Today's High Court decision in Plaintiff M47

Today’s decision in Plaintiff M47/2012 v Director-General of Security is somewhat dense, lengthy, and consists of seven separate judgments.  What follows is an attempt, in the short time available this afternoon, to summarise the key finding of the majority that the public interest criterion, applied by the Commonwealth in denying the plaintiff a visa, was invalid.  The essence of the decision seems to be as follows.

The Migration Act establishes a scheme by which Australia gives effect to its protection obligations under the Refugees Convention.  The relevant provisions of that Convention are as follows:

• Article 1A – which provides the definition of a “refugee” – it was not in dispute that the plaintiff in this case satisfied that definition
• Article 1F – which qualifies the application of protection obligations to persons who have committed crimes against peace, war crimes, crimes against humanity or serious non-political crimes outside the country of refuge, or have been guilty of acts contrary to the purposes and principles of the United Nations.  This Article was not relied on, and was conceded by the Commonwealth to have no application to the plaintiff.
• Article 32 – by which Contracting States agree not to expel a refugee lawfully in their territory save on grounds of national security or public order, which expulsion may only be in pursuance of a decision reached in accordance with due process of law (which includes the ability of the asylum seeker to submit evidence to clear their name).
• Article 33 – which provides that a Contracting State may not expel or return a refugee to a country where his life or freedom would be threatened on a Convention ground. This protection, however, does not apply to  a refugee where there are reasonable grounds for regarding the refugee as a danger to the security of the country in he seeks asylum (or having been convicted of a particularly serious crime constitutes a danger to the community of that country).

Section 36(1) of the Migration Act establishes a class of visa called a “protection visa”.  Section 36(2) then prescribes as “a criterion” for the grant of a protection visa, relevantly, that the person is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention.

Section 65 provides that after considering a valid application for a visa the Minister, if satisfied that the criteria for the grant of a visa are satisfied, and that the grant is not otherwise prevented by various sections of the Act, then the Minister is to grant the visa. If not so satisfied, the Minister is to refuse the visa. The provisions by which the Minister may decline to grant a protection visa include section 501, which provides for a “character test”.

In addition to the criterion established by section 36(1) of the Migration Act, the Migration Regulations establish various additional criteria for the grant of a protection visa.  These include that the applicant for the visa satisfy the so-called “public interest criteria”.  These include PIC 4001 (in effect a character test of the kind provided for by section 501) and PIC 4002 – that the applicant has not been assessed by ASIO to be directly or indirectly a risk to security within the meaning of section 4 of the ASIOC Act.

The statutory framework provided by the Migration Act provides for review of various decision made by the Minister.  Importantly, section 500 provides for review by the Administrative Appeals Tribunal of a determination that a person does not satisfy the character test provided for by section 501.  It also provides for review by the Administrative Appeals Tribunal of a determination to refuse to grant a visa by relying on Articles 1F, 32 or 33 of the Refugees Convention.

In effect, what the majority of the High Court seems to have decided is that PIC 4002 effectively invests in the Director-General of Security the power to determine, in a manner that is not reviewable by any Court or Tribunal, whether or not the applicant for a visa poses a risk to the security of Australia or the Australian community.  If the regulations were valid, this would have the practical effect that in the plaintiff’s case the decision to refuse to grant a protection visa was made on security grounds by the Director-General of Security (the adverse security assessment thereby denying the Minister any power to grant the visa) and was not reviewable by a Court or Tribunal.  

This scheme established by the regulations, the majority of the High Court held, was inconsistent with the scheme established by the Act, which vested the power to determine the extent of Australia’s protection obligations to persons who posed security threats in the Minister, whose decision based upon such adverse assessments were reviewable under section 500 by the Administrative Appeals Tribunal.  Because that review mechanism (in part an implementation of the obligations under Article 33 of the Refugees Convention) was circumvented by the Commonwealth relying upon PIC 4001 and 4002 rather than the provisions of the Act itself, to that extent the regulation (and in particular PIC 4002) was invalid.

Ironically, perhaps, this had the effect that there has been no determination according to law of the plaintiff’s visa application, and so the plaintiff’s detention continues to be authorised by the Act until such a decision is made.