FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v Watson

[2005] FCAFC 181

MIGRATION LAW – cancellation of Transitional (Permanent) visa – character test – criminal history – whether the Minister has the power to revoke the decision to cancel a visa pursuant to s 501(2) of the Migration Act 1958 (Cth) and whether there is an intention to exclude the operation of s 33(1) Acts Interpretation Act 1901 (Cth)

Acts Interpretation Act 1901 (Cth) s 33

Migration Act 1958 (Cth) ss 13, 14, 65, 82, 189, 198, 206, 496, 500, 501, 501A, 501B, 501C, 501D, 501E, 501F

Judiciary Act 1903 (Cth) s 39B

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 distinguished

Pfeiffer v Stevens (2001) 209 CLR 57 followed

Dallikavak v Minister for Immigration & Ethnic Affairs (1985) 9 FCR 98 considered

Dutton v Republic of South Africa (1999) 162 ALR 625 considered

Australian Capital Equity Pty Ltd v Beale (1993) 41 FCR 242 considered

Minister for Immigration & Multicultural Affairs v Bhardwaj (2000) 99 FCR 251 considered

Minister for Immigration & Multicultural Affairs v Bhardwaj(2002) 209 CLR 597 referred to

Burgess v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 58 approved

VQAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 900 considered

Re Paterson; Ex parte Taylor (2001) 207 CLR 391 referred to

Shaw v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 143 referred to

Sloane v The Minister for Immigration, Local Government & Ethnic Affairs (1992) 37 FCR 429 distinguished

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v IRWIN WATSON

QUD 23 OF 2005

DOWSETT, HELY and LANDER JJ

31 AUGUST 2005

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 23 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	IRWIN WATSON RESPONDENT
JUDGES:	DOWSETT, HELY and LANDER JJ
DATE OF ORDER:	31 AUGUST 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The declaration made by the primary judge be set aside.

3. The application be dismissed.

4. The respondent pay the appellant’s costs of the proceedings before the primary judge.

5. The respondent pay the appellant’s costs on appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 23 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT

AND:

IRWIN WATSON

RESPONDENT

JUDGES:	DOWSETT, HELY and LANDER JJ
DATE:	31 AUGUST 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

DOWSETT J:

1 I have had the opportunity of reading the reasons prepared by Lander J and am in agreement with the orders proposed by his Honour. However my reasons for reaching that conclusion are somewhat different. I will state them briefly.

2 The only question argued on appeal was whether or not the appellant (the “Minister”) had power to revoke the decision to cancel the respondent’s visa pursuant to s 501(2) Migration Act 1958 (Cth) (the “Act”). There is no express power so to do. Therefore the only source of such power can be s 33(1) of the Acts Interpretation Act 1901 (Cth) (the “AIA”). The pervasive effect of that provision upon the legislative grant of administrative powers should not be underestimated. As much appears from the decision in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211, where Gummow J observed:

‘There was “an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise” … . However, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed “from time to time as occasion requires”.’

3 In Pfeiffer v Stevens (2001) 209 CLR 57 at [25], Gleeson CJ and Hayne J said, concerning the Queensland analogue of subs 33(1):

‘… The purpose of such an interpretative provision is to permit economy of language. Like an interpretative provision to the effect that the singular includes the plural, it means that to employ the language of singularity does not indicate an intention to deny plurality. If such an intention exists, it must be found elsewhere. Section 860 of the [Queensland legislation under consideration] was enacted in the light of s 23(1) of the [Queensland] Acts Interpretation Act, and should be understood accordingly. …’

4 In other words, all statutes conferring powers and obligations must be construed in the context created by the existence of s 33(1). The application of that subsection to a particular statutory provision may be excluded expressly or by implication, any such implication being derived from the statute under consideration. The relevant question for present purposes, then, is whether an intention to exclude the operation of s 33(1) is to be found in the Act.

5 As Lander J has observed, the question is by no means easy. The Minister has sought to demonstrate such exclusion by reference to s 501 itself and other sections located in proximity to it and dealing with similar or associated matters. My own examination of those sections does not persuade me that they indicate an intention to exclude the operation of s 33(1). However a broader consideration of the Act has so persuaded me.

6 The grant of visas is regulated by Division 3 of Part II. Subsection 65(1) provides:

‘After considering a valid application for a visa, the Minister:

(a) if satisfied that

[various criteria have been met]

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.’

7 The Minister’s decision does not involve an exercise of discretion. The criteria for a particular visa are either satisfied or they are not. Of course, some criteria may involve discretionary considerations, but that is another matter. The existence of an unlimited power to revisit a decision to cancel a visa would not sit comfortably with the stringent provisions regulating the grant of visas imposed by Division 3 of Part II. After all, the effect of such a decision may be, in effect, to grant a new visa. Similarly, if a decision to refrain from cancelling a visa could be revisited, the visa-holder would, notwithstanding such favourable determination, remain at risk of future cancellation upon the same factual basis as grounded the original decision. That would be an unsatisfactory basis for continued residence in this country. Neither outcome is consistent with the strict regulatory regime established by the Act. If it were possible to limit the time within which, or the circumstances in which, a decision might be revisited, the position might be otherwise. However, as far as I can see, there is no way of doing so.

8 For those reasons I agree with the orders proposed by Lander J.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 31 August 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	QUD 23 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

APPELLANT

AND:

IRWIN WATSON

RESPONDENT

JUDGES:	DOWSETT, HELY & LANDER JJ
DATE:	31 AUGUST 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

HELY J:

9 I have had the advantage of reading the reasons for judgment of Lander J in draft form, which sets out the background to this appeal and the relevant provisions of the Migration Act 1958 (Cth) (‘the Act’) which bear upon the question as to whether the appellant, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), had power to revoke the decision made on 8 March 2001 to cancel the respondent’s visa on character grounds.

10 A decision of the Minister to cancel a visa on character grounds under subs 501(2) of the Act, if validly made, has the result that the visa thereupon ceases to be in effect: subs 82(1) of the Act. Thereafter the person to whom the visa was issued is an unlawful non-citizen in terms of ss 13 and 14 of the Act, liable to detention under s 189 of the Act, and to removal from Australia under s 198.

11 The subs 501(2) power to cancel a visa may be exercised personally by the Minister, or by his delegate: s 496 of the Act. If the power is exercised by a delegate of the Minister, application may be made to the Administrative Appeals Tribunal (‘the AAT’) for a review of the delegate’s decision: subs 500(1)(b) of the Act.

12 The Minister may also cancel a visa on character grounds under subs 501(3) and subs 501A(3) of the Act, if satisfied that the cancellation is in the national interest. These powers may only be exercised by the Minister personally. Neither the rules of natural justice nor the code of procedural fairness set out in Subdivision AB of Division 3 of Part 2 of the Act apply to decisions made under subs 501(3) and subs 501A(3). Instead, the Minister is required by subs 501C(3) of the Act, as soon as practicable after the making of the decision, to give to the person affected by the decision certain information about the decision and an invitation to make representations to the Minister about its revocation.

13 The Act does not confer an express power on the Minister or his delegate to revoke a decision to cancel a visa made under subs 501(2) of the Act. The position is otherwise where a visa is cancelled by the Minister personally under subs 501(3) or subs 501A(3) of the Act. In such cases subs 501C(4) empowers the Minister to revoke the decision if the person makes representations in accordance with the Minister’s invitation, and if the person satisfies the Minister that the person satisfies the character test. The rationale for the subs 501C(4) power is that the visa holder was not afforded the opportunity of being heard before the decision to cancel the visa was taken.

14 The following aspects of the express power conferred by subs 501C(4) to revoke a decision under subs 501(3) or subs 501A(3) to cancel a visa are worthy of note:

- the power may only be exercised by the Minister personally;

- the power is confined, inasmuch as it may only be exercised if the conditions specified in subs 501C(4) are satisfied; and

- the consequences of the exercise of the power are spelt out in subs 501C(6) and subs 501C(7); the original decision is taken not to have been made, subject to the qualification that any detention of the person concerned in the period between the original cancellation decision and its revocation is lawful, and not to be the subject of any claim.

15 Subsections 501E(1) and 501F(2) of the Act apply where (inter alia) a decision is made under s 501, s 501A or s 501B to cancel a visa, unless the decision to cancel the visa is ‘set aside’ or ‘revoked’. I agree with Lander J’s conclusion that the reference to the decision being ‘set aside’ is to the decision being set aside by the AAT, and that the reference to the decision being ‘revoked’ is a reference to the exercise by the Minister of the power conferred by subs 501C(4) of the Act. There is no implication to be found in s 501E or s 501F of a power in the Minister to revoke a decision made under subs 501(2) to cancel a visa. The position is to be contrasted in this respect with that considered by the Full Court in Dallikavak v Minister for Immigration & Ethnic Affairs (1985) 9 FCR 98. In that case s 18 and s 20 of the Act then provided:

‘18. The Minister may order the deportation of a person who is a prohibited non-citizen under any provision of this Act.

…

20. Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.’

(emphasis added)

The Full Court treated s 20 as conferring a power to revoke an order for deportation. Subsection 206(1) of the Act in its current form is the equivalent of the former s 20. There is, however, nothing in the Act which implies that a visa cancellation decision under s 501, and its consequences, are subject to a later Ministerial change of mind.

16 The respondent relied upon subs 33(1) of the Acts Interpretation Act (1901) (Cth) (‘the Interpretation Act’)as the source of the power to revoke the decision cancelling the respondent’s visa. Subsection 33(1) provides that:

‘Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.’

17 In exercising the power conferred by subs 501(2) of the Act the Minister (or the delegate) may either cancel a visa or refrain from cancelling it. The respondent contends that the effect of subs 33(1) of the Interpretation Act is that the power is not spent on its first exercise (even if by the first exercise of the power the visa is cancelled), but that the power may be exercised again, and so as to produce a different result.

18 Two questions arise. First, whether subs 33(1) of the Interpretation Act (assuming it applies) operates in that way so as effectively to empower the Minister to revoke a visa outside the operation of subs 501C(4), and second whether the Act discloses a contrary intention.

19 As to the first, in Dutton v Republic of South Africa (1999) 162 ALR 625 at 636 Branson J observed that subs 33(1) does not refer to the withdrawal or cancellation of the exercise of a power. Her Honour noted that subs 33(3) of the Interpretation Act, which does include a reference to power to ‘repeal, rescind [and] revoke’, is limited in its operation to instruments of legislative character: Australian Capital Equity Pty Ltd v Beale (1993) 41 FCR 242.

20 A broader view of the operation of subs 33(1) appears to have been adopted by Gummow J as a member of the Full Court in Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 (‘Kurtovic’), and by the majority of the Full Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2000) 99 FCR 251, although on appeal to the High Court (Minister for Immigration & Multicultural Affairs v Bhardwaj(2002) 209 CLR 597) that Court decided the matter without reliance upon s 33 of the Interpretation Act, as their Honours found that on the facts of that case there was but one exercise of the relevant power.

21 In Kurtovic a deportation order was made under s 12 of the Act on 23 July 1984 which was revoked pursuant to s 20 of the Act (s 20 is set out above) on 21 November 1985. A second deportation order was made on 28 January 1988 which was sought to be impugned because there had been no material change in circumstances between the revocation of the first order and the making of the second. The Court held that the power conferred on the Minister by s 12 of the Act is not spent once used, but is exercisable from time to time whether or not there has been a change in the relevant facts. Accordingly, the Minister was not ‘functus officio’.

22 In Kurtovic (at 218) Gummow J said:

‘In the present case, there is nothing in the Migration Act which suggests an intention contrary to the presumption embodied in s 33(1) of the Acts Interpretation Act 1901, to which I have already referred. Accordingly, the power to make a deportation order is exercisable from time to time, so as to revoke or revive a deportation order previously made, whether on the same facts as before or otherwise. Even if the facts upon which the original decision was based remain constant, it may be the policy of the donee of the power which changes and thus requires a reconsideration of decisions previously made: cf Laker Airways Ltd v Department of Trade [1977] QB 643 at 707, 708-709, 728.’

It is true that in the passage quoted, Gummow J speaks in terms of a power to make a second deportation order ‘so as to revoke or revive’ a deportation order, and refers to a reconsideration of decisions previously made. But these observations were obiter, as in Kurtovic it was not a second exercise of the s 12 power which revoked the first. As a result of the exercise of the s 20 power to revoke, the s 12 power remained available for re-exercise at the later date.

23 In my view, subs 33(1) of the Interpretation Act (assuming it applies) does not have the effect that once there is a valid exercise of the subs 501(2) power to cancel a visa, the visa can be effectively restored to the former holder by a second exercise of that power. Whilst the Minister has a discretion whether or not to exercise the subs 501(2) power, the power in question is simply a power to cancel a visa which, if validly exercised, results in the former holder acquiring the status of an unlawful non-citizen with the consequences prescribed by the Act. There is no occasion for the re-exercise of the power once it has been validly exercised.

24 If subs 33(1) did have that effect, I would conclude that the Act discloses a contrary intention so far as the power to cancel a visa is concerned. The specific and confined powers of revocation of a decision to cancel a visa under subs 501(3) or subs 501A(3) given to the Minister under subs 501C(4) with the explicit statement of the consequences of revocation contained in subs 501C(6) and subs 501C(7), suggest that the legislative intention was not to confer a general power of revocation of subs 501(2) decisions. The notion that a visa may be effectively restored to a former holder by revocation of a cancellation decision is not congruous with the prohibitions on applying for a visa imposed by s 501E of the Act, or with the provisions of s 501F.

25 I generally agree with the views expressed by Katz J in Burgess v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 58, by Heerey J in VQAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 900 and by Lander J that Parliament has directed its attention in subs 501C(4) of the Act to which visa cancellation decisions are accompanied by a power of revocation of the original decision with the intent that no other cancellation decisions, including those made under subs 501(2) of the Act, should be so accompanied.

26 I agree with the orders proposed by Lander J.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 31 August 2005

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 23 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPLICANT

AND:

IRWIN WATSON

RESPONDENT

JUDGES:	DOWSETT, HELY AND LANDER JJ
DATE:	31 AUGUST 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

LANDER J:

27 This is an appeal from a decision of a judge of this Court in which he made a declaration that the appellant’s decision to cancel the respondent’s visa on 8 March 2001 was revoked by a letter from the Minister’s department dated 13 September 2001.

28 The respondent’s mother was born in Holland on 24 May 1945. His father was born in Scotland on 27 June 1947. The respondent’s mother arrived in Australia in 1956 when she was aged 11. It is not clear on the evidence when the respondent’s father arrived in Australia. However, on 27 May 1966 the respondent’s half-brother, Michael was born to the respondent’s mother. On 20 December 1969 the respondent’s father and mother married in Australia. On 20 September 1970 the respondent’s brother, George was born.

29 Some time near the end of 1971 or early 1972 the respondent’s parents and brothers left Australia for an extended holiday in Scotland. On 27 March 1973 the respondent was born in Scotland. In either April or July of 1973 the respondent’s parents, brothers and the respondent arrived in Australia. On 17 February 1975 the respondent’s father died in Australia.

30 The respondent was first convicted of a criminal offence on 29 July 1991. He was then convicted of being found on premises without lawful excuse. On 2 April 1993 he was convicted of receiving, forgery and uttering. On 10 December 1993 he was convicted of unlawful use of a motor vehicle, wilful and unlawful destruction of property, and assault occasioning bodily harm. On 9 January 1997 he was convicted of behaving in a disorderly manner, obstructing police and abusive words. He was convicted of a breach of the Bail Act on 12 March 1999. He was convicted of further breaches of bail conditions on 4 October 1999. On 12 January 2000 he was convicted of wilfully trespassing on a railway.

31 On 11 July 2000 he was convicted of entering premises and committing an indictable offence; breaking, entering open premises with intent; breaking, entering premises and committing an indictable offence; breaking, attempted unlawful use of a motor vehicle; entering premises with intent to commit an indictable offence; breaking, serious assault and wilful damage. In relation to the last mentioned offences, he was sentenced to two years imprisonment with a recommendation that he be eligible for parole after serving nine months. In fact, he was not released from imprisonment until 25 January 2002.

32 However, in the meantime, on 7 September 2000 the Department of Immigration and Multicultural Affairs (the Department) wrote to Mr Watson giving him notice that the Minister was considering cancelling his visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). The respondent then held a Transitional (Permanent) visa. In that letter he was advised that s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. He was advised that the Department considered that he had a substantial criminal record within the meaning of s 501(7)(c) of the Act.

33 He was advised of the matters which would be taken into account by the Minister and invited to bring to the Department and the Minister’s attention any relevant factors which he might wish to advance as mitigating factors by 29 September 2000. The respondent did not reply to that communication and on 15 November 2000 the Department wrote to him again advising that if he did not provide any comments by 29 November 2000 a submission would be prepared for the consideration of the Minister on the basis of the information on file. He was advised that his comments should be provided by 29 November 2000. The respondent replied to that communication.

34 On 18 January 2001 the Department wrote to the respondent advising of the adverse information that it would be submitting to the Minister for the Minister’s consideration in relation to the cancellation of the respondent’s visa. The respondent did not reply to that letter.

35 On 16 March 2001 the respondent was advised that the Minister had decided to cancel his Transitional (Permanent) Visa on the ground that the respondent did not pass the character test. He was further advised that, because the decision had been made by the Minister, the Administrative Appeals Tribunal could not review that decision.

36 He was provided with a copy of the Decision Record setting out the Minister’s reasons for the decision, a copy of every document relevant to the Minister’s decision, and a document entitled ‘Information about Review Rights’. The respondent took no action in relation to the Minister’s decision to cancel his visa. However, on 13 September 2001 the Department wrote to the respondent in the following terms:

‘Following a recent High Court decision, advice has been received from the Australian Government Solicitor (AGS) which indicates that the Minister for Immigration and Multicultural Affairs does not have the power to deport or remove certain British subjects who arrived prior to 1973. This decision affects individuals who are the subject of deportation orders or whose visas have been cancelled under section 501, 501A or 501B of the Migration Act 1958, and who arrived in Australia as British subjects as permanent residents prior to 1973.

As you fall within this category, the Department will no longer be proceeding with your removal following the conclusion of the custodial element of your sentence.’

37 The decision to which the Department was there referring was Re Paterson; Ex parte Taylor (2001) 207 CLR 391 in which the High Court found that the Act did not authorise the Minister to deport a British citizen who had arrived in Australia prior to 1973.

38 As I have already said, on 25 January 2002 Mr Watson’s sentence of imprisonment was served and he was released into the community. On 19 May 2002 the respondent was convicted of stealing a motor vehicle and he was sentenced to a further term of imprisonment which did not complete until 19 May 2004.

39 On 15 March 2004, and whilst he was serving that further term of imprisonment, the Department wrote to him again:

‘On 13 September 2001 the Department wrote to you to inform you that no further action would be taken to enforce the decision to cancel your visa under section 501 of the Migration Act 1958 dated 08 March 2001. This followed a decision of the High Court that indicated that certain British subjects who arrived in Australia prior to 1973 were not “aliens”, and could not be deported or removed, under the Migration Act 1958.

In a more recent decision, a majority of the High Court has departed from the previous decision and held that British subjects who arrived after 26 January 1949 and have not been naturalised are “aliens” for the purposes of the Migration Act 1958. I refer you to the decision of Shaw v MIMIA [2003] HCA 72 (9 December 2003) which now represents the law. As a consequence, the decision of the Minister to cancel your visa under section 501 of the Migration Act 1958 stands and you are liable to be detained under s189 of the Migration Act 1958 and removed from Australia.

You are hereby notified of the Department’s intention to enforce the decision to cancel your visa of 08 March 2001. Accordingly, you will be liable for removal from Australia at the conclusion of your sentence.’

40 In Shaw v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 143, the High Court overruled its previous decision in Re Paterson; Ex parte Taylor.

41 On 18 March 2004 the Department wrote to the Officer in Charge, Wolston Correctional Centre, Wacol requesting that the respondent be held in immigration detention in Wolston Correctional Centre until collected by officers of the Department for transfer to immigration detention in another Correctional Centre.

42 On 21 May 2004 the respondent brought these proceedings under s 39B of the Judiciary Act 1903 (Cth) seeking the following relief:

‘(a) An order that the Respondent show cause why a wrist [sic] of certiorari should not issue out of this Honourable Court directed to the Respondent to quash the first decision or, alternatively, the third decision;

(b) An order that the Respondent show cause why a writ of prohibition should not issue out of this Honourable Court directed to the Respondent prohibiting her from acting further on the first, or alternatively, the third decision;

(c) An injunction directed to the Respondent prohibiting her from acting on the first, or alternatively, the third decision;

(d) A declaration that the first decision was revoked by the second decision;

(e) Such further or other relief as to this Honourable Court might seem appropriate.’

43 On 27 May 2004 the respondent’s custodial sentence imposed for the offence of stealing a motor vehicle ended and he was placed in immigration detention.

44 The decision of the primary judge was given on 15 December 2004 and the notice of appeal filed on 27 January 2005. Relevantly, for the purpose of this appeal, the primary judge found that s 501(2) of the Act impliedly authorised the appellant to revoke a decision to cancel a visa. He found that the letter dated 13 September 2001 communicated a decision which had previously been made by the Minister to treat the decision to cancel the respondent’s visa as no longer operating or having force and effect, and that the Minister, by that letter, intended to convey that fact to the respondent. Thus it was that he made the declaration referred to in [1] of these reasons.

45 On this appeal the appellant submitted that there was no power under s 501(2) of the Act to revoke a decision to cancel a person’s visa. The Minister relied upon the decisions of Katz J in Burgess v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 58; Heerey J in VQAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 900; and the decision of French J in Sloane v The Minister for Immigration, Local Government & Ethnic Affairs (1992) 37 FCR 429.

46 The appellant argued that s 33 of the Acts Interpretation Act 1901 (Cth) had no application to s 501(2) of the Act. Section 33, it was submitted, dealt with powers to make, grant or issue an instrument, including a power to cancel an instrument but does not deal with the power to cancel an instrument including a power to revoke a cancellation.

47 The respondent argued that the decision of the primary judge was right for the reasons he gave.

48 The sole question on this appeal is whether the Minister had power to revoke the decision made on 16 March 2001 to cancel the respondent’s visa on the ground that he did not pass the character test.

49 It was accepted by the Minister that if the power existed the decision was revoked prior to 13 September 2001 when an officer in the Minister’s Department wrote to the respondent in the terms set out in Dowsett J’s reasons at [7].

50 The question is one of statutory construction but the answer is not easy. A number of sections of the Act must be considered.

51 Subsections 501(1), (2), (3), (4) and (5) provide:

‘501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

(2) The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test.

Decision of Minister—natural justice does not apply

(3) The Minister may:

(a) refuse to grant a visa to a person; or

(b) cancel a visa that has been granted to a person;

if:

(d) the Minister is satisfied that the refusal or cancellation is in the national interest.

(4) The power under subsection (3) may only be exercised by the Minister personally.

(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).’

52 Subsections 501(1) and (2) empower the Minister or a delegate of the Minister to refuse to grant a visa to a person or cancel a visa that has been granted to a person in the circumstances contemplated in the subsections. The power may be exercised if the Minister or the delegate of the Minister is not satisfied that the person passes the character test. In exercising the power in s 501(1) or s 501(2), the Minister or the delegate of the Minister must comply with the rules of natural justice.

53 Subsection 501(3) empowers the Minister, and only the Minister (s 501(4)), to refuse to grant a visa to a person, or cancel a visa that has been granted to a person, if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the refusal or cancellation is in the national interest. Any decision under s 501(3) is not subject to the rules of natural justice: s 501(5).

54 A person who has been refused the grant of a visa or who has had a visa cancelled may apply to the Administrative Appeals Tribunal (the Tribunal) for a review of that decision, but only if the decision was made by the delegate of the Minister: s 500(1)(b). A decision of the Minister is not subject to review by the Tribunal: s 500(4).

55 In this case, the decision made on 16 March 2001 was made by the Minister so was not subject to review by the Tribunal. In those circumstances, the decision could not be set aside administratively.

56 The decision which was made by the Minister pursuant to s 501(2) on 16 March 2001 was to cancel the respondent’s Transitional (Permanent) visa.

57 Thus, the question on this appeal is whether there is power under the Act for the Minister to revoke a decision made by the Minister under s 501(2). The Act does not provide any express power.

58 Section 501A provides:

‘501A Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1) This section applies if:

(a) a delegate of the Minister; or

(b) the Administrative Appeals Tribunal;

makes a decision (the original decision):

(d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by a Minister – natural justice applies

(2) The Minister may set aside the original decision and:

(a) refuse to grant a visa to the person; or

(b) cancel a visa that has been granted to the person;

if:

(d) the person does not satisfy the Minister that the person passes the character test; and

(e) the Minister is satisfied that the refusal or cancellation is in the national interest.

Action by Minister—natural justice does not apply

(3) The Minister may set aside the original decision and:

(a) refuse to grant a visa to the person; or

(b) cancel a visa that has been granted to the person;

if:

(d) the Minister is satisfied that the refusal or cancellation is in the national interest.

(4) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(4A) Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister’s exercise of power

(5) The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.

Note 1: For notification of decisions under subsection (2), see section 501G.

Note 2: For notification of decisions under subsection (3), see section 501C.’

59 Section 501A applies where a decision has been made by a delegate of the Minister or the Tribunal and it applies where the decision was not to exercise the power conferred by either subsections 501(1) or 501(2). In other words, the decision of the delegate or the Tribunal was not to refuse to grant a visa or not to cancel a visa that had been granted to a person.

60 Section 501A(2) empowers the Minister to set aside the delegate’s or the Tribunal’s decision and refuse to grant a visa or cancel a visa, but only after according the person natural justice: s 501A(2)(d).

61 In those circumstances, the Minister would be exercising a like power to that given to the Minister under subsections 501(1) and 501(2).

62 Subsection 501A(3) also empowers the Minister to set aside the delegate’s or the Tribunal’s decision and refuse to grant a visa or cancel a visa if the Minister reasonably suspects that the person does not pass the character test, and the Minister is satisfied that the refusal or cancellation is in the national interest: s 501A(3). The power given to the Minister under s 501A(3) is a like power to that given to the Minister under s 501(3). The Minister does not have to comply with the rules of natural justice: s 501A(4).

63 Subsection 501(5) provides that the powers which may be exercised under subsections 501A(2) and (3) can only be exercised by the Minister personally.

64 Relevantly, s 501A empowers the Minister to set aside any decision made by a delegate refusing to exercise a power under s 501(2) and substitute either a decision cancelling a visa under s 501A(2) or a decision cancelling a visa in the national interest under s 501A(3).

65 The Minister’s decision under s 501A(2) or (3) is not reviewable under Part 5 or Part 7 of the Act.

66 Section 501B provides:

‘501B Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2)

(1) This section applies if a delegate of the Minister makes a decision (the original decision) under subsection 501(1) or (2) to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.

(2) The Minister may set aside the original decision and:

(a) refuse to grant a visa to the person; or

(b) cancel a visa that has been granted to the person;

if:

(d) the person does not satisfy the Minister that the person passes the character test; and

(e) the Minister is satisfied that the refusal or cancellation is in the national interest.

(3) The power under subsection (2) may only be exercised by the Miniser personally.

(4) A decision under subsection (2) is not reviewable under Part 5 or 7.

(5) To avoid doubt, the Minister may set aside the original decision in accordance with subsection (2) even if the original decision is the subject of an application for review by the Administrative Appeals Tribunal.

Note: For notification of decisions under this section, see section 501G.’

67 Section 501B applies if a delegate of the Minister makes a decision under subsections 501(1) or 501(2) to refuse to grant a visa to a person or to cancel a visa that has been granted to a person: s 501B(1).

68 Subsection 501B(2) empowers the Minister to set aside the delegate’s decision and to substitute for that decision a decision refusing to grant a visa to the person or cancelling a visa that has been granted to the person if the Minister, inter alia, is satisfied that the refusal or cancellation is in the national interest. However, s 501B(2) is unlike s 501(3) or s 501A(3) in that before the Minister makes a decision under s 501B(2) the Minister must conform with the rules of natural justice: s 501B(2)(d).

69 Subsection 501B(3) provides that that power can only be exercised by the Minister personally. The Minister’s decision under s 501B(2) is not reviewable under Parts 5 or 7: s 501B(4).

70 If the Minister exercises the power under s 501B the Minister’s decision will be the same as the delegate’s; that is, the Minister will refuse to grant the person a visa or the Minister will cancel a visa that has been granted to the person. The result to the applicant for the visa or the visa holder will be the same.

71 However, because the decision is that of the Minister the decision is not reviewable. If the Minister substitutes his/her decision for that of the delegate, the applicant or visa holder affected by the decision will have lost the opportunity to have the decision reviewed.

72 The combined effect of s 501A and s 501B is that the Minister may set aside a delegate’s decision under subsections 501(1) or 501(2) whatever the decision of the delegate might have been.

73 Dealing only with s 501(2), if the delegate had been of the opinion that he or she ought not to exercise the power under s 501(2) to cancel a person’s visa, the Minister may set aside that decision and cancel that person’s visa under s 501A(2)(b) or set aside the delegate’s decision and cancel that visa if satisfied that the refusal or cancellation is in the national interest: s 501A(3).

74 On the other hand, if the delegate’s decision had been adverse to the visa holder and the delegate had decided to exercise the power to cancel the visa holder’s visa, the Minister can set aside the delegate’s decision and exercise the power for himself or herself to cancel that visa under s 501B(2)(b), if satisfied that the refusal or cancellation is in the national interest: s 501B(2).

75 Subsections 501C(1), (2), (3), (4), (5), (6) and (10) provides:

‘501C Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:

(a) refuse to grant a visa to a person; or

(b) cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10))—invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the person satisfies the Minister that the person passes the character test (as defined by section 501).

(5) The power under subsection (4) may only be exercised by the Minister personally.’

(6) If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).

…

(10) The regulations may provide that, for the purposes of this section:

(a) a person; or

(b) a person included in a specified class of persons;

is not entitled to make representations about revocation of an original decision unless the person is a detainee.’

76 Section 501C applies if the Minister makes a decision under s 501(3) or s 501A(3) to refuse to grant a visa to a person or cancel a visa that has been granted to a person. It does not apply if the Minister makes a decision under s 501A(2) or s 501B(2).

77 A decision by the Minister made under s 501A(2) to refuse to grant a visa to a person or cancel a visa that has been granted to a person can only be made after the Minister has accorded the personal natural justice.

78 The power which the Minister exercises under s 501B(2) is only to be exercised after a delegate has reached a decision, after according the person natural justice, that a visa should not be granted to the person, or that the person’s visa should be cancelled.

79 Whilst the Minister’s decision has the same effect it can only be made if the Minister has again accorded the person natural justice and is satisfied that the refusal or cancellation is in the national interest.

80 Subsections 501A(2) and s 501B(2) are therefore to be contrasted to subsections 501(3) and s 501A(3) where the Minister may make a decision without according the person natural justice.

81 Section 501C obliges the Minister, who has exercised power under s 501(3) or s 501A(3), to give the person a written notice that sets out the original decision and particulars of the relevant information relied upon and, with an exception which is not relevant, invite the person to make representations to the Minister about revocation of the original decision.

82 Importantly, subsection 501C(4) permits the Minister to revoke the original decision if the person makes representations in accordance with the invitation and the person satisfies the Minister that the person passes the character test.

83 The power to revoke is only to be exercised by the Minister personally: s 501C(5).

84 If the Minister revokes his/her previous decision the previous decision is taken not to have been made: s 501C(6).

85 Like any decision made by the Minister under s 501A or s 501B, the decision is not reviewable under Part 5 or Part 7: s 501C(11).

86 The purpose of s 501C is to give the person affected an opportunity to persuade the Minister to revoke the Minister’s decision. That person would not have had that opportunity before the Minister’s decision was made. It was not necessary to include a reference to s 501A(2) or s 501B(2) in s 501C because the person affected by a decision under those subsections would have been accorded natural justice by both the delegate and the Minister.

87 Subsections 501A(2), 501A(3) and 501B(2) empower the Minister to ‘set aside’ a decision of the delegate.

88 Subsection 501(4) empowers the Minister to revoke the Minister’s own decision under subsections 501(3) while subsection 501A(5) empowers the Minister to revoke his or her own decision under s 501A(2) or s 501A(3).

89 Subsection 501E(1) provides:

‘501E Refusal or cancellation of visa—prohibition on applying for other visas

(1) A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:

(a) at an earlier time during that period, the Minister made a decision under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and

(b) the decision was neither set aside nor revoked before the application time.’

90 Section 501E precludes a person from making an application if, at an earlier time during the application time, the Minister made a decision under s 501, s 501A or s 501B to refuse to grant a visa to that person or to cancel a visa that has been granted to the person and the decision was neither set aside nor revoked before the application time.

91 The purpose of s 501E is to prevent an applicant making a further application for a visa after the Minister has either refused to grant a visa to the person or cancelled a visa that had been granted to the person under s 501, s 501A or s 501B.

92 The reference in s 501E(1)(b) to the decision having been set aside must be a reference to a decision being set aside apart from the Minister setting it aside under s 501A or s 501B. That must be so, because the Minister only exercises the power to set aside the delegate’s decision under s 501A or s 501B where the Minister is making a further order of the kind contemplated in those two sections. Any order under s 501A or s 501B would mean that the person would not have been granted a visa or the person’s visa would have been cancelled.

93 The reference therefore to ‘set aside’ the decision must be a reference to a decision of the Tribunal to set aside a decision.

94 As the Tribunal can only set aside a decision of the delegate of the Minister (s 500), then the reference to ‘set aside’ in s 501E(1)(b) must be a reference to the setting aside of a decision of the delegate of the Minister made under s 501(1) or s 501(2) which has not itself been set aside by the Minister under s 501A or s 501B and a further decision made by the Minister. That must be so because the only decisions that a delegate can make under any of the sections referred to in s 501E(1)(a) are those predicated in s 500(1) or s 500(2). They are the only decisions that can be set aside by a Tribunal.

95 The reference in s 501E(1)(b) to a decision having been revoked must be a reference to s 501C which empowers the Minister to revoke a decision made under s 501(3) or s 501A(3).

96 It follows that s 501E(1)(b) has no application to any decision made under s 501B because, for the reasons already given, s 501C has no application to a decision made under s 501B(2).

97 Section 501F provides:

‘501F Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas

(1) This section applies if the Minister makes a decision under section 501, 501A or 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.

(2) If:

(a) the person has made another visa application that has neither been granted nor refused; and

(b) the visa applied for is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;

the Minister is taken to have decided to refuse that other application.

(3) If:

(a) the person holds another visa; and

(b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;

the Minister is taken to have decided to cancel that other visa.

(4) If the decision referred to in subsection (1) is set aside or revoked, the decision that the Minister is taken to have made under subsection (2) or (3) is also set aside or revoked, as the case may be.

(5) A decision that the Minister is taken to have made under subsection (2) or (3) is not reviewable under Part 5 or 7.

Note: For notification of decisions under this section, see section 501G.’

98 Section 501F applies if the Minister has made a decision under s 501, s 501A or s 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.

99 Pursuant to that section, any other application for a visa which has not been granted or refused is taken to have been refused and any other visa held by a visa holder is taken to have been cancelled by the Minister.

100 The reference to ‘set aside’ in s 501F(4) must mean the setting aside by the Tribunal of a delegate’s decision under s 501(1) and s 501(2). For the reasons already given, it could not refer to the Minister’s power to set aside a decision under s 501A or s 501B.

101 The word ‘revoked’ in s 501F(4) must have the same meaning as in s 501E(1)(b) and apply to a decision made under s 501C(4).

102 The scheme of the Act seems to be:

(1) a decision of the delegate of the Minister under s 501(1) to refuse a person a grant of a visa or to cancel a visa already granted to a person is subject to review by the Tribunal;

(2) a decision of the delegate of the Minister, either under s 501(1) or s 501(2) not to exercise the power in those subsections, may be set aside by the Minister who may, after according the person natural justice, exercise the power in s 501A(2) and refuse to grant a person a visa or cancel a visa that has been granted to the person;

(3) a decision of the delegate of the Minister not to exercise the power under s 501(1) or s 501(2) may be set aside by the Minister who may exercise the power in s 501A(3) and refuse to grant a person a visa or cancel a visa that has been granted to the person without according that person natural justice;

(4) a decision of the delegate of the Minister under either s 501(1) or s 501(2) may be set aside by the Minister pursuant to s 501B(2) who may then make the same decision, but only after according the person natural justice;

(5) if the Minister makes a decision under s 501(1) to refuse to grant a visa or s 501(2) to cancel a visa already granted to a person, the Minister must accord the person natural justice but the decision, once made, is not reviewable by the Tribunal;

(6) the Minister may exercise the power in s 501(3) to refuse to grant a visa to a person or cancel a visa that has been granted to a person without according that person natural justice if, in addition to the other criteria required, the Minister is satisfied that the refusal or cancellation is in the national interest;

(7) if the Minister makes a decision under s 501(3) the decision is not reviewable by the Tribunal;

(8) a decision by the Minister under either s 501A or s 501B is not reviewable by the Tribunal;

(9) if the Minister makes a decision under s 501(3) or s 501A(3), the Minister must comply with s 501C and give the person written notice of the original decision and particulars of the relevant information;

(10) the Minister may, pursuant to s 501C(4), revoke a decision made under s 501(3) or s 501A(3) if the person satisfies the Minister that the person passes the character test as defined by s 501;

(11) a decision by the Minister under s 501C(4) is not reviewable by the Tribunal;

(12) a person is not allowed to make an application for a visa (except for a visa of the kind referred to in s 501E(2)) if the Minister has made a decision under s 501, s 501A or s 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person and that decision has not been set aside or revoked before the application was made;

(13) if the Minister has made a decision under s 501, s 501A or s 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person and if the person has made another visa application that has not been granted or refused, the Minister shall be taken to have decided to refuse that other application;

(14) if the Minister has made a decision under s 501, s 501A or s 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person and the person holds another visa, the Minister is taken to have decided to cancel that other visa.

103 A delegate can only make a decision under s 501(1) or s 501(2). A decision made by a delegate under those subsections is reviewable by the Tribunal. Moreover, a decision made by a delegate under these subsections is liable to be set aside by the Minister under s 501A or s 501B.

104 No decision made by a Minister under s 501(1), s 501(2), s 501(3), s 501A(2), s 501A(3) or s 501B(2) is subject to review by the Tribunal.

105 The only decision of the Minister that is subject to any review and that by the Minister himself or herself is one made under s 501(3) or s 501A(3). That decision may be revoked under s 501C(4).

106 Apart from the express power given in s 501C(4) the Minister is not given any other express power to revoke any other decision made by the Minister under any of subsections 501(2), 501(3), 501A(2), 501B(2) or 501C(4) itself. As already noticed, no other body or person can revoke such a decision.

107 The purpose of s 501 and the sections which follow is to provide the Minister with the power to refuse to grant a visa to a person or cancel a visa that has been granted to a person where that person does not satisfy the character test: s 501.

108 A person does not pass the character test if the person comes within paragraphs (a) to (d) of s 501(6).

109 A person, who is not granted a visa or has a visa already granted cancelled, will, by operation of that decision, become an unlawful non-citizen: s 14. That follows because he or she is not a lawful citizen because he or she does not hold a visa: s 13.

110 If a decision to refuse to grant a visa or to cancel a visa already granted is made, by operation of s 501F, any other application for a visa is deemed to be refused and any other visa held by that person is deemed to be cancelled. The person therefore must by operation of that section become an unlawful non-citizen.

111 That status could only be altered by the person being granted a visa. However, by operation of s 501E, once a decision has been made under s 501, s 501A or s 501B, a person is not allowed to make a further application for a visa. It would follow that the person could never obtain the status of a lawful citizen after a decision has been made to refuse to grant a visa or cancel a visa already granted under s 501(1), s 501(2), s 501(3), s 501A(2), s 501A(3) or s 501B(2).

112 If that person remains in the migration zone he or she is liable to be detained: s 189. If detained, the unlawful non-citizen must be removed from Australia as soon as reasonably practicable: s 198(6).

113 The respondent argued that the Minister had power to and did revoke the decision of 16 March 2001.

114 The Minister argued that she did not have power to revoke a decision made by her under s 501(2).

115 As I have said, there is no express power in the Act. If the power exists it must be implied in the legislation.

116 Section 33(1) of the Acts Interpretation Act 1901 (Cth) provides:

‘(1) Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.’

117 The effect of s 33 is that unless the Act creating the power indicates a contrary intention the power may be exercised as often as is necessary to fulfil the purpose for which the power was conferred. Section 33(1) does not widen the power given by s 501 of the Act or allow it to be exercised more often than the purpose of that section permits.

118 The section will have no application if a contrary intention appears. The contrary intention may appear not only in the particular legislative provision which creates the power but also in the Act as a whole: Pfeiffer v Stevens (2001) 209 CLR 57 per Gleeson CJ and Hayne J at [20] and McHugh J at [56].

119 The question which must be addressed is whether there is a contrary intention in the Act to the effect that the power given the Minister may only be exercised once or, to be more precise, cannot be exercised from time to time.

120 If on a construction of the Act it would appear that once the power is exercised the power is spent, then it must be said that the Act evinces a contrary intention.

121 In Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, the Full Court was called upon to consider s 12 of the Migration Act as it then was. It provided:

‘12. Where —

(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b) at the time of the commission of the offence the person —

(i) was not an Australian citizen; and

(ii) had been present in Australia as a permanent resident for a period of less than 10 years or for periods that, in the aggregate, do not amount to a period of 10 years; and

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year,

the Minister may order the deportation of the person.’

122 The power there conferred was a power to deport if the criteria in paragraphs (a) and (b) were present.

123 Neaves J said at 195:

‘ In my respectful opinion, his Honour was correct in rejecting the submission. There is nothing in the language of s 12, or in the context in which it appears, to warrant the conclusion that Parliament intended that, absent any change in relevant circumstances, the power was to be regarded as spent upon its initial exercise in relation to a particular non-citizen. The power is, in my opinion, clearly one which may be exercised from time to time as occasion requires.’

124 Gummow J said at 218:

125 Section 12 was contained in a legislative scheme quite different from the scheme to which I have adverted. There was, in particular, no equivalent to s 501E and s 501F.

126 In Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443 (‘Sloane’), French J, in considering whether a power was to be implied into the Act to reconsider a decision made under the Act, said:

‘ The general question whether an implication should be found in the express words of a statute has been said to depend upon whether it is proper, having regard to accepted guides to construction, to find the implication and not on whether the implication is “necessary” or “obvious”: see F A R Bennion, Statutory Interpretation (1984), p 245. While implication can often be justified by necessity, it should not be limited by that condition. The question whether some power, right or duty is to be implied into a statute will depend upon the construction of the provisions under consideration having regard to their purpose and context and other traces of the convenient phantom of legislative intention. Where a statute confers a power there is ample support for the proposition that the donee of the grant will enjoy the rights and powers necessary to the exercise of the primary grant. The so called “inherent jurisdiction” or “implied incidental powers” of a statutory court derives from that general principle: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623.

While it may be accepted that a power to reconsider a decision made in the exercise of a statutory discretion will have the advantage of convenience, it cannot always claim the virtue of necessity. And in the context of the Migration Act as it presently stands with specific provisions for review of decisions and the making of regulations relating thereto, I do not consider, in the absence of clear words, that it would be proper to imply such a power.’

His Honour did not refer to s 33 and it may be presumed that his Honour’s attention was apparently not drawn to that subsection.

127 In Burgess v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 58, the Minister exercised the power under s 501(2) to cancel the applicant’s permanent transitional visa on the then ground in the Act of his substantial criminal record. The applicant did not seek a review within the time prescribed.

128 Later, representations were made on the applicant’s behalf but the respondent refused to revoke the decision to cancel the applicant’s permanent transitional visa.

129 The applicant then applied for a review of the respondent’s refusal to revoke the cancellation claiming it to be a decision made under the Act.

130 Katz J referred to French J’s decision in Sloane and noted, as I have, that his Honour did not refer to s 33(1) of the Acts Interpretation Act but concluded that French J would not have reached a different decision if he had taken that provision into account.

131 Katz J said (at [17]):

‘In all the circumstances, I would approach the question whether the Act impliedly confers on the Minister a power to decide to revoke an earlier visa cancellation decision made by him under s 501(2) of the Act in a fashion similar to that of French J in Sloane, but asking myself instead whether the provisions of the Act disclose a contrary intention for the purpose of s 33(1) of the Acts Interpretation Act.’

132 In my opinion, the approach taken by Katz J was correct. The question he posed for himself was the right one.

133 His Honour then referred to the provisions which introduced s 501 into the Act and the accompanying provisions, including s 501A(3), s 501C(4) and said (at [21]):

‘To my mind, the far more obvious inference to be drawn from the subsection’s presence in the package is that the Parliament specifically turned its mind to the question of which of those powers being conferred to decide to cancel a visa should be accompanied by a power to decide to revoke the original decision; then, having specifically turned its mind to that question, it decided that the decision-making powers conferred by subsections 501(3) and 501A(3) of the Act should be accompanied by a power to decide to revoke the original decision, but that no other such decision-making power including the decision-making power conferred by s 501(2) of the Act, should be so accompanied.’

134 In VQAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 900, Heerey J was concerned with a decision made by the Minister under s 501A(2) of the Act.

135 The applicant challenged the Minister’s decision under s 501A(2) by proceedings in this Court and on appeal to the Full Court of this Court, and by seeking special leave to appeal to the High Court. He was unsuccessful at each level.

136 Following upon the High Court’s refusal of special leave, the applicant’s solicitors sought a reconsideration of the Minister’s decision. The Minister declined to reconsider his decision stating there was ‘no legal basis for (him) to revoke (his) original decision’. It was claimed that the Minister was wrong in his claim that he had no power to consider his previous decision.

137 Heerey J said:

‘9 Clearly, the power under s 501A(2) does not involve a duty; subs (6) expressly so provides. Insofar as s 501A(2) confers a power, it is only a power to set aside a decision. Once that power is exercised, it would be obviously absurd to speak of the power being exercised again and again.

10 In my view, there are a number of considerations why, as a matter of ordinary statutory construction, the power contended for cannot be implied into the Act. In general terms, the Act provides a complex scheme for dealing with visa applications in relation to non-citizens, with administrative and judicial review rights and a system whereby, once those rights are exhausted, an unlawful non-citizen must be removed from Australia; see s 198. It would be quite inconsistent with that overall parliamentary policy for the Minister to have, in the words of counsel for the applicant, "a floating inchoate power like Banquo's ghost" extending indefinitely in point of time; see Sloane v Minister for Immigration Local Government and Ethnic Affairs (1992) 37 FCR 429 at 444, where French J, in considering a similar argument, said:

“While it may be accepted that a power to reconsider a decision made in the exercise of a statutory discretion will have the advantage of convenience, it cannot always claim the virtue of necessity. And in the context of the Migration Act as it presently stands with specific regulations relating thereto, I do not consider, in the absence of clear words, that it would be proper to imply such a power.”

11 Another consideration is that the power under s 501A(2) is to be exercised by the Minister personally; see subs (5). True it is, as counsel for the applicant pointed out, there is not, as there is in some other provisions, an obligation for a Minister's decision to be tabled in Parliament, see for example s 501C(8) and (9). Nevertheless, the requirement that the power presently in question must be exercised by the Minister personally exposes the Minister to a political sanction which can be readily availed of by aggrieved subjects of a decision.’

138 In my opinion, the Minister does not have power to revoke a decision under s 501(1) or s 501(2) of the Act. The sections to which I have referred indicate a contrary intention to the proposition that the power may be exercised from time to time as the occasion requires. The scheme of the sections to which I have referred show that the intention is that the power given in each of the sections should be exercised only once.

139 The Act clearly gives the Minister the right to set aside a decision made by the Minister’s delegate. It also gives the Minister the power to revoke the Minister’s own decision in the circumstances in s 501C(4) but that power of revocation is in the special circumstances where the original decision was made without first according the person natural justice.

140 Those particular provisions indicate, in my opinion, that a contrary intention has been expressed to the proposition that the Minister might revoke the Minister’s own decision under s 501(1) or s 501(2). Where it has been thought necessary to give a power in the Minister to set aside a decision of the delegate or render his or her decision the power has been given expressly. Moreover, there is no right of review of any of the Minister’s decisions. In those circumstances, the decisions will never be set aside by an Administrative Review Tribunal of any kind.

141 However, there are other reasons for concluding that a contrary intention to that expressed in s 33(1) appears. The effect of s 501F is to deal with all applications and all visas as they exist at the time that the Minister makes his or her decision under s 501(1) or s 501(2). A person is not allowed to bring another application where the Minister has made a decision under s 501 to refuse to grant a visa to the person or to cancel a visa that has been granted to the person: s 501E(1). The exception in s 501E(2) is not relevant for the purpose of construing the section. That shows that the purpose of the legislation is that the power given the Minister in the sections mentioned will only be exercised once. In those circumstances, the occasion for the exercise of the power on more than one occasion will never arise.

142 Because of the provisions of s 501E, no further application for the grant of a visa can be made by the person affected. Because the person cannot thereafter obtain a visa, that person’s status has been determined for all time. That person is an unlawful non-citizen liable to detention and removal from Australia.

143 All of the provisions of the Act to which I have referred indicate a contrary intention to that expressed in s 33 of the Acts Interpretation Act.

144 In all those circumstances, in my opinion, the particular legislative provision and the surrounding sections indicate that the power given to the Minister under s 501(1) or s 501(2) may only be exercised once. In those circumstances, no power of revocation can be implied in the legislation.

145 In my opinion, for those reasons, the appeal must be allowed. The declaration made by the primary judge should be set aside. In lieu thereof, there should be an order dismissing the respondent’s amended application. The respondent should pay the appellant’s costs of the proceedings before the primary judge and the respondent’s costs on appeal on a party and party basis.

I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 31 August 2005

Counsel for the Appellant:	Mr P Bickford

Solicitor for the Appellant:	Clayton Utz

Counsel for the Respondent:	Mr H A Scott-Mackenzie RFD (Pro Bono)

Solicitor for the Respondent:	Rouyanian & Company Lawyers

Date of Hearing:	17 May 2005

Date of Judgment:	31 August 2005

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