FEDERAL COURT OF AUSTRALIA

Parker v Minister for Immigration and Border Protection [2016] FCAFC 185

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to rely upon the amended notice of appeal dated 31 October 2016.

2.    The appeal be dismissed.

3.    The appellant pay the respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS AND PERRY JJ:

1    This is an appeal from a decision dated 12 August 2016 by a Judge of this Court (see Parker v Minister for Immigration and Border Protection [2016] FCA 938 (Parker)). The primary judge dismissed the appellant’s judicial review challenge to the Minister’s decision to cancel the appellant’s visa on character grounds under s 501(2) of the Migration Act 1958 (Cth) (the Migration Act).

Summary of background facts

2    The background facts were not in dispute. The appellant is a citizen of New Zealand who arrived in Australia on 9 November 1980 when he was aged one. On 24 September 2010 he was sentenced to a concurrent term of 13 months’ imprisonment for offences of demand property with menaces with intent to steal, armed with intent to commit an indictable offence, and threaten a person with intent to influence a witness (the 2010 conviction). Consideration was given at that time to cancelling the appellant’s visa based on his “substantial criminal record” within the meaning of ss 501(6)(a) and 7(c) of the Migration Act, but he was subsequently notified by a letter dated 3 February 2014 that the Minister’s delegate had decided not to cancel his visa on that occasion. The appellant was, however, formally warned that “visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future”. He was also informed that further offending by him would “weigh heavily against [him] if [his] case is reconsidered”.

3    On 2 January 2006, the appellant was granted a Class TY Subclass 444 Special Category (Temporary) visa (the visa).

4    On 19 June 2014, the appellant was convicted in his absence of an offence against s 7 of the Weapons Prohibition Act 1998 (NSW) and sentenced to pay a fine of $700 (the 2014 conviction). The prohibited weapon was a capsicum spray.

5    On 24 July 2015, the Minister’s delegate informed the appellant that, as a result of the 2014 conviction, consideration was again being given to cancelling his visa. On 19 October 2015, the appellant participated in a telephone interview with a Departmental officer as part of the fresh investigation into whether or not his visa should be cancelled. It was confirmed that it was the 2014 conviction that had provided the impetus for that investigation.

6    During the interview, the appellant was asked to describe the circumstances leading to the 2014 conviction. He responded by saying that he was then still a member of the Comancheros’ outlaw motorcycle gang and that the vehicle he was travelling in was stopped by the police. He said that the vehicle was owned by his spouse and that she had a can of “peppers spray” (sic) in the car. He further explained that he had given it to her for her protection and that he did not tell the police that it belonged to her because he did not want to get her into trouble. He further explained that he was told by the police that by pleading guilty he did not need to attend court and that he would be fined.

7    On 2 March 2016, the Minister cancelled the appellant’s visa and he was subsequently taken into migration detention, where he remains.

8    On 13 April 2016 (i.e. after the appellant’s visa was cancelled and after he had applied for an annulment of the 2014 conviction on 6 April 2016), the 2014 conviction was annulled under s 10 of the Crimes (Appeal and Review) Act 2001 (NSW), with the consequence that the 2014 conviction ceased to have any effect and any enforcement action previously taken was reversed.

9    Subsection 10(1) of that Act provided:

10(1)    On being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed.

10    The visa cancellation decision was based in part on the 2010 conviction in the sense that it was this sentence which formed the basis for the Minister’s satisfaction that the appellant had a substantial criminal record and did not satisfy the character test. This was made clear in the Minister’s statement of reasons dated 2 March 2016.

The judicial review challenge below

11    The appellant commenced judicial review proceedings in the Court challenging the validity of the Minister’s visa cancellation decision. The proceedings were commenced out of time but leave was granted on 6 June 2016 to extend time.

12    The following two claims were made by the appellant in his judicial review proceeding below:

(1)    the Minister made a decision for which there was no jurisdiction and/or which took an irrelevant consideration into account due to the operation of s 501(10) of the Migration Act; and

(2)    the decision was so unreasonable that no reasonable person would have made it.

13    The primary judge explained in Parker at [20] that the basis for the claim that the Minister had no jurisdiction to make the visa cancellation decision was that he took into account the 2014 conviction, which was subsequently annulled. The basis for the second claim made below was the Minister’s failure to have regard to the possibility that the appellant might make a successful application to annul the conviction.

14    It is desirable to set out the relevant terms of ss 496, 501 and 501A of the Migration Act, before summarising the primary judge’s reasons for decision. Section 496 contained provisions relating to the delegation of the Minister’s powers under the Migration Act. It relevantly provided:

Delegation

(1)    The Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under this Act.

(1A)    The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.

…

15    Section 501 relevantly provided:

(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.

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); …

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; …

…

…

Pardons etc.

(10)    For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

(a)    the conviction concerned has been quashed or otherwise nullified; …

…

…

16    Section 501A provided:

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):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(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 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:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(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:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(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.

17    The primary judge noted the following paragraphs from the Minister’s statement of reasons:

50.    On the other hand, in considering whether Mr PARKER is likely to re-offend, I note his history of repeat offences in Australia, which has spanned a number of years despite the imposition of various penalties including fines, custodial sentences and disrespected judicial orders. Mr PARKER received a formal warning from the department about the visa consequences of re-offending which he acknowledged in writing. This warning did not deter him from re-offending and he was convicted of another offence some three months later.

51.    Having regard to his criminal record, I consider that there remains an ongoing likelihood of Mr PARKER re-offending. This likelihood is increased as he continues to be affiliated with a member of the Comanchero outlaw motorcycle criminal gang who, as he has acknowledged, introduced him to the criminal group in the first instance. If Mr PARKER re-offends in a similar manner, the harm to the Australian community would be high and may result in serious psychological and/or physical injuries to members of the Australian community.

18    The primary judge rejected both judicial review grounds. The first ground (which claimed that the Minister’s decision was made without jurisdiction because the Minister had taken into account the 2014 conviction), was rejected on the following two bases:

(1)    at the time the Minister decided to cancel the visa, the 2014 conviction had not been quashed or otherwise nullified; and

(2)    in any event, the Minister’s statement of reasons made clear that, for the purposes of determining whether the character test was satisfied, he did not take into account the 2014 conviction. Rather, the 2014 conviction was only taken into account by the Minister subsequently when, having reached the state of satisfaction that the appellant did not pass the character test because of the 2010 conviction, the 2014 conviction was taken into account as being relevant to the exercise of the Minister’s discretion whether or not to cancel the visa.

19    The primary judge also rejected the appellant’s claim that the 2014 conviction should not have been considered at all because of the terms of Direction No 65 (the Direction), which had been issued by the Minister under s 499 of the Migration Act. One of the reasons given by her Honour for rejecting that contention was that the Direction did not bind the Minister personally “in any legal way”, citing Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; 244 ALR 119 at [16] per Bennett and Buchanan JJ.

20    The second judicial review ground was rejected by her Honour for the following reasons:

(1)    although the effect of s 10 of the Crimes (Appeal and Review) Act was that a conviction ceased to have effect on it being annulled, that legislation was silent on the issue of the legality of administrative decisions made before annulment in reliance on the later-annulled conviction or sentence;

(2)    contrary to the appellant’s claim that the Minister had disregarded the “representation” that he would not reconsider whether or not to cancel the appellant’s visa unless the appellant reoffended, the Minister’s reconsideration of the question of cancellation was within the terms of the warning which had been given to the appellant in the 3 February 2014 letter. This was because the reconsideration took place when it was learned that the appellant had been convicted of another offence and, at the time that the reconsideration was conducted, there was no indication that the 2014 conviction had been or was likely to be annulled; and

(3)    there was no evidence to suggest that the Minister was aware that the Local Court had the power to annul the 2014 conviction and the appellant never drew the matter to the Minister’s attention prior to the visa cancellation decision.

Appeal

21    The original notice of appeal dated 1 September 2016 contained multiple grounds of appeal. It is unnecessary to set them out in full because the appellant sought leave to rely upon an amended notice of appeal dated 31 October 2016 which was in the following terms (without alteration):

Grounds of appeal

The Appellant withdraws the grounds made in the Notice of Appeal filed on 2 September 2016 and in lieu will advance the following grounds

1.    The Court below erred in failing to find that the decision of the Respondent made on 2 March 2016 (Decision) was void for jurisdictional error in that:

a.    The power to make the Decision under s 501(2) of the Migration Act 1958 (Act) was not available based upon the convictions of the Appellant in 2010 as those convictions were the subject of an explicit, considered, earlier decision not to exercise the power under s 501(2) of the Act on 3 February 2014 and the subsequent conviction and fine of the Applicant on 19 June 2014 was not a proper basis for a fresh exercise of the power under s 501(2) of the Act at all or because that conviction was later annulled; and

b.    The Decision was unreasonable in that a decision made under s 501(2) of the Act that is consequent upon a conviction of a person that is subsequently annulled is an outcome not reasonably made under the Act.

Should the appellant have leave to raise ground 1(a)?

22    Mr Seymour, who appeared for the appellant together with Mr Beaufils on a pro bono basis, properly acknowledged that the first of what in substance are two proposed grounds of appeal had not been raised below and leave was required to permit the appellant to rely upon ground 1(a).

23    Mr Seymour explained that ground 1(a) raised a contention that the Minister was functus officio, a determination having been previously made on 3 February 2014 not to cancel the appellant’s visa based upon the 2010 convictions. He submitted that the proposed ground raised an important matter of law which would assist the Minister in the proper administration of the Migration Act and that, if upheld, the ground had “highly significant ramifications for the status of the Appellant”. Mr Seymour also contended that there was no apparent prejudice to the Minister if leave were granted.

24    The appellant’s written outline of submissions contained material in support of the functus officio claim, in the event that leave were granted. Briefly, those contentions were as follows:

(1)    the text of s 501(2) and the reference therein to “may cancel” implied a singular action and an express limit could also be derived from the requirement in s 501G(1) to provide a statement of reasons for a decision;

(2)    once a decision has been made regarding the power to cancel a visa then the power is spent, “at least with respect to the express factual basis that was taken into account in making the particular decision” (citing Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; 145 FCR 542 (Watson);

(3)    the power in s 501(2) is “significantly different” from the power of deportation which was the subject of Minister for Immigration and Multicultural Affairs v Craig [2004] FCAFC 294; 141 FCR 157 (Craig); and

(4)    the scheme of the Migration Act has been held to displace the effect of s 33 of the Acts Interpretation Act 1901 (Cth) (the AI Act), citing Watson.

25    In oral address, and for the first time, Mr Seymour drew the Court’s attention to s 501A (the terms of which are set out in [16] above). He did so in response to the Minister’s submission in his outline of written submissions to the effect that the delegate’s decision in 2014 not to cancel the appellant’s visa was not an “exercise” of the power in s 501(2). In short, Mr Seymour submitted that the Minister’s position was inconsistent with s 501A which provides for a decision of a delegate not to cancel a visa to be set aside by the Minister if the prescribed conditions are met. Necessarily, therefore, a decision not to cancel a visa under s 501(2) involves an exercise of power.

26    Both parties took advantage of the opportunity provided by the Court to file brief supplementary submissions relating to the significance of s 501A.

27    Mr Reilly, who appeared for the Minister, opposed leave being granted for the appellant to raise the fresh ground on the basis that:

(1)    no explanation had been given as to why the ground was not raised below; and

(2)    the proposed ground was unmeritorious in circumstances where:

(a)    Watson is distinguishable because the delegate’s decision in 2014 not to cancel the visa cannot be said to be an “exercise of the power” in s 501(2), as had occurred in Watson; and

(b)    Watson is distinguishable because it did not relate to a changed factual situation as is the case here with the 2014 conviction. Rather, Watson was considering an alleged revocation of a decision under s 501(2) where the alleged revocation was not based on new facts; and

(3)    where reconsideration of the issue of possible cancellation is based on new factual material, such as a new conviction, there is no contrary intention to exclude the operation of s 33(1) of the AI Act so as to displace the possibility of the cancellation power being exercised from time to time based on new facts.

28    The relevant principles guiding the exercise of the discretion whether or not to permit a fresh ground to be raised on appeal are relatively well settled. They are reflected in the following extracts from several Full Court decisions. In VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48] Kiefel, Weinberg and Stone JJ said:

46    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

48    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

29    The determination of whether or not it is expedient in the interests of justice for the Court to hear a ground of appeal that was not raised below does not carry the practical consequence that an appellant may treat his or her application for leave as the occasion to rehearse the whole of the proposed new case, as is reflected in the following observations of Lander and Middleton JJ in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [68]:

68    All arguments, which an applicant wishes to put before the Court, must be put before the Court at first instance to be dealt with by that Court. The parties in a proceeding are entitled to expect that the opposing party, if an applicant, will have put all arguments upon which that applicant claims to be entitled to any relief or, if a respondent, will have put all defences upon which that respondent relies for dismissing the application. The Full Court is entitled to have the benefit of the reasons for judgment of the Court at first instance in respect of all arguments, in conducting its rehearing of the appeal. Although on this application we are inclined to decide the application by reference to the merits of the proposed new grounds, it cannot be thought that this Court should proceed on that basis in all cases. If the Court were compelled to consider an application of this kind by reference to whether or not the application would succeed, then that would have the de facto result that an appellant could raise any ground the appellant liked without reference to the arguments put before the Court at first instance.

30    These principles were recently reaffirmed by Flick and Rangiah JJ in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [89]-[92]:

89    In the absence of reason to do so, a court will not allow an appellant to depart from the basis upon which a case has been conducted at first instance: Metwally v University of Wollongong (1985) 59 ALJR 481 at 483; Zheng v Cai [2009] HCA 52, (2009) 239 CLR 446 at [16]; at 453; Vella v Minister for Immigration and Border Protection [2015] HCA 42, (2015) 326 ALR 391 at [18]; at 395 per Gageler J. As a “general rule a party is bound by the conduct of his case”: Park v Brothers [2005] HCA 73, (2005) 222 ALR 421 at [34]; at 430. Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ there went on to observe that there are nevertheless “circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial … ”. There is, moreover, a legitimate interest in public law matters being resolved in a timely and efficient manner: Iyer v Minister for Immigration and Multicultural Affair [2001] FCA 929, (2001) 64 ALD 9 at [62]; at 24 per Gyles J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J.

90    But an appellate court retains a discretion to allow a new argument to be raised on appeal where it is expedient in the interests of the administration of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] per Kiefel, Weinberg and Stone JJ.

91    In the present proceeding, Counsel for the Respondent Minister opposed the grant of leave to amend - be it the amendment that was embraced within proposed Ground 4 or that which was formulated during oral submissions. Ground 4, it will be noted, is expressed for some reason merely in terms of “an onus of proof”; the reference to “burden of proof” has disappeared.

92    Leave to amend to raise either new argument is opposed, but not by reason of any prejudice to the Minister if leave were to be granted, or because the new argument is susceptible of being met by evidence which potentially could have been led at first instance. Opposition to the amendment was founded upon one or other of three factors, namely:

•    the constant necessity to bear in mind that the Court as presently constituted is exercising appellate jurisdiction and not original jurisdiction and too readily to permit the running of new arguments would undermine the appellate process by rendering the hearing at first instance almost irrelevant (WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106, (2004) 204 ALR 624 at [19]; at 629 per French J; Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624, (2014) 142 ALD 550 at [28]; at 555 per Perram J);

•    the fact that the Appellants in the present proceeding, unlike many appellate cases arising on appeal from the Federal Circuit Court involving decisions made under the Migration Act, were represented by Counsel at first instance and no satisfactory explanation has been provided for why either of the two new arguments was not raised for resolution before that Court; and

•    the lack of any self-evident merit in the proposed new argument - stripped of its gloss, the argument is an impermissible attempt to cavil with the findings of fact made by the Tribunal or the weight it gave to that evidence it relied upon to support its findings that each of the eleven documents were “bogus documents”.

Each of these arguments is accepted. Notwithstanding the initial attraction of a submission that it was a question of general public importance to the administration of the Migration Act whether the Tribunal assumed any “onus or burden of proof”, as the argument developed it quickly became a submission devoid of merit.

31    Applying those principles to the particular circumstances here, we consider that the case is a borderline one but, on balance, it is expedient in the interests of justice to grant leave to raise ground 1(a). The ground is not devoid of merit even though, as will shortly emerge, we consider that it should be rejected. The ground raises an issue of general application and importance in the administration of the Migration Act and the Minister did not suggest that he was prejudiced if leave were granted.

Consideration and determination of ground 1(a)

32    While acknowledging that the Minister’s power under s 501(2) was largely unfettered, the appellant submitted that an express limit on that discretionary power could be derived from the text of the provision in the sense that the phrase “may cancel” implied a singular action. This limitation, so it was submitted, meant that once a decision has been made not to cancel a visa under s 501(2), the power to cancel is spent, at least where the same factual basis for the making of the original decision endures and there are no new relevant facts. It was submitted that this construction was also supported by the obligation to provide a statement of reasons for a decision as required by s 501G(1).

33    For the following reasons, the appellant’s construction should be rejected.

34    It is significant to note that the appellant’s submissions regarding the proper construction of s 501(2) were predicated on the notion that the same express factual basis exists when the initial decision was made not to cancel the visa as is the case subsequently when the matter is reconsidered. That is not the case here. Unlike the position at the time of the delegate’s decision in February 2014 not to cancel the appellant’s visa, the Minister had before him on 2 March 2016 a significant new fact, namely the 2014 conviction. This fact was relied upon by the Minister in determining to exercise his discretion to cancel the visa. As emphasised above, the Minister’s reliance upon this fact did not inform his assessment of the character test, but rather informed the exercise of his discretion once he was reasonably satisfied that the appellant did not pass the character test based upon the 2010 conviction. The circumstances had changed when the question of cancelling the appellant’s visa was revisited in 2015.

35    The appellant contended that the 2014 conviction was not a new fact because that conviction was subsequently annulled so the Court should approach the matter on the basis that the fact never existed at all. That submission should be rejected. At the time the Minister decided to cancel the appellant’s visa the fact of the 2014 conviction plainly did exist. For reasons which are developed below, we do not accept the appellant’s contention that s 10 of the Crimes (Appeal and Review) Act operated in a Stalinesque fashion to erase that fact as though it never existed (see [54]-[58] below).

36    In our view, in a case such as the present, where a new relevant fact emerges which potentially bears upon the exercise of the power under s 501(2), that power may be exercised in an appropriate case to cancel a person’s visa notwithstanding that there was an earlier decision based on more limited facts not to cancel the visa. That construction is consistent with s 33(1) of the AI Act:

33 Exercise of powers and performance of functions or duties

Powers, functions and duties may be exercised or must be performed as the occasion requires

(1)    Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.

37    No contrary intention is manifested in the Migration Act to displace the presumption created by s 33(1). In particular, for reasons which are given in [48] to [50] below, we do not consider that s 501A constitutes the only source of the power to revisit an earlier decision not to cancel a visa. Rather, s 501A is directed to a particular situation where the facts have not changed and the Minister takes a different view to the original decision-maker and wants to set aside that decision and substitute his or her own decision.

38    We do not consider that the phrase “may cancel” necessarily carried with it the notion that, in the case of a decision not to exercise the power, the power may only be exercised on the one, single occasion and is then spent. Rather, this phrase indicates that there is a discretionary power whether or not to cancel and a separate question then arises as to whether s 33(1) of the AI Act applies to the exercise of that power from time to time or whether the presumption is displaced by a contrary intention.

39    Nor is the appellant’s construction supported by the obligation imposed by s 501G on a decision-maker who has decided to cancel a visa under s 501(2) to give the visa holder a written notice that sets out inter alia the reasons (other than non-disclosable information) for the decision. It is notable that this obligation attaches to a decision to cancel a visa. It does not, in terms, apply to a decision under s 501(2) not to cancel a visa. In our view, the provision has no relevance to the question whether the power under s 501(2) is spent when a decision is made not to cancel a visa.

40    That is sufficient to dispose of the appellant’s case concerning functus officio. In view, however, of the parties’ detailed submissions, it is appropriate to address the other matters raised by the appellant in support of ground 1(a).

41    Watson does not support the appellant’s construction. Watson involved the question whether the Minister had the power to revoke her own earlier decision to cancel a visa under s 501(2) on character grounds. It was argued that, in the absence of any express power of revocation, such a power should be implied. The Full Court held that, on a proper construction of the relevant provisions of the Migration Act at that time, there was a legislative intention that the power in s 501 should be exercised only once, with the consequence that there was no power to revoke a visa cancellation decision after it was made under s 501(2). Justice Dowsett said at [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.

42    The appellant’s reliance upon this passage from Dowsett J’s judgment in Watson at [7] is misdirected. In our view, it is notable that what his Honour said there was expressly directed to the situation where there is no change in the factual basis which underpinned the original decision and consideration is subsequently given to cancelling a visa. For reasons which have been emphasised, that is not the position here.

43    Justice Hely observed in Watson at [15] that there was nothing in the legislation which implied that a visa cancellation under s 501, and its consequences, are subject to a Ministerial change of mind subsequently. His Honour referred to some observations by Gummow J, as a member of the Full Court, in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 (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, 72B. The significance of a change in either the facts or in ministerial policy would go merely to the merits of the decision upon which the Court is not entitled to decide. The appellant could not therefore have been functus officio, and an estoppel could not be allowed which would have the effect of stifling the future exercise of the statutory discretion: Southend-on-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416; Rootkin v Kent County Council (supra) at 1195. These principles were affirmed in the application of the Migration Act in Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432, per Smithers J (at 441-442) and in Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98, per Northrop and Pincus JJ (at 103-104). I would respectfully agree with what was there said, that if a deportation order is revoked, there is power to make another deportation order in reliance upon the same facts as those upon which the previous deportation order was based.

44    Kurtovic involved a decision to revoke a deportation order which had been made under s 12 of the Migration Act. A second deportation order was then made under s 12 and was challenged on the basis that there had been no material change in circumstances between the revocation of the first deportation order and the making of the second. Significantly, unlike the position in the proceeding here, Kurtovic involved a new decision by a new Minister based on the same facts as an earlier decision by the previous Minister.

45    The Full Court in Kurtovic held that the power conferred upon the Minister by s 12 was not spent once used but was exercisable from time to time whether or not there had been a change in the relevant facts. In Watson, Hely J described the observations of Gummow J in Kurtovic at 218 as obiter. His Honour doubted that s 33(1) of the AI Act applied so that, once there has been a valid exercise of the s 501(2) power to cancel a visa, the visa could effectively be restored to the former visa holder by a second exercise of the power. His Honour then added at [24] that, if s 33(1) did have that effect, he would have concluded that there was a contrary intention so far as the power to cancel a visa is concerned. Justice Hely’s observations were all directed to the position where the original decision was to cancel a visa under s 501(2), which is not the position here.

46    The third member of the Full Court in Watson, Lander J, held at [138] that the Minister did not have the power to revoke a decision under s 501(2) and that the legislation manifested a contrary intention to the proposition that the power may be exercised from time to time as the occasion required. His Honour’s analysis of the legislation caused him to conclude that the power in s 501(2) could be exercised only once. Again, that analysis addressed the situation where the original decision was to cancel a visa.

47    Watson is directed to a different issue to that which arises here. Watson was concerned with whether the Minister had a power to revoke an earlier visa cancellation decision. It is also significant that the separate observations in that case of Dowsett, Hely and Lander JJ which are set out above were directed to the situation where the facts were substantially similar at the two relevant points in time. That is not the case here. It is true that Gummow J’s observations in Kurtovic contemplate the possibility of the facts upon which the original decision were based remaining constant, but those obiter observations were directed to the power to deport under s 12 and not the power to cancel a visa under s 501(2).

48    Finally, as noted above, the appellant submitted in reply that s 501A (which is set out in [16] above) provided the only source of power for the Minister to remake a non-adverse decision of the delegate under s 501(2). The appellant also relied upon Watson in support of this submission, where it was held that the only source of the Minister’s power to revoke an adverse decision under s 501(2) is to be found in ss 501B, 501C and 501CA.

49    These submissions should also be rejected. As emphasised above, the issue here is not whether there is a power of revocation, as was the case in Watson, but rather whether there is no power to make a decision under s 501(2) where a new relevant fact emerges and there is an earlier decision not to exercise the power.

50    In our view, s 501A applies where the Minister is considering the same relevant factual situation as was considered by the delegate. The Minister’s submission that this construction is consistent with ss 501A(2) and (3), which expressly provide for the Minister to “set aside” the original decision, should be accepted. There is no need to set aside a decision not to cancel a visa which was based on different facts because the power may simply be re-exercised in the light of all of the facts, including the new facts.

51    We also accept the Minister’s submission that, because the Minister’s decision here was based on different facts to those considered by the delegate, it is unnecessary to consider the hypothetical issue of whether the Minister could have exercised the power in s 501(2) rather than s 501A on the same facts as considered by the delegate.

52    For these reasons, ground 1(a) is rejected.

Consideration and determination of ground 1(b)

53    The appellant submitted that the visa cancellation decision was unreasonable because:

(1)    it involved an outcome that is not consistent with a broad understanding of the object and purpose of the Migration Act, citing Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton) at [7] and [9] per Allsop CJ; or, alternatively

(2)    the visa cancellation decision can be characterised as one which the Minister had no authority to make, given all the known circumstances, citing Stretton at [62].

54    It was further submitted that the visa cancellation decision was unreasonable because it was “triggered” by a particular, and particularly legal, event which now must be treated as a nullity for all relevant purposes in accordance with s 10 of the Crimes (Appeal and Review) Act. The appellant contended that to uphold the validity of that decision would fail to give effect to the annulment, which would be contrary to s 10 and common law principle, citing Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220 (Cavanough) at 225, 227-228. It was submitted that the 2014 conviction was the central event for the making of the visa cancellation decision yet, as a matter of law, the effect of the subsequent annulment meant that the event had never occurred.

55    These submissions should not be accepted. Section 10 of the Crimes (Appeal and Review) Act is conspicuously silent on the effect of an annulment on a previous administrative decision which took into account a conviction before it was nullified. There is nothing in the terms of the provision to support the appellant’s sweeping submission.

56    Nor is the appellant’s submission assisted by Cavanough, which is distinguishable. That case involved a railway employee who was convicted of theft. By s 80 of the Government Railways Act 1912 (NSW), an officer convicted of a felony was deemed to have vacated his office. The officer appealed his conviction to the Quarter Sessions, which upheld his appeal and set aside his conviction. The officer sued the Commissioner for Railways for the salary for the period between the date of his conviction, when he was suspended, and the date of the setting aside of his conviction by Quarter Sessions, when he was reinstated. The High Court rejected the Commissioner’s reliance upon s 80 and held that, upon the setting aside of the conviction, it was avoided ab initio with the consequence that the officer was not deemed to have vacated his office and was entitled to his salary.

57    Cavanough was a case in contract. The High Court did not need to consider the effect of the setting aside of the conviction on administrative action of the sort which arises here. It appears that the officer’s suspension occurred under his contract of employment which provided for his suspension in the event of misconduct. Section 80 of the Government Railways Act operated by force of law to deem the officer to have vacated his office upon conviction. The High Court held that, his conviction having been quashed, and because the conviction is avoided ab initio, in law the officer is considered never to have been convicted and therefore never deemed to have vacated his office under s 80.

58    The facts and relevant statutory provisions in Cavanough are far removed from those here, where s 10 of the Crimes (Appeal and Review) Act is relied upon to impugn an administrative decision by the Minister to cancel the applicant’s visa at a time when the 2014 conviction was prima facie valid and the applicant did not draw the Minister’s attention to the possibility of him applying to have the conviction annulled. The Minister’s administrative decision, which was made on the basis of all the material which was then before the Minister, is of a very different nature to a statutory deeming provision such as s 80 of the Government Railways Act.

59    We also reject the appellant’s submission that the Minister ought to have taken into account the possibility of annulment irrespective of what he was told by the appellant. Acceptance of that submission would potentially create unacceptable and unreasonable consequences. For example, there are time limits (generally two years) imposed by s 4 of the Crimes (Appeal and Review) Act for an application to be made by the defendant or by the prosecutor for the annulment of a conviction in the Local Court (see s 4(2)). There is no time limit on the power of any person to apply to the relevant NSW Minister for a conviction made or imposed by the Local Court to be annulled (see s 5 of the Crimes (Appeal and Review) Act). These provisions serve to highlight the unrealistic nature of this aspect of the appellant’s case. The Minister cannot reasonably be expected to defer a decision on cancellation in the light of these time periods which, in the case of s 5, are entirely open-ended. This case falls far short of meeting the high threshold for unreasonableness in a legal sense (see Stretton at [12] per Allsop CJ and at [56]-[58] per Griffiths J).

60    The appellant was unable to point to any authority to support his submission that, in reviewing the Minister’s cancellation decision under the rubric of unreasonableness in the legal sense, evidence was admissible to establish facts which occurred after that decision was made. That is hardly surprising. Such evidence would risk drawing the Court into an impermissible review of the merits of the Minister’s decision by reference to material which was not before the Minister when the decision was made. That is particularly the case where a claim of legal unreasonableness is directed to the decision outcome and reasons have been provided by the decision-maker. As the Full Court observed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [45]-[47] per Allsop CJ, Robertson and Mortimer JJ, where there are reasons in support of an exercise of discretion, those reasons provide the focus for an assessment as to whether the decision is unreasonable in a legal sense. In such a case, it would be rare where the reasons demonstrate a justification for the ultimate exercise of the power and is found to be legally unreasonable.

61    In our view, the question on judicial review must be approached without regard to the subsequent fact that the 2014 conviction was annulled. The reasons provided by the Minister for cancelling the appellant’s visa provide an evident and intelligible justification for that decision. This aspect of the appellant’s legal unreasonableness case is rejected.

The Minister’s discretion under s 195A of the Migration Act

62    Under s 195A, the Minister has a non-compellable personal power to grant a visa of a particular class to a person who is in detention where the Minister thinks that it is in the public interest to do so. The decision whether or not to consider whether or not to exercise the power, let alone exercise of the power itself, are matters entirely for the Minister.

63    The Minister’s counsel properly and fairly acknowledged, more than once, that the facts of this case are “unfortunate”. That is because the decision to cancel the visa was based in part on the 2014 conviction, which has now been annulled. It seems clear that if the annulment had occurred before the Minister made the visa cancellation decision this must have put a very different complexion on the Minister’s evaluation of the matter.

64    While fully appreciating the different roles and responsibilities of the Minister, as opposed to the Court, this appears to be a case which, on its face, warrants close attention being given to the possible favourable exercise of the power under s 195A. Ultimately, however, the matter is one for the Minister alone.

Conclusion

65    For these reasons, the appeal should be dismissed and the appellant ordered to pay the Minister’s costs, as agreed or assessed.

Associate:

Dated:    20 December 2016

REASONS FOR JUDGMENT

MORTIMER J:

66    I have had the advantage of reading the reasons for judgment of Griffiths and Perry JJ. I agree with the orders their Honours propose and, subject to the matters below, I agree broadly with their Honours’ reasoning on grounds 1(a) and (b) of the amended notice of appeal dated 31 October 2016. I also agree with their Honours that the appellant should have leave to rely on ground 1(a) in the amended notice of appeal.

GROUND 1(A): A FURTHER EXERCISE OF POWER

The role of s 501A of the Migration Act 1958 (Cth)

67    I respectfully agree with the conclusion of Griffiths and Perry JJ that the presence of s 501A in the cancellation scheme does not mean the power in s 501(2) is unavailable to be exercised again in relation to the same individual, where new facts and circumstances have arisen. The power in s 501A is intended to operate in specific situations. It is conferred for the purpose of authorising the Minister to change the outcome of a decision made by a delegate or the Administrative Appeals Tribunal. It is, in that sense, a personal ‘override’ power. It is plainly available for exercise on the same facts and circumstances as those before the delegate or the Administrative Appeals Tribunal.

A second exercise of power where new facts and circumstances arise

68    There are two additional points I wish to make on this matter.

69    First, the Minister submitted that what had occurred in February 2014 was not an exercise of power under s 501(2) because it was a decision not to cancel the applicant’s visa. I do not accept that submission. Where a discretionary power is conferred, once a repository has decided to embark upon consideration of whether or not to exercise a power, the power is exercised by the choice made after that consideration. Whether the choice is, relevantly, to cancel a visa or not to cancel a visa, it is the making of the choice by the repository which constitutes the exercise of power. In Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; 145 FCR 485, Hely J recognised this at [17]:

In exercising the power conferred by s 501(2) of the Act the Minister (or the delegate) may either cancel a visa or refrain from cancelling it.

(Emphasis added.)

70    Second, I respectfully agree with the reasons given by Griffiths and Perry JJ at [34]-[39] of their Honours’ reasons for judgment for rejecting the appellant’s construction of s 501(2). For the purposes of this appeal, it is unnecessary to determine whether the power in s 501(2) would be available for exercise in relation to the same person on the same facts and circumstances, where the original exercise of power resulted in a decision not to cancel a person’s visa – that is, where there is nothing more than what might colloquially be called a Ministerial change of mind. This case presents a different situation, where there were new facts and circumstances, and the question whether s 501(2) is available where there are no new facts and circumstances should await determination in an appropriate case.

Section 33(1) of the Acts Interpretation Act, Watson and Kurtovic

71    The uncontentious operation of s 33(1) of the Acts Interpretation Act 1901 (Cth) is that set out in the reasons of Griffiths and Perry JJ at [36]-[38]: namely, the implication into statutory powers and functions of an ability to exercise the power, or perform the function, more than once and “from time to time” in order to pursue or give effect to the purposes for which the power or function is conferred. This is the matter covered by s 33(1) on its express terms. In Watson at [117], Lander J said:

The effect of s 33(1) 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.

72    The more contentious operation of s 33(1), and the one with which Watson was concerned, is whether s 33(1) also provides for an implication into statutory powers and functions of an ability to revoke a decision constituting an exercise of power or performance of a function once a decision has been made or a function performed. The difficulty of applying such an implication to the second limb of s 33(1) (the performance of functions) is plain.

73    However, given the conclusion I have reached about the terms of s 501(2) itself, and my agreement with the reasoning of Griffiths and Perry JJ, I do not consider it is necessary to express any view about the more contentious aspect of the operation of s 33(1). Accordingly, I do not propose to express any opinions about the decisions of the Full Court in Watson and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193.

GROUND 1(B): ANNULMENT AND LEGAL UNREASONABLENESS

74    I agree with Griffiths and Perry JJ’s reasons for rejecting this ground. I would only add a further reason to distinguish Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220. That is the terms of s 10(1) of the Crimes (Appeal and Review) Act 2001 (NSW), which provides:

On being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed.

75    The text of s 10(1) does not suggest that a conviction is made, retrospectively, invalid. Rather, it “ceases to have effect” on being annulled. The provision also requires that “any enforcement action previously taken” is to be reversed upon annulment, but the decision of the Minister is not properly characterised as “enforcement action” on the conviction.

76    The appellant did not apply for annulment of the conviction until after the Minister’s cancellation decision had been made. The appellant had had two years since the time of conviction to make the annulment application: see [22] and [47] of the primary judge’s reasons. Without an application for annulment, and an exercise of power under the Crimes (Appeal and Review) Act, the appellant’s conviction was in effect and was presumed to be valid.

77    The appellant’s submission that the “outcome” of the Minister’s cancellation decision is, after the annulment, legally unreasonable misunderstands the Court’s function on judicial review. The question for the Court is whether the exercise of power, at the time of its exercise, exceeded jurisdiction, or was an actual or constructive failure to exercise jurisdiction. Those matters may be proven by evidence that is adduced after the making of the impugned decision (for example, expert evidence, in some particular cases), but the relevant question is whether the exercise of power miscarried at the time of its exercise. In the current circumstances, with the 2014 conviction in effect at the time of the Minister’s decision, that could not be the case.

CONCLUSION

78    The appeal must be dismissed. I agree with the orders proposed by Griffiths and Perry JJ.

79    In this case, I do not propose to make any observations about the operation and application of s 195A of the Migration Act.

Associate:

Dated:    20 December 2016