Clause 790.227 available if PIC 4001 met and reliance on s 501 disavowed?

After arriving in Australia by boat as an unauthorised maritime arrival, the plaintiff was convicted after pleading guilty to the aggravated offence of people smuggling, contrary to s 233C of the Migration Act 1958 (Cth).

Section 501(6)(ba)(i) of the Act provided:

For the purposes of this section, a person does not pass the character test if:

...

(ba)  the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i)  an offence under one or more of sections 233A to 234A (people smuggling);

Clause 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth) provided: "The Minister is satisfied that the grant of the visa is in the national interest."

The majority of the High Court (HCA) described the background as follows:

47. The plaintiff's visa application was first refused under s 65 of the Act in May 2018 when a delegate of the Minister for Home Affairs determined that the plaintiff was not a person to whom Australia owed protection obligations. On review, the Immigration Assessment Authority remitted the decision for reconsideration with a direction that the plaintiff is a refugee within the meaning of s 5H(1) of the Act. The plaintiff's visa application was purportedly refused for a second time by the then Minister for Immigration and Border Protection under s 501(1) of the Act in October 2019. The plaintiff sought judicial review and that decision was quashed by orders of a judge of the Federal Court of Australia in February 2020 by consent. The plaintiff's visa application was purportedly refused for a third time in May 2020, by the then Minister for Home Affairs under s 65 of the Act. That decision was quashed by the Full Court of the Federal Court in November 2021 and an order for mandamus was made^[35]. On 14 June 2022, a judge of the Federal Court made an order requiring that the mandamus be complied with on or before 27 June 2022^[36].

48. The decision that is the subject of this proceeding was purportedly made on 27 June 2022. The first defendant, the Minister for Home Affairs, purportedly made a decision under s 65 of the Act to refuse the plaintiff's application because she was not satisfied of the visa criterion in cl 790.227 of Sch 2 of the Migration Regulations 1994 (Cth) that the grant of the SHEV was in the national interest ("the Decision"). The Minister's reasons reveal that the criterion in cl 790.227 was not met because in her view it was not in the national interest to grant a protection visa to a person convicted of a people smuggling offence. In her reasons, the Minister said that she was aware that the plaintiff faces the prospect of indefinite detention under the Act as a legal consequence of the Decision because he cannot be returned to Iran by operation of s 197C(3)^[37] and "the prospects of finding another country willing to receive him are poor".

49. Non-satisfaction of cl 790.227 was the sole basis for refusing the plaintiff's application. Satisfaction of the visa criteria other than that in cl 790.227 was not in issue. The defendants accepted that at the time of the Decision all of the criteria for the grant of the visa, apart from cl 790.227, were satisfied.

50. The plaintiff sought judicial review of the Decision in the original jurisdiction of this Court, seeking various remedies on different grounds, including writs of habeas corpus, mandamus and certiorari, and declarations relating to the validity and construction of cl 790.227. During the oral hearing, the plaintiff also sought a declaration that he satisfies the criteria for the grant of a SHEV.

78. ... the Minister stated:

"I regard protecting and safeguarding Australia's territorial and border integrity, which includes measures to combat people smuggling, to be matters that clearly go to the national interest. In my view, granting a protection visa to a person who has been convicted of people smuggling would send the wrong signal to people who may be contemplating engaging in similar conduct in the future, thereby potentially weakening Australia's border protection regime. 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." (emphasis added)

79. The Minister then set out what she described as an "additional reason" why she considered that granting the SHEV to the plaintiff would not be in the national interest:

"I also consider it is in the national interest to maintain the confidence of the Australian community in the protection visa program. People smuggling can be seen to conflict with the values underlying the protection visa program since it involves taking advantage of, and exploiting, those seeking protection by smuggling them across borders. The grant of a protection visa to a non‑citizen who has been convicted of people smuggling may erode the community's confidence in the program." (emphasis added)

Some of the questions to the HCA were as follows:

Question 1: Was the decision made on the incorrect understanding that the Minister personally could not grant the visa?

Question 2: Can the purpose of the Minister revealed by his reasons be described as punitive?

Question 3: Is the satisfaction required in order to satisfy the criterion prescribed by cl 790.227 that the grant of a SHEV is in the national interest a state of mind on the part of the decision-maker which must be arrived at by the decision-maker reasonably and on a materially correct understanding of the Act and the Regulations?

Question 4: Did the Act or the Regulations expressly or implicitly make that state of mind one which must be informed by particular considerations?

Question 5: Is there a limitation on the authorised application under s 65(1)(a)(ii) and (b) of the Act of a criterion such as cl 790.227 requiring the Minister to be satisfied that the grant of a visa is in the national interest, namely that the political question posed by the criterion cannot be answered by the decision-maker in a manner inconsistent with any affirmative provision of the Act?

Question 6: Does the expression "serious Australian offence", as defined in s 5(1), extend to an offence against s 233C of the Act?

Question 7: Did cl 790.227 authorise refusal of a SHEV to the plaintiff "on the basis of the Minister adopting and acting on the view that it was not in the national interest for a person convicted of people smuggling to be seen to get the benefit of a protection visa"? In other words, if the answer to Question 5 is 'yes', was the political question posed by cl 790.227 answered by the decision-maker in a manner consistent with PIC 4001 and s 501, even though the Minister found PIC 4001 to be satisfied and disavowed reliance on s 501?

Question 8: If the Minister's decision to refuse to grant a visa is based on a misconstruction of one or more of the matters set out in s 65(1)(a), is the opinion or belief that which s 65 requires in order for the power to be enlivened?

Question 9: Did s 501 provide powers to refuse a visa that were in addition to the power in s 65?

Question 10: If a person passes the character test, does s 501(1) nevertheless give the decision-maker a residual discretion to refuse to grant a visa?

Question 11: If the Minister does not hold a reasonable suspicion that a person fails the character test or is not satisfied that the refusal or cancellation is in the national interest, does s 501(3) nevertheless give the Minister a residual discretion to refuse to grant or cancel a visa?

Question 12: Does the protection of the Australian community lie at the heart of the discretionary powers under s 501?

Question 13: Will the exercise of the discretion in s 501(1) generally include "considerations in respect of the reason that the person failed the character test being considerations that would fall under the umbrella of a general concept of 'the national interest' broadly construed"?

Question 14: Will the exercise of the discretion in s 501(3) necessarily include "considerations in respect of the reason that the person failed the character test being considerations that would fall under the umbrella of a general concept of 'the national interest' broadly construed"?

Question 15: Did cl 790.227 have to be considered and satisfied for all applications, whether decided by the Minister or a delegate?

Question 16: Clause 790.227 was inserted into Schedule 2 of the Regulations by an Act of Parliament which provided that the amendment "does not prevent the regulation, as so amended, from being amended or repealed by the Governor‑General". Does it follows that the subordinate status of cl 790.227 to the Act "indicate that in reconciling provisions that otherwise present issues of inconsistency or incoherency, Parliament intended the clause to give way more readily or be adjusted if necessary to ensure a harmonious interpretation"?

The HCA answered those questions as follows: