Protection visas can be refused under s 501 on character grounds

In a joint judgment, a Full Court of five members (Allsop CJ, Kenny, Besanko, Mortimer and Moshinsky JJ) held that the power in s 501 of the Migration Act 1958 (Cth) to refuse to grant a visa can be used to refuse an application for a protection visa, even if the applicant otherwise satisfies the protection visa criteria.

It follows that, in the Full Court’s opinion, an earlier decision of the Court in BAL19 v Minister for Home Affairs [2019] FCA 2189 (24 December 2019) (BAL19) had, on this issue, been wrongly decided.

Background

In BFW20, there were two proceedings before the Full Court:

• The first, being the BFW20 matter, was an appeal from the decision in BFW20 at first instance.  The Minister had not decided BFW20’s protection visa application, made in December 2015.  BFW20 was in immigration detention.  The primary judge ordered that a writ of mandamus issue to the Minister requiring him to determine the application on the basis that s 501 does not empower the refusal of the application (and BAL19 was not plainly wrong).
• The second, being the BGS20 matter, was a proceeding in the Court’s original jurisdiction for consideration of the reserved question, namely: where an applicant satisfies the criteria in s 36, can the grant of the visa be prevented by the exercise of the power in s 501(1)?

Legislation

An applicant for a protection visa must satisfy the criteria in s 36 of the Act.  One criterion, set out in s 36(1C)(b), is that the applicant is not a person whom the Minister considers, on reasonable grounds, having been convicted by a final judgment of a “particularly serious crime” (defined elsewhere in the Act to include serious violence and serious drug offences), is a danger to the Australian community. 

Section 65 provides, relevantly, that the Minister “is to grant the visa” if satisfied the relevant criteria are satisfied. 

Section 501(1) provides that the Minister “may refuse to grant a visa” if the person does not pass the character test in s 501(6), which includes grounds that could amount to a “particularly serious crime” but also much less serious situations, such as a “risk” that the person may “harass” or “molest” another, even though the conduct does not include actual or threatened violence.

The judgment in BAL19

In the earlier judgment of the Court in BAL19, Rares J had noted that the disqualifying grounds in s 36(1C) are much more restrictive than the character grounds in s 501(6).  For example, a person would not pass the character test under s 501(6)(d)(v) if there were a risk (ie. any risk) that the person would represent a danger to the Australian community without any additional qualification of a past conviction or the existence of reasonable grounds to consider the existence of the danger, as required by s 36(1C): [66].

His Honour had stated at [67] that there was:

[…] no intelligible statutory purpose for the mandatory criterion for a grant of a protection visa in s 36(1C), reflecting as it does the Parliament’s interpretation of Art 33(2) of the Refugees Convention, if the Minister were free to apply a less stringent criterion under s 501(1) and its analogues, involving his exercising a very broad discretion, to refuse to grant the very same visa.

Importantly, his Honour had placed considerable weight on what he considered to be the purpose and effect of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which enacted s 36(1C) and related amendments.  His Honour had noted that:

• Prior to the 2014 amendments, Articles 1F, 32 and 33 of the Refugees Convention overlapped with the criteria in the character test in s 501(6) and, in particular, s 501(6)(d)(v), as supporting the Minister’s then powers to refuse to grant or cancel a protection visa.  The Minister had that power because those articles were not statutory criteria for the grant of a protection visa.
• However, the 2014 amendments carefully codified the criteria for a protection visa and deals exhaustively with the criminal history and behaviours of a protection visa applicant to the exclusion of s 501: [85].
• Section 197C of the Act, which provides that Australia’s non-refoulement obligations are irrelevant to the removal power in s 198, was also important.  Section 198(2A) requires a person in respect of whom the Minister has personally refused a visa under s 501 to be removed as soon as reasonably practicable.  His Honour had noted that there would be “no useful function” to the “specific and narrow criteria” in s 36(1C) if s 197C could then apply to a person who actually met that criteria, if the Minister were free to use the less stringent s 501 power in a manner that would put Australia in breach of its international obligations under the Refugees Convention: [71].

The judgment in BFW20

The Full Court disagreed with the reasoning of Rares J in BAL19.  It held that:

• Sections 36 and s 501 overlap, but are not inconsistent.  The provisions operate in different ways: if an applicant fails to satisfy the character provisions in the protection visa criteria, the application for a protection visa must be refused. However, if an applicant fails to satisfy the character provisions in s 501, the application may be refused: [120]. 
• The 2014 amendments did not demonstrate an intention to create a self-contained code: [145].
• The statutory text favours the Minister’s construction.  Particular emphasis was placed on the “unqualified” terms of the discretion in s 501(1); the terms of s 65(1)(a)(iii) (that conditions the grant of a visa upon the Minister’s satisfaction that it “is not prevented” by s 501); and “Note 1” in s 501 that “visa” includes “a protection visa”: [120]-[128].

The applicant also argued that s 197C, which had been enacted as one of the 2014 amendments to the Act, changed the legal consequences of a decision under s 501 to refuse (or cancel) a visa held by a person assessed as being a refugee.  That is, prior to 2014, such a decision did not result, as a legal consequence of that decision, in the removal of that person from Australia in breach of international non-refoulement obligations (instead resulting in the indefinite detention of that person).  The Full Court was “not persuaded that the introduction of s 197C, which is not directly concerned with the grant or refusal of a visa, indicates an intention to alter the pre-existing operation of s 501”: [153].

Concluding remarks

Although BAL19 was overruled on the inconsistency issue, it is noted that the application for Constitutional writ relief in BAL19 had succeeded on the ground that the Minister failed to engage with the immediate legal or practical consequences of his refusal decision, namely, that the applicant had to be refouled as soon as reasonably practicable under ss 197C and 198 even though Australia owed him protection obligations: [49]-[50].

This may serve as a reminder that, even though s 197C does not, on its face, appear to be “directly concerned with the grant or refusal of a visa”, it appears that a direct consequence of a visa refusal on character grounds arising because of s 197C is that persons assessed as refugees would have to be refouled, in breach of Australia’s international non-refoulement obligations.