The Trump Card: ENT19 v Minister for Home Affairs [2023] HCA 18
07.07.2023
‘The national interest’ is a broad concept, and ‘largely a political question’. Decision-makers ordinarily enjoy considerable discretion in deciding what is and is not in ‘the national interest’. But in its recent judgment in ENT19 v Minister for Home Affairs [2023] HCA 18 (ENT19), by a narrow majority of 4 to 3, the High Court (Gordon, Edelman, Steward and Gleeson JJ; Kiefel CJ, Gageler and Jagot JJ dissenting) identified and reiterated important limits to what factors may be relevant in deciding whether it is in the ‘national interest’ to grant a protection visa.
This post will set out the factual and procedural history to this matter and analyse the majority’s reasoning in ENT19. This post will then examine the potential implications of this judgment for the scope of the term ‘national interest’, and for ENT19 himself.
Factual and Procedural History
ENT19 is a refugee. If he is sent back to Iran, his country of origin, there is a real chance that he will be persecuted because he intends to practice and evangelise Christianity. By the time of the High Court’s judgment, he had been seeking a visa for a very long time.
In 2012 and 2013, ENT19 facilitated other asylum seekers’ journeys from Indonesia to Australia by boat (ENT19 v MHA [2021] FCAFC 217 (FCAFC Judgment) [6]). According to the sentencing remarks in the District Court of New South Wales, he arranged accommodation, transport, money and food for Iranian asylum seekers travelling from Indonesia to Australia, acting as an intermediary between the asylum seekers and a people smuggler; this was described by the District Court as a ‘people management role’. He and his family had fled Iran but were stranded in Indonesia; they lost their money and possessions after a failed attempt to come to Australia. In order to ensure his family’s final journey to Australia, ENT19 remained behind in Indonesia and assisted the people smuggler in bringing other boats to Australia (FCAFC Judgment [18]), and eventually arranged his own passage to Australia. ENT19 arrived in Australia in December 2013. He was taken into custody shortly after his arrival.
In October 2017, ENT19 was convicted of the offence of people smuggling. He was sentenced to eight years’ imprisonment, with a non-parole period of four years. ENT19’s non-parole period expired on 9 December 2017; he has been in immigration detention ever since. Because of this conviction and sentence, ENT19 does not pass the ‘character test’ under s 501 of the Migration Act 1958 (the Migration Act).
ENT19 applied for a Safe Haven Enterprise visa, a type of protection visa, in February 2017. This visa application has been refused (or purportedly refused) four times. The first decision was made by a delegate of the Minister in October 2017, who was not satisfied that ENT19 was a refugee or entitled to complementary protection. That refusal was overturned by the Immigration Assessment Authority, which was satisfied that ENT19 is a refugee. Relevantly, the Authority found that ENT19 would face a real chance of serious harm if removed to Iran, because of his conversion to Christianity while in Australia and his genuine commitment to practicing and proselytising his faith (FCAFC Judgment [11]-[13]). The Authority remitted ENT19’s visa application to the Minister for reconsideration in light of those findings.
The second and third decisions to refuse ENT19’s visa application (in October 2019 and May 2020) were made personally, by the Minister for Immigration and the Minister for Home Affairs respectively. The second decision was based on ENT19’s failure to satisfy the ‘character test’ under s 501 of the Migration Act; that decision was quashed by the Federal Court (by consent), which directed the Minister to determine ENT19’s visa application according to law.
The third decision was based on ENT19’s failure to satisfy cl 790.227 of Schedule 2 of the Migration Regulations 1994, the ‘national interest’ criterion: that it is a criterion for a Safe Haven Enterprise Visa that ‘[t]he Minister is satisfied that the grant of the visa is in the national interest’. The third decision was quashed by the Full Federal Court. The Court directed the Minister, again, to determine ENT19’s visa application according to law.
On 27 June 2022, the Minister for Home Affairs made a fourth decision on ENT19’s visa application. Like the third decision, this decision was based on the ‘national interest’ criterion. The Minister accepted that ENT19 satisfied all of the criteria for the Safe Haven Enterprise visa except the national interest criterion (ENT19 [49]).
The Minister’s reasons for this decision stated that ‘[i]t is not in the national interest for a person convicted of people smuggling to be seen to get the benefit of a protection visa’, and that granting a visa to a person in those circumstances ‘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’ (ENT19 [78]). As the majority judgment observed, this concern for ‘the potential consequences of the plaintiff being granted the visa because of his status as a convicted people smuggler’ was not just one of a number of considerations underlying the decision; it was the basis for the Minister’s conclusion that the grant of the visa would not be in the national interest (ENT19 [82]). In reaching this conclusion, the Minister acknowledged that ENT19 faced the prospect of indefinite detention – because he cannot be returned to Iran, and because ‘the prospects of finding another country willing to receive him are poor’ (ENT19 [48]).
ENT19 sought judicial review of the Minister’s fourth decision in the original jurisdiction of the High Court of Australia. His grounds of review raised various legal and constitutional issues. But the proceedings ultimately turned upon a single issue: whether the Minister’s decision was authorised by cl 790.227, on its proper construction (ENT19 [4], [52]).
The High Court Judgment
The majority (Gordon, Edelman, Steward and Gleeson JJ) provided a detailed explanation of the statutory framework of the Migration Act and Migration Regulations within which cl 790.227 operates. That clause is one of several criteria for the Safe Haven Enterprise visa. Another criterion is Public Interest Criterion 4001, which provides that the Minister must be satisfied that a person passes the character test (or that there is nothing to indicate they do not pass that test) – or, where a person does not pass the character test, that the Minister has decided not to refuse to grant the visa (ENT19 [59]-[60]). This criterion, like all criteria except cl 790.227, was satisfied in ENT19’s case (ENT19 [83], [102]). These criteria operate alongside s 501 of the Migration Act, which provides powers for the Minister to refuse a visa application where a person does not satisfy the character test – subject to procedures and constraints (ENT19 [63]-[69]). In ENT19’s case, the Minister had indicated that she was ‘not inclined’ to exercise the s 501 power to refuse the visa application (ENT19 [103]).
Unusually for delegated legislation, cl 790.227 was inserted into the Migration Regulations by an Act of Parliament, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Nonetheless, it is not part of the Migration Act, and the majority emphasised that it ‘cannot be construed as if it were a provision of the Act’ (ENT19 [88]-[89]). While the majority noted that this does not mean that cl 790.227 is ‘less binding in law than a statutory provision’, the majority also observed that the clause’s status as part of the Regulations is relevant to its construction; they noted that, in the event of inconsistency or incoherency between provisions in the Act and the Regulations, a clause in the Regulations may ‘give way more readily or be adjusted if necessary’ to ensure that the different provisions could work together (ENT19 [90]).
The majority also emphasised that cl 790.227 differs from other clauses requiring a state of satisfaction as to the ‘national interest’ under the Migration Act. Other sections require the Minister to form a state of satisfaction as to the ‘national interest’ or the ‘public interest’ in the exercise of broad, discretionary statutory powers. Clause 790.227, by contrast, is a visa criterion: it is a matter of which the decision-maker, whether the Minister or their delegate, must be satisfied in granting a visa (ENT19 [94]). The majority noted that this limited the applicability of other authorities on the breadth of a Minister’s capacity to identify the ‘national interest’ in the context of other sections.
The majority rejected the Minister’s construction of cl 790.227 – by which, as the majority put it, that clause and its associated provisions would be a ‘trump card’, an ‘ultimate control [criterion]’ allowing the Minister or a delegate ‘to refuse protection visas without any need to consider, or be constrained by, the other criteria set by Parliament and the discretionary statutory powers provided by Parliament to refuse visas’ (ENT19 [96]-[97]). The majority emphasised that cl 790.227 ‘is not a special visa refusal power conferred by the Act on the Minister personally’, but one criterion among many – and ‘the national interest’ to which that criterion refers cannot be read as a ‘freestanding concept divorced from its context in the Act and Regulations’ (ENT19 [97]).
In this case, as noted above, the Minister accepted that Public Interest Criterion 4001 was satisfied; the Minister had decided not to use the s 501 power to refuse the visa; and the reasons for the Minister’s decision on the ‘national interest’ were wholly referrable to ENT19’s conviction for people smuggling, which was the reason why he failed the character test. ENT19’s conviction was relevant to the assessment under PIC 4001 and s 501. But, as the majority concluded, those considerations ‘cannot be resurrected as part of the same decision-making process to form the basis of a decision relying on cl 790.227’ (ENT19 [104]. Critically, as the majority noted, the Minister’s concern under cl 790.227 appears to have been the grant of a visa to a convicted people smuggler (ENT19 [82]; see also ENT19 [78]-[79]) – focusing, in that regard, on the fact of ENT19’s conviction, rather than upon the nature and extent of his involvement in people smuggling. In other words, once the Minister had decided not to use that conviction to justify refusal under PIC 4001 and s 501, it could not then be relied on to justify refusal under cl 790.227.
The majority reasoned that this does not rob cl 790.227, or ‘the national interest’, of any meaning or breadth whatsoever, and that there may still be circumstances where it may be ‘in the national interest’ not to grant a protection visa to a person – notwithstanding ‘the general expectation’ that ‘the grant of protection visas to persons to whom Australia owes protection obligations is in the national interest’ (ENT19 [98]). But these circumstances must be ‘“another” reason’, and not a resuscitation of matters already addressed by the other visa criteria and powers (ENT19 [99]).
Kiefel CJ and Gageler and Jagot JJ dissented. In rejecting the proposition that s 501(1) and (3) exhaustively provide for the visa refusal consequences of a conviction for people smuggling, the minority emphasised s 501H of the Migration Act – which provides that the refusal power under s 501 operates in addition to any other power under the Act to refuse to grant a visa (ENT19 [35] (emphasis added)). To that end, on their analysis, s 501 ‘does not operate to the exclusion of the prescription or application of a criterion for the grant of a visa’ (ENT19 [41]). The decision in the present case, on their analysis, was a circumstance in which a decision-maker could permissibly ‘adopt and act on a political view that the grant of a protection visa to a particular applicant would not be in the national interest’ (ENT19 at [43]).
Implications
ENT19 is not the first judgment to identify potential limits to a Minister’s ability to determine the content of the ‘national interest’. In the FCAFC Judgment (which quashed the Minister’s previous purported decision to refuse the visa application), the Full Court found that the Minister had fallen into jurisdictional error in assessing the ‘national interest’ by failing to consider the legal consequences of their decision. In AMICMSMA v CWY20 (2021) (CWY20), the Full Federal Court found that the Minister had unreasonably excluded the potential impact on Australia’s international reputation from a breach of its non-refoulement obligations from their assessment of the ‘national interest’. A determination of the ‘national interest’ is not, and has never been, a completely unconfined decision immune from review on any grounds.
Furthermore, in Plaintiff S297 v MIBP (No 2) (2013) (S297), the High Court found that a decision that it would not be in the national interest to grant a protection visa to the plaintiff because he was an unlawful maritime arrival, was affected by jurisdictional error because Parliament had exhaustively prescribed the visa consequences of unlawful arrival in other provisions. As the minority judges put it, S297 stands for the proposition that ‘a decision-maker cannot choose to adopt and act on a view of the national interest that would alter, impair or detract from any positive provision that is made by the Act itself in pursuit of the national interest’: ENT19 [18]. The majority emphasised the similarity between the impugned decision in S297 and that in ENT19, and observed that ‘[t]he parallels with this case are obvious’ (ENT19 [84]-[85]). ENT19 hence further supports an existing proposition: that the permissible bounds of the ‘national interest’ may be informed by the statutory context within which a ‘national interest’ criterion is to be found, and by the need for that criterion to operate harmoniously with the exhaustive application of other provisions. This may include, as noted above, that cl 790.227 needs to be read along with, and if necessary give way to, provisions within the Migration Act itself.
Respectfully, there are some aspects of the majority’s reasoning in ENT19 which may be questioned – albeit that these are also concerns with S297. For the term ‘national interest’ to mean matters other than those addressed exhaustively in other provisions departs from what would otherwise be the ordinary, and expansive, meaning of the term ‘national interest’. Questions of national reputation and Australia’s relationship with other nations may be characterised as ‘intrinsically and inherently a matter of national interest’ (CWY20 [15]) – but these are matters which, as in the present case, may be closely tied to past criminal conduct and Australia’s non-refoulement obligations, which are addressed in other provisions. Furthermore, there are continuing questions about what ‘the national interest’ entails, beyond simply being defined as those matters which are not the subject of other provisions: does it have a settled ‘core’ content (matters affecting Australia as a nation), or will its meaning be entirely variable depending on a decision-maker’s assessment of which factors are relevant to a given case and upon which factors are dealt with by other provisions? In other words, what is ‘national’ about the national interest test, and what values should inform that test?
Nonetheless, ENT19 remains an important development. It clarifies (and potentially expands) the scope of which matters are ‘exhaustively’ addressed by other provisions within the Migration Act and hence lie beyond the scope of cl 790.227. Further, it reinforces that determinations of the ‘national interest’ must be informed (and constrained) by surrounding statutory context.
Conclusion
The High Court quashed the Minister’s decision. The Court also issued a writ of mandamus commanding the Minister to determine ENT19’s visa application according to law within 14 days of the date of the order – that is, by 28 June 2023.
On 27 June 2023, ENT19 was granted a visa to remain in Australia. For public law scholars, the High Court’s judgment in his proceedings clarifies the need to consider legislative structure and context in confining the scope of the term ‘national interest’. For ENT19, the High Court’s judgment has ultimately led to a new decision, the grant of a visa, and an end to his detention.
Douglas McDonald-Norman is a barrister at Eight Selborne Chambers, a PhD student at the Gilbert + Tobin Centre of Public Law at the University of New South Wales, and an editor of the Australian Public Law Blog. All views expressed in this post are his own.
Suggested citation: Douglas McDonald-Norman, ‘The Trump Card: ENT19 v Minister for Home Affairs [2023] HCA 18 ’ on AUSPUBLAW (7 July 2023) <https://www.auspublaw.org/blog/2023/7/the-trump-card-ent19-v-minister-for-home-affairs-2023-hca-18/>