🔥 "Justice Prevails: Iranian's Visa Case Overturned!" 🔥

Did visa criterion in cl 790.227 of Sch 2 of the Migration Regulations 1994 (Cth) permit Minister to refuse to grant visa solely on ground that it is not in national interest to grant SHEV visa to person convicted of people smuggling?

ENT19 v Minister for Home Affairs [2023] HCA 18 (14 June 2023)

Intro:

The plaintiff sought judicial review of the Decision in the original jurisdiction of this Court, seeking various remedies on different grounds, including writs of habeas corpus, mandamus and certiorari, and declarations relating to the validity and construction of cl 790.227. During the oral hearing, the plaintiff also sought a declaration that he satisfies the criteria for the grant of a SHEV.

Facts:

The plaintiff, a citizen of Iran, arrived in Australia by boat in December 2013 and was immediately detained under s 189 of the Migration Act 1958 (Cth). On 3 February 2017, the plaintiff made a valid application for a temporary protection visa – a Safe Haven Enterprise (Class XE) Subclass 790 visa (a "SHEV")[34].

In October 2017, the plaintiff was convicted after pleading guilty to the aggravated offence of people smuggling

on 27 June 2022. The first defendant, the Minister for Home Affairs, purportedly made a decision under s 65 of the Act to refuse the plaintiff's application because she was not satisfied of the visa criterion in cl 790.227 of Sch 2 of the Migration Regulations 1994 (Cth) that the grant of the SHEV was in the national interest ("the Decision"). The Minister's reasons reveal that the criterion in cl 790.227 was not met because in her view it was not in the national interest to grant a protection visa to a person convicted of a people smuggling offence.

Non-satisfaction of cl 790.227 was the sole basis for refusing the plaintiff's application. Satisfaction of the visa criteria other than that in cl 790.227 was not in issue. The defendants accepted that at the time of the Decision all of the criteria for the grant of the visa, apart from cl 790.227, were satisfied.

Minister's refusal to grant the SHEV

The second brief attached a draft Statement of Reasons for personally refusing the SHEV under s 65 relying on cl 790.227, which the Minister signed on 27 June 2022 without amendment. In that Statement of Reasons, the Minister set out her reasons for her decision that she was not satisfied that granting the SHEV to the plaintiff was in the national interest.

Relevantly, under the heading "Other factors taken into account in determining whether the grant of the visa would be in the national interest", the Minister stated that she did "not accept [the plaintiff's] submission that refusing to grant him a SHEV on the basis of clause 790.227 would be a refusal to grant the visa 'on character grounds', a matter dealt with by s 36(1C) of the Act". The reasons did not refer to PIC 4001 or s 501. The Minister stated that "a refusal to grant [the plaintiff] a SHEV on the basis of clause 790.227 is because of my assessment of other adverse impacts that granting a protection visa to a person who has been convicted of people smuggling would have on Australia's border protection regime, and the policy that underpins it".

Next, the Minister stated:-

"I regard protecting and safeguarding Australia's territorial and border integrity, which includes measures to combat people smuggling, to be matters that clearly go to the national interest. In my view, granting a protection visa to a person who has been convicted of people smuggling would send the wrong signal to people who may be contemplating engaging in similar conduct in the future, thereby potentially weakening Australia's border protection regime. It is not in the national interest for a person convicted of people smuggling to be seen to get the benefit of a protection visa." (emphasis added)

This statement is, in effect, a statement of general policy that it is not in the national interest for convicted people smugglers to get protection visas.

The Minister then set out what she described as an "additional reason" why she considered that granting the SHEV to the plaintiff would not be in the national interest:-

"I also consider it is in the national interest to maintain the confidence of the Australian community in the protection visa program. People smuggling can be seen to conflict with the values underlying the protection visa program since it involves taking advantage of, and exploiting, those seeking protection by smuggling them across borders. The grant of a protection visa to a non‑citizen who has been convicted of people smuggling may erode the community's confidence in the program." (emphasis added).

Issue:-

Was the Decision authorised by cl 790.227, properly construed?

Consideration:-

Regulations are to be construed according to the ordinary principles of statutory construction. The starting point for the ascertainment of the meaning of a provision is its text, while at the same time regard is to be had to its context and purpose. Of course, the statutory context of regulations includes the Act under which the regulations were made and are sustained. Context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense, including by reference to legislative history and extrinsic material. As Kiefel CJ, Nettle and Gordon JJ explained in SZTAL v Minister for Immigration and Border Protection[98]:-

"This is not to deny the importance of the natural and ordinary meaning of a word ... Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."

The context of the words, consideration of the consequences of adopting a provision's literal meaning, the purpose of the statute and principles of construction may lead a court to adopt a construction that departs from the literal meaning of the words of a provision. One such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. As expressed by Gageler J in SAS Trustee Corporation v Miles, "statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means". Where conflict appears to arise in construing an Act, "the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions", and this "will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'". Ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended.

Clause 790.227 was inserted by Parliament into the Regulations

Unusually, cl 790.227 was not made by the Governor‑General in the exercise of the regulation-making power under s 504 of the Act. Instead, it was inserted by Parliament into the existing Regulations by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which also amended the Act to introduce the SHEV as a new class of protection visa[104]. Clause 790.227 was inserted into the Regulations at the same time as all of the other criteria in the Regulations for the new SHEV class, including cl 790.226 which prescribed PIC 4001 as a criterion for the visa.

That is, Parliament did not create a statutory visa criterion by inserting cl 790.227 into the Act – for example, by amending s 36. Rather, Parliament made cl 790.227 in the form of an amendment to the Regulations, which were made by the Governor-General under s 504 of the Act. In doing so, Parliament made it clear that the Governor‑General was able to amend or repeal the Regulations as amended[106]. When the Regulations as amended were registered under the then Legislative Instruments Act 2003 (Cth), s 5(3) of that Act provided that, by virtue of the registration, the instrument was taken to be a "legislative instrument", defined as an instrument of a legislative character "that is or was made in the exercise of a power delegated by the Parliament"[107]. In short, cl 790.227 cannot be construed as if it were a provision of the Act, because it is not and never has been part of the Act, and the amending Act which inserted it into the Regulations did not express such an intention. It is a clause of the Regulations.

The subordinate status of cl 790.227 to the Act does not mean the clause is less binding in law than a statutory provision. However, it may, and here does, indicate that in reconciling provisions that otherwise present issues of inconsistency or incoherency, Parliament intended the clause to give way more readily or be adjusted if necessary to ensure a harmonious interpretation.

Proper construction of cl 790.227

The construction put forward by the plaintiff that should be accepted is that cl 790.227 does not operate to permit the Minister or delegate to reconsider or revisit, under the criterion of "the national interest", those matters that have already been considered as part of the decision-making process under s 65 (some of which are committed to the Minister personally) and to treat those matters as sufficient to form the opinion that the Minister or delegate is not satisfied that the grant of the visa is in the national interest.

That is not to say that cl 790.227 has no work to do. The concept of "the national interest" as used in the Act is undoubtedly broad and the possible considerations it may encompass cannot be catalogued. In this context, as cl 790.227 is a general visa criterion to be satisfied for all visa decisions for that class, "the national interest" must be informed in part by consideration of the nature of visas of that class, specifically, protection visas. The satisfaction of the criteria that are set out in the Act for protection visas, in particular the satisfaction of one of the criteria in s 36(2), is the primary basis on which Parliament expects that the Minister or delegate will be satisfied that the grant of the visa is in the national interest. That said, of course there might be other considerations that weigh against the general expectation in cl 790.227 that the grant of protection visas to persons to whom Australia owes protection obligations is in the national interest. For example, such a scenario might be where Australia is at war with the country from which the applicant seeks refuge. It is for this reason that, although the expression of cl 790.227 is in positive terms – as a criterion for grant of a visa, not for refusal of a visa – the parties were right to describe it in its negative sense because it is not a criterion that sits independently of all the others; the premise that it is in the national interest to grant a visa when a person is owed protection obligations and meets the other criteria can only be displaced by other national interest matters.

Again, put in different terms, it can be accepted, as the defendants submitted, that cl 790.227 is a cumulative requirement for the grant of a SHEV operating in addition to the other visa criteria and powers – cl 790.227 provides an additional basis to refuse the visa if the Minister considers, for some other reason, that the grant of the visa is not in the national interest. But that reason must be "another" reason. Determining whether that is the case will depend on an evaluation of the Minister or delegate's reasons.

As has been said, cl 790.227 was not intended to be a trump card for the Minister to use to refuse the visa under s 65 without needing to consider, or be constrained by, any of the other criteria and powers relevant to the decision. Unlike s 501 of the Act, cl 790.227 is not a special visa refusal power conferred by the Act. It is a positive visa criterion in the Regulations to be satisfied for all grants of a protection visa by the Minister and delegates alike. It cannot be treated as if it were a personal dispensing power. The Decision should be quashed.

Orders:-

In the circumstances, a writ of certiorari should issue quashing the decision of the first defendant made on 27 June 2022 to refuse to grant the plaintiff a SHEV and a writ of mandamus should issue commanding the first defendant to determine the plaintiff's visa application according to law within 14 days of the date of this order. The Minister has conceded that, at the date of the Decision, the plaintiff met all of the criteria for the SHEV other than cl 790.227. These reasons explain the proper construction and application of cl 790.227. The Court's power to grant declaratory relief is limited by the scope of the issues in the proceeding and a declaration as to the position conceded by the Minister is unnecessary.

The defendants should pay the plaintiff's costs.