ENT19 v Minister for Home Affairs

Kiefel CJ, Gageler and Jagot JJ. This application in the original jurisdiction of the High Court under s 75(v) of the Constitution challenges the validity of a decision made personally by the Minister for Home Affairs. The decision, made in 2022, was to refuse to grant a Safe Haven Enterprise (Class XE) Subclass 790 visa (“SHEV”) to the plaintiff, who had, in 2017, been convicted of the aggravated offence of people smuggling contrary to s 233C of the Migration Act 1958 (Cth) (“the Act”) and sentenced to an eight-year term of imprisonment.

The Minister refused to grant the visa to the plaintiff on the sole basis that the Minister was not satisfied that granting the visa to the plaintiff was in the national interest, and so was not satisfied of the criterion for the grant of a SHEV prescribed by cl 790.227 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) in terms that “[t]he Minister is satisfied that the grant of the visa is in the national interest”.

The application also challenged the lawfulness of the detention of the plaintiff. During oral submissions, however, it became apparent that the plaintiff did not challenge the lawfulness of his detention separately from his challenge to the validity of the decision of the Minister. Absent any basis being advanced in those oral submissions for linking the asserted unlawfulness of the detention of the plaintiff to the asserted invalidity of the decision of the Minister, no issue concerning the lawfulness of the detention of the plaintiff properly arises for consideration.

The plaintiff's challenge to the decision of the Minister, as the majority explains 1, was ultimately refined during oral submissions to turn on the resolution of four issues. First, was the decision authorised by cl 790.227 on its proper construction? Second, was the decision made for the impermissible purpose of punishing the plaintiff? Third, was the decision made on the incorrect understanding that the Minister personally could not grant the visa? Fourth, was the decision made without taking account of mandatory relevant considerations?

The second and third of those issues can be resolved at a factual level by reference to the Minister's written reasons for decision. Those reasons are to be read against the decision-making background, recounted by the majority 2, which

The Minister's reasons for decision reveal that the Minister correctly understood that s 65(1)(a)(ii) and (b) of the Act required her, as the self-chosen decision-maker in respect of the plaintiff's application for a SHEV, to refuse to grant a SHEV to the plaintiff if not satisfied that all criteria for a SHEV prescribed by the Act and the Regulations were satisfied. The only criterion to which the Minister directed her attention in making that decision was that prescribed by cl 790.227. Implicit in the choice of the Minister to make the decision by reference to that criterion herself, rather than to leave the making of a decision to a delegate, was recognition that the grant or refusal of a SHEV to the plaintiff was to turn on the Minister's own satisfaction or non-satisfaction of that criterion. From this it follows that the Minister also recognised that if all relevant criteria and requirements were satisfied the Minister was to grant the visa in accordance with s 65(1)(a) of the Act. The third issue, accordingly, involves no error by the Minister.

The Minister's reasons for decision further reveal that she avoided any reliance on the character of the plaintiff. The Minister adopted and acted on the uncomplicated and unsurprising 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”. For a person convicted of people smuggling to be seen to get the benefit of a protection visa, the Minister explained, “would send the wrong signal to people who may be contemplating engaging in similar conduct in the future” and would tend to undermine “the confidence of the Australian community in the protection visa program”. In no meaningful sense can the purpose of the Minister revealed by those reasons be described as punitive. The second issue, accordingly, also involves no error by the Minister.

The fourth issue can be resolved without difficulty at the level of principle. The satisfaction of the Minister or delegate required in order to satisfy the criterion prescribed by cl 790.227 that the grant of a SHEV is in the national interest is 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 3. Neither expressly nor implicitly do the Act or the Regulations make that state of mind one which must be informed by particular

That leaves only the first of the identified issues: whether cl 790.227 authorised 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.

Resolution of that remaining issue starts by recognising that the Act expresses its one and only object as being “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens” 5. The Act explains the totality of the provisions it contains for “visas permitting non-citizens to enter or remain in Australia” as being “[t]o advance” that object 6.

In the statement of that overall statutory object, as elsewhere in the Act 7, “the national interest” indicates a considered response to what is “largely a political question” 8. The expression has exactly the same meaning where used in the Regulations 9. Specifically, the expression has exactly the same meaning where it is used in Sch 2 to the Regulations in the prescription of criteria for the grant of a class of protection visas 10, which s 65(1)(a)(ii) and (b) of the Act require a decision-maker to apply in deciding whether to grant or refuse a visa of that class.

There is no novelty in that proposition. Clause 790.227 was inserted into Sch 2 to the Regulations by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (“the 2014 Act”). At the same time as it inserted s 35A into the Act, providing for a protection visa to be a visa of a class provided for by that section and for there to be a class of temporary protection visas to be known as “safe haven enterprise visas”, the 2014 Act also directly amended Sch 1 to the Regulations to create SHEVs as a protection visa and class of temporary visa and directly inserted into Sch 2 to the Regulations the criteria for a SHEV, which include cl 790.227. Before the 2014 Act, however, Sch 2 to the Regulations had always included a criterion identical to that prescribed by cl 790.227, requiring the Minister to be satisfied that the grant of a protection visa was in the national interest 11.

Importantly, a criterion for the grant of a protection visa identical to that prescribed by cl 790.227 contained in Sch 2 to the...