By Megan Driscoll
Asylum seeker policy has been a polarising subject in Australian politics for more than a decade and it continues to be so with the recently-elected Abbott government attempting to impose its perspective on the political debate on the topic by mandating asylum seekers arriving by boat be referred to as ‘illegal’. Consecutive federal governments have introduced increasingly harsh schemes to deal with the perceived influx of people arriving in Australian territorial waters by boat to seek asylum. The High Court is yet to hear a case challenging the legality of the current arrangement of transferring asylum seekers to Papua New Guinea, Plaintiff S156/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (transcripts of directions hearings here and here).
Plaintiff M79/2012 v Minister for Immigration and Citizenship  HCA 24 (Plaintiff M79) deals with another aspect of the asylum seeker statutory regime: the validity of a temporary safe haven visa granted to a person who had not made an application. In this instance, the Minister granted a temporary safe haven visa to the plaintiff, a Sri Lankan national who arrived by boat on Christmas Island in February 2010 seeking Australia’s protection. The validity of the visa depended on the criteria the High Court determined the Minister was bound to consider when granting the visa, and whether the Minister had addressed those criteria. A majority of the Court found that the sole criterion binding the Minister was whether or not it was in the ‘public interest’ and that it was within the Minister’s discretion to determine what factors were relevant to that interest. Interestingly, Plaintiff M79 could signify that the High Court is beginning to take a more deferential approach to ministerial conduct in deciding to grant or decline visa applications than it has in the recent past, including in the case that rejected the previous government’s so-called ‘Malaysian solution’.
How did the plaintiff receive a visa that he did not ask for?
Upon arriving on Christmas Island by boat, the plaintiff was detained while his refugee status was determined according to the scheme in place at that time (discussed below in greater detail). He was found not to meet the definition of a ‘refugee’, firstly by the Minister’s delegate, and then by an independent reviewer. The plaintiff applied to the Federal Magistrates Court (now the Federal Circuit Court of Australia) in July 2011 for judicial review of this decision. This application was heard, but judgment was reserved pending the High Court’s decision in the instant case.
In April 2012, while the Federal Magistrates Court was still considering the plaintiff’s application for judicial review, the Minister chose to exercise a discretionary power under s 195A of the Migration Act 1958 (Cth) (Migration Act) to issue a temporary safe haven visa to the plaintiff for a period of seven days, along with a bridging visa for a period of six months. The plaintiff had made no application for these visas. He was one of 2,383 people to whom this combination of visas was granted without application between November 2011 and October 2012 in line with the government’s policy at that time to release some offshore entry persons into the community while their asylum claims were assessed. Under the bridging visa, the grantees were able to work and have access to support services in the community for the stipulated period. The effect of the temporary safe haven visa, however, was to enliven a statutory bar under s 91K of the Migration Act that prevented the grantees from making future applications for any other visa while they remained in Australia.
After his release from detention and whilst lawfully in Australia under the bridging visa, the plaintiff applied for a protection visa. The department refused to consider the application on the basis that it was not a valid application because of the statutory bar created by the prior grant of the temporary safe haven visa. The plaintiff initiated proceedings to challenge the validity of the grant of the temporary safe haven visa.
The plaintiff’s case before the court
The plaintiff argued that the grant of the temporary safe haven visa was invalid for two reasons:
- Section 195A of the Act did not authorise the grant of the temporary safe haven visa to the plaintiff, because the Minister did not consider the relevant criteria for the grant of a temporary safe haven as applied to the plaintiff’s situation.
- The decision to grant the temporary safe haven visa was made for an improper purpose, which was to enliven the statutory bar preventing further visa applications while the plaintiff remained in Australia.
The questions posed to the court were twofold:
- Was the plaintiff validly granted the temporary safe haven visa?
- Is the plaintiff’s application for a protection visa a valid application?
For the plaintiff to succeed in having his application for a protection visa assessed, the answers to these questions would need to be ‘no’ and ‘yes’ respectively. In the result, the majority (French CJ, Crennan and Bell JJ; joined by Gageler J) held the opposite: the temporary safe haven visa was validly granted and thus, because of the statutory bar, the plaintiff’s application for a protection visa was invalid. Hayne J would have answered both questions in the negative.
The statutory framework: Australia’s protection obligations
Australia is a signatory to the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (Refugee Convention). The most significant obligation under the Refugee Convention is the obligation of ‘non-refoulement’ in art 33, which reads:
No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his [sic] life or freedom would be threatened on account of his [sic] race, religion, nationality, membership of a particular social group or political opinion.
This obligation requires a signatory to not return someone to a country in which they have a well-founded fear of persecution. Australia’s non-refoulement obligations are implemented domestically through the Migration Act, specifically s 36, which creates a class of visas called ‘protection visas’, for which people meeting the definition of ‘refugee’ in art 1 of the Refugee Convention, as well as family members and specified others, may qualify.
Assessing refugee status: the scheme in place when the plaintiff arrived on Christmas Island
Section 65 of the Migration Act requires the Minister to grant a visa of a certain class if a valid application (s 46) has been made and the criteria and requirements for that visa have been met. If the applicable criteria and requirements are not met, the Minister must deny the application. Section 46A(1) of the Migration Act provides that ‘offshore entry persons’ (s 5, now designated as ‘unauthorised maritime arrivals’) who are also ‘unlawful non-citizens’ (s 5) are barred from making a valid application for a visa whilst in Australia. However, the Minister may lift this bar by exercising the discretionary, non-compellable power found in s 46A(2) to allow an ‘offshore entry person’ to make a valid application for a visa if it is in the public interest to do so. Because s 189 requires the detention of all ‘unlawful non-citizens’, those to whom the s 46A bar applies are invariably in immigration detention.
The scheme for processing asylum seekers in place at the time of the plaintiff’s arrival was described in detail in Plaintiff M61/2010E v Commonwealth  HCA 41. In brief, under this system asylum seekers were detained in excised offshore places pursuant to s 189 while a ministerial delegate carried out a Refugee Status Assessment in relation to each asylum seeker. The purpose of the Refugee Status Assessment was to determine whether the person seeking protection was a person to whom Australia owed protection obligations under the Refugee Convention. On the basis of the Refugee Status Assessment, the Minister would decide whether or not to exercise the discretionary power in s 46A(2) to lift the statutory bar imposed by s 46A(1) in order to allow that person to make a valid application for a visa. If the Refugee Status Assessment finding was adverse, the person could apply for an independent merits review of the finding. In the case of Plaintiff M79, both the Refugee Status Assessment and the merits review concluded that he was not a person to whom Australia owed protection obligations.
A visa without an application: Ministerial discretion under section 195A
In addition to the power to lift the bar, the Minister may also exercise the discretionary and non-compellable power found in s 195A to issue a visa of any class to a person detained under s 189 of the Migration Act — without any application by the detained person — if it is in the public interest to do so. Section 195A(3) purports to allow the Minister to ignore substantive and procedural requirements that would otherwise prevent a person detained under s 189 from obtaining a visa of a given class. The power under s 195A was used to grant the plaintiff a temporary safe haven visa for a period of seven days and a bridging visa for a period of six months. In the Minister’s affidavit, he stated that the purpose of granting the temporary safe haven visa was to enliven the statutory bar in s 91K (discussed below), and that he would not have granted the bridging visa if he had not been able to grant the temporary safe haven visa: .
Temporary safe haven visas: Why do we have them and what is their effect?
The class of visas known as ‘temporary safe haven visas’ is created by s 37A of the Migration Act. These visas were introduced by legislation under the Howard government in 1999 in response to the conflict in the Balkans that displaced Albanian Kosovars, and were also used to offer temporary protection to those displaced by the conflict in East Timor later that year. These humanitarian emergencies necessitated a quick response, and as such the scheme created visas for a temporary stay in Australia. Temporary safe haven visas are not subject to the same application and checking process as protection visas and do not offer the same level of protection: temporary safe haven visa holders are expected to return to their home country once conditions stabilise. The Minister may grant a temporary safe haven visa for any length of time, and may increase or decrease the visa’s length once issued.
Under s 91K of the Migration Act, anyone who has been issued a temporary safe haven visa is unable to make a valid application for a visa for as long as they remain in Australia, even after its expiry. This statutory bar is akin to that found in s 46A(1). Similarly, the Minister has a discretionary, non-compellable power to lift this bar (s 91L). Therefore, as long as the visa was issued validly and as long as the Minister declined to exercise the s 91L power, the plaintiff was barred from making a valid visa application while he remained in Australia. Had the plaintiff been awarded the bridging visa alone, he would have been a ‘lawful non-citizen’ (s 5) and thus able to make a valid visa application. The validity of the grant of the seven-day temporary safe haven visa is thus the crux of this case.
The grant was a valid exercise of power
In their joint reasons, French CJ, Crennan and Bell JJ (Gageler J substantially agreeing) concluded that the grant of the temporary safe haven visa to the plaintiff was within power. Although agreeing that the purpose of the temporary safe haven visa, as evinced by s 37A and the legislative history, was to grant protection to ‘anyone in need of temporary safe haven’ (at ), the majority emphasised that the ‘legal characteristics and consequences of the temporary safe haven visa may be distinguished from its purpose’: . As such, they rejected the plaintiff’s submission that any criteria for the temporary safe haven visa could be inferred from the evident purpose of that section. Their Honours acknowledged that the concept that a temporary safe haven visa could be granted under s 195A for a different purpose entirely might seem at odds with the otherwise detailed legislative scheme for visa determinations: . However, the criterion the Minister must take into account when granting a visa under s 195A is whether ‘the Minister thinks it is in the public interest to do so’, rather than the criteria that attaches to the class of visa granted: . This is reinforced by s 195A(3), which stipulates that certain provisions of the Act — most importantly those requiring a valid application (s 46) and the Minister’s satisfaction that certain criteria are met (s 65) — do not bind the Minister in exercising the s 195A power: .
In response to the plaintiff’s argument that the temporary safe haven visa was granted for an improper purpose, the plurality reasoned that it was open to the Minister to consider that the legal consequences of the visa (notably the statutory bar) might ‘serve a purpose which he has adjudged to be in the public interest’: . The fact that the Minister granted the temporary safe haven visa for the sole purpose of preventing the plaintiff from lodging a valid visa application, ostensibly in order to preserve the scheme in place for the processing of protection claims, was thus acceptable.
The effect of the majority’s view is that the Minister may use the discretionary power in s 195A to grant any class of visa to a person in immigration detention. The only consideration the Minister must take into account in issuing such visas is whether he or she believes it is in the public interest to do so. The Minister can arguably take into account almost any consideration under this vague umbrella term. Given the court’s historical unwillingness to delve in to matters of policy, which are properly the domain of the executive branch of government, avenues for successfully challenging decisions made under s 195A in Australian courts will be significantly limited in the future.
Hayne J touches upon ‘more fundamental issues’ raised by this case
Hayne J (in dissent) found that the Minister was bound by those parts of the Act not expressly excluded by s 195(3), of which s 37A was one: . Section 37A set out specific characteristics of temporary safe haven visas. In Hayne J’s view, they could only be granted in situations where the need for safe haven was created by circumstances in another country: . Compared to the majority, Hayne J held that the specific characteristics of the type of visa granted under s 195A were relevant in construing the limits of that power. As temporary safe haven visas were only to be issued in situations where the need for safe haven was created by circumstances in another country, the Minister had to have regard to those conditions in exercising his power under s 195A. Thus, according to Hayne J, it was not within the Minister’s power to grant the temporary safe haven visa to the plaintiff, as the Minister did not consider these characteristics as they applied to the plaintiff’s situation. His Honour noted that if the temporary safe haven visa were invalid, then the bridging visa would be as well: the Minister would not have granted the latter without simultaneously granting the former. Thus his Honour would still have answered ‘No’ to the second question posed to the court: .
At the conclusion of his dissenting reasons, Hayne J highlights some fundamental concerns with the proposition that the Minister may grant any visa based on the sole criterion of public interest considerations: . His Honour drew attention to issues touched upon — but not resolved — in Plaintiff S157/2002 v Commonwealth  HCA 2. In that case, the plurality considered the possibility of a ministerial power ‘to exercise totally open-ended discretion as to what aliens can and what aliens cannot come to and stay in Australia’, and said at :
The inclusion in the Act of such provisions to the effect that, notwithstanding anything contained in the specific provisions of that statute, the Minister was empowered to make any decision respecting visas, provided it was with respect to aliens, might well be ineffective. It is well settled that the structure of the Constitution does not preclude the Parliament from authorising in wide and general terms subordinate legislation under any of the heads of its legislative power. … But what may be ‘delegated’ is the power to make laws with respect to a particular head in s 51 of the Constitution.
Like the plurality in Plaintiff S157, Hayne J leaves this issue unresolved. Given the current political climate, where general bipartisan support for harsher policies regarding asylum seekers has become the norm, an increase in legislatively conferred executive power approaching the level contemplated by the plurality in Plaintiff S157/2002 is a real possibility. It is more than likely, therefore, that the High Court will again have the opportunity to consider the broader constitutional implications of such wide ministerial discretion like that of the open-ended criterion of ‘the public interest’. As retirement for the last remaining member of the plurality in Plaintiff S157/2002 — Hayne J — draws near, it will be interesting to see how a differently constituted bench might deal with such an issue if raised. The deference of the majority to ministerial discretion in the instant case might give some indication.
AGLC3 Citation: Megan Driscoll, ‘The Misnomer of “Temporary Safe Haven”: Granting Visas “In the Public Interest” as a Tool to Limit Asylum Seekers’ Access to Australia’s Protection: Plaintiff M79/2012 v Commonwealth’ on Opinions on High (1 November 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/11/01/driscoll-plaintiff-m79>.
Megan Driscoll is a second year JD student at Melbourne Law School and Editorial Assistant of the Public Law Review.