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ENT19 v Minister for Home Affairs

ENT19 v Minister for Home Affairs

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Case Copied 14 June 2023 44 min read

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HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ
ENT19 PLAINTIFF
AND
MINISTER FOR HOME AFFAIRS & ANOR DEFENDANTS
ENT19 v Minister for Home Affairs
[2023] HCA 18
Date of Hearing: 8 December 2022, 14 & 15 March 2023
Date of Judgment: 14 June 2023
S102/2022
ORDER
1. A writ of certiorari issue quashing the decision of the first defendant made on 27 June 2022 to refuse to grant the plaintiff a Safe Haven Enterprise (Class XE) Subclass 790 visa.
2. A writ of mandamus issue commanding the first defendant to determine the plaintiff's visa application according to law within 14 days of the date of this order.
3.The defendants pay the plaintiff's costs.

Representation
L G De Ferrari SC with J D Donnelly and E A M Brumby for the plaintiff (instructed by Zarifi Lawyers) at the hearing on 8 December 2022
B W Walker SC with L G De Ferrari SC, J D Donnelly and E A M Brumby for the plaintiff (instructed by Zarifi Lawyers) at the hearings on 14 & 15 March 2023
S B Lloyd SC with A M Hammond and J G Wherrett 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.

KIEFEL CJ, GAGELER AND JAGOT JJ. This application in the original jurisdiction of the High Court under s 75(v) of the Constitution challenges the validity of a decision made personally by the Minister for Home Affairs. The decision, made in 2022, was to refuse to grant a Safe Haven Enterprise (Class XE) Subclass 790 visa ("SHEV") to the plaintiff, who had, in 2017, been convicted of the aggravated offence of people smuggling contrary to s 233C of the Migration Act 1958 (Cth) ("the Act") and sentenced to an eight-year term of imprisonment.
The Minister refused to grant the visa to the plaintiff on the sole basis that the Minister was not satisfied that granting the visa to the plaintiff was in the national interest, and so was not satisfied of the criterion for the grant of a SHEV prescribed by cl 790.227 of Sch 2 to the Migration Regulations 1994 (Cth) ("the Regulations") in terms that "[t]he Minister is satisfied that the grant of the visa is in the national interest".
The application also challenged the lawfulness of the detention of the plaintiff. During oral submissions, however, it became apparent that the plaintiff did not challenge the lawfulness of his detention separately from his challenge to the validity of the decision of the Minister. Absent any basis being advanced in those oral submissions for linking the asserted unlawfulness of the detention of the plaintiff to the asserted invalidity of the decision of the Minister, no issue concerning the lawfulness of the detention of the plaintiff properly arises for consideration.
The issues
The plaintiff's challenge to the decision of the Minister, as the majority explains[1], was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] HCA 18
Decision Date: 14 June 2023

CaseChat Overview and Summary

The case concerned an application for a protection visa by a citizen of Iran who had arrived in Australia as an unauthorised maritime arrival. The plaintiff had subsequently been convicted of the aggravated offence of people smuggling. The Minister for Home Affairs personally refused to grant the plaintiff a protection visa, relying solely on the ground that a criterion in Schedule 2, clause 790.227 of the Migration Regulations 1994 (Cth) was not satisfied. This criterion required the Minister to be satisfied that the grant of the visa was in the national interest. The Minister conceded that all other criteria for the visa were met and did not exercise the power to refuse the visa under section 501 of the Migration Act 1958 (Cth). The matter came before the High Court of Australia.

The central legal issue before the High Court was the proper construction of clause 790.227 of the Migration Regulations. Specifically, the court had to determine whether this clause permitted the Minister to refuse to grant a visa solely on the ground that it was not in the national interest to grant a visa to a person convicted of people smuggling. The court also considered whether section 501 of the Migration Act operated to the exclusion of the application of such a criterion.

The High Court reasoned that section 501 of the Migration Act did not preclude the application of visa criteria prescribed by the Regulations, even if those criteria related to matters of national interest. The court held that clause 790.227, read in context with the Act, permitted the Minister to refuse a visa if they reasonably held a political view that granting it would not be in the national interest, particularly in circumstances involving serious offences like people smuggling. The court found that the Minister's decision, based on the conviction for people smuggling, was authorised by clause 790.227.

Despite this reasoning, the High Court ultimately ordered that a writ of certiorari issue quashing the Minister's decision to refuse the visa and a writ of mandamus issue commanding the Minister to determine the plaintiff's visa application according to law within 14 days. The defendants were ordered to pay the plaintiff's costs.

Orders

Orders of the court

1. A writ of certiorari issue quashing the decision of the first defendant made on 27 June 2022 to refuse to grant the plaintiff a Safe Haven Enterprise (Class XE) Subclass 790 visa.

2. A writ of mandamus issue commanding the first defendant to determine the plaintiff's visa application according to law within 14 days of the date of this order.

3. The defendants pay the plaintiff's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, GAGELER AND JAGOT JJ GORDON, EDELMAN, STEWARD AND GLEESON JJ

Section 501 of the Act does not operate to the exclusion of the prescription or application of a criterion for the grant of a visa. That is so irrespective of whether that criterion is set out in a provision of the Act or prescribed by a provision of the Regulations. Conclusion Neither s 36(1C) nor s 501 of the Act, on its proper construction, has the exhaustive operation necessary to sustain the proposition that to adopt and act on the view that 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 is a course excluded from the authority of the Minister or a delegate applying cl 790.227 under s 65(1)(a)(ii) and (b) of the Act. Ordinarily, a decision-maker applying cl 790.227 under s 65(1)(a)(ii) and (b) of the Act can be expected to be satisfied that it is in the national interest to grant a SHEV to an applicant who satisfies all of the other criteria for the grant of a SHEV prescribed by the Act and the Regulations. But not always. There can be circumstances in which the decision-maker, acting reasonably and consistently with the Act, can adopt and act on a political view that the grant of a protection visa to a particular applicant would not be in the national interest. The circumstances of the present case come within that description. The application should be dismissed with costs. 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). As he was an "unauthorised maritime arrival" within the meaning of the Act, the plaintiff was unable to make a valid visa application until, on 7 September 2016, a Minister administering the Act determined under s 46A(2) it was in the public interest that the plaintiff be permitted to do so[33]. 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]. [33]Migration Act, ss 5AA and 46A. [34]Section 35A of the Migration Act provides for protection visas. There is a class of temporary visas known as SHEVs: s 35A(3A). In October 2017, the plaintiff was convicted after pleading guilty to the aggravated offence of people smuggling, contrary to s 233C of the Act. The sentencing judge found that the plaintiff's first attempt to come to Australia by boat from Indonesia with his father, mother and brother had been unsuccessful. The people smugglers required the family to pay more money for the second journey and ultimately did not allow the plaintiff to travel with the rest of his family. The sentencing judge found that the plaintiff was required to work for the people smugglers in a "people management role" to pay for his passage to Australia to be reunited with his family. While the sentencing judge found that in all the circumstances the plaintiff's moral culpability was significantly reduced, general deterrence was a fundamental consideration in sentencing for a people smuggling offence. The plaintiff was sentenced to a term of imprisonment of eight years, with a non‑parole period of four years which expired on 9 December 2017, at which time he was transferred to immigration detention.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER AND JAGOT JJ, GORDON, EDELMAN, STEWARD AND GLEESON JJ

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