Character test in s501 of the Migration Act 1958 (Cth) DOES apply to Temporary Protection Visas
30th Jul 2020
‘The BAL19 decision constrains the Minister for Home Affairs’ powers to refuse or cancel a visa for refugees, asylum seekers and those seeking Australia’s protection. As there are many who are impacted by the decision, the Minister may now be exploring his appeal options.’
In February 2020, I wrote about BAL19 v The Minister for Home Affairs (the Minister)  FCA 2189 (Rares J) (BAL19), a 24 December 2019 decision of the Federal Court of Australia. The BAL19 decision had profound implications for anyone whose temporary protection visa application was refused or cancelled based on s501 of the Migration Act 1958 (Cth) (the Act) and the Public Interest Criterion (PIC) 4001.
In BAL19, Rares J decided against the Minister on three issues; the most contentious being that the Minister did not use the correct character test. Specifically, he determined that the onerous PIC 4001 did not apply to individuals seeking a temporary protection visa because the criteria are inconsistent with the provisions of s36 of the Act.
Consequently, Rares J quashed the Minister’s decision refusing the protection visa under s501 and ordered the Minister to make a prompt decision on the visa application according to law.
On 24 June 2020, BAL19 was overruled by the Full Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A  FCAFC 121 (BFW20). The bench consisted of Allsop CJ, Kenny, Besanko, Mortimer and Moshinsky JJ.
The Full Federal Court had the opportunity to review BAL19 in BFW20 and respectfully disagreed with Rares J. The Court concluded that the power in s501(1) to refuse to grant a visa can apply to an application for a protection visa under the Act.
There was little disagreement between the parties as to the applicable principles of statutory construction in BAL19 and BFW20. Rather, the points of contention arose from the application of those principles in the circumstances of each case. Of particular relevance to the issues raised in the BFW20 proceedings are the principles applicable when legislation has been amended and particular statutory provisions appear to conflict.
Ultimately, the Full Federal Court decided that:
- The Anthony Hordern principle was not invoked because ss36 and 501 are not the same power or in respect of the same subject matter because they are overlapping but not inconsistent provisions;
- As a matter of statutory construction, the text of the statute favours the Minister’s construction;
- The legislative history does not support BFW20’s construction of the statutory provisions;
- The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Amendment Act) did not create a comprehensive code as regards the grant or refusal of protection visas; and
- International human rights laws do not assist in the interpretation of ss36 and 501.
The Anthony Hordern principle
The Anthony Hordern principle of statutory construction was discussed by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom  HCA 50, in which it considered whether s501(2) of the Act was restricted by the deportation power in ss200 and 201. In BAL19, Rares J quoted various passages from Nystrom, including a paragraph from the judgment of Gummow and Hayne JJ:
‘Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.’
Text of the statute favours the Minister’s construction
The Court found that:
‘120 In our view, for the reasons that follow, the text of the relevant provisions of the Migration Act favours the Minister’s construction, namely that the power in s501(1) to refuse to grant a visa can apply to an application for a protection visa.
121 First, the terms of s501 are unqualified; it is expressed as a general provision (broadly, to refuse to grant or to cancel a visa on character grounds) applicable to all kinds of visas.
Sections 36 and 501 are overlapping but not inconsistent provisions
In applying this to the facts, the Court stated that ‘while the character provisions in s36 (and related definitions) and s501 overlap, there is no necessary inconsistency between the provisions.’ Under s36, an applicant must be refused if they fail to satisfy character provisions. In contrast, an applicant may be refused if they fail s501. ‘The fact that the character provisions in the protection visa criteria lead to automatic refusal, while the character provisions in s501 merely enliven a discretion to refuse, provides an intelligible basis for the presence of the (narrower) character provisions in the protection visa criteria …’
The 2014 Amendment Act did not create a comprehensive code as regards the grant or refusal of a protection visa
The Full Federal Court formed the view that neither the purpose nor the effect of the 2014 Amendment Act was to create a comprehensive code as regards the grant or refusal of a protection visa, including the subject matter of refusal on character grounds.
The Court stated:
‘It is true that the protection visa criteria are detailed and include specific provisions relating to character. However, there is no express provision to the effect that the criteria represent an exhaustive statement regarding refusal of a protection visa on character grounds. And the 2014 amendments did not expressly alter the position as regards s501. In the context of the pre-existing state of the law, if the Parliament had intended the statutory criteria for a protection visa to be exhaustive (and thus to alter the position as regards s501), this is likely to have been made clear in the text of the amendments. Further, the extrinsic materials do not indicate an intention to alter the pre-existing position, namely that s501 was capable of application in relation to protection visas.’
The Court was not moved by the argument that the statute should be read and applied in accordance with the established rules of international law, due to the fact that the pre-existing operation of s501 of the Act in relation to protection visas did not necessarily conform to international law; and the 2014 amendments did not expressly alter that position.
BFW20’s litigation representative will now be considering a High Court appeal.
George Newhouse is the principal solicitor and co-founder of the National Justice Project, a not-for-profit legal centre, and was the recipient of the 2019 Australian Lawyers Alliance’s (ALA) Civil Justice Award. George would like to thank Hayley Drewery and Zak Vidor Staub, both paralegals at the National Justice Project, for their contributions to this article.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A  FCAFC 121 (BFW20), .
 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom  HCA 50,  per Gummow and Hayne JJ. Rares J also referred to the Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom  HCA 50 (Nystrom),  per Gleeson CJ and – per Heydon and Crennan CJ.
 Nystrom,  per Gummow and Hayne JJ
 BFW20, above n 2, –.
 Ibid, .
 Ibid, .
 Ibid, .
 Ibid, .