1984] HCA 18; British American Tobacco Australia v Western Australia (2003) 217 CLR 30 at 63 [74]; [2003] HCA 47. See also Northern Territory v Mengel (1995) 185 CLR 307 at 338; [1995] HCA 65; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 554; [1997] HCA 25; Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 369-370; [1999] HCA 44.
[534]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.
Important to Gleeson CJ's analysis is that while removal from Australia remains impractical the obligation imposed by s 196 is suspended but not displaced. A detainee in such a circumstance is able to obtain an order in the nature of habeas corpus to secure release. I agree with his Honour that there is nothing antithetical to the nature of habeas corpus for the order to be made upon terms which relate to the applicant's circumstances and "reflect temporal or other qualifications" upon the right to release[535]. One matter to which Gleeson CJ adverted in Al-Kateb concerned the power of a court to impose conditions or restraints in the case of a person shown to be a danger to the community or likely to abscond[536]. The question was not presented by the facts in Al-Kateb. It is not apparent that such a question is presented by the facts of this Special Case. The plaintiff entered Australia as the holder of a temporary visa. The evident purpose of the issue of the visa was to permit the plaintiff to enter Australia and to make a valid application for a protection visa. As has been remarked, the delegate did not find that the plaintiff is a person to whom Art 1F of the Convention applies. The Special Case has been conducted upon acceptance that the plaintiff is not a person about whom there are reasonable grounds for regarding as a danger to the security of Australia. Nor is he a person who having been convicted of a particularly serious crime constitutes a danger to the Australian community. Consideration of the terms and conditions of the plaintiff's release, as Gummow J observes, would be for the Justice disposing of the proceeding in this Court or upon remitter to another court.
[535]Al-Kateb (2004) 219 CLR 562 at 579-580 [27]. See also Zaoui v Attorney-General [2005] 1 NZLR 577.
[536]Al-Kateb (2004) 219 CLR 562 at 580 [29].
The answers to the questions asked in the amended Special Case should be as stated by Gummow J.