Plaintiff M150 of 2013 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: French CJ.,Hayne,Kiefel JJ.
• Judgment Date: 20 June 2014
• Neutral Citation: [2014] HCA 25
• Court: High Court
• Date: 20 June 2014
• Docket Number: M150/2013

[2014] HCA 25

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ

M150/2013

Plaintiff M150 of 2013 by his Litigation Guardian Sister Brigid Marie Arthur

Plaintiff

and

Minister for Immigration and Border Protection & Anor

Defendants

Representation

R M Niall SC with C L Lenehan and S M Keating for the plaintiff (instructed by Allens Lawyers)

S P Donaghue QC with P D Herzfeld for the defendants (instructed by Australian Government Solicitor)

Legislative Instruments Act 2003 (Cth), s 56. .

Migration Act 1958 (Cth), ss 36, 39, 65, 65A, 84, subdiv AH. .

Plaintiff M150 of 2013 v Minister for Immigration and Border Protection

Migration — Refugees — Protection visas — Power of Minister under s 85 of Migration Act 1958 (Cth) to determine maximum number of visas of specified class granted in specified financial year, in circumstances where s 65A imposed time limit in which protection visa applications must be decided — Minister signed instrument limiting number of protection visas granted in current financial year — Plaintiff's protection visa application not determined by Minister pursuant to that determination — Whether power under s 85 extended to protection visas — Whether instrument valid.

Words and phrases — ‘harmonious construction ’, ‘implied repeal ’, ‘leading provision ’, ‘legislative instrument ’, ‘subordinate provision ’.

ORDER

The questions asked by the parties in the special case dated 16 April 2014 and referred for consideration by the Full Court be answered as follows:

Question 1

Is the Minister's determination made on 4 March 2014 pursuant to s 85 of the Migration Act invalid?

Answer

Yes.

Question 2

What, if any, relief should be granted to the plaintiff?

Answer

A writ of mandamus directing the first defendant to consider and determine the plaintiff's application for a Protection (Class XA) visa according to law.

Question 3

Who should pay the costs of the special case?

Answer

The defendants.

French CJ.

Introduction

1 This proceeding, referred by way of special case to the Full Court, raises the question whether the power, conferred on the Minister for Immigration and Border Protection (‘the Minister’) by s 85 of the Migration Act 1958 (Cth) (‘the Migration Act’), to determine the maximum number of visas of a specified class that may be granted in a specified financial year, applies to protection visas. The Minister made a determination on 4 March 2014 limiting the number of Protection (Class XA) visas that could be granted in the financial year ending 30 June 2014. The plaintiff is an applicant for a protection visa who, by reason of the determination, if it be valid, cannot be granted a visa on or before 30 June 2014.

2 Some classes of visa are created by the Migration Act and some by regulation made pursuant to s 31(1) of that Act. The protection visa is a class of visa created by the enactment of s 36(1) of the Migration Act, which came into effect on 1 September 1994 1. Criteria for the grant of visas of a specified class may be prescribed by regulation 2. Some criteria are set out in the Act. Uniquely among the classes of visa for which the Act itself provides, a criterion for the grant of a protection visa is expressed in terms of Australia's international obligations. That criterion, set out in s 36(2)(a), requires the applicant for a protection visa to be:

‘a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’ 3.

The coverage of s 36 was extended, by amendments made in 2011 4, to non-citizens in respect of whom the Minister is satisfied Australia has protection

obligations under other international conventions 5. Importantly, validly made applications for a protection visa under s 46 of the Migration Act are subject to a decisional time limit of 90 days from the making of the application. That time limit is imposed by s 65A, which was enacted in 2005 6.

3 The Explanatory Memorandum to the Bill for the Migration Reform Act 1992 (Cth), which introduced protection visas into the Migration Act, stated that 7:

‘A protection visa is intended to be the mechanism by which Australia offers protection to persons who fall under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.’

The purpose of the provisions of the Migration Act relating to protection visas informs the construction of those provisions and the Act as a whole. As this Court said in Plaintiff M61/2010E v The Commonwealth8:

‘the Migration Act proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia's international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason.’

4 The plaintiff contends that, having regard to its history, context and purpose, and the special position of protection visas under the Migration Act, s 85 does not apply to that class of visa. He points in particular to the decisional

time limit imposed by s 65A(1). The defendants point to the generality of the language of s 85, which they contend cannot support implied words of exception which would be necessary for the plaintiff's construction. They also rely upon statutory context. Contrary to the defendants' submissions, the purposes of the relevant provisions of the Act lead to the conclusion that, properly construed, s 85 does not apply to protection visas. The questions on the special case should be answered as set out at the end of these reasons.

Factual background

5 The facts necessary to the disposition of the special case were agreed and may be summarised briefly.

6 The plaintiff is a national of Ethiopia who entered Australia at the Port of Gladstone on 29 March 2013. He entered without a visa, having been a stowaway aboard a vessel. Being an ‘unlawful non-citizen’ within the meaning of ss 5(1) and 14 of the Migration Act, he was taken into immigration detention pursuant to s 189. He remained in immigration detention from 29 March 2013 to 10 February 2014. Between 27 June 2013 and 10 February 2014, he was held in community detention pursuant to a residence determination made under s 197AB(1) of the Migration Act.

7 On 19 April 2013, the plaintiff made a valid application for a protection visa. That application was refused on 3 July 2013. On 16 July 2013, the plaintiff applied to the Refugee Review Tribunal (‘the RRT’) for a review of the decision to refuse his protection visa application. On 3 October 2013, the RRT remitted his application to the Minister with a direction that the plaintiff satisfied the criterion under s 36(2)(a) of the Migration Act for the grant of a protection visa.

8 On 10 February 2014, a delegate of the Minister refused to grant the plaintiff a protection visa on the basis that the plaintiff did not satisfy the criteria prescribed by cl 866.222 of Sched 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Those criteria, which were introduced by the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth), required, inter alia, that at the time of decision in relation to an application for a protection visa, the applicant held a visa that was in effect on his or her last entry to Australia and was immigration cleared on that last entry. The plaintiff did not meet those requirements. On the same day as his application was again refused by the Minister's delegate, the Assistant Minister for Immigration and Border Protection exercised her power under s 195A of the Migration Act and granted the plaintiff a Temporary Safe Haven (Class UJ subclass 449) visa and a Temporary (Humanitarian Concern) (Class UO) visa. By reason of the grant of those visas, the plaintiff became a lawful non-citizen and was released from immigration detention.

9 The plaintiff applied again to the RRT on 14 February 2014 for a review of the Minister's decision to refuse to grant him a protection visa. He commenced proceedings in the original jurisdiction of this Court on 1December 2013. On 22 April 2014, by order of this Court made by consent, certiorari issued to quash the decision made by the delegate on 10 February 2014 to refuse to grant the plaintiff's application for a protection visa. The plaintiff's application for a protection visa remains undetermined.

10 The plaintiff's application remains undetermined because, on 4 March 2014, the Minister made a determination under s 85 that the maximum number of protection visas that could be granted in the year ending 30 June 2014 was 2,773. The effect of that determination, if valid, was that no more protection visas could be granted between 24 March 2014, when the maximum number of protection visas was reached, and 30 June 2014. Its effect, if valid, is that the plaintiff cannot be granted a protection visa in the current financial year.

The questions in the special case

11 The questions referred to the Court in the special case, based on the proceedings as they now stand, are:

1

Is the Minister's determination made on 4 March 2014 pursuant to s 85 of the Migration Act invalid? 2. What, if any, relief should be granted to the plaintiff? 3. Who should pay the costs of the special case?

Sections 85 and 86 of the Migration Act and their companion provisions

12 Sections 85 and 86 of the Migration Act, which must be read together, appear in subdiv AH of Div 3 of Pt 2, entitled ‘Limit on visas’. Both sections commenced on 16 December 1992 as ss 28A and 28B of the Migration Act, contained in what was then a new subdiv AA of Div 2 of Pt 2 9. Section 85...