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

Last Updated: 20 June 2014

HIGH COURT OF AUSTRALIA

FRENCH CJ,



HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

PLAINTIFF M150 OF 2013 BY HIS LITIGATION



GUARDIAN SISTER BRIGID MARIE ARTHUR PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND BORDER



PROTECTION & ANOR DEFENDANTS

Plaintiff M150 of 2013 v Minister for Immigration and Border Protection



[2014] HCA 25



20 June 2014



M150/2013

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.

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)

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 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".

Legislative Instruments Act 2003 (Cth), s 56.



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

FRENCH CJ.

Introduction

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. 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] [2] 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].

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 Commonwealth[8]:

"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."

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

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

The questions in the special case

The questions referred to the Court in the special case, based on the proceedings as they now stand, are: Is the Minister's determination made on 4 March 2014 pursuant to s 85 of the Migration Act invalid? What, if any, relief should be granted to the plaintiff? Who should pay the costs of the special case?

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

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 provides, in language unchanged since its enactment:

"The Minister may, by notice in the Gazette, determine the maximum number of:

(a) the visas of a specified class; or

(b) the visas of specified classes;

that may be granted in a specified financial year."

Section 86 attaches a legal consequence to a determination under s 85. It provides:

"If:

(a) there is a determination of the maximum number of visas of a class or classes that may be granted in a financial year; and

(b) the number of visas of the class or classes granted in the year reaches that maximum number;

no more visas of the class or classes may be granted in the year."

"The fact that the Minister has neither granted nor refused to grant a visa of a class or classes to which a determination under section 85 applies does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa."

The defendants submitted that s 89 militates against the contrariety, for which the plaintiff contended, between the decisional time limit imposed by s 65A(1) and the prohibition imposed by s 86 on the grant of visas exceeding a ministerial cap imposed under s 85. However, s 65A is directed to decisions on the merits of applications for protection visas. Section 89 was directed to ensuring that a failure to make a decision by reason of s 86 could not constitute the ground for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) that the Minister had failed to exercise a power or perform a duty[18], later available under Pt 8 of the Migration Act[19]. Section 89 does not assist the defendants' argument that s 85 is applicable to protection visas.

Section 90 has a similar function to s 89 [20] s 85 applies does not mean that the application is "unreasonably delayed". That is so, even though an application for another visa of the class or classes that was made later has been considered or disposed of. Section 91 appears to have the effect that visas which could have been granted in a given financial year, but for a limit imposed under s 85, have no priority when the limit ceases to operate, ie, at the end of the relevant financial year. It provides:

"If a determination under section 85 applies, or has applied, to visas of a class or classes, the Minister may consider or, subject to section 86, dispose of outstanding and further applications for such visas in such order as he or she considers appropriate."

The discretion thus conferred on the Minister is in tension with the decisional time limit imposed with respect to protection visas by s 65A and, to that extent, is another indicator that s 85 does not apply to protection visas.

A feature of the wider statutory context of s 85, upon which the defendants relied, is the existence of express provisions of the Migration Act disapplying subdiv AH, and thereby ss 85 and 86, to particular classes of visa. There is no such express disapplication in relation to protection visas. Those provisions are considered in the next section of these reasons.

Visas to which s 85 does not apply

The visa capping power — ss 39 and 85

Mechanisms for regulating the number of visas of specific classes being processed and granted are to be found in three sections of the Migration Act, which, in chronological order of their first appearances in the legislation, are ss 84, 39 and 85. Section 84 entered the Migration Act before s 39 and its precursors, and before s 85 and its precursor. It empowers the Minister, by notice in the Gazette, to "determine that dealing with applications for visas of a specified class is to stop until a day specified in the notice". Its first precursors were ss 11J and 11W, introduced into the Migration Act by the Migration Legislation Amendment Act 1989 (Cth) [40] ss 28 and 40 by the same Act and further renumbered as s 84 by the Migration Legislation Amendment Act 1994. When the precursors to ss 85 and 86 were enacted the Minister, in the Second Reading Speech, observed that the suspension power had not been exercised and said that while it was "a powerful administrative tool in ensuring that program levels are not exceeded", it was also "a very blunt one." [41] There was a mechanism in place for the capping of visa numbers before the enactment of ss 85 and 86. That was s 39. Its legislative precursors predated ss 85 and 86 and their precursors. Section 39 authorises the imposition by regulation of a criterion limiting, to a maximum fixed by the Minister, the number of visas of a class that may be granted in a particular financial year. It provides:

"(1) In spite of section 14 of the Legislative Instruments Act 2003, a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).

(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made."[42] (emphasis added)

The precursors of s 39(1) and (2) were s 23(3A) and (3B), enacted by the Migration Amendment Act (No 2) 1991 (Cth), which commenced on 15 January 1992 [43] Migration Reform Act came into effect on 1 September 1994. The sub-sections were described in the Explanatory Memorandum as allowing the regulations "to authorise the Minister to fix a numerical limit on the number of visas or permits or [sic] a particular class which may be granted in a particular financial year." [44] [45]

"These application capping powers will only apply to those classes where use of the power is specifically permitted under the regulations. The powers are, in effect, an extension of the capping powers already found in sections 28 and 40 of the Act."

As noted earlier, ss 28 and 40 of the Act as it then stood were the precursors of s 84. They did not and it does not confer a "capping power", but rather a power to suspend the processing of applications until a specified date. Sub-sections (3A) and (3B) of s 23 were repealed and reintroduced as s 26E by the Migration Reform Act[46] and, with the introduction of the exclusion for protection visas, came into force on 1 September 1994, the same date as protection visas were created[47].

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

Specific provisions relating to protection visas

"In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation."

A construction of s 85 which would permit the deferral of a decision about an application for a protection visa by a person in respect of whom Australia has been found to owe protection obligations, and which would expose such a person to the prolongation of immigration detention, would be at odds with the purposes of the statutory scheme of which protection visas are a central part. That construction is not to be preferred. For that reason, together with the textual and contextual considerations thrown up by s 65A of the Migration Act, which are considered in the next section of these reasons, s 85 should not be construed as authorising a determination by the Minister of the maximum number of protection visas that may be granted in a specified financial year.

Consideration and determination of visa applications — ss 65 and 65A

"After considering a valid application for a visa, the Minister:

(a) if satisfied that:

(i) the health criteria for it (if any) have been satisfied; and

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv) any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa."

Section 65(2) is not material for present purposes. Section 65 was introduced by the Migration Reform Act as s 26ZF[64]. It was renumbered by the Migration Legislation Amendment Act 1994, on the same date, as s 65. As the plurality observed in Chen Shi Hai v Minister for Immigration and Multicultural Affairs[65]:

"s 65(1) imposes an obligation to grant a visa, as distinct from conferring a power involving the exercise of a discretion. The satisfaction that is required is a component of the condition precedent to the discharge of that obligation." (footnote omitted)

Section 65 must be read with ss 85 and 86. The defendants submitted that where a determination under s 85 applies then, even if the Minister has considered a valid application for a visa and is satisfied of the matters in s 65(1), the duty to grant the visa gives way, pro tem, to the prohibition imposed by s 86. That may be accepted, subject to two qualifications. The first qualification is that neither s 65 nor s 86 is engaged if the Minister's determination of a maximum number of visas to be granted in a particular financial year applies to a class of visa which attracts the application of a criterion under a regulation made pursuant to s 39. As explained earlier in these reasons, any application outstanding after the determined maximum has been reached is taken never to have been made. The second qualification arises from the obligation imposed by s 65A, which is not susceptible of displacement by the prohibition in s 86. Section 65A, which relates only to protection visas, imposes a specific temporal limit on the decision-making required by s 65 and indirectly affects the order of consideration and disposition of applications which may be adopted by the Minister pursuant to s 51. Section 65A post-dates ss 51 and 65, having been introduced into the Migration Act in 2005 with effect from 12 December 2005 [66]

"(1) If an application for a protection visa:

(a) was validly made under section 46; or

(b) was remitted by any court or tribunal to the Minister for reconsideration;

then the Minister must make a decision under section 65 within 90 days starting on:

(c) the day on which the application for the protection visa was made or remitted; or

(d) in the circumstances prescribed by the regulations—the day prescribed by the regulations.

(2) Failure to comply with this section does not affect the validity of a decision made under section 65 on an application for a protection visa."

The Explanatory Memorandum relevant to s 65A stated[67]:

"The purpose of this new section is to reflect the Government's policy that decisions on protection visa applications should be made in a timely and efficient manner so as to provide greater transparency and certainty for protection visa applicants. Timeliness in the decision-making process will be enhanced by these provisions as the Minister will be required to make all decisions within a set time frame."

Conclusion

The conclusion that ss 85 and 86 are not applicable to protection visas means that the first question in the special case must be answered in the affirmative. The question of further relief should be remitted to a single Justice to determine. The defendants should pay the plaintiff's costs of the special case. The costs of the proceedings otherwise should be remitted to a single Justice.

HAYNE AND KIEFEL JJ.

The issue

The plaintiff, now aged 15 years, is an Ethiopian national. In March 2013, he arrived in Gladstone Port, Queensland, as a stowaway on a cargo ship. He had no visa permitting him to enter or remain in Australia and was, therefore, an unlawful non-citizen within the meaning of the Migration Act 1958 (Cth) ("the Act"). The plaintiff has made a valid application for a protection visa (a visa of the class provided for by s 36 of the Act). It has been determined that he is a refugee within the meaning of the Refugees Convention [68] The plaintiff alleges, and the Minister and the Commonwealth deny, that the determination limiting the number of protection visas which may be granted is invalid and that the Minister is bound to consider and determine the plaintiff's application and grant him a protection visa. The plaintiff's submissions should be accepted. The questions of law stated by the parties in the form of a special case should be answered accordingly.

A question of statutory construction

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

The relevant provisions

Section 65 obliges the Minister, after considering a valid application for a visa, to grant or refuse to grant the visa according to whether the Minister is satisfied that certain conditions are met. Two conditions are relevant to this proceeding. First, the Minister must be satisfied [70] Act or the regulations" have been met. Second, the Minister must be satisfied [71] Act [72] Act or of any other law of the Commonwealth". Section 85 provides that the Minister may, by notice in the Commonwealth of Australia Gazette, determine the maximum number of visas of a specified class that may be granted in a specified financial year. Section 86 provides for the effect of the Minister limiting the number of visas of a specified class which may be granted. It provides:

"If:

(a) there is a determination of the maximum number of visas of a class or classes that may be granted in a financial year; and

(b) the number of visas of the class or classes granted in the year reaches that maximum number;

no more visas of the class or classes may be granted in the year."

Section 88 provides that "[s]ection 86's prevention of the grant of a visa does not prevent any other action related to the application for it". Section 89 provides that the Minister's having neither granted nor refused to grant a visa of a class to which a determination under s 85 applies "does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa". And s 90, in effect, provides that, where a determination under s 85 applies, the Minister's disposing of an application for a visa which was lodged after another application "does not mean, for any purpose, that the consideration or disposal of the earlier application is unreasonably delayed". There is, then, an evident tension between s 65 and the provisions of subdiv AH. Section 65 requires a decision to grant or refuse to grant a visa; subdiv AH requires that visas of a specified class not be granted but does not require that they be refused. The tension is emphasised by s 65A requiring the Minister to determine applications for protection visas (by granting or refusing to grant the visa sought) within a limited time. As will later be explained, the tension is resolved by s 39 of the Act, which gives the Minister power to make compliance with a limit a criterion for the grant of a visa. It provides:

"(1) In spite of section 14 of the Legislative Instruments Act 2003, a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).

(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made." (emphasis added)

It is important to notice that s 39(1) expressly excludes protection visas.

Competing considerations

Resolving the tension

As was pointed out in Project Blue Sky Inc v Australian Broadcasting Authority [74] [75] [76] Project Blue Sky, in many cases it is only by determining the hierarchy of the provisions that each provision can be given "the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme". In this case, that hierarchy can be determined only by first resolving some associated issues about how s 39 of the Act intersects with subdiv AH and, in particular, ss 85 and 86.

Section 39

The history of the provisions

The preferred construction

As has been observed, the tension between s 65 and subdiv AH is to be resolved by treating s 65 as the leading provision, and the provisions of subdiv AH as subordinate to it. That is the preferable construction of the text of the Act. The history of the provisions which are now found in ss 39 and 65 and subdiv AH reinforces that conclusion. The consequences for the detention of unlawful non-citizens who have made a valid application for a protection visa which would follow from adopting the contrary construction of the Act have been identified and those consequences provide a further and compelling reason for adopting the preferred construction. The prescription of time limits by s 65A for determination of applications for protection visas is a still further and compelling reason for adopting it.

Conclusion and orders

For these reasons, the Minister's determination of the maximum number of protection visas which may be granted during the financial year ending on 30 June 2014 was not authorised by s 85 of the Act. Having been made beyond power, the determination is invalid. It is not necessary to consider the plaintiff's submissions about the construction of s 85. The questions stated for the consideration of the Full Court in the form of a special case should be answered as follows. Question 1, which asks whether the Minister's determination fixing the maximum number of protection visas which may be granted in the financial year ending on 30 June 2014 is invalid, should be answered: "Yes". Question 2 asks what relief should be granted to the plaintiff. The exact form of relief which the plaintiff should have will be a matter for the single Justice making orders finally disposing of the proceeding and the question should be answered accordingly. As the matter presently stands, it would seem probable that the plaintiff would be entitled to a declaration that the Minister's determination is invalid, an order for mandamus directed to the Minister requiring the Minister to determine according to law the plaintiff's application for a protection visa and an order that the defendants pay the plaintiff's costs. But those are matters which should finally be determined by a single Justice. Question 3, which asks who should pay the costs of the special case, should be answered: "The defendants".





CRENNAN, BELL, GAGELER AND KEANE JJ. This special case has been heard concurrently with the special case in Plaintiff S297/2013 v Minister for Immigration and Border Protection [89] s 85 of the Act. The plaintiff in this proceeding made a valid application for a protection visa on 19 April 2013. A delegate of the Minister refused to grant him a protection visa on 10 February 2014. That decision was quashed by a writ of certiorari on 22 April 2014. Although the 90 day period set by s 65A for compliance with the duty imposed by s 65 of the Act has not yet expired, it is an agreed fact that the plaintiff has done all things necessary for the purpose of having his protection visa determined by the Minister and the Minister has pointed to no reason why he has not yet made a decision to grant or refuse to grant the protection visa other than the existence of the instrument. Absent any discretionary reason for withholding that relief, there is no reason why the plaintiff should not now have a writ of mandamus directing the Minister to consider and determine his application according to law. The questions reserved should 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.

[1] Migration Reform Act 1992 (Cth), s 10, inserting s 26B into the Migration Act (renumbered as s 36 of the Act by the Migration Legislation Amendment Act 1994 (Cth)).

[2] Migration Act, s 31(3). The power to make regulations prescribing criteria extends to the classes of visa set out in ss 32, 36, 37, 37A and 38B of the Act.

[3] The "Refugees Convention" means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951; the "Refugees Protocol" means the Protocol relating to the Status of Refugees done at New York on 31 January 1967 — Migration Act, s 5(1).

[4] Migration Amendment (Complementary Protection) Act 2011 (Cth), Sched 1, item 12, inserting s 36(2)(aa) into the Migration Act.

[5] The purpose of s 36(2)(aa) is to provide for a criterion for a protection visa on the basis of a non-refoulement obligation contained or implied in the International Covenant on Civil and Political Rights or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, if the Minister is not already satisfied that the non-citizen is owed protection obligations under the Refugees Convention as amended by the Refugees Protocol — Australia, House of Representatives, Migration Amendment (Complementary Protection) Bill 2011, Explanatory Memorandum at 10 [65].

[6] Migration and Ombudsman Legislation Amendment Act 2005 (Cth), Sched 1, item 1.

[7] Australia, House of Representatives, Migration Reform Bill 1992, Explanatory Memorandum at 18 [26].

[8] [2010] HCA 41; (2010) 243 CLR 319 at 339 [27]; [2010] HCA 41.

[9] Migration Laws Amendment Act 1992 (Cth), s 7.

[10] Australia, House of Representatives, Parliamentary Debates (Hansard), 19 August 1992 at 185.

[11] Australia, House of Representatives, Parliamentary Debates (Hansard), 19 August 1992 at 185.

[12] Australia, Senate, Migration Laws Amendment Bill 1992, Explanatory Memorandum at [7].

[13] Those classes are special purpose visas (s 33), absorbed person visas (s 34), ex-citizen visas (s 35), criminal justice visas (s 44) and enforcement visas (s 44).

[14] See footnote 1.

[15] [2014] HCA 24.

[16] reg 1.03 ("relative") with reg 1.12.

[17] A further exemption from the limit imposed under s 85, not material for present purposes, is set out in s 87A for persons unable to meet health or character requirements before the limit becomes applicable.

[18] See s 7(1) of the Administrative Decisions (Judicial Review) Act: Australia, Senate, Migration Laws Amendment Bill 1992, Explanatory Memorandum at [13].

[19] See s 477(1) of the Migration Act. Part 8 of the Act, which commenced on 1 September 1994, was introduced as Pt 4B by s 33 of the Migration Reform Act and renumbered by the Migration Legislation Amendment Act 1994.

[20] See s 7(1) of the Administrative Decisions (Judicial Review) Act.

[21] The legislative history of those changes was set out in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at 574–576 [10]–[17] per Gummow and Hayne JJ; [2006] HCA 50.

[22] Migration Act, s 29(1). Section 30 provides that a visa may be permanent, authorising its holder to remain in Australia indefinitely, or may be temporary, authorising a stay for a specified period or until a specified event happens or while the holder has a particular status.

[23] Migration Act, s 13(1). "Migration zone" is defined in s 5(1) to mean "the area consisting of the States, the Territories, Australian resource installations and Australian sea installations".

[24] Migration Act, s 14(1).

[25] Migration Act, ss 189 and 196.

[26] Migration Act, s 198.

[27] See the definition of "prescribed" in s 5(1) of the Migration Act.

[28] Migration Legislation Amendment Act 1994, s 8. The provisions creating these classes were respectively numbered ss 26AA, 26AB and 26AC and were renumbered as ss 33, 34 and 35 by the same amending Act.

[29] Migration Reform Act, s 10. The provisions creating these classes were respectively numbered ss 26B and 26D and were renumbered by the Migration Legislation Amendment Act 1994 as ss 36 and 38.

[30] Border Protection Legislation Amendment Act, Sched 1, Pt 3, item 19.

[31] Migration Amendment (Maritime Crew) Act, Sched 1, Pt 1, item 5.

[32] The disapplication provisions are s 33(10) for special purpose visas, s 34(3) for absorbed person visas, s 35(4) for ex-citizen visas, s 44(1) for criminal justice visas and s 44(2) for enforcement visas.

[33] For example, see the discussion of the rationale for absorbed person visas in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at 576–577 [18]–[20] per Gummow and Hayne JJ.

[34] Migration Act, ss 33(2), 34(2) and 35(2).

[35] Migration Act, s 141. The grant of such a visa is conditioned upon the issue of a criminal justice certificate by the Commonwealth Attorney-General or a State authorised official, or a criminal justice stay warrant issued by a court — Migration Act, s 159(1) read with ss 147, 148 and 151.

[36] Migration Act, ss 164A–164BA.

[37] Bridging visas were introduced as s 26C of the Migration Act by s 10 of the Migration Reform Act, commencing on 1 September 1994. Section 26C was renumbered as s 37 by the Migration Legislation Amendment Act 1994.

[38] Migration Act, ss 72 and 73.

[39] Migration Act, s 75(1).

[40] Migration Legislation Amendment Act 1989, s 6.

[41] Australia, House of Representatives, Parliamentary Debates (Hansard), 19 August 1992 at 185.

[42] The displacement of s 14 of the Legislative Instruments Act 2003 (Cth) overcomes the restriction in s 14(2) on a legislative instrument, in this case the regulations authorised by s 39, "applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time", in this case the legislative instrument referred to in s 39(1) by which the Minister fixes a maximum number of visas. In the precursors to s 39, the corresponding displacement was of s 49A of the Acts Interpretation Act 1901 (Cth).

[43] Migration Amendment Act (No 2) 1991, s 4.

[44] Australia, Senate, Migration Amendment Bill (No 2) 1991, Explanatory Memorandum at [4].

[45] Australia, House of Representatives, Parliamentary Debates (Hansard), 15 October 1991 at 1929.

[46] Migration Reform Act, s 10.

[47] Section 26E was renumbered as s 39 by the Migration Legislation Amendment Act 1994.

[48] Legislative Instruments Act, s 56(1).

[49] Migration Act, s 198(2)(c)(i).

[50] Migration Act, s 40(1).

[51] Migration Act, s 40(3A).

[52] Migration Act, s 41(1).

[53] Migration Act, s 41(2)(a).

[54] Migration Act, s 161(5) and (6).

[55] Migration Act, s 164D.

[56] Migration Act, s 195(2).

[57] See Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at 175 [45] per French CJ, 198 [122] per Gummow, Hayne, Crennan and Bell JJ; [2011] HCA 32.

[58] Migration Act, subdiv B of Div 8 of Pt 2 (ss 198AA–198AJ).

[59] Migration Act, s 45(1).

[60] This case does not require consideration of the effects of statutory bars to valid applications in relation to unauthorised maritime arrivals found in s 46A and related provisions of the Act and discussed in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 at 647–649 [26]–[31] per French CJ and Kiefel J, 661–664 [77]–[87] per Gummow, Hayne, Crennan and Bell JJ; [2012] HCA 31.

[61] Migration Act, s 47(1).

[62] Migration Act, s 51(1).

[63] Migration Act, s 63(1).

[64] Migration Reform Act, s 10.

[65] [2000] HCA 19; (2000) 201 CLR 293 at 306 [41] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; [2000] HCA 19.

[66] Migration and Ombudsman Legislation Amendment Act, Sched 1, item 1.

[67] Australia, Senate, Migration and Ombudsman Legislation Amendment Bill 2005, Explanatory Memorandum, Sched 1 [3].

[68] Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967).

[69] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381-382 [70] per McHugh, Gummow, Kirby and Hayne JJ; [1998] HCA 28, citing Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 440 per Gibbs J; [1979] HCA 29.

[70] s 65(1)(a)(ii).

[71] s 65(1)(a)(iii).

[72] None of which is relevant to this case.

[73] cf Australia, Senate, Migration Laws Amendment Bill 1992, Explanatory Memorandum at [13]-[14].

[74] [1998] HCA 28; (1998) 194 CLR 355 at 382 [70] per McHugh, Gummow, Kirby and Hayne JJ (footnote omitted).

[75] [1998] HCA 28; (1998) 194 CLR 355 at 382 [70] per McHugh, Gummow, Kirby and Hayne JJ (footnote omitted).

[76] [1998] HCA 28; (1998) 194 CLR 355 at 382 [70] per McHugh, Gummow, Kirby and Hayne JJ.

[77] See, for example, s 195A, permitting the Minister to grant a visa to a person who is in detention under s 189 whether or not that person has made a valid application for a visa.

[78] Project Blue Sky [1998] HCA 28; (1998) 194 CLR 355 at 382 [70] per McHugh, Gummow, Kirby and Hayne JJ.

[79] Migration Laws Amendment Act 1992 (Cth), s 7, inserting, as subdiv AA of Div 2 of Pt 2 (ss 28A-28G), what now appear as ss 85-87 and 88-91.

[80] Migration Amendment Act (No 2) 1991 (Cth), s 5, amending s 33 by inserting new sub-ss (3A) and (3B).

[81] As s 26E.

[82] Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case) [2010] HCA 41; (2010) 243 CLR 319 at 339 [27]; [2010] HCA 41.

[83] Offshore Processing Case [2010] HCA 41; (2010) 243 CLR 319 at 348 [64].

[84] The relevant history of the provisions is more fully described in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 at 174-176 [34]- [41] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ; [2005] HCA 6.

[85] s 6, inserting s 6A into the Act.

[86] See s 34(3)(b), as in force immediately before the 1992 Reform Act came into operation.

[87] s 24(3)(b).

[88] Inserted as s 26ZF.

[89] [2014] HCA 24.