FEDERAL COURT OF AUSTRALIA

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

ORDERS

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    In Marzano v Minister for Immigration and Border Protection [2016] FCA 1180 a Judge of this Court dismissed an application for judicial review of a decision of the Assistant Minister for Immigration and Border Protection (the Minister) made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act). In her decision the Minister refused to revoke a decision of a delegate under s 501(3A) of the Migration Act to cancel the appellant’s Class BF Transitional (Permanent) visa.

Background facts

2    The appellant first arrived in Australia from Italy in 1990, aged seven years old, with his parents and siblings. Since 1 September 1994 his residence has been by way of a Transitional (Permanent) (Class BF) visa, the terms of which allow the holder to remain in Australian indefinitely.

3    Between 2005 and 2014 the appellant was convicted of a number of charges relating to offences of armed robbery, attempted robbery, theft, breaching a suspended sentence and assault with a weapon. He was sentenced to several terms of imprisonment during that period. The circumstances of the robberies were similar, with the appellant approaching a lone service station attendant armed with a knife and demanding money or money and cigarettes. It is possible that the offending by the appellant occurred in the context of psychiatric illness and/or depression on his part.

4    In 2006 and 2012 the appellant was informed by the Department that he was at risk of revocation of his visa. On both occasions, after the appellant submitted material to the Department, a delegate of the Minister decided not to cancel the appellant’s visa, but to issue a formal warning.

5    In September 2014, the appellant was convicted of two counts of armed robbery. The sentencing Judge said the facts of the case were “most serious” and noted aggravating features. The appellant received a cumulative sentence of two years and six months imprisonment with a non-parole period of 14 months.

6    On 18 December 2014, a delegate of the Minister made a decision cancelling the appellant’s visa under s 501(3A) of the Migration Act. On the same day, an interim notification advice letter was sent by facsimile to the appellant notifying him of the decision to cancel the visa, and advising him that a subsequent written notice setting out the decision and the particulars of any relevant information would be provided to him at a later date.

7    The written notice of visa cancellation under s 501(3A) of the Migration Act was sent to the appellant on or about 7 January 2015. The notice set out the grounds for mandatory cancellation of the appellant’s visa and particulars of relevant information, and invited the appellant to respond. It is not in dispute that the cancellation of the appellant’s visa was mandatory in the circumstances.

8    In seeking revocation of the visa cancellation decision, the appellant provided the Minister with a completed request for revocation form, in addition to various representations, letters of support and a psychological report. This material was provided in the proper manner and time frame.

Decision of the Minister

9    On 14 September 2015 the Minister decided not to revoke the decision cancelling the appellant’s visa under s 501CA of the Migration Act. The Minister also signed a statement of reasons in respect of this decision on this date.

10    The Minister stated that she was not satisfied that the appellant satisfied the character test as defined by s 501 of the Migration Act, and went on to consider whether there was any other reason warranting revocation of the cancellation decision. In this respect the Minister noted that representations had been made by Mr Marzano referable to:

12.    … his strong and longstanding ties to Australia through family and social, education and employment ties, and prolonged residence, the hardship he would suffer in Italy without a supportive social network, his rehabilitation and mental health will deteriorate in Italy, close family members in Australia will be adversely impacted by his removal in terms of emotional distress, it is the best interests of minor extended family members for Mr MARAZANO [sic] to remain in Australia, he does not represent an unacceptable risk to the Australian community in terms of re-offending.

11    After examining issues raised by the appellant under the headings “Best interests of minor children”, “Expectations of the Australian community”, “Strength, nature and duration of ties”, “Extent of impediments if removed” and “Protecting the Australian community”, the Minister continued:

71.    In considering whether, in light of Mr Marzano’s representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of Mr Marzano’s minor nephews and nieces, and have found that their best interests would be best served by the revocation of the mandatory visa cancellation decision.

72.    In addition, I have considered the length of time Mr Marzano has made a positive contribution to the Australian community and the consequences of my decision for his family members.

73.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr Marzano, that of armed robberies, which were of a violent nature. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

74.    Further, I find that the Australian community could be exposed to great harm should Mr Marzano reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr Marzano.

75.    I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr Marzano, than I otherwise would, because he has lived in Australia for most of his life, having arrived as a young child.

76.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr Marzano represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and family and education bonds, limited employment ties and the hardship Mr Marzano, his family and social networks will endure in the event the original decision is not revoked.

77.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision to cancel Mr Marzano’s visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel Mr Marzano’s Class BF Transitional (Permanent) visa.

Application for judicial review

12    In the primary proceedings the appellant sought judicial review of the decision of the Minister on three grounds.

13    First, the appellant claimed that the Minister misunderstood and misapplied s 501CA of the Migration Act, and thereby failed to exercise jurisdiction. The appellant submitted that the Minister incorrectly interpreted s 501CA as if it conferred a general discretion rather than imposed a requirement to revoke the cancellation decision if the person satisfied the Minister that there existed a “reason why the [cancellation] decision should be revoked”.

14    Second, the appellant claimed that the Minister did not have the power to decide whether to revoke the cancellation decision in his case, because such power resided only in the original decision-maker (that is, the delegate who had made the visa cancellation decision in accordance with s 501(3A) of the Migration Act).

15    Third, the appellant contended that, in making the decision, the Minister took into consideration material which was adverse to the applicant’s case for revocation, but was outside the scope of material which the Minister was permitted to consider. In particular, the appellant contended that the Minister could consider only the “relevant information” given to him at the time of formal notification of the cancellation decision pursuant to s 501CA(3) and the representations made in response.

16    In reaching his decision the primary Judge recited the background facts, and examined the relevant legislation in detail. His Honour noted that both s 501(3A) and s 501CA were inserted into the Migration Act by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), and that there had been little judicial consideration of either section. His Honour cited extensively from the decision of Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 and also referred to other single Judge decisions where the legislation had been considered including Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166.

17    Turning to the grounds of review, his Honour found that none were substantiated. In summary his Honour found as follows.

18    In relation to the first ground, it was common ground between the parties that where a person has made representations as referred to in s 501CA(4)(a) and the Minister was satisfied of either matter set out in s 501CA(4)(b), the Minister was required to revoke the cancellation decision. Contrary to the appellant’s argument, in determining whether the Minister was satisfied that there was “another reason why the [cancellation] decision should be revoked” the Minister was entitled to weigh factors for and against revocation. The Minister did so in this case, and concluded that there was no other reason why the cancellation decision should be revoked.

19    In relation to the second ground, neither the text of the provisions nor the statutory scheme required the revocation decision to be made by the person who made the cancellation decision. Where, as here, the cancellation decision was made by a delegate of the Minister, a decision as to revocation could be made by the Minister rather than a delegate.

20    In relation to the third ground, in considering whether to revoke a cancellation decision the Minister was not confined to the “relevant information” given to the person at the time of formal notification of the cancellation decision and the representations made in reply to the invitation.

21    His Honour dismissed the application with costs.

Relevant legislation

22    The decision of the Minister the subject of this appeal was made pursuant to s 501CA(4) of the Migration Act. Section 501CA provides:

Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to 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)    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 Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Note: For notification of decisions under subsection (4) to not revoke, see section 501G.

23    A decision of the Minister (or a delegate of the Minister) made in accordance with s 501CA(4) can clearly only be made after there has been an “original decision” of the Minister (or a delegate of the Minister) in accordance with s 501(3A). This follows from the terms of s 501CA(4), the purpose of which is to permit the Minister to revisit that original decision. Relevantly, s 501(3A) provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

Grounds of appeal

24    Mr Marzano relied on five grounds of appeal from the decision of the primary Judge, namely:

1.    His Honour erred in law by failing to hold that the Minister had misconstrued s501CA(4) of the Migration Act 1958 when considering whether to revoke the mandatory cancellation of the Appellant’s visa.

2.    His Honour erred in law by concluding that the exercise of the power conferred by s 501CA(4)(b)(ii) of the Act required the formation of an evaluative conclusion which involved weighing up various factors for and against revocation.

3.    Further, or alternatively to Ground 2, His Honour erred in law by failing to conclude that the Respondent had approached the decision to be made under s501CA (4) of the Act as if it were the exercise of a discretion, instead of an exercise of power requiring the formation of an evaluative conclusion which involved weighing up various factors for and against revocation.

4.    His Honour erred in law by failing to hold that the power conferred by s501CA(4) of the Act to revoke a decision made pursuant to s501(3A) of the Act (the mandatory cancellation of the visa of a person) could only be exercised by the person (or officer-holder [sic]) who made the decision under s501(3A).

5.    His Honour erred in law by failing to hold that the legislative provisions for mandatory cancellation of the visa of a person (s501(3A)) and revocation of such decisions (s501CA) restrict the Minister or delegate, who is to decide whether or not to revoke the cancellation, to a consideration of the “relevant information” given to the person at the time of formal notification of the cancellation and representations made in response to the invitation given at the time.

25    At the hearing of the appeal the appellant abandoned the third ground of appeal, and made submissions jointly addressing grounds 1 and 2, and, individually, grounds 4 and 5. I note further that it was common ground between the parties at the hearing of the appeal that the decision of the delegate to cancel the appellant’s visa was in accordance with the legislation; that the word “may” in s 501CA(4) should properly be interpreted as “must”; and that either the Minister or a delegate could exercise the power conferred by s 501CA of the Migration Act.

26    In the circumstances it is convenient to address the grounds of appeal in the same order in which argument was made to the Court.

Grounds 1 and 2

27    In relation to grounds 1 and 2, the appellant submitted, in summary, as follows:

    Despite the use of the word “may” in s 501CA(4), the section does not confer a general discretion on the Minister or delegate to revoke a mandatory cancellation.

    If the requirements set out in s 501CA are met there is an obligation on the Minister to revoke the visa cancellation decision.

    The satisfaction of the Minister is a prerequisite to a revocation decision.

    Section 501CA(4) does not state that the Minister is to weigh all relevant considerations such as might apply to the exercise of a general discretion and then come to a conclusion on balance whether another reason exists why the original decision should be revoked.

    The word “should” in s 501CA(4) imports an objective test.

28    The Minister submitted, in summary:

    The revocation power under s 501CA(4)(b)(ii) is conditioned on the formation of an evaluative conclusion by the Minister, namely whether there is another reason why the cancellation decision in relation to that person “should be revoked”.

    In so determining, the Minister must weigh factors for and against that revocation. The process is similar to that dictated by s 501(2) of the Migration Act.

    In this case, weighing factors in favour of and against revocation of the cancellation decision, the Minister was not satisfied that there was another reason why the cancellation decision should be revoked.

    In any event the exercise of the power under s 501CA(4)(b)(ii) is founded on the satisfaction of the Minister alone, not a third party.

29    In my view grounds of appeal 1 and 2 provide no basis upon which to disturb the primary judgment.

30    The principal question raised by s 501CA(4)(b) is whether the Minister is satisfied that the former visa holder passes the character test (as defined by s 501) or whether there is “another reason why the original decision should be revoked”. The logical structure of the provision is that if the Minister is satisfied that the person does not pass the character test, he or she then turns to consider whether “another reason” exists why the visa cancellation decision should be revoked. This issue was examined in detail by North ACJ in Gaspar [2016] FCA 1166. In that case North ACJ considered similar arguments to those currently before the Court, including whether the Minister was vested with discretion to revoke a cancellation decision and whether revocation of a cancellation decision involved an evaluative process. North ACJ found that, in light of decisions of the High Court in Hogan v Australian Crime Commission (2010) 240 CLR 651 and Samad v District Court of New South Wales (2002) 209 CLR 140, the correct approach was to treat s 501CA(4) as requiring the Minister to revoke the cancellation decision when the Minister had reached the requisite state of satisfaction, and to weigh factors for and against revocation in coming to the final conclusion. In particular I note the following observations of North ACJ in Gaspar [2016] FCA 1166:

38.    The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.

39.    Even if the respondent’s construction is wrong, the applicant would not necessarily be entitled to relief. Ms Latif submitted that the applicant’s construction, if accepted, would have the result that once the lower threshold of establishing any reason for revocation were satisfied, an applicant would be put on a positive footing for consideration at the discretionary stage. However, there can be no difference in the outcome from the application of either construction. On either construction, the Minister, having weighed up the factors for and against revocation, must be satisfied that the cancellation decision should be revoked. In other words, the Minister engages in an evaluative process to decide whether or not to revoke, regardless of whether he must first consider a lower threshold test, or if he proceeds directly to the final evaluation. Consequently, relief would be refused on the discretionary ground that if the Minister had applied the applicant’s construction of the section there would have been no difference in the outcome.

31    I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).

32    In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]-[39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.

Ground 4

33    In relation to this ground of appeal, the appellant submitted, in summary, that the use of the word “revoke” implies that the only person who can revoke the decision is the person who made it. In so submitting, the appellant relied on the decision of this Court in Minister for Immigration & Multicultural & Indigenous Affairs v Watson (2005) 145 FCR 542 at [106]. To that extent, in the submission of the appellant, “revoke” can be distinguished from such terms as “set aside”.

34    The Minister submitted, in summary:

    there is nothing in s 501CA to support the limited construction for which the appellant contended;

    the power exercised under s 501CA is a distinct and separate power from that exercised under s 501(3A). It can be contrasted with the power granted by s 501C;

    Watson 145 FCR 542 is not relevant to this aspect of the appellant’s case.

35    In my view this ground of appeal is not substantiated.

36    As Gibbs CJ observed in O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 11, the answer to the question whether a statute requires a power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case (cf Brennan J in Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 at 93).

37    It is common ground that, in individual circumstances, the power granted by s 501CA(4) to revoke a visa cancellation decision may be exercised by the Minister or a delegate of the Minister. That a delegate of the Minister may have the power to revoke a visa cancellation decision is notwithstanding that:

    section 501CA itself is couched in terms referring only to decisions of “the Minister”, and

    section 501CA makes no specific reference to decisions of delegates.

38    Clearly, s 496 of the Migration Act empowers the Minister, by writing, to delegate to any person any of the Minister’s powers under the Migration Act, including the power to revoke a cancellation decision, and to that extent gives effect to the so-called Carltona principle whereby Ministers of the Crown may properly delegate administrative functions to Departmental officials (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; O’Reilly 153 CLR 1; Dooney v Henry (2000) 174 ALR 41; [2000] HCA 44). That this is further so in respect of powers conferred by s 501CA(4) is evident, for example, from the terms of s 500(1)(ba) of the Migration Act, which permits applications to be made to the Administrative Appeals Tribunal in respect of:

(ba)    decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

39    While relevant instruments of delegation by the Minister pursuant to s 501CA(4)(b) were not produced in Court (and, it appears, are not in the public arena), the terms upon which delegates may exercise power in accordance with s 501CA(4)(b) are set out in Direction No 65, made by the Minister pursuant to s 499 of the Migration Act, which:

Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA.

40    The interpretation of s 501CA(4)(b) promoted by appellant – namely that it is only the delegate who can revoke that delegate’s visa cancellation decision (and presumably only the Minister who can revoke a visa cancellation decision of the Minister) – would produce an inflexible practical outcome for which neither statutory nor policy justifications have been advanced. This interpretation would result, for example, in operative inconvenience if the relevant delegate left the Department, or the position of the delegate were reclassified. The proposed construction also ignores the point I have already made, namely that in exercising the power under s 501CA(4)(b) the delegate is actually exercising an administrative power of the Minister, and it follows that any power of revocation is similarly vested in the Minister.

41    To that extent it follows that a visa cancellation decision of a delegate can be revoked by either the delegate or the Minister.

42    In relation to the submissions of the appellant concerning the decision of this Court in Watson 145 FCR 542, I note that the Court in that case examined an earlier iteration of the Migration Act prior to the enactment of s 501CA, which conferred an express power on the Minister to revoke a visa cancellation decision. In the course of considering whether the Migration Act (as then enacted) impliedly empowered the Minister to revoke a visa cancellation decision, both Hely J (at [15]) and Lander J (at [93]-[95]) concluded that the reference in s 501E(1) and s 501F(2) (as then drafted) to the decision being “set aside” was to the decision being set aside by the Administrative Appeals Tribunal, and that the reference to the decision being “revoked” was a reference to the exercise by the Minister of the power conferred by s 501C(4) of the Act. It is important however to consider the context in which these conclusions were reached.

43    In particular, as Lander J observed at [52]-[55], at that time s 501(1) and (2) empowered the Minister or a delegate of the Minister to refuse to grant a visa to a person or to cancel a visa that had been granted to a person in the circumstances contemplated by the subsections. At the same time, s 501(3) empowered the Minister and only the Minister (s 501(4)) to refuse to grant a visa to a person or to cancel a visa that had been granted to a person if the Minister reasonably suspected that the person did not pass the character test and the Minister was satisfied that the refusal or cancellation was in the national interest. His Honour noted that a decision made by a delegate could be reviewed by the Administrative Appeals Tribunal and set aside, whereas a decision of the Minister was not similarly subject to such review or to being set aside (s 500(1)(b), s 500(4)).

44    His Honour noted further, for example that:

    section 501A(2) and s 501A(3) empowered the Minister to “set aside” decisions of the delegate or the Tribunal, and that s 501B(2) empowered the Minister to “set aside” relevant decisions of a delegate;

    this could be contrasted with the power of the Minister under s 501(4) and s 501(5) to “revoke” his own decision;

    section 501E referred to decisions of the Minister made under ss 501, 501A, 501B which had been “neither set aside nor revoked”.

45    While the observations of the Court in Watson 145 FCR 542 are pertinent to the consideration of the appellant’s argument concerning the meaning of “set aside” and “revoke”, they are otherwise of limited assistance in construing s 501CA(4). The observations in Watson 145 FCR 542 were made in the context of provisions of the Migration Act predating the enactment of those under consideration in this case. There are numerous instances in the Migration Act as presently enacted where the Minister is empowered to “set aside” particular decisions of a delegate or the Administrative Appeals Tribunal, but in the context of original decisions which were made only by a delegate or the Administrative Appeals Tribunal. Examples of this are in:

    section 501A (power of the Minister to set aside a decision of a delegate or the Administrative Appeals Tribunal not to exercise powers conferred by s 501(1) and s 501(2));

    section 501B (power of the Minister to set aside a decision of a delegate under s 501(1) or s 501(2) to refuse to grant a visa to a person or to cancel a visa that had been granted to a person);

    section 501BA (power of the Minister to set aside a decision of a delegate or the Administrative Appeals Tribunal, but in circumstances where the decision was made by either of those entities under s 501CA to revoke a decision under subs 501(3A) to cancel a visa that had been granted to a person).

46    This can be contrasted with s 501CA, which specifically addresses revocation of decisions under s 501(3A), which decisions which could in individual circumstances be made by either the Minister or a delegate.

47    Further, as is clear from a perusal of the Migration Act, a number of powers conferred by the legislation can be exercised only by the Minister personally, for example those exercisable under s 500A(1) and (3) (as mandated by s 500A(6)), s 501(3) (as mandated by s 501(4)), s 501A(2) and (3) (as mandated by s 501A(5)), s 501B(2) (as mandated by s 501B(3)), s 501BA(2) (as mandated by s 501BA(4)). This is not the case in relation to decisions under s 501CA(4). There is no statutory mandate in s 501CA which limits either the Minister or a delegate to personally exercise the power conferred by that section – it is common ground that the power conferred by s 501CA can be exercised by either the Minister or a delegate.

48    The use of the word “revoke” in this context does not limit the exercise of the power to the maker of the original decision. A decision of the Minister’s delegate made in accordance with s 501(3A) of the Migration Act, which decision was made by the delegate in exercise of the powers of the Minister, can be revoked by the Minister. The primary Judge so found at [55]-[61] – in my view correctly.

Ground 5

49    In ground 5 the appellant claimed that, in making a decision under s 501CA(4), the Minister was limited to considering the “relevant information” given to the person at the time of formal notification of the cancellation, and representations made in response to the invitation given at that time.

50    The appellant argued, in summary, that:

    By reason of necessary implication there is a limitation on the extent of the material which the Minister may take into consideration in deciding whether to revoke the mandatory cancellation of a person’s visa.

    The structure of the legislation impliedly mandates that when deciding whether to revoke, the decision-maker is to consider the relevant information given to the appellant at the time of formal notification of cancellation and the representations made in reply to the invitation.

51    In response the Minister argued, in summary:

    The definition of “relevant information” in s 501CA(2) refers to information which the Minister considers would be the reason, or part of the reason, for making the original decision, specifically about the person.

    There is nothing in the Migration Act which expressly limits the material which the Minister or a delegate may take into consideration for deciding whether to revoke a cancellation decision.

52    This ground of appeal relates to the terms of subss 501CA(2) and (3) which provide:

(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)    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.

53    Before the primary Judge the appellant made the same argument as he has to this Court, namely that in deciding whether or not to revoke a visa cancellation decision, the decision-maker is to consider only the relevant information given to the person at the time of formal notification of visa cancellation and the representations made by the person in reply to the invitation to make such representations. This argument arose because, on 19 May 2015 following the formal notification of the cancellation decision, the Department wrote to the appellant’s solicitor enclosing further information in relation to the appellant which had been obtained by the Department. This information was identified at [19] of the Issues Paper provided by the Department to the Minister on or about 14 September 2015 as follows:

    a National Police Certificate dated 25 November 2014;

    sentencing remarks in the County Court of Victoria at Melbourne (Criminal Division) on 3 September 2014;

    sentencing remarks in the County Court of Victoria at Melbourne (Criminal Division) on 8 April 2010;

    sentencing remarks in the County Court of Victoria at Melbourne (Criminal Division) on 24 February 2006;

    report from International Health and Medical Services dated 14 April 2015;

    warning about future conduct (following prior decision not to cancel) dated 13 April 2012 and acknowledgement dated 19 April 2012;

    warning about future conduct (following prior decision not to cancel) dated 9 August 2006 and acknowledgement dated 10 August 2006;

    Alcohol Education Program dated 22 December 2011;

    letter from St Vincent’s Correctional Health dated 20 December 2011;

    letter from ISIS Primary Care Ltd dated 25 October 2011;

    Full Summary report from Melbourne Central Medical dated 19 October 2011;

    letter from Melbourne Central and Dental Centre dated 19 October 2011;

    letter from St Albans Complete Healthcare dated 11 October 2011;

    hand written letter from Mr Marzano dated 23 December 2011;

    hand written statement from Mr Marzano dated 18 June 2006.

54    It is not in dispute that on 26 May 2015 the appellant requested an extension of time to submit further documents to the Department for consideration, that this extension of time was granted on 27 May 2015, and that the appellant submitted further documentation on 27 May 2015, 17 July 2015, 22 July 2015 and 28 August 2015. The additional material submitted by the appellant was also identified in the Departmental Issues Paper.

55    The primary Judge rejected the appellant’s contentions limiting the “relevant information” the Minister could take into account to that provided contemporaneously with the written notice setting out the visa cancellation decision. This was on the basis that there was nothing in the Act warranting that limitation, that the appellant had misinterpreted comments of Tracey J in Picard [2015] FCA 1430, and that such a limitation would inhibit the Minister’s ability to consider whether there would be a risk of harm posed by the person’s continued presence in Australia.

56    I reject the appellant’s submission that the terms of s 501CA(3) impliedly confine the opportunity of the Minister to put relevant information to the person to the occasion when the written notice setting out the visa cancellation decision is dispatched. Section 501(3A) requires the Minister, as soon as practicable after making the decision cancelling the visa, to give the person a written notice, particulars of relevant information, and an invitation to make representations to the Minister about revocation of that decision. It must be the case, for example, that if the person responds to the Minister with further representations and accompanying documentation, that the Minister can in turn respond with further material inviting the person’s comment. Indeed as Tracey J observed in Picard [2015] FCA 1430:

42.    It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant’s circumstances and conduct. If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant’s case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision.

(emphasis added.)

57    To limit the information upon which the Minister can rely to that provided contemporaneously with the written notice of visa cancellation does not follow from the terms of s 501CA. Further, it would, in my view, constrain the Minister in the performance of his or her task under s 501CA(4) in a manner not contemplated by the Migration Act.

Conclusion

58    In my view the proper order is to dismiss the appeal with costs.

Associate:

Dated:    26 April 2017

REASONS FOR JUDGMENT

LOGAN J:

59    I agree with Collier J.

Associate:

Dated:    26 April 2017

REASONS FOR JUDGMENT

MURPHY J:

60    I generally agree with the reasons of Collier J. The appeal should be dismissed with costs.

Associate:

Dated:    26 April 2017