Minister not permitted to cap the granting of protection visas

Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24 (20 June 2014)
Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25 (20 June 2014)

Summary

In two judgments handed down on 20 June 2014, the High Court held that section 85 of the Migration Act 1958 (Cth) does not empower the Minister for Immigration and Border Protection to make a determination limiting the number of protection visas that may be granted during a financial year. Accordingly, the Minister's determination of 4 March 2014 limiting the maximum number of protection visas for the financial year ending on 30 June 2014 to 2,733 was invalid.

Facts and relevant provisions

On 4 March 2014, the Minister made a determination purportedly pursuant to section 85 of the Act that the maximum number of protection visas that could be granted in the financial year ending 30 June 2014 was 2,733.

On 24 March 2013, the maximum number of protection visas was reached. At that time, the plaintiffs in Plaintiff S297 and Plaintiff M150, nationals of Pakistan and Ethiopia respectively, had protection visa applications on foot. Their applications thus remained undetermined. The plaintiffs each commenced proceedings to determine the validity of the cap placed on the number of protection visas that could be granted. These proceedings were referred by way of special case to the Full Court of the High Court and heard concurrently.

The Court was required to consider a number of provisions in the Migration Act, the most pertinent of which being the following.

•  Section 39, which provides in subsection (1) that ‘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…as the maximum number of such visas that may be granted in that year…’. Subsection (2) provides that, where subsection (1) prevents the grant of a visa in a financial year, any outstanding applications are taken not to have been made.
• Section 65, which relevantly provides that the Minister, after considering a valid visa application, is either to grant the visa if satisfied of certain matters, including whether the grant of the visa is not prevented by any provision of the Act; or refuse to grant the visa if they are not so satisfied.
• Section 65A, which relevantly provides that a decision under section 65 regarding an application for a protection visa (validly made under section 46 or remitted by a court or tribunal) must be made within 90 days.
• Section 85, which provides that the Minister may determine the maximum number of visas of a specified class that may be granted in a specified financial year.
• Section 86, which restricts the granting of visas over the maximum specified if there is a determination in place.

Sections 85 and 86 are located in Subdivision AH of Part 2, Division 3, titled, ‘Limit on Visas’. A number of other provisions support their operation.

The Court was required to consider the tension between the power, generally expressed, in section 85 to determine the maximum number of visas of a specified class, the prohibition in section 86 from granting more visas of a specified class if a determination is in place and the maximum number specified has been reached, the requirement in section 65 either to grant or refuse to grant a visa, and the time limit placed on the Minister by section 65A to grant or refuse to grant a protection visa within 90 days.

Decision

The High Court unanimously held in each case that section 85 does not apply to protection visas and, therefore, the Minister's determination of 4 March 2014 was invalid.

Justices Crennan, Bell, Gageler and Keane

The majority judgment of Justices Crennan, Bell, Gageler and Keane centred on the requirement under section 65A, and held that, in light of this, section 85 does not empower the Minister to determine a maximum number of protection visas that may be granted in a financial year.

Section 65A is expressed as a duty, rather than a discretion. Its purpose, gleaned from the Explanatory Memorandum, is to promote the timely and efficient processing of protection visa applications, and provide greater transparency and certainty for applicants. It therefore limits prolonged detention of applicants. Section 89, which provides that the fact the Minister has not granted or refused to grant a visa to which a determination under section 85 applies does not mean that the Minister has failed to make a decision, does not negate the action required by section 65A.

Accordingly, Their Honours held that ‘giving primacy to section 65A [over section 85] best achieves the identified purpose of that section within the scheme of the Act, which, in a number of respects, treats applications for protection visas differently from other classes of visas’. This statutory construction approach is consistent with the principle set out in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355:

Where conflict appears to arise from the language of particular provisions, 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.

The Justices also noted that the express exclusion from protection visas referred to in section 39 was not, in itself, adequate to indicate that protection visas are excluded from section 85.

Justices Hayne and Kiefel

Justices Hayne and Kiefel also focussed on the tension between the provisions of Subdivision AH and section 65, which, they stated, was emphasised by section 65A.

They held that a ‘natural construction’ of the Act is to treat section 65 as the leading provision – the Minister must grant or refuse to grant a visa after considering a valid visa application. However, this duty is disengaged by subsection 39(2) where:

•    a determination relating to a class of visas is in place under section 85; and
•     a criterion for the granting of such class of visas is prescribed under subsection 39(1).

This is because subsection 39(2) deems any outstanding applications, once the maximum cap is reached, as having never been made. Accordingly, if a visa application has never been made, the duty in section 65, applying to valid visa applications, is disengaged.

As section 39 expressly excludes protection visas from its reach, section 85 cannot extend to protection visas. To allow otherwise would result in section 85 conflicting with the duty of section 65. Reading the Act in this way gives each of its provisions ‘the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme’ (Project Blue Sky).

This analysis was supported by an analysis of the history and purpose of the protection visa provisions and section 65. The justices stated that ‘it would be surprising if the Act permitted limiting the number of protection visas which may be granted in a financial year to those who, having landed in Australia, had made a valid application for a protection visa’ and that it is not ‘readily to be supposed that a statutory power to detain a person permits continuation of that detention at the unconstrained discretion of the Executive.’ Further, the predecessor to section 65 expressly stated that it operated subject to any suspension on visa processing and, if such a suspension applied, no more visas could be granted. The absence of such exclusion in the current section 65 reinforces the conclusion that the duty of section 65 is not affected by a decision to limit the number of visas of a class in a financial year except through the application of section 39.

Chief Justice French

Chief Justice French concluded statutory provisions should be interpreted in a way that best achieves the purpose of the Act, as required by section 15AA of the Acts Interpretation Act 1901 (Cth). On this basis, the statutory construction of sections 85 and 86 that best achieves the purposes of the relevant provisions is one which excludes their application to protection visas.

Protection visas were introduced into the Act to be the mechanism by which Australia offers protection to persons who fall within the Refugee Convention 1951 and, in respect of whom, Australia owes international obligations. Accordingly, the purpose of protection visas informs the construction of the protection visa provisions and the Act as a whole, stating that ‘general provisions of the Act should not be construed in a way that is inconsistent with that purpose…unless their text plainly requires such a construction’.

Conversely, sections 85 and 86 are a mechanism for managing Australia’s migration program. Consequently, these sections do not apply to certain visas where there is a ‘functional incompatibility between the purposes served by those classes of visa and the purpose served by section 85’. Whilst the Act includes an express exclusion from section 85 for some of these non-migration program visa classes, His Honour stated that these express exclusions are to be seen as merely ‘declaratory in the sense that they are statements of the obvious’. Accordingly, it can be implied from His Honour’s reasoning that the lack of an express exclusion relating to protection visas does not undermine the existence of an implied exclusion.

Further, a consequence of sections 85 and 86 applying to protection visas would be for the Minister to be able to defer indefinitely a decision regarding a protection visa application and, by implication, require an applicant, including one who has satisfied the relevant ‘refugee’ criteria, to remain in detention. Again, this would be at odds with the purpose of protection visas.

His Honour also stated that the purpose of, and decision time limit mandated by, section 65A(1), supported the conclusion that section 85 does not apply to protection visas.

Commentary

The Court showed a willingness to place paramount importance on the purpose of section 65A, to promote the timely and efficient processing of protection visa applications, whilst construing conflicting provisions of the Act. However, this judgment does not serve to prohibit directly the imposition of a cap on the issue of protection visas – it is open to the Parliament to pass legislation to repeal section 65A, or make clear an intention that section 85 applies to protection visas, regardless of other provisions in the Act. In such circumstances, it seems unlikely that the Court would be able to rely on the principles set out in Project Blue Sky or section 15AA of the Acts Interpretation Act to hold invalid a determination applying to protection visas made under section 85.

The full decisions are available here and here.

Angela Gibbs is an associate and Tim Maxwell a senior associate at Allens Linklaters.