Character test in s501 of the Migration Act 1958 (Cth) does not apply to Temporary Protection Visas
23rd Jan 2020
A 24 December 2019 decision of the Federal Court in BAL19 v The Minister for Home Affairs (the Minister)  FCA 2189 (Rares J) has profound implications for anyone whose temporary protection visa application was refused or cancelled based on s501 of the Migration Act 1958 (Cth) and the Public Interest Criterion (PIC) in PIC 4001.
BAL19 is a 36-year-old Sri Lankan man of Tamil ethnicity. He has significant physical and mental health conditions. He suffers from mental illness as a result of being violently beaten by soldiers in Sri Lanka; an injury exacerbated in detention. He is near blind as a result of his nystagmus.
He arrived in Australia on 20 March 2010 and has been incarcerated in immigration detention for the whole of the last decade.
The case considered the Minister for Home Affairs’ decision to personally refuse to grant a temporary protection (class 785) visa to the applicant in exercise of his power under s501(1) of the Migration Act, despite the Minister accepting that Australia owed the applicant non-refoulement obligations. The Minister relied on the criterion in s501(6)(d)(v) and found that the considerations in favour of refusal outweighed the countervailing considerations in BAL19’s case, including the potential harm for BAL19 if he is returned to Sri Lanka.
The parties agreed on most facts and issues in dispute and the case focused on three legal issues. His Honour Rares J determined against the Minister on all three:
- The Minister argued that he did not need to consider the precise nature of the potential harm. The Court disagreed, deciding against the Minister because the consequence of the decision was not properly considered. Specifically, that the applicant might be killed or significantly mistreated if returned to Sri Lanka. Rares J considered the reason offered by the Minister – that it was possible that he may decide later to grant another visa to BAL19, and so avoid a breach of Australia’s non-refoulement obligations in respect of BAL19 – to be perfunctory and resembling the farcical paradox at the heart of the novel, Catch 22.
- The Minister did not use the correct character test. Particularly, he decided that the onerous Public Interest Criterion in 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.
- The Minister failed to assess the national interest criteria before making his decision: see  and .
Consequently, Rares J quashed the Minister’s decision refusing the protection visa under s501 of the Act. The Minister was ordered to make a prompt decision on the visa application according to law.
The determination of the character test issue (para 2 above) will mean that anyone whose temporary protection visa application was refused or cancelled based on s501 of the Migration Act and PIC 4001 can now challenge the Minister’s decision.
On this specific issue, Rares J said at –:
'I reject the Minister’s argument that cl 785.226 [the Migration Regulations 1994 (Cth), Sch2] validly specified PIC 4001 as a criterion for a protection visa. PIC 4001 is broader than s 36(1C); therefore, like PIC 4002 in Plaintiff M47, is inconsistent with s 36(1C). In Harrington v Lowe, the majority held that a regulation-making power “does not authorise the making of regulations which vary or departs from, and thus are inconsistent with [see Ansett Transport Industries (Operations) Pty Ltd v Wardley] the positive provisions of the Act”. Section 36(1C)(b) is the criterion for granting a protection visa. It specifies the circumstances and nature of first, the convictions; and, secondly, the danger to the Australian community disqualifying a person from eligibility for the grant of a protection visa. Inclusion in cl 785.226(a) of PIC 4001 effects a substantive variation or departure from each of s 36(1C) and s 501, itself. The prescription of the criteria in PIC 4001, as mandatory for every protection visa application, is inconsistent with the nature of the discretions to refuse to grant or cancel a visa that s 501 conferred directly on the Minister.
I also reject the Minister’s argument that the general provisions in s 501, even considering s 501H, still confers, after the 2014 Amendments (the Amendments); a Ministerial discretion to refuse to grant or cancel a protection visa. The majority in Plaintiff M47 found that prior to the Amendments, s 501 gave power to the Minister that was consistent with Arts 1F, 32 and 33 of the Refugees Convention because those articles were not statutory criteria for the grant of a protection visa. That position is no longer the case. For the reasons I have given, s 501(6)(d)(v) (and PIC 4001 for that matter) is inconsistent with the specific criteria for a protection visa in s 36(1C).
Section 501(1) is expressed to be relevant in determining whether or not a person, in accordance with ss 35A(6) and 36, is entitled to or refused under s 65(1), a protection visa as a refugee (as defined in the Act) or to whom Australia otherwise owes protection obligations. Rather, s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to refuse to grant a protection visa: Anthony Horden; and Nystrom.’
The BAL19 decision constrains the Minister for Home Affair’s 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.
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, a paralegal at the National Justice Project, for her invaluable 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).