The Minister has to be satisfied that: “the grant of the visa is in the national interest” (clause 790.227 of Schedule 2 of the Migration Regulations) before granting a Safe Haven Enterprise visa

In ENT19 v Minister [2023] HCA 18 the applicant was an Iranian gentleman who had been convicted of people smuggling (section 233C Migration Act). He was sentenced to 8 years in prison. Notwithstanding that problem he was otherwise found to have met the requirements for a protection visa. It was accepted that he was not of good character.  However, the basis for the  visa refusal was not meeting the national interest (790.227) requirement.

The appeal was brought in the original jurisdiction of the High Court. There was a narrow 4:3 majority judgment in favour of the Applicant.

In the decision making process,  the Minister expressly decided that PIC 4001 was satisfied (i.e. exercised her discretion not to refuse the visa even though the character test was not met). In addition, the Minister also disavowed any reliance on 501(1) (the Minister’s discretion to refuse the visa on character grounds).

The majority (Gordon, Edelman, Steward and Gleeson JJ) found that in those circumstances, “something extra” (apart from the obvious character issues) would have to be relied on for a finding that the visa grant wasn’t in the national interest. This is effectively saying the Minister can’t have it both ways. The following two extracts from the majority judgment make that clear:

[97] Clause 790.227 was not intended to be a trump card for the Minister or delegate to use to refuse a visa under s 65 without needing to consider, or be constrained by, any of the other criteria and powers relevant to that decision.


[106] Unlike s 501 of the Act, cl 790.227 is not a special visa refusal power conferred by the Act. It is a positive visa criterion in the Regulations to be satisfied for all grants of a protection visa by the Minister and delegates alike. It cannot be treated as if it were a personal dispensing power.

The appeal was successful and the refusal decision was quashed. The matter was remitted to the Minister to be determined by law.

Creative commons acknowledgment for the photograph.

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