FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Brown [2020] FCAFC 21

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The costs of the appeal be dealt with at the time of publication of reasons.

3.    Reasons to be published on a date to be fixed on or after 3 February 2020.

4.    To the extent necessary and to the extent the Court has power, time for filing and serving of any application for special leave to appeal be extended or enlarged to a date 21 days after reasons for judgment are published.

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

ORDERS

THE COURT ORDERS THAT:

1.    There be no order as to costs.

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

REASONS FOR JUDGMENT

ALLSOP CJ, KENNY AND BANKS-SMITH JJ:

Introduction

1    On 24 December 2019, the Court ordered that:

(1)    The appeal be dismissed.

(2)    The costs of the appeal be dealt with at the time of publication of reasons.

(3)    Reasons to be published on a date to be fixed on or after 3 February 2020.

(4)    To the extent necessary and to the extent the Court has power, time for the filing and serving of any application for special leave to appeal be extended or enlarged to a date 21 days after reasons for judgment are published.

2    We have had the privilege of reading, in draft, the reasons for judgment of Besanko J and Bromwich J. For the reasons set out below, we agreed that the appeal should be dismissed with no order as to costs, but reached this conclusion by a different route to their Honours.

3    This is an appeal from a judgment of a single judge of this Court quashing a decision of the Minister, acting personally, to cancel Mr Brown’s visa under s 501(2) of the Migration Act 1958 (Cth), relying on s 501(6)(a) to engage that power: Brown v Minister for Home Affairs [2018] FCA 1722. Section 501(2) is a provision granting to the Minister a discretion to cancel a visa if the Minister reasonably suspects that the visa-holder does not pass the character test and the visa-holder does not satisfy the Minister that he or she passes the character test. Under s 501(6)(a), a visa-holder does not pass the character test if he or she has a substantial criminal record, which is satisfied if the person has been sentenced to a term of imprisonment of 12 months or more (see s 501(7)(c)). The respondent arrived in Australia in 1981 and since then has been convicted of various serious criminal offences, particularly in 2010.

4    The primary judge drew attention at the outset of his reasons for judgment to the fact that, from time to time over the past decade or so, officers of the appellant Minister’s Department have considered whether or not Mr Brown’s visa should be cancelled under s 501(2) of the Migration Act. That they have done so reflects Mr Brown’s lengthy criminal record.

5    Mr Brown was first notified that his criminal offending might result in the cancellation of his visa under s 501 by Departmental letter dated 28 October 2004. By Departmental letter dated 3 October 2005, he was informed that a decision had been made not to cancel his visa. Another notice that his visa might be cancelled under s 501 was sent to him on 9 May 2007 or thereabouts. Again, he was notified (this time by Departmental letter dated 4 June 2007) that a decision had been made not to cancel his visa.

6    A few years later, by letter dated 24 May 2011, the Department notified Mr Brown that consideration was once more being given to cancelling his visa. On 23 January 2012, a delegate of the Minister made a decision to cancel Mr Brown’s visa under s 501(2) and Mr Brown was so advised by notice dated 25 January 2012.

7    Mr Brown applied to the Administrative Appeals Tribunal under s 500(1)(b) of the Migration Act for a review of the delegate’s decision. The Tribunal made a decision on 24 April 2012 under s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to set aside the delegate’s decision and, in substitution, to decide that Mr Brown’s visa not be cancelled. The Tribunal’s decision had regard to Mr Brown’s convictions from February 1988 to February 2010, and in particular that he was given a total effective sentence of 5 years’ imprisonment following his convictions for grievous bodily harm, assaulting a public officer, entering a prison without permission, two counts of assault occasioning bodily harm, two counts of criminal damage and stealing a motor vehicle (2010 offences).

8    Shortly after the Tribunal’s decision, the Department notified Mr Brown, by letter dated 4 October 2012, that the Minister intended personally to consider whether to set aside the decision of the Tribunal and to cancel his visa under s 501A(2) of the Migration Act. This provision expressly provided that the Minister might “in the national interest” set aside the original decision (defined in s 501A(1) to include a Tribunal decision “not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person”). The materials before the Court do not indicate what happened in the immediately ensuing years.

9    Some years later, in the Magistrates Court at Joondalup, in Western Australia, Mr Brown was convicted of four counts of “No authority to drive (never held)” in March 2016, June 2016, February 2017 and September 2017, and one count of “Used an unlicensed vehicle”, also in September 2017. He was fined and disqualified from driving for a period of time.

10    By letter dated 15 April 2016, the Department sought further information from Mr Brown “regarding possible visa cancellation under s 501A(2) of the Migration Act” and in so doing referred to its previous letter of 4 October 2012. The Minister did not at any stage purport to set aside the Tribunal’s decision under s 501A(2).

11    On 19 January 2017, the Department wrote to Mr Brown seeking further information “regarding possible visa cancellation under s 501(2) of the Migration Act”. This letter referred, apparently erroneously, to “a notice dated 25 August 2016 [notifying Mr Brown of] the intention to consider cancelling [his] Class BF transitional (permanent) visa under s 501(2) of the Migration Act”. Nothing is said to turn on this error. By further letters dated 18 July 2017, 8 August 2017 and 18 December 2017, the Department again sought “[f]urther information regarding possible visa cancellation under s 501(2) of the Migration Act”. A relevant National Police Certificate accompanied each letter. On 1 May 2018 the Minister, acting personally, made a decision under s 501(2) to cancel Mr Brown’s visa and Mr Brown was notified of this decision.

12    The Minister gave written reasons for his decision, which the primary judge described in his reasons for judgment (JR) at [83]-[86] in the following terms:

The Minister's reasons state that his conclusion that Mr Brown has not satisfied him that he passes the character test is based solely upon the 2010 conviction for grievous bodily harm: at paras 5 to 7.

As to the previous decision by the Tribunal and the extent of offending since the previous decision, the Minister's reasons state at paras 43 to 46 as follows:

I have also taken into consideration on 23 January 2012 my delegate cancelled Mr BROWN's visa on character grounds.

The delegate's decision was set aside by the Administrative Appeals Tribunal (AAT) on 24 April 2012 as the Tribunal found that although there was a real risk that Mr BROWN would re-offend, the risk would not be unacceptable to the Australian community.

I note that despite previous visa cancellation warnings, including a warning from the AAT, Mr BROWN has continued to offend and display a lack of respect for the laws of Australia.

I note that these latest offences are relatively minor infractions, however they display an inability of Mr BROWN to discontinue re-offending.

The reasons do not otherwise identify any change in circumstances that has occurred since the decision by the Tribunal in 2012. There is no attempt to identify any new circumstances since the considered decision of the Tribunal in 2012 that are sufficient to satisfy the conditions that enliven the power.

On the contrary, the Minister notes that the new offences 'are relatively minor infractions'. They are plainly matters that could only be relevant to discretion if the power to cancel is enlivened. Further, it is not explained why those relatively minor infractions have a material bearing upon the discretion to be exercised that is of a kind that should cause a different conclusion to be reached. They are simply dealt with in the course of a decision that otherwise deals with all circumstances without regard to any need to identify new circumstances.

13    For reasons that we shall examine more closely in a moment, the primary judge held (at [97]) that the Minister lacked statutory authority to cancel Mr Brown’s visa “on the same facts concerning suspicion and satisfaction as to the character test that formed the basis for the decision of the Tribunal in 2012”.

14    The central questions that arise on this appeal are: whether the Minister can re-exercise the discretion conferred by s 501(2) of the Migration Act to cancel an individual’s visa where the Tribunal has earlier set aside a delegate’s decision to cancel that individual’s visa under that provision and decided instead not to cancel the visa; and if so, can the Minister re-exercise the discretion relying on the very same facts to enliven the discretion in s 501(2) as the Tribunal did on review?

Our Conclusion

15    For the reasons that follow we are of the view that the Minister has no power to re-exercise the discretion relying upon the same facts (here facts satisfying the terms of s 501(6)(a)) to enliven the discretion in s 501(2) as were before the Tribunal. By way of summary, we draw this conclusion in particular from the terms and structure of the Act as a whole, the existence of the power in s 501A(2) to set aside the Tribunal decision, and the nature and character of the function of the Tribunal in independent review of decisions of the Executive, including the necessary degree of stability and finality in a fully reasoned decision of the Tribunal setting aside a decision of the Minister by his delegate to cancel the applicant’s visa.

16    This conclusion does not mean that the Minister is precluded from re-exercising the discretion relying on the same facts to enliven the discretion in s 501(2) if, previously, a delegate has decided not to exercise the power in s 501(2) to cancel the visa. In such cases, the Full Court held in Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 that even if the Minister has not availed himself of the power in s 501A(2), if there have been significant changes in the circumstances of the applicant that could reasonably touch on the exercise of discretion, the Minister may act under s 501(2). This is not the situation in this case, which involves the consideration of some additional provisions (including those regulating review rights) that did not fall for consideration in Parker. In this circumstance we would not hold that Parker is plainly wrong, as the appellant invited us to do.

17    We see the position differently if the Tribunal, after a contested proceeding before it, sets aside the decision of a delegate, substituting in its place a decision not to exercise the power to cancel the visa, and the Minister does not seek to set aside the decision of the Tribunal using the express power that is available under s 501A(2). In these circumstances, the power in s 501(2), having been since exercised, and set aside on review, should be seen as exhausted insofar as it was enlivened by a particular set of factual circumstances (here s 501(6)(a)).

The relevant legislation

18    Section 496 contained provisions relating to the delegation of the Minister’s powers under the Migration Act as exercised in the making of the original cancellation decision. 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.

…

19    Section 501 relevantly provided:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

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

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

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

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

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

Decision of Minister—natural justice does not apply

(3)    The Minister may:

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

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

if:

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

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

(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.

(3B)     Subsection (3A) does not limit subsections (2) and (3).

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

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

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)); …

…

  (c)    having regard to either or both of the following:

    (i)    the person’s past and present criminal conduct;

    (ii)    the person’s past and present general conduct;

    the person is not of good character; …

…    

Otherwise, the person passes the character test.

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; …

…

…

20    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.

…

21    Section 501B provided:

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

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

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

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

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

if:

(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.

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

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

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

22    Section 501BA provided:

Cancellation of visa—setting aside and substitution of non‑adverse decision under section 501CA

(1)    This section applies if:

(a)      a delegate of the Minister; or

(b)     the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)     The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

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

(i)      paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

    (ii)      paragraph 501(6)(e); and

   (b)      the Minister is satisfied that the cancellation is in the national interest.

  (3)     The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

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

Decision not reviewable under Part 5 or 7

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

23    Section 501C provided:

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

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

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

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

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

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

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

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

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

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

(ii)    particulars of the relevant information; and

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

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

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

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

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

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

…

(8)    If the Minister makes a decision (the subsequent decision) to revoke, or not to revoke, the original decision, the Minister must cause notice of the making of the subsequent decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the subsequent decision was made.

(9)    If the person does not make representations in accordance with the invitation, the Minister must cause notice of that fact to be laid before each House of the Parliament within 15 sitting days of that House after the last day on which the representations could have been made.

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

(a)    a person; or

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

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

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

24    Section 501CA provided:

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.

…

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

25    Section 2 of the Acts Interpretation Act 1901 (Cth) provided:

(1)    This Act applies to all Acts (including this Act).

Note: This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.

(2)    However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.

26    Section 33(1) provided:

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.

27    In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Gleeson CJ and Gummow J said (at [61]) that “the powers conferred on the Minister by ss 501 and 502 form part of a statutory scheme which involves a complex pattern of administrative and judicial power, and differing forms of accountability”. This statement is no less true about the form of the legislation today than it was in relation to the form of the statute in 2001 when their Honours were writing.

28    One aspect to be borne in mind in construing the interlocking provisions of ss 501, 501A, 501B, 501BA, 501C and 501CA is the wide variety of circumstances to which the sections may apply. Sometimes, but not always, the decision will involve potentially devastating consequences for a person or persons. It was in the context of such a body of circumstances that the remarks were made in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3]. The provisions provide for important powers that touch upon the protection of the Australian community, but that also affect the lives of ordinary people living in, or as part of, the Australian community who do not have the status of citizenship.

29    The wide variety of circumstances to which these sections might apply is a factor that tends to the necessary flexibility of the provisions, but only to the extent the statute permits. An unnecessarily rigid interpretation of the sections may not only impede the smooth and sensible administrative operation of the sections, but also inhibit the reasonable re-examination of circumstances of a person’s situation in the realistic and humane application of the power by the Minister and his or her delegate.

30    That said, for a person to have his or her immigration status uncertain and subject to the discretion of the Minister, for an indeterminate period may create, in particular circumstances, an unsatisfactory and potentially inhumane contingency about that person’s life in the Australian community.

31    As can be seen from a reading of ss 501–501CA, there is a complex web of powers providing for the refusal or cancellation of visas by the Minister (personally or by the delegate), and for the revocation, setting aside and review of decisions. Certain of these decisions may be made by a delegate of the Minister or by the Minister personally, while others may only be made by the Minister personally. In the former case, but not the latter, provision is made for merits review by the Tribunal. In the latter case, judicial review for legality is available.

32    The availability of merits review by the Tribunal is an important feature in understanding the operation of these provisions. The Tribunal occupies an important place in the independent and fair review of decisions of the executive branch of government: see generally Hong v Minister for Immigration and Border Protection [2019] FCAFC 55 at [62] and following. In so doing it does not, of course, exercise judicial power, but its role is independent (though properly subject to lawful policies of government). Its President is, ex officio, a judge of this Court. The Tribunal hears proceedings between parties: s 30 of the AAT Act; who may, in general, be represented: s 32. The procedure of the Tribunal is, subject to the AAT Act and regulations and other statutory requirements, within its own discretion: s 33(1). Hearings, subject to certain exceptions, are to be in public: s 35. The decision on review is dealt with by s 43. It is appropriate to recognise the scope of subss 43(1) and (6):

Tribunal’s decision on review

(1)     For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)     affirming the decision under review;

(b)     varying the decision under review; or

(c)     setting aside the decision under review and:

(i)     making a decision in substitution for the decision so set aside; or

(ii)     remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

…

Tribunal’s decision taken to be decision of decision-maker

(6)     A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

33    We refer to these provisions of the AAT Act to draw attention to the fact that the Tribunal is not just a decision-maker. Its deliberations and decisions are, subject to statute, intended to have effect as the decision of the original decision-maker – the Minister, through the delegate. The Tribunal occupies an important independent review function intended to bring administrative finality to a contested decision after a proceeding and after reaching a view as to the correct and preferable decision.

34    For present purposes these considerations are important in understanding the statutory limits on the Minister’s authority to cancel a visa under s 501(2) where the Tribunal has set aside the delegate’s decision to do just that and has substituted for the delegate’s decision its decision that the visa should not be cancelled.

Primary judge’s judgment and reasons

35    Mr Brown appeared before the primary judge without legal representation. The Minister was represented by his lawyers.

36    The primary judge noted (JR, [13]) that the Minister’s submission before him was that:

… reliance can be placed upon the offending in February 2010 as the basis for the formation of a view for the purposes of s 501(2)(b) that Mr Brown does not pass the character test even though there has been no further offending relevant to the character test since the decision of the Tribunal in 2012.

37    In the circumstances of the case, the primary judge said (JR, [14]):

[T]here is an issue as to whether the statutory power conferred by s 501(2) has been spent. The decision made by the Tribunal in 2012 not to cancel Mr Brown’s visa in the exercise of the power conferred by s 501(2) was made in respect of Mr Brown’s conviction for the offence of grievous bodily harm in February 2010. The cancellation the subject of these proceedings is made on the basis that the same conviction provides the foundation for the conclusion that Mr Brown does not pass the character test.

38    After referring to various aspects of s 501, including subsections 501(3) and (3A), the primary judge stated (JR, [30]-[31]):

If the delegate, or the Tribunal on review, makes a decision not to exercise the power conferred by s 501(2) to cancel a visa then the Minister may set aside the Tribunal's decision (s 501A(1) and (2)). The Minister's power to set aside a decision by the delegate or the Tribunal is limited to circumstances where three matters are satisfied, namely: (a) the Minister reasonably suspects that the person does not pass the character test; (b) the person does not satisfy the Minister that the person passes the character test; and (c) the Minister is satisfied that the cancellation of the visa is in the national interest (s 501A(2)). In effect, the earlier decision can only be set aside by the Minister acting in the national interest. …

Necessarily implicit in the above provisions is a recognition that the power conferred by s 501(2) cannot simply be re-exercised by the Minister (whether personally or by delegate) if the Tribunal declines to cancel a visa after considering the exercise of a power as a result of a particular failure to pass the character test. Rather, there must be a matter of national interest before that can occur. If it were the case that the power under s 501(2) could be exercised in all cases from time to time irrespective of whether there had been a previous decision concerning the exercise of the power then it would not have been necessary to include the provisions in s 501A.

39    The primary judge noted (JR, [33]) that ss 501B and 501BA also indicated that “the power under s 501(2) cannot be re-exercised by the Minister after a decision has been made where the re-exercise is based on the same facts”. His Honour added (JR, [37]) that:

The Act as a whole is prescriptive about the circumstances in which a visa may be granted, cancelled or revoked. Further a visa confers a right to remain in Australia, a right of a most fundamental character. It is unlikely, within the scheme of the Act, that the right may be subject to ongoing review and revision once an assessment has been made that it should not be cancelled in particular circumstances. Put another way, the subject matter of the Act is broadly inconsistent with an ability to revisit the question whether a visa should be cancelled once a decision has been made, on particular facts, that the visa should or should not be cancelled. It would introduce substantial uncertainty and jeopardy in respect of the rights conferred by visas if they could be subject to repeated consideration as to whether they could be cancelled by reference to the same factual position in respect of matters giving rise to a power to cancel a visa.

40    His Honour acknowledged, however, that “the terms of s 501A are also consistent with a construction of s 501A that would permit a further exercise of power in different circumstances because there were new facts” (JR, [32]). He concluded (JR, [43]-[45]) that:

The subject matter of the power and the structure of the provision in specifying conditions that must be met before the power to cancel arises are both factors that indicate that a change in the factual circumstances that pertain to the conditions (namely, suspicion and satisfaction as to whether the person passes the character test) enlivens the power.

However, the same matters count against a fresh power arising simply where there has been a change in circumstances that bear only upon the exercise of the discretion. To reach such a conclusion it would be necessary to construe the conditions in s 501(2)(a) and (b) as enlivening a power that may be exercised from time to time, contrary to the conclusion I have set out above. There is little to commend such a construction. Further, if such a construction were to be adopted it is difficult to see how the words describing the power (namely, the Minister may cancel a visa) as being impliedly constrained by words to the effect that the Minister may cancel a visa if there has been a change in the factual circumstances relevant to the exercise of the discretion. Unlike the case with the conditions, there is no description of an event that has to occur (a state of suspicion and satisfaction) before the power is enlivened. The only way to allow textually for the power to be exercised again based upon a change of circumstances confined to the exercise of the discretion whether to cancel the visa would be to read the whole provision as applying from time to time. For reasons I have already expressed, such an approach would be contrary to the purpose manifest by the broader statutory context.

It follows that as a matter of language and purpose it is difficult to conclude that a change in circumstances that was confined to matters going to the discretion to cancel would re-enliven the power to cancel.

41    The primary judge subsequently discussed (JR, [46]-[60]) a number of cases in this Court supporting the conclusion that “once the power under s 501(2) has been exercised in respect of a person then there is no ongoing power”, but his Honour concluded that none of these cases had addressed the question whether the power in s 501(2) might be “re-exercised in the limited case where there are new factual circumstances” (JR, [60]). In reaching this conclusion he discussed Sloane v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 620; 37 FCR 429, Burgess v Minister for Immigration and Multicultural Affairs [2000] FCA 936; 101 FCR 58, VQAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 900, Minister for Immigration & Multicultural & Indigenous Affairs v Watson [2005] FCAFC 181; 145 FCR 542, and Parker.

42    With respect to Parker, his Honour said (at [73]-[75]):

In my view, the decision in Parker deals only with the particular claim that was advanced in that case, namely that the words ‘may cancel a visa’ must be read as conferring a power which, once exercised in respect of a person, cannot be again exercised from time to time. The words were said to imply a singular action. It was that argument that was rejected.

Although the facts in that case admitted of the possibility of a separate argument to the effect that there could be no new power in circumstances where there was no change in the circumstances that were material to a consideration as to whether the conditions in s 501(2)(a) and (b) had been met, an argument of that kind was not separately advanced and therefore was not addressed by the reasons in Parker. …

As a result what was not considered was whether the significant new fact had to be a matter that enlivened the power by reason that it was a matter that was relevant to the conditions that had to be met before the power to cancel arose or whether it was sufficient if the new fact was relevant only to the exercise of discretion whether to cancel.

We return to these decisions below. His Honour also distinguished Chetcuti v Minister for Immigration and Border Protection [2018] FCA 477 (which for present purposes can be put to one side) and Makasa v Minister for Immigration and Border Protection [2018] FCA 1639 (an appeal from which was heard at the same time as the adjourned hearing of the appeal in this case: see [46] below).

43    The primary judge held (JR, [88]) that:

[O]n the proper construction of s 501(2) the same facts that have been brought to account in concluding that the conditions to the power to cancel conferred by s 501(2) have been met (and have been the basis upon which a discretionary decision has been made whether to exercise the power) cannot form the basis for a future satisfaction of those conditions. Rather, there must be new facts that form the basis for the suspicion and satisfaction on the part of the Minister that a person does not satisfy the character test. Relevantly for present purposes, there must be new offending that is the basis for the conditions to be met.

44    Accordingly, his Honour held (JR, [95]-[98]) that the power conferred by s 501(2) was spent in respect of particular convictions satisfying the pre-conditions for the exercise of power once a decision had been made. His Honour also stated (JR, [91]-[93]) that, if he were wrong and a change in the facts bearing on the discretion was enough to re-enliven the power, then he was inclined to the view that “it is a matter for the repository to consider whether there is a material change in circumstances”, although “the reasonableness standard applied” at this stage. If this were the correct analysis, then his Honour concluded (JR, [94]) that “it could not be said that a reasonable repository of the power could not consider the additional offending was []material to the discretion to be exercised”. (The Minister submitted (and we accept) that there was a typographical error in the primary judge’s reasons at this point in that his Honour intended the word “material”, and not “immaterial” as appearing in [94].)

45    This Minister appeals from this judgment and the orders of the primary judge. We refer to this appeal below as the Brown appeal.

46    The hearing of the Brown appeal was heard in two parts. The first part was heard alone on 28 May 2019 and resumed on 4 June 2019, when it was heard by the Court (as reconstituted) at the same time as another appeal in which Mr Likumbo Makasa was the appellant and the Minister was the respondent. We shall refer to this latter appeal as the Makasa appeal. There was a great deal of overlap in the issues in the Brown appeal and the Makasa appeal.

Previous decisions

47    There are a number of decisions of this Court that bear on the primary question raised by this appeal, namely, whether it was open to the Minister to cancel Mr Brown’s visa under s 501(2) of the Migration Act, even though the Tribunal had decided the visa not be cancelled under s 501(2), where the matters on which the Minister relied to enliven the discretion in s 501(2) were the same matters previously relied on by the Tribunal.

The Full Court’s decision in Kurtovic

48    The decision in Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic [1990] FCA 19; 21 FCR 193 is a convenient place to begin a discussion of the previous decisions. A principal issue in Kurtovic was whether or not it was open to the Minister to exercise the power in s 12 of the Migration Act (as it was at the time of that decision) from time to time in respect of the same person even if there had been no change in the relevant facts. Section 12 was in the following form:

12.    Where—

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

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

(i)    was not an Australian citizen; and

(ii)    had been present in Australia as a permanent resident for a period of less than 10 years … ; and

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

the Minister may order the deportation of that person.

49    The respondent submitted that it was not open to the Minister to make a second deportation order after an earlier deportation order had been revoked following a decision by the Tribunal. This was because there had been no change in the relevant circumstances. The Tribunal set aside the Minister’s first decision (to make a deportation order) and remitted the matter to the Minister for reconsideration in accordance with the Tribunal’s recommendations: see Kurtovic at 201 (Ryan J). The respondent argued that the Minister’s second deportation order was ultra vires because the power to make a deportation order on the same facts was spent. The respondent submitted that the power to deport under s 12 was “of such a serious nature affecting the life of a person and based on clear criteria, that, once exercised in favour of a person and notified to him on the basis that it is final and conclusive, it should not be exercised against him at a later stage on the same facts”: see Kurtovic at 218 (Gummow J).

50    The Full Court (Neave, Ryan and Gummow JJ) rejected these submissions and held that the revocation of the first deportation order did not prevent the Minister from making a second deportation order in respect of the same criminal offence. Gummow J explained (at 218) that:

It is true that the Minister's discretion under s 12 of the Migration Act is not expressed to be “absolute”, in contrast for example to the powers under s 7 of that Act in respect of temporary entry permits. Indeed, s 12 lays down several pre-conditions to the exercise of the discretion vested in the Minister. But once those conditions are satisfied, and there is no argument to the contrary in this case, the section does not purport to constrain the way in which the discretion is exercised.

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… 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... 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 … [I]f 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.

51    Even allowing for the fact that s 12 is a forerunner of s 201 (and not s 501) of the current Migration Act, Kurtovic might provide strong support for the Minister’s submissions in this case if the statutory regimes in which the former s 12 and the current s 501 were found were relevantly the same. The relevant issue is, however, essentially one of statutory construction, and the two regimes are materially different. Kurtovic is, for this reason, of limited, if any, assistance. The regime in which s 501 is found is more complex than that in which the former s 12 was located: for example, in the latter case, there was no equivalent to either s 501A or s 501B, and the detailed structure of s 501 is markedly different to the relatively straightforward form of the former s 12. It is necessary in considering the primary question raised by this appeal to focus on the particular statutory text, context and purpose: cf. MJD Foundation Ltd v Minister for Indigenous Affairs [2017] FCAFC 37; 230 FCR 31 at [246] (Mortimer J, Perry J agreeing) and Kabourakis v Medical Practitioners Board (Vic) [2006] VSCA 301; 25 VAR 449 at [47]-[48] (Nettle JA, Warren CJ and Chernov JA agreeing).

The decisions of Katz J in Burgess and of Heerey J in VQAR

52    Burgess v Minister for Immigration and Multicultural Affairs [2000] FCA 926; 101 FCR 58 addressed a question nearer that arising in this appeal, namely, whether the power conferred by s 501(2) was “accompanied by a power to decide to revoke the original decision” to cancel a visa. After referring to Kurtovic (and Sloane) and s 33(1) of the Acts Interpretation Act, Katz J concluded in Burgess that s 501(2) did not include a power to revoke the original decision to cancel a visa. In reaching this conclusion, his Honour relied in part on the legislative history of s 501, stating (at [18]-[19]) that:

[I]t is significant that s 501(2) of the Act … was added to the Act as part of a package of amendments dealing with the making of decisions on character grounds regarding the entry of non-citizens into, and their presence in, Australia: see the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth).

When one examines that package, one finds that the power conferred by s 501(2) of the Act to decide to cancel a visa on character grounds was one only of a number of such powers conferred. In particular, ss 501(3) and 501A(3) of the Act also conferred such powers to decide to cancel a visa. However, what is striking about the latter two provisions is that s 501C(4) of the Act expressly conferred a power to decide to revoke visa cancellation decisions made under them. Section 501C(4) of the Act, however, did not extend to s 501(2) of the Act, although, as I have already said, the provisions were enacted simultaneously.

53    Katz J rejected the applicant’s submission (at [20]) that the Parliament’s only purpose in adding s 501C(4) was to substitute express and confined powers for implied powers to decide to revoke visa cancellation decisions made under ss 501(3) and 501A(3) of the Migration Act. His Honour said (at [21]):

I accept that s 501C(4) of the Act does ensure that the Minister's power to decide to revoke visa cancellation decisions made under s 501(3) and s 501A(3) of the Act is confined, at least in the sense that there are conditions precedent to its exercise. However, I am not persuaded that the confinement of such a power otherwise impliedly conferred was the Parliament's purpose in adding s 501C(4) to its package of amendments to the Act. To my mind, the far more obvious inference to be drawn from the subsection's presence in the package is that the Parliament specifically turned its mind to the question of which of those powers being conferred to decide to cancel a visa should be accompanied by a power to decide to revoke the original decision; then, having specifically turned its mind to that question, it decided that the decision-making powers conferred by s 501(3) and s 501A(3) of the Act should be accompanied by a power to decide to revoke the original decision, but that no other such decision-making power, including the decision-making power conferred by s 501(2) of the Act, should be so accompanied.

54    Both s 501C(4) and “a short, inflexible … time limit for seeking review by this Court of judicially-reviewable decisions” (in an earlier version of ss 477 and 477A, then s 478(2)), led his Honour to conclude (at [24]) that the statutory regime did not include an implied power to decide whether to revoke an earlier visa cancellation decision made under s 501(2) of the Migration Act. His Honour concluded that, for the purpose of the Acts Interpretation Act, the Migration Act expressed an intention contrary to s 33(1). He added that:

If there were such an implied power, the Minister would presumably be under a duty to exercise it on the making of an application for its exercise. Further, an application for its exercise could presumably be made at any time, which would mean that the Parliament's obvious intention that disputes about visa cancellation decisions under s 501(2) of the Act be resolved as expeditiously as possible could be frustrated.

55    Katz J also rejected (at [23]) the applicant’s submission that s 501G(1)(e), which required the Minister to give a person whose visa the Minister had cancelled under certain provisions of the Migration Act (including under s 501(2)) a written notice setting out the reasons for the decision, supported the existence of an implied power to revoke an earlier decision under s 501(2) to cancel a visa. As to this, his Honour said (at [23]):

If there could have been no conceivable reason for imposing such a requirement other than assisting in an application to the Minister to exercise a power to decide to revoke an earlier visa cancellation decision made by the Minister under s 501(2) of the Act, then I agree that the imposition of such a requirement would support an inference that such an implied power existed. However, there exists at least one other, obvious, reason for imposing such a requirement, namely, to facilitate an applicant's right of judicial review of a visa cancellation decision made by the Minister under  s 501(2) of the Act, a right of which the applicant in the present matter chose not to avail himself. Thus, the presence in the Act of s 501G(1)(e) is neutral on the issue presently under discussion.

56    In VQAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 900, Heerey J followed Burgess in holding that the Minister could not reconsider a decision under s 501A(2) of the Migration Act to refuse to grant a visa on character grounds. The Minister made this decision after setting aside the Tribunal’s decision to set aside a delegate’s decision rejecting VQAR’s application for a spouse visa under s 501(1) of the Migration Act. His Honour said (at [10]):

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

57    Furthermore, his Honour regarded the fact that the Minister was required personally to exercise the power under s 501A(2) as a consideration militating against the existence of a power to reconsider a decision under s 501A(2) since this requirement “exposes the Minister to a political sanction which can be readily availed of by aggrieved subjects of a decision” (at [11]).

58    Heerey J concluded his analysis (at [12]-[13]) by affirming that the most important consideration was that explained in Burgess at [19]-[21], where Katz J “pointed out that the amendments to the Act in 1998, which introduced a personal role for the Minister in relation to the refusal or cancellation of visas on character and conduct grounds, drew a sharp distinction between [ss 501A(2) and (3)]” in that s 501A(4) provides that the rules of natural justice do not apply to a decision under s 501A(3) (in contrast with s 501A(2)) but that s 501C(4) expressly provides for a power of revocation of a decision under s 501A(3). His Honour concluded (at [13]-[14]):

Therefore, the alternatives are: s 501A(2), natural justice before decision but no power of revocation; s 501A(3), no natural justice before decision but power of revocation thereafter.

In the face of those express provisions and the general policy already referred to, I do not think the suggested power can be implied.

59    Although raising a different issue to the present case, Burgess and VQAR assist in answering the question whether the Minister is able to re-exercise the power in s 501(2) to cancel Mr Brown’s visa notwithstanding the Tribunal’s earlier decision to set aside the Minister’s decision by his delegate under s 501(2) to cancel the visa and to make the different decision that his visa should not be cancelled. That decision is substituted for the decision of the Minister: s 43(6) of the AAT Act. Both Burgess and VQAR draw attention to the fact that s 501(2) was among a number of provisions introduced by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) (1998 Amending Act) and that this is relevant in the process of statutory construction. Burgess and VQAR draw attention to the need to consider the interaction between the specific provisions relating to visa cancellation introduced by the 1998 Amendment Act, and the need to consider the relationship between these provisions and the closely-regulated administrative review and judicial review rights also conferred by the Migration Act. The significance of the introduction of s 501(2) as part of a set of provisions is discussed below.

60    Further, both Burgess and VQAR had regard to the nature of the subject-matter in the process of construction. In Burgess Katz J drew attention to the legislative emphasis on certainty in decision-making. In VQAR Heerey J drew attention to the fact that once deprived of a visa, the unlawful non-citizen has no right to remain in Australia and must be removed, as a consideration militating against the Minister having “a floating inchoate power” extending indefinitely in point of time. Considerations of the same kind should be part of the process of statutory construction in this case.

The Full Court’s decision in Watson

61    In Minister for Immigration & Multicultural & Indigenous Affairs v Watson [2005] FCAFC 181; 145 FCR 542 a Full Court of this Court (Dowsett, Hely and Lander JJ) held that the Minister had no power to revoke a decision made by the Minister personally under s 501(2) of the Migration Act.

62    Referencing s 33(1) of the Acts Interpretation Act, Lander J’s analysis centred on the question of whether it was evident from the Migration Act that there was no intention that the power conferred on the Minister by s 501(2) be exercised from time to time. As his Honour put it (at [120]):

If on a construction of the [Migration] Act it would appear that once the power is exercised the power is spent, then it must be said that the Act evinces a contrary intention [to s 33(1) of the Acts Interpretation Act].

63    Lander J concluded (at [144]) that the power given to the Minister by s 501(2) (and s 501(1)) “may only be exercised once” and no power of revocation could be implied. His Honour said at [138]-[140]:

… The scheme of the sections to which I have referred show that the intention is that the power given in each of the sections should be exercised only once.

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

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

His Honour also considered that ss 501F and 501E supported his conclusion concerning s 33(1) of the Acts Interpretation Act.

64    Dowsett J, agreeing in the result with Lander J, approached the issue of the existence of a revocation power in s 501(2) upon the basis that the relevant question was whether an intention to exclude the operation of s 33(1) of the Acts Interpretation Act was to be found in the Migration Act (at [4]). His Honour found such an intention (at [7]) because:

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 Div 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.

65    Hely J, also agreeing with Lander J in the result, focussed on the details of the statutory regime, stating (at [23]-[24]) that:

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

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

66    He generally agreed (at [25]) with the proposition that:

Parliament has directed its attention in s 501C(4) … to which visa cancellation decisions are accompanied by a power of revocation of the original decision with the intent that no other cancellation decisions, including those made under s 501(2) of the Migration Act, should be so accompanied.

67    It must be acknowledged that Watson differs from the present case in a number of respects, and that these differences must be borne in mind in considering its significance for this case. The issue in Watson was whether the Minister could, under s 501(2), revoke his own previous decision to cancel a visa (in the sense of whether he could make the contrary decision not to cancel the visa after it had been cancelled). There was no issue about undoing a delegate’s or the Tribunal’s decision. There was, moreover, no suggestion that there had been any material change in the visa-holder’s circumstances since the earlier decision was made. These differences mean that some of the matters on which their Honours relied, particularly Hely J, are not relevant (or as relevant) in the present case, such as issues arising on a posited revocation of a visa cancellation decision. This said, it cannot be gainsaid that some considerations remain pertinent, including the extent to which other provisions address the circumstances in which the Minister can undo a decision under s 501(2). This is discussed further hereafter.

The Full Court’s decision in Parker

68    The circumstances in Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 are deceptively similar to those in Mr Brown’s case. In September 2010, Mr Parker had been convicted of various offences, as a consequence of which he was sentenced to a concurrent term of 13 months’ imprisonment. Shortly thereafter, a delegate of the Minister gave consideration to cancelling Mr Parker’s visa under s 501(2), based on his “substantial criminal record” (s 501(6)(a) and (7)(c)). In February 2014, Mr Parker was notified that the delegate had decided not to cancel his visa.

69    In June 2014, Mr Parker was convicted of an offence against the Weapons Prohibition Act 1998 (NSW) and fined $700. In July 2015, a delegate of the Minister informed him that, as a result of his most recent conviction, consideration was again being given as to whether or not to cancel his visa. In March 2016, the Minister cancelled Mr Parker’s visa under s 501(2). (We interpolate here that, in April 2016, Mr Parker’s 2014 conviction was annulled under the Crimes (Appeal and Review) Act 2001 (NSW), but this did not bear on the question of whether it was open to the Minister to reconsider the exercise of the power in s 501(2).)

70    In their joint judgment, Griffiths and Perry JJ stated (at [10]) that “[t]he 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”. Their Honours observed (at [34]) that in making this decision, the Minister only took account of the June 2014 offending as being relevant to the exercise of the discretion to cancel Mr Parker’s visa.

71    On appeal, Mr Parker argued (with leave) that once a decision had been taken not to cancel a visa under s 501(2), the power was spent “at least with respect to the express factual basis that was taken into account in making the particular decision”: at [23], [24(2)], and [34]. The Minister responded that “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 [Acts Interpretation Act] so as to displace the possibility of the cancellation power being exercised from time to time based on new facts”: at [27(3)].

72    Griffiths and Perry JJ rejected Mr Parker’s contention: at [33] and following. In their Honours’ view, at the time of the 2016 cancellation decision, there was “a significant new fact, namely the 2014 conviction” (at [34]). They emphasised that the 2014 conviction “did not inform [the Minister’s] 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”.

73    Relevantly for the present appeal, Griffiths and Perry JJ held (at [36]):

[W]here 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 [Acts Interpretation Act].

74    The basis for this conclusion is set out in the paragraphs that follow. At [37]-[39], their Honours stated:

No contrary intention is manifested in the Migration Act to displace the presumption created by s 33(1). In particular … we do not consider that s 501A constitutes the only source of 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.

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 [Acts Interpretation Act] applies to the exercise of that power from time to time or whether the presumption is displaced by a contrary intention.

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.

Where the facts bearing on the exercise of the discretion remained the same, their Honours accepted (at [37], [50]) that, consistently with ss 501A(2) and (3), s 501A would apply.

75    In her separate concurring judgment, Mortimer J agreed with the reasons given by Griffiths and Perry JJ at [34]-[39] for rejecting Mr Parker’s construction of s 501(2). Her Honour added (at [67]):

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.

76    As noted above, the primary judge considered that he was not bound by Parker, because Parker gave no attention as to whether or not, so far as the Minister’s capacity to re-exercise the power in s 501(2) was concerned, there was a material distinction between facts relevant to the conditions to be met before there could be an exercise of discretion under s 501(2) and facts that, if relevant at all, could only be relevant to that exercise of discretion. We accept that there would not appear to have been any argument on the issue his Honour identifies, nor much, if any, argument on the issue of materiality generally.

77    There is, however, a clearer ground for distinguishing Parker from this case. Unlike Parker, this case raises the question of whether (and if so, in what circumstances) the Minister can re-exercise the discretion conferred by s 501(2) to cancel an individual’s visa where the Tribunal had earlier set aside the Minister’s decision by his delegate to cancel the same individual’s visa under that same provision. The present appeal turns on the consideration of provisions (including those regulating review rights) that did not fall for consideration in Parker.

The issues arising in the appeal

Submissions of the Minister

78    The Minister identified two central issues in the Brown appeal. The first issue arises from the primary judge’s conclusion that the Minister lacked statutory authority to cancel Mr Brown’s visa in May 2018 on the basis of “the same facts concerning suspicion and satisfaction as to the character test” that had formed the basis for the earlier decision of the Tribunal in April 2012 not to cancel his visa (JR, [97]).

79    The second issue arises from his Honour’s statement (JR, [94]):

[T]he Minister’s reasons simply treat the case as one where the Minister is able to revisit all of the considerations as if the power was one that could be exercised irrespective of the fact that there had been a considered decision by the Tribunal as the repository of the power in 2012.

80    Under appeal ground two, the Minister contended that the power in s 501(2) of the Migration Act could be exercised anew where there were “significant new facts” relevant to the exercise of the discretion in s 501(2) “even if those new facts did not, of themselves, provide a basis for a finding that [Mr Brown] did not pass the character test”. By appeal ground three, the Minister contended that Parker was not relevantly distinguishable and ought to have been applied by the primary judge to dismiss Mr Brown’s application. Further, since Parker was not plainly wrong, Parker should be followed by this Court. Mr Johnson SC, for the Minister, submitted that there was no indication in the Migration Act that s 33(1) of the Acts Interpretation Act did not apply. He submitted that Mr Brown’s convictions meant that his “not passing the character test [was] constant” but that this was not an end of the s 501(2) inquiry because this provision also required the exercise of discretion. Mr Johnson SC submitted that “[t]he fact that a particular matter might be described as a jurisdictional fact does not dictate whether or not, once it has been considered … it can’t be considered again” and “[w]hat really matters is how the discretionary component of the judgment to be made should be exercised from time to time”.

81    Mr Johnson SC distinguished Watson on the basis that that case concerned whether a power to revoke could be inferred in unchanged circumstances. He further submitted that ss 501A and 501B did not tell against the Minister’s position because they were directed to a past decision being set aside by the Minister. He contended that the fact that, by virtue of s 501(6), the character test in s 501(2) may be failed in a number of ways made it even more difficult to conclude that s 501(2) was not a power that could be exercised from time to time.

82    The Minister submitted that once he entered upon the statutory task set by s 501(2) he correctly focussed on the material “as it presents to the Minister at that time”, rather than on an earlier Tribunal decision. At one point Mr Johnson SC stated that the Minister did not make the submission that the power conferred by s 501(2) was exercised only when the Minister made a decision to cancel a visa. In his submission, the power was exercised once the Minister decided how he should exercise this discretion. In a later discussion with the Court Mr Johnson may have retreated from this position.

83    The fourth ground of the Minister’s notice of appeal, “advanced only protectively”, asserts that the primary judge erred in so far as he “made a finding” that the Minister’s decision was legally unreasonable. The Minister submitted that his reasons for his decision to cancel Mr Brown’s visa contained “a rational and evident justification for the decision reached, and a reasonable decision-maker could have reached the same conclusion”. He further submitted, citing Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [21] and Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45], that the decision was “within the Minister’s area of ‘decisional-freedom’”.

84    The submissions advanced by the Minister in May 2019 in the Brown appeal were further developed in June 2019 alongside the hearing of the Makasa appeal. Mr Johnson SC, for the Minister in both appeals, reiterated that it was open to the Minister to re-exercise the power in s 501(2) where there were new facts relevant to the exercise of the discretion. By the end of the June hearing, Mr Johnson SC submitted that although the Minister had sought to uphold and rely on Parker, the Minister’s position was that he could exercise the power in s 501(2) in respect of a visa-holder notwithstanding that there had been an earlier exercise of the power in respect of the same visa-holder on the same facts.

Submissions of counsel for Mr Makasa and the amicus curiae

85    Mr Brown, who was not legally represented, did not file written submissions and did not appear at the hearing of the appeal. The Court was assisted, however, by Mr Murray SC with Ms Doyle-Markwick as amici curiae. In this capacity, they prepared written submissions and appeared at the hearing.

86    In written submissions, the amicus curiae submitted that Parker was plainly wrong and should be overruled. This was because: the text of s 501(2) of the Migration Act identified the conditions that enlivened the power to cancel a visa; the Migration Act prescribed the circumstances in which the Minister could set aside a previous decision of a delegate or of the Tribunal in ss 501A and 501B; and “[t]he right affected by the power is ... a fundamental one”. It was submitted that the Minister had no power under s 501(2) to cancel Mr Brown’s visa in May 2018, because that power had been exercised by the Tribunal on the same jurisdictional facts in April 2012. It was argued that the application of s 33(1) of the Acts Interpretation Act to s 501(2) was displaced by a contrary intention and “[t]o allow the occurrence of new discretionary facts to permit a fresh exercise of a power previously exercised would subvert the distinction drawn in the text”.

87    Mr Murray SC submitted that the Minister could re-exercise the power conferred by s 501(2) by reference to s 501(6)(a) only if there was a change in the jurisdictional facts on which the Minister relied to re-exercise the power. He argued that the nature of the statutory power in s 501(2) and its effect on a person’s right to remain in Australia argued for the importance of finality and against the application of s 33(1) of the Acts Interpretation Act. He relied on the comprehensiveness of the statutory regime, the breadth of the subject matter and ss 501A, 501B, 501E and 501F of the Migration Act in support of the contention that it was not open to the Minister to re-exercise the power conferred by s 501(2) in the circumstances of the case. Whilst it was not open to the Minister in this case to re-exercise the power conferred by s 501(2) by reference to s 501(6)(a), he accepted that it would have been open to the Minister to have exercised the same power by reference to 501(6)(c) of the Migration Act (leaving open the subsequent question of whether that power would have been exercised lawfully, in the circumstances).

88    The submissions advanced in May 2019 in the Brown appeal were further developed in June 2019.

89    Counsel for Mr Makasa expanded on the argument that s 33(1) of the Acts Interpretation Act did not apply to s 501(2) of the Migration Act, referring to s 501B and the legal significance of the Tribunal’s decision considered by reference to the Migration Act and s 43 of the AAT Act. Counsel also sought to distinguish Kurtovic, and argued that the Minister could re-exercise the power in s 501(2) only where there was a new jurisdictional fact and that Parker was wrong to hold otherwise; alternatively, if a new fact bearing on the discretion were enough, then that new fact had to have a rational relationship to the Tribunal’s decision. Counsel accepted that the Tribunal’s decision could be characterised as a mandatory relevant consideration in a re-exercise of the power in s 501(2).

90    Mr Murray SC, who again appeared as amicus curiae in Mr Brown’s appeal, submitted that legal reasonableness was a principle of general application and not a basis for determining whether the preconditions for the exercise of s 501(2) had been met; and that it was the consideration of the statutory questions in s 501(2) that “reveals the exercise of power[,]” and not the result.

An analysis of the present question

91    Whether or not a repository of power can, in the circumstances of the case, re-exercise a statutory power always involves some process of statutory construction. It may be accepted that s 33(1) of the Acts Interpretation Act creates an implication that, subject to the manifestation of “a contrary intention”, a statutory power may be exercised repeatedly in relation to different individuals or different subject matters: see, to similar effect, MJD Foundation at [254] (Mortimer J, Perry J agreeing). As the previous authorities (discussed above) and the relevant statutory regime (discussed below) illustrate, the proper construction of s 501(2) with respect to the occasions of its exercise ultimately depends on the text, context and purpose of the relevant provisions of the Migration Act. In this context, s 33(1) of the Acts Interpretation Act adds little to the analysis: see also MJD Foundation at [137], [138]-[248] (Mortimer J, Perry J agreeing).

92    The process of construction commences with the statutory text and takes account of the context and purpose of the statutory provisions under consideration: see, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [5] (French CJ), [47] (Hayne, Heydon, Crennan and Kiefel JJ). We have already referred to the comment of Gleeson CJ and Gummow J in Jia Legeng (see [27] above). Ultimately, the meaning and operation of these provisions is affected by constructional choices that involve the balancing of the legal policy considerations immanent within the statute.

93    Section 501(2) provides in substance that the Minister may cancel a visa if the Minister reasonably suspects that the visa-holder does not pass the “character test”, and the visa-holder is unable to satisfy the Minister that he or she passes the character test. The operation of this seemingly straightforward provision is, however, affected by a variety of other provisions.

94    First, the expression “character test” is a defined one: s 501(6). Relevantly, a person does not pass the character test if the person has a substantial criminal record (s 501(6)(a)). Alternatively, a person does not pass the character test if he or she or is not of good character having regard to: (i) the person’s past and present criminal conduct; and/or (ii) the person’s past and present general conduct (s 501(6)(c)). There are a number of other possible bases which can form the basis of a failure to pass the character test: see 501(6)(aa)–(ba) and (d)–(h). As a consequence, the conditions that enliven the discretion in s 501(2) can be satisfied in more than one way.

95    Secondly, while the discretion in s 501(2) may be exercised by the Minister personally or through his or her delegate, the surrounding provisions are highly prescriptive and confer a discretionary power to cancel a visa on the Minister only if acting personally. Section 501(3) permits the Minister, acting personally, to cancel a visa if: the Minister has a reasonable suspicion that the visa-holder does not pass the character test; and the Minister is satisfied that the cancellation is in the national interest: see s 501(3) and (4). Although the visa-holder is not entitled to natural justice at the time the Minister makes such a decision (s 501(5)), s 501C(4) enables the Minister, acting personally, to revoke a cancellation decision under s 501(3) if the visa-holder makes representations in conformity with s 501C(3)(b) and satisfies the Minister that he or she passes the character test. Whether or not the Minister decides to revoke the visa cancellation decision under s 501C(4) (and whether after a Tribunal decision or a delegate’s decision) the Minister is obliged by s 501C(8) “to cause notice of the making of the subsequent decision to be laid before each House of Parliament” within the time specified in that provision: see also s 501C(9).

96    Once a decision has been made, the Minister has power, acting personally, under s 501A and 501B to set aside that decision. Section 501A addresses a decision of the delegate or the Tribunal favourable to the visa-holder (non-cancellation) and s 501B addresses a decision of a delegate unfavourable to the visa-holder (cancellation). The Minister, acting personally, has the power under s 501A(2) to set aside the decision of a delegate or Tribunal not to exercise the power in s 501(2) to cancel a visa, and to cancel the visa if: the Minister has a reasonable suspicion that the visa-holder does not pass the character test; the visa-holder does not satisfy the Minister that he or she passes the character test; and the Minister is satisfied that the cancellation is in the national interest. Natural justice applies in the exercise of this provision. Under s 501A(3), a decision of a delegate or the Tribunal not to exercise the power in s 501(2) to cancel a visa may be set aside in the same circumstances as under s 501(3); that is, where the Minister has a reasonable suspicion that the visa-holder does not pass the character test; and the Minister is satisfied that the cancellation is in the national interest. As with s 501(3), natural justice does not apply to a decision under s 501A(3): s 501A(4). However, that decision may be revoked by the Minister personally under 501C(4) (see above). Naturally enough, decisions made by the Minister personally under ss 501A(2) and (3) (and s 501C(4)) are not subject to Tribunal review: see ss 501A(7) and 501C(11).

97    Under s 501A a decision of the Tribunal may be set aside after a review under s 500(1)(b) of the Migration Act and s 25(1)(a) of the AAT Act. Section 25(1)(a) of the AAT Act provides that “[a]n enactment may provide that applications may be made to the Tribunal … for review of decisions made in the exercise of powers conferred by that enactment”. Section 500(1)(b) of the Migration Act specifically confers jurisdiction on the Tribunal to review an unfavourable decision of a delegate under s 501 (subject to presently irrelevant exceptions and some specific powers with respect to the conduct of its hearings). In addition, s 500(1)(ba) confers jurisdiction on the Tribunal to review a decision of a delegate made under s 501CA(4) not to revoke an earlier decision to cancel a visa.

98    Under s 501B the Minister may set aside a decision of a delegate to cancel a visa when the same conditions as those in s 501A(2) are satisfied, even where the decision is the subject of an application for review by the Tribunal (s 501B(5)). This decision is not reviewable by the Tribunal (see 501B(4)).

99    Furthermore, if a delegate or the Tribunal acts under s 501CA(4) to revoke a mandated decision under s 501(3A) to cancel a visa, then the Minister, acting personally, may set aside that decision under s 501BA where: the Minister is satisfied that the visa-holder does not pass the character test because of s 501(6)(a) (on the basis of s 501(7)(a), (b) or (c) or s 501(6)(e)); and the Minister is satisfied that cancellation is in the national interest. The visa-holder is not entitled to natural justice before that decision is made, and cannot apply for Tribunal review: see s 501BA(3) and (5).

Enactment History

100    Aside from the amendments introduced by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), which amongst other things introduced ss 501(3A) and 501BA, most of the provisions discussed above were introduced by the 1998 Amending Act in substantially the same form they take today.  All the provisions discussed above, however, must be read together as a manifestation of the Parliament’s current intention.

101     The Explanatory Memorandum accompanying the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 indicated (at [2]) that the amendments were intended to “strengthen the power to … cancel a visa on character grounds” and

strengthen the Minister’s personal powers to … cancel a visa on character grounds:

•    to enable the Minister to personally exercise a special power to intervene in any case and substitute his/her own decision to refuse to … cancel. This decision may be revoked if made without prior notice to the person; and

•    to ensure that the Minister’s personal decisions are not reviewable.

102    These statements are consistent with what is indeed the evident purpose of s 501 and the ensuing provisions, which is not only to provide the Minister with the power to cancel a visa where the visa-holder does not satisfy the character test, but also to ensure that the Minister has a personal power to override the decision of a delegate or of the Tribunal in any case and to substitute his own decision for their decisions, the Minister’s personal decision being subject to judicial examination to ensure that it was made according to law and Parliamentary and political accountability, particularly as expressed in ss 501C(8) and  (9).

Consideration

103    Whilst the overall effect of the provisions to which we have referred is to concentrate the ultimate decision-making power in the Minister acting personally, there are a number of related considerations that militate against the possibility that the Minister can re-exercise the power in s 501(2) after the Tribunal has set aside a delegate’s decision to cancel the individual’s visa under s 501(2) and decided not to cancel the visa (at least where there are no facts or circumstances re-enlivening the power).

104    First, the relevant provisions allocate specific sets of powers to the delegate, the Tribunal and the Minister personally and, in so doing, make detailed provision for the occasions when an exercise of discretionary power respecting visa cancellation can be reconsidered on the merits. In the latter regard, the statutory provisions are specific and prescriptive.

105    The Migration Act makes specific provision in s 500(1)(b) for the way in which a delegate’s decision to cancel a visa may be reconsidered, namely by the Tribunal, subject to the Minister not exercising the power in s 501B (to set aside the delegate’s cancellation decision and substitute the Minister’s own unreviewable cancellation decision). In making its decision in Mr Brown’s case, the Tribunal acted under s 43(1)(c)(i) of the AAT Act, which permitted it in effect to restore the visa that the delegate had cancelled. The effectiveness of the Tribunal’s decision depended on the fact that, by virtue of s 43(1)(c)(i) of the AAT Act, the Tribunal was able to exercise the power conferred on the delegate by s 501(2) of the Migration Act: see Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; 367 ALR 695 at [51] (Bell, Gageler, Gordon and Edelman JJ); and Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175-176 (Brennan J).

106    The Tribunal’s task on review in Mr Brown’s case (as in other cases) was to determine the correct or preferable decision, addressing the same question as the previous decision-maker had done: see Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [34]-[38] (Kirby J), [98]-[99] (Hayne and Heydon JJ), [141]-[142] (Kiefel J). It made its decision in Mr Brown’s case having regard to the direction given by the Minister under s 499 of the Migration Act and on the basis of the evidence and other material before it at the time of its decision. In the ordinary course, a decision of the Tribunal has a degree of finality, unless set aside following an appeal to this Court under s 44 of the AAT Act or on judicial review.

107    Section 501A alters the usual position with respect to the decisions of the Tribunal in one important respect. It provides in effect that, even where the Tribunal acts under s 43(1)(c)(i) of the AAT Act to set aside a delegate’s decision under s 501 and, in substitution, make a decision under s 501(2) that is favourable to the visa-holder, the Minister, acting personally, may set aside the Tribunal’s decision and substitute the Minister’s own visa cancellation decision (providing the conditions enlivening the power in ss 501A(2) or (3) are met). There is nothing, however, in the Migration Act or in the AAT Act to support the proposition that the Tribunal’s decision on review to act under s 43(1)(c)(i) of the AAT Act can revive the power in s 501(2) of the Migration Act, which was spent when the delegate made the visa cancellation decision. Taken together, the decision (of the Minister by his delegate) to cancel the visa, and the decision (of the Tribunal) to set that decision aside and to substitute in its place a decision not to cancel the visa is the completion of the statutory process of consideration of the visa-holder’s position on the given facts that enliven the exercise of the power under s 501 (here through s 501(6)(a)).

108    Plainly enough, the power in ss 501A(2) and (3) is conferred for the purpose of authorising the Minister to change the outcome of a decision made by the Tribunal. In conformity with this, the Minister, acting personally, enjoys wide, though not unconstrained, powers to set aside or revoke decisions of a delegate or of the Tribunal and to substitute another decision of the Minister’s own. No decision made by the Minister personally under ss 501(2), 501(3), 501(3A), 501A(2), 501A(3) or 501B(2) is subject to review by the Tribunal. Of these, the only decisions of the Minister acting personally that are subject to a form of reconsideration are decisions under ss 501(3), 501(3A) and 501A(3). These decisions may be revoked by the Minister, again acting personally, under s 501C(4) (in respect of decisions made under ss 501(3) and 501A(3)) or s 501CA(4) (in respect of decisions made under s 501(3A)). Once the Tribunal made a decision favourable to the visa-holder, s 501A provided the only source of power to set aside the Tribunal’s decision and cancel the visa. The position of the Tribunal thus cannot be entirely assimilated to the position of the delegate with respect to the operation of ss 501A(2) or (3) of the Migration Act.

109    For the purposes of this appeal, it may be accepted that the power conferred by s 501(2) – to exercise a discretion as to whether or not to cancel a visa – is exercisable from time to time with respect to a particular individual (at least where there are new facts or circumstances) until the choice is made to cancel that individual’s visa: see MJD Foundation at [172] (Mortimer J, Perry J agreeing). Where that choice is made, however, the power in s 501(2) cannot be exercised again with respect to that individual. The provisions of the Migration Act foreclose this possibility and, in this way, also manifest a contrary intention for the purposes of ss 2(2) and 33(1) of the Acts Interpretation Act. So much emerges from Mortimer J’s analysis in MJD Foundation at [172] that:

A person’s visa may be cancelled in an exercise of power to decide whether to do so. However, the power cannot be exercised again to decide not to cancel the visa because there is no visa to consider as the subject matter of the power. As the Court pointed out in Watson, in substance what would occur in this situation would be the grant of a new visa, for which the Act provides in other, detailed, ways: at [7] (Dowsett J), [23]-[24] (Hely J), [141]-[142] (Lander J). If the power is exercised for the first time and no cancellation results, then there remains a visa upon which the power can be exercised again as the subject matter of the power – in my opinion, at least if there are new facts or circumstances. That is what s 33(1) means when it speaks of an exercise from time to time.

110    For these reasons and as decided in Parker, it may be accepted that a decision of the delegate made under s 501(2) not to cancel a visa of a particular individual does not foreclose the possibility that a subsequent decision may be made to cancel that visa. Considerations of this kind led Griffiths and Perry JJ to hold in Parker that s 501A was not the only source of power to revisit an earlier decision made by a delegate not to cancel a visa: see [74] above. By contrast, for the reasons already stated, a decision made under s 501(2) to cancel a visa brings the power exercisable under s 501(2) to an end.

111    There is another consideration that, in our view, supports this construction. This consideration infuses the process of the proper construction of the Act. This is the kind of consideration mentioned by Dowsett J in Watson at [7]: see [64] above. The cancellation of a visa under s 501 entails the loss of the right to remain in Australia. By operation of s 501E, once a decision is made under ss 501, 501A, 501B or 501BA to cancel a visa, a person is not allowed to make a further application for a visa. A non-citizen without a visa is an unlawful non-citizen and, if remaining in the migration zone in these circumstances, he or she is liable to be detained: see s 189. If detained, and unless invited to make representations on the revocation of the decision in accordance with ss 501C or 501CA, the unlawful non-citizen must be removed from Australia as soon as reasonably practicable: see ss 198(2A), (2B) and (6).

112    The highly prescriptive nature of the statutory regime recognises the importance of regulating the grant and cancellation of visas, bearing in mind the interest of the individual visa-holder and the public interest. If another decision could be made under s 501(2) in spite of a previous Tribunal decision simply on the basis that there is a fresh fact said to be relevant to the exercise of the discretion, the individual would, practically speaking, continue to be at significant risk of a future visa cancellation, notwithstanding the favourable decision made by the Tribunal on review. This would be “an unsatisfactory basis for continued residence in this country”, to adopt Dowsett J’s words (at [7]) in Watson: see [64] above. The Parliament’s intention that the Minister have the ultimate power to decide whether or not an individual should continue to have a visa is given effect in s 501A and the individual visa-holder remains at risk of future visa cancellation under that provision even after a favourable Tribunal decision. That risk is, however, circumscribed to some extent by s 501A, including by the requirements that certain conditions be met before the powers in ss 501A(2) or (3) can be enlivened and that a visa cancellation decision under s 501A(3) is subject to revocation under s 501C(4).

113    The question of the right of a non-citizen to remain in the country is of importance to the Australian community and will generally be of deep importance to the non-citizen and to his or her family and immediate community. The prospect or potentiality of repeated decisions concerning that right, unquelled by a full review by the independent review tribunal, leads to a lack of certainty and a potential for inconsistency incompatible with the prescriptive nature of the relevant provisions of the Migration Act. Consistency of decision-making can be seen as part of a standard of rationality: Galligan DJ, Discretionary Powers (Oxford University Press 1990) at 150-152; Matadeen v Pointu [1999] 1 AC 98 at 109; and see also Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-640 (Re Drake (No 2)); Dilatte v MacTiernan [2002] WASCA 100 at [60]-[62]; and Sunshine Coast Broadcasters Ltd v Duncan (1988) 15 ALD 52; 83 ALR 121 at 130. Whilst consistency can be seen as part, or an ingredient, of rationality and justice, it is not a hallmark of either. Consistency is not required in all circumstances: see the discussion by Deane J in Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; 34 ALR 639 at 646-647. But in matters of visa status and deportation “which so profoundly affect the interests of the [person] and his [or her] family and which are of relevance to the community at large, inconsistency born of the application of differing standards and values should be reduced as far as it is possible to do so”: per Brennan J in Re Drake (No 2) at 639.

114    For the reasons stated, in our opinion, s 501A would permit a decision of the Tribunal to be set aside by the Minister “on the same facts and circumstances” as those before the Tribunal (cf Parker at [67]). This provision would also permit the Minister to rely on different facts in the exercise of the Minister’s discretion. There is nothing in the Migration Act to indicate that, contrary to the usual principles of sound administrative decision-making, the Minister cannot have regard to the facts and circumstances relevant to the exercise of the discretion at the time the Minister makes the decision to exercise the discretionary power in s 501A(2) or (3).

115    It follows that it would have been open to the Minister to consider whether to exercise the powers conferred by ss 501A(2) or (3) of the Migration Act having regard to the Tribunal’s previous decision and the fresh convictions that had come to the Minister’s attention after the Tribunal had made its decision, providing the conditions enlivening one or another provision were satisfied (including that the Minister was satisfied that the cancellation of Mr Brown’s visa was “in the national interest”). For the reasons above, however, it was not open to the Minister to re-exercise the power in s 501(2). This is not to say that the Minister cannot engage in a new exercise of the power in s 501(2), in respect of an individual’s visa, where new facts or different considerations are relied on to enliven the power. In such a case, there may well be a separate and independent exercise of the power.

116    For the reasons stated above, we dismissed the appeal.

117    It is unnecessary to consider the question (adverted to equivocally in argument by Mr Johnson SC (see [82] above) and to which reference was made by Mortimer J (unequivocally) in Parker at [69]) whether a consideration of whether to exercise a power to cancel a visa resulting in a decision not to cancel the visa is an exercise of the power to cancel the visa, including by reason of the operation of s 33 of the Acts Interpretation Act.

118    As set out above, the respondent did not appear and did not participate in the appeal. In the circumstances, and given that the Court is not aware of any costs, there will be no order as to costs.

119    The Court is indebted to Mr Murray SC and Ms Doyle-Markwick for undertaking to appear as amici curiae in this matter and, in so doing, assisting the Court in the administration of justice. The assistance of the Bar upon request of the Court is of importance to the proper exercise of the judicial power, especially in circumstances where litigants do not have the means to engage legal assistance.

Associate:

Dated:    28 February 2020

REASONS FOR JUDGMENT

BESANKO J:

120    I have had the advantage of reading the reasons for judgment of Bromwich J. I gratefully adopt his Honour’s statement of the facts, statutory provisions and relevant circumstances. I agree with his Honour for the reasons he gives, that the decision by the Tribunal that the respondent’s visa not be cancelled under s 501(2) of the Migration Act 1958 (Cth) (the Act) was not an exercise of the power under the subsection. I also agree that the Minister’s decision involved a jurisdictional error and that that means that the appeal by the Minister must be dismissed. However, in my opinion, the jurisdictional error is a different one from the jurisdictional error identified by Bromwich J. In my opinion, the jurisdictional error committed by the Minister was a failure to take into account a mandatory relevant consideration of great importance. The relevant consideration was the decision of the Tribunal not to cancel the respondent’s visa under s 501(2) of the Act.

121    Section 501(2) contains conditions which must be satisfied before the power may be exercised and those conditions are that the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. Other than those express conditions, the considerations relevant to the exercise of the power are not expressly stated in the Act. It is clear that an examination of the subject matter, scope and purpose of the Act may lead to the identification of considerations which are mandatory relevant considerations for the exercise of the power (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (Peko-Wallsend)).

122    In a case where there has been a prior decision under s 501(2) not to cancel a visa in circumstances where particular factual matters have satisfied the conditions in the subsection, the desirability of consistency in administrative decision-making, the related matter referred to by Dowsett J in Minister for Immigration and Multicultural Affairs v Watson [2005] FCAFC 818; (2005) 145 FCR 542 (Watson) (see [124] below) and the presence of related sections such as s 501A of the Act lead to the conclusion, in my respectful opinion, that when consideration is given to the making of a further decision under s 501(2) based on the same factual matters satisfying the conditions in the subsection, the previous decision under s 501(2) is a mandatory relevant consideration of great importance.

123    The desirability of consistency in administrative decision-making has been identified in a number of authorities. The reasons consistency is desirable were identified by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 59; (1979) 24 ALR 577 at 591 (Drake) and by Deane J in Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 34 ALR 639 at 647 (Nevistic). Of course, as Deane J made clear in Nevistic, the desirability of consistency is to be balanced against the fact that each applicant is entitled to have his or her case decided on its own particular merits. In this matter, the consistency is consistency in decisions involving the same applicant not, as is commonly the case when consistency is raised, as between different applicants.

124    In Watson, Dowsett J made the point that in the context of visa cancellation and its impact on the visa-holder, the need for certainty is important. His Honour put the point as follows: (at [7]):

… 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. …

I respectfully agree with those observations.

125    Section 501A empowers the Minister to set aside a decision made under s 501(2) if the condition is satisfied and the Minister considers that it is in the national interest to do so. The powers are not the same. The power under s 501A is a power to set aside an existing decision and one that would be exercised, in the usual case at least, shortly after the decision which is set aside is made. The Minister must be satisfied as to the national interest. Nevertheless, s 501A is an indication that there is to be an element of finality in a decision made under s 501(2) based on particular factual matters satisfying the conditions in the subsection.

126    These matters lead me to conclude that the prior decision of the Tribunal in this case was a mandatory relevant consideration of great importance.

127    The three matters which I have identified go some way towards supporting the conclusion reached by Bromwich J that there is to be implied into s 501(2) a jurisdictional pre-condition that there must have been a material change before the power to cancel the visa is engaged. However, with respect, I do not consider that the matters identified support the suggested implication. Parliament has expressly identified the jurisdictional pre-conditions to the exercise of the power in s 501(2) being the reasonable suspicion of the Minister that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. In my respectful opinion, there is no sufficient warrant for reading s 501(2) as if the subsection included a further paragraph which, on the analysis advanced by Bromwich J, would perhaps read along the following lines:

(c)    in a case where there has been an earlier decision under this subsection not to cancel the person’s visa, there has been a material change in the facts and circumstances prevailing at the time of the earlier decision, being a change relating to content and not merely the effluxion of time.

128    Although it led him to a different conclusion and one with which I respectfully disagree, it seems to me that the primary judge also had difficulty in accepting that the power could be impliedly constrained by a requirement that there is a change in the factual circumstances relevant to the discretion. After referring to the subject matter of the power and the structure of the provision in specifying conditions that must be met before the power to cancel arises, the primary judge said (Brown v Minister for Home Affairs [2018] FCA 1722 at [44]):

44    However, the same matters count against a fresh power arising simply where there has been a change in circumstances that bear only upon the exercise of the discretion. To reach such a conclusion it would be necessary to construe the conditions in s 501(2)(a) and (b) as enlivening a power that may be exercised from time to time, contrary to the conclusion I have set out above. There is little to commend such a construction. Further, if such a construction were to be adopted it is difficult to see how the words describing the power (namely, the Minister may cancel a visa) as being impliedly constrained by words to the effect that the Minister may cancel a visa if there has been a change in the factual circumstances relevant to the exercise of the discretion. Unlike the case with the conditions, there is no description of an event that has to occur (a state of suspicion and satisfaction) before the power is enlivened. The only way to allow textually for the power to be exercised again based upon a change of circumstances confined to the exercise of the discretion whether to cancel the visa would be to read the whole provision as applying from time to time. For reasons I have already expressed, such an approach would be contrary to the purpose manifest by the broader statutory context.

(Emphasis added.)

129    I have identified a prior decision not to cancel a visa where the same factual matters activate the conditions in s 501(2) as a mandatory relevant consideration of great importance. In Peko-Wallsend, Mason J (as his Honour then was) referred to the fact that the weight to be given to relevant considerations was generally for the administrative decision-maker and then said (at 41):

I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. This ground of review was considered by Lord Greene MR in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss 5(2)(g) and 6(2)(g) of the AD(JR) Act in these terms.

    (Citation omitted.)

130    More recently, Hayne J, Kiefel J (as her Honour then was) and Bell J in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [72], after referring to this passage, suggested the cases involving the specific errors in decision-making (e.g., relevancy and purpose) or according disproportionate weight to some factor or adopting illogical or irrational reasoning, may all be characterised as cases where the decision-maker has been unreasonable in the legal sense.

131    In my opinion, reading the Minister’s reasons as a whole and acknowledging that the Minister’s reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196), it is nevertheless the case that the Minister did not treat the Tribunal’s decision as a mandatory relevant consideration of great importance.

132    In his references to the Tribunal’s decision, the Minister noted that the Tribunal set aside the delegate’s decision and found that, although there was a real risk that the respondent would reoffend, the risk would not be unacceptable to the Australian community (at [44]) and a little later he said that he had considered the Tribunal’s opinion that the Australian community would not find the risk unacceptable (at [55]). The Minister acknowledged that the most recent offending by the respondent of No authority to drive (never held) and Use of an unlicensed vehicle was not “his most serious offending” (at [38]) and were relatively minor infractions (at [46]). It is true that before reaching his conclusions, the Minister said that the potential for serious injury to the respondent or a member of the Australian community as a result of the respondent driving whilst unlicensed was high, especially given the respondent’s physical condition (at [38]), and that the most recent offending displayed an inability by the respondent “to discontinue reoffending” (at [44]).

133    Nevertheless, despite those matters, in my opinion in this particular case, a fair reading of the Minister’s reasons leads to the conclusion that the operative reasons are those set out in the conclusions. I turn to those conclusions.

134    The matters which the Minister identified as favouring a decision not to cancel the respondent’s visa were the best interests of the respondent’s niece and nephew as a primary consideration, the respondent’s ties to Australia, the contribution the respondent has made to the community through his community and charitable work, and the hardship to his family members and himself if he is removed to the United Kingdom, in part due to his physical health and mental health condition. The Minister referred to the fact that the respondent had lived in Australia from the age of seven years as a matter that might lead the Minister to have a higher tolerance of criminal conduct by the respondent. Some of these factors had developed or increased in importance since the Tribunal’s decision, while others relevant at the time of the Tribunal’s decision had receded in importance. Nevertheless, it does not appear to me that there was a marked change in the overall weight accorded to the factors which favoured a decision not to cancel the respondent’s visa.

135    The matters which the Minister considered outweighed the considerations which favoured a decision not to cancel the respondent’s visa were all related to the serious crimes committed by the respondent, being “grievous bodily harm, assault occasioning bodily harm and assault public officer”. These crimes were of a violent nature and against members of the community and public officers performing their daily duties and a person who committed them (said the Minister) should not generally expect to be permitted to remain in Australia. The Minister concluded that the Australian community could be exposed to significant harm should the respondent reoffend in a similar fashion. The Minister said that he could not rule out the possibility of future offending by the respondent and that the Australian community should not tolerate any further risk of harm. In the circumstances, the Minister’s conclusion was that the respondent represented an unacceptable risk of harm to the Australian community and the protection of the Australian community outweighed countervailing considerations.

136    The serious crimes to which the Minister referred were the offences (with other offences) which satisfied the conditions before the Tribunal and were considered by the Tribunal. The offences since the Tribunal hearing did not play a significant part in the Minister’s reasons. In my respectful opinion, the Minister simply took a different view from that taken by the Tribunal and he did not treat the Tribunal’s decision as a mandatory relevant consideration of great importance. In the case of such an important consideration, it is not enough to say that it has been noted or considered without more.

137    For these reasons I considered that the Minister’s decision involved jurisdictional error and I joined in the order made on 24 December 2019 that the appeal be dismissed.

138    Since writing these reasons I have had the advantage of reading the reasons of Allsop CJ, Kenny and Banks-Smith JJ. I regret that I am unable to agree with their Honours that it was not open to the Minister in this case to seek to exercise the power in s 501(2) of the Act in light of the previous decisions of the delegate and the Tribunal respectively. With respect, I am not able to see a distinction relevant for present purposes, between a decision of a delegate and a decision of the Tribunal. Nor am I persuaded that, as theirs Honours put it, the power in s 501(2) is spent when the delegate made the visa cancellation decision, even though the Tribunal, on review of the delegate’s decision, set aside that decision and substituted in its place a decision not to cancel the visa. In my opinion, it is appropriate to view the case as one where the administrative process was engaged to decide whether or not to exercise the power to cancel the visa and that process resulted in a decision not to cancel the visa, that is to say, not to exercise the power. Otherwise, I am content to rely on the reasons set out above and, in particular, that part of the reasons of Bromwich J with which I have expressed my agreement. I agree with Allsop CJ, Kenny and Banks-Smith JJ that there should be no order as to costs.

Associate:    

Dated:    28 February 2020

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

139    On 24 April 2012, the Administrative Appeals Tribunal, constituted by a Deputy President, set aside a decision by a delegate of the appellant, the Minister for Home Affairs (then known as the Minister for Immigration and Citizenship). The delegate had cancelled the visa held by the respondent, Mr Nicholas Brown, under s 501(2) of the Migration Act 1958 (Cth). In substitution for the delegate’s decision, the Tribunal decided not to cancel Mr Brown’s visa.

140    In making the decision not to cancel Mr Brown’s visa, the Tribunal carefully addressed what it considered to be the finely balanced competing considerations favouring visa cancellation against those favouring non-cancellation. The Tribunal found that the principal consideration favouring cancellation was the need for protection of the Australian community arising from Mr Brown’s lengthy criminal history. That history included imprisonment in 2010 for 5 years with a non-parole period of 3 years for offences committed in 2008 and 2009. Those offences included serious crimes of violence.

141    The Tribunal concluded that there was a real risk of Mr Brown re-offending in a seriously violent or other serious manner. Ten years after his offending, that risk has not in fact materialised. The strongest, but not the only, considerations favouring non-cancellation were the fact that Mr Brown had been in Australia since he was 7 years of age (he was then 38) and the best interests of his 15-year-old daughter. The Tribunal concluded that, having regard to all the circumstances, necessarily including those favouring non-cancellation, the real risk of re-offending in a seriously violent or other serious manner would not be unacceptable to the Australian community.

142    On four dates in the period from March 2016 to September 2017, Mr Brown was convicted on four summary driving offences of “no authority to drive (never held)” and one summary driving offence of “used an unlicensed vehicle”. He received fines for each conviction. On 1 May 2018, the Minister made a personal decision to cancel Mr Brown’s visa. On 15 November 2018, a judge of this Court quashed the Minister’s decision. His Honour also ordered that Mr Brown not be removed from Australia upon the basis of that decision, and ordered that he be released from detention forthwith. The Minister appealed against those orders.

143    On 24 December 2019, orders were made dismissing the Minister’s appeal. These are my reasons for joining in the making of those orders.

The hearing of this appeal

144    The Chief Justice ordered that amici curiae be appointed to assist the Court because Mr Brown was unrepresented. The Court has been assisted by their participation and helpful submissions as to why the Minister’s appeal should be dismissed.

145    Mr Brown has not been able to be located by the Minister since his release from immigration detention, and has therefore not participated in this appeal.

146    The appeal was initially heard by Allsop CJ and Bromwich and Banks-Smith JJ. Due to issues arising concerning the correctness of prior Full Court authority, and other issues of public importance arising from this appeal, the bench was reconstituted as a bench of five. That took place without objection. The initial bench was joined by Kenny and Besanko JJ, and a second appeal hearing took place at the same time as the hearing of another appeal by the same bench, due to a key common legal issue: see Makasa v Minister for Immigration and Border Protection [2020] FCAFC 22.

Section 501(2) of the Migration Act 1958 (Cth)

147    The power under s 501(2) of the Migration Act to cancel Mr Brown’s visa could only be exercised if the Minister (and thus the Tribunal) had a reasonable suspicion that he did not pass the character test, and he did not satisfy the Minister that he passed the character test. Section 501(6) contains an exhaustive list of the circumstances in which a person does not pass the character test. If none of those circumstances apply, the person passes the character test. It is convenient in these reasons to describe the dichotomy in s 501(6) in a more direct way as either failing or passing the character test.

148    An objective circumstance by which a person fails the character test, via s 501(6)(a), is if the person has a “substantial criminal record”, defined in s 501(7)(c) to be a term of imprisonment for 12 months or more (also defined in s 501(7)(d) to be multiple sentences in aggregate for that duration). The Tribunal and the Minister both relied upon Mr Brown exceeding that 12 month sentence threshold to find that he failed the character test. Neither the Tribunal, nor the Minister, considered any basis for Mr Brown to fail the character test under another paragraph of s 501(6) that did not rely upon prison sentences. Many of those alternative bases require less serious circumstances in order to fail the character test, such as a finding that a person is not of good character having regard to “past and present” criminal conduct or general conduct: s 501(6)(c)(i) or (ii).

Before the primary judge

149    The primary judge’s reasoning proceeded upon the basis that the decision by the Tribunal not to cancel Mr Brown’s visa was an exercise of the visa cancellation power in s 501(2). This meant that the Minister’s decision did not entail reconsidering whether or not to exercise the power to cancel a visa under s 501(2), but rather a re-exercise of that power. Each of the questions posed and addressed by the primary judge and his Honour’s analysis was, as a result, based upon considering the limitations applying to such a re-exercise of the same power. A threshold question in this appeal is whether his Honour was correct in proceeding upon that basis.

150    The primary judge considered whether s 33(1) of the Acts Interpretation Act 1901 (Cth) could be applied to enable the s 501(2) visa cancellation power to be exercised again from time to time. As part of reasoning that s 33(1) did not apply, his Honour relied upon a portion of what was said at [60] in CRI026 v The Republic of Nauru [2018] HCA 19; 355 ALR 216. However, at that point in CRI026, the High Court was dealing with a corrigendum by a Nauru Tribunal to correct an obvious error that suggested an irrelevant consideration had been taken into account in affirming an adverse refugee determination. It was not in doubt that the power in question had been exercised by the Nauru Tribunal. At [60] in CRI026, the High Court found that the corrigendum was permissible, being akin to the application of the curial slip rule to give effect to what had always been intended. In reaching that conclusion, the High Court distinguished its own authority to the effect that a Tribunal cannot ordinarily make substantive changes to its own decision made in the exercise of a discretionary power, even for error within jurisdiction or change of circumstances. Thus, CRI026 does not address the present question of whether the Tribunal’s decision not to cancel Mr Brown’s visa was an exercise of the visa cancellation power in s 501(2).

151    Proceeding upon the basis that the visa cancellation power in s 501(2) had already been exercised by the Tribunal and was therefore spent, the primary judge then considered the circumstances in which that power could be re-enlivened to be exercised again. His Honour found that a change of circumstances only going to the exercise of the discretion to cancel a visa under s 501(2) would not suffice. His Honour concluded that the visa cancellation power could only be re-exercised by the Minister if that power was re-enlivened by Mr Brown failing the character test on different facts than had been before the Tribunal.

152    The only relevant change since the Tribunal’s decision was Mr Brown’s 2016 and 2017 driving convictions. As those convictions did not involve the imposition of any sentence of imprisonment, they necessarily could not be a basis for failing the character test by reason of s 501(6)(a) when read with s 501(7)(c). His Honour therefore concluded that the Minister was not entitled to re-exercise the visa cancellation power in s 501(2) because the change in circumstances did not re-enliven that power.

153    The primary judge distinguished Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 upon the basis that the Full Court had not been called upon to consider the issues that arose in the case brought by Mr Brown. In particular, the issue had not arisen before the Full Court as to whether a visa holder needed to fail the character test again by reason of a change in circumstances before consideration could be given a second time to whether Mr Parker’s visa should be cancelled.

154    There is nothing in the primary judge’s reasons to suggest that it was not open to the Minister to find that Mr Brown failed the character test on the basis of one or more of those other paragraphs of s 501(6). In particular, s 501(6)(c), which expressly refers to “past and present” criminal conduct or general conduct, could be enlivened by Mr Brown’s 2016 and 2017 driving offences under either subparagraph (i) or (ii). If his Honour was correct in concluding that a new finding that Mr Brown failed the character test is enough to re-exercise the visa cancellation power in s 501(2), there does not appear to be any significant barrier to revisiting the decision not to cancel the visa on differently formulated character grounds. This possibility is a further reason to address the question of whether the Tribunal had exercised the visa cancellation power in s 501(2) by deciding not to cancel Mr Brown’s visa, and thereby to ascertain the limits upon making a different decision to cancel that visa.

Whether deciding not to cancel a visa is an exercise of the power in s 501(2)

155    It is important to note at the outset that the nature and extent of executive powers bestowed by statute are necessarily text and context specific, having regard to the particular subject matter, scope and purpose of the statute and the provisions under consideration. The following analysis is concerned with a prescriptive regime in the Migration Act dealing with the power to grant, refuse or cancel a visa in the context of passing or failing a statutory character test. The reasoning that follows does not necessarily readily translate to other provisions of that Act dealing with different topics, or necessarily even different provisions bestowing a power to grant, refuse or cancel a visa, let alone to other statutory regimes.

156    As noted above, a threshold issue in this appeal, arising from the primary judge’s reasons for setting aside the Minister’s decision, is whether his Honour was correct in concluding that the prior decision of the Tribunal not to cancel Mr Brown’s visa was an exercise of the visa cancellation power in s 501(2). It was only if that decision was an exercise of that power by the Tribunal, and thus in law by the Minister, that a question arose as to the circumstances in which the same power was able to be exercised again by the Minister.

157    The Minister asserts that no new facts are required, although he points out that this does not arise in Mr Brown’s situation because there were new facts. The Minister submits that those new facts did not have to address the character test, which Mr Brown could never pass because of his prior convictions and the permanent application of ss 501(6)(a) and 501(7)(c) to him.

158    If the primary judge erred in concluding that the Tribunal’s decision not to cancel Mr Brown’s visa was an exercise of the visa cancellation power in s 501(2), then the Minister’s decision to cancel his visa was not a second or subsequent exercise of that power. The power could not be spent and the occasion for the application of s 33(1) of the Acts Interpretation Act would not arise. In that event, a different analysis is required of the constraints on the Minister’s decision to exercise the power to cancel Mr Brown’s visa for the first time, contrary to the prior Tribunal decision not to cancel that visa. That includes considering the effect of s 501A, which gives the Minister express power to set aside a prior non-adverse decision without the constraint of any new facts being required, but with the additional feature of the national interest needing to be present. Mr Brown was advised that exercise of the power under s 501A was being considered, but that did not take place. The Minister’s decision to cancel Mr Brown’s visa was expressly made under s 501(2).

159    For the reasons that follow, the primary judge erred because the Tribunal’s decision not to cancel Mr Brown’s visa was not an exercise of the visa cancellation power under s 501(2).

160    The analysis commences with the powers in the Migration Act to grant a visa or to refuse to grant a visa. A decision to grant a visa, or to refuse to grant a visa, is binary: s 65(1). Except for certain intervening factors referred to in s 65(1)(a), some of which are discretionary, it is not otherwise a discretionary decision. If a valid application is made for a visa and the Minister is satisfied that the conditions in s 65(1)(a) have been met, including in particular the relevant visa criteria, the visa must be granted and therefore the power to grant the visa must be exercised. If the Minister is not so satisfied, the grant of the visa must be refused: s 65(1)(b).

161    One of the intervening factors referred to in s 65(1)(a)(iii) is the “special power to refuse or cancel” in s 501. In context, and given that s 65(1) is not concerned with visa cancellations, that is a reference to the power to refuse the grant of a visa either by the Minister in person, or by a delegate and thus by the Tribunal under s 501(1); or only by the Minister in person under s 501(3)(a), read with s 501(4). Because of the terms of s 65(1), and in particular the cross-reference in s 65(1)(a)(iii) to the powers in s 501, a decision to refuse to grant a visa entails the exercise of the power under s 501(1) or s 501(3)(a).

162    A decision to exercise the power to refuse to grant a visa under s 501(1), if exercised by a delegate, is subject to merits review by the Tribunal and thereafter judicial review processes. A decision by the Minister in person not to exercise the power to refuse to grant a visa under s 501(3)(a) is only subject to judicial review. A fresh visa application may also be made, depending on the visa applicant’s circumstances. In the case of a decision to exercise the power to grant a visa, visa cancellation processes can apply under s 501, but also under a myriad of other visa cancellation provisions in the Migration Act. The presence of these various features consistent with a final decision, in conjunction with the binary and generally mandatory nature of the decision required to be made in compliance with s 65(1), strongly suggest that the common law doctrine that a power once used is spent and cannot be exercised again applies to both a decision to grant or to refuse to grant a visa, and that s 33(1) of the Acts Interpretation Act does not apply to dispense with that doctrine.

163    The ratio of the Full Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; 145 FCR 542 is that the same conclusion of finality applies to the exercise of the visa cancellation power in s 501(2), thus precluding any capacity to revoke such a decision by the re-exercise of the same power. However, that ratio conclusion depends upon the visa power having been exercised in the first place. That was not in doubt: the Minister’s decision in Watson was to cancel the visa.

164    The issue of possible revocation of that cancellation decision arose in Watson in the context of an intervening High Court decision that the cancellation power that had been exercised was not available in relation to British citizens who had arrived prior to 1973, and therefore Mr Watson. Upon that basis, the decision to cancel his visa was ultra vires and therefore invalid. A second High Court decision then overturned the first, such that the cancellation power was available after all. Thus the original decision to cancel Mr Watson’s visa was valid.

165    Mr Watson unsuccessfully sought to have upheld a primary judge’s conclusion that his visa cancellation had impliedly been revoked between the two High Court decisions. The Full Court in Watson found that the visa cancellation decision could not have been revoked, because there was no power to revoke. That was because the cancellation power said to give rise to a corresponding revocation power had been spent and there was no separate revocation power.

166    There are obiter comments in Watson that suggest that a decision not to cancel a visa is also an exercise of the visa cancellation power in s 501(2): that it is a power to cancel or not to cancel a visa. There is an apparent contrary ratio conclusion by the plurality in Parker, discussed below, that a decision not to cancel a visa is not an exercise of the visa cancellation power in s 501(2). The question of which conclusion is correct must now be addressed in order to decide whether the Minister’s decision to cancel Mr Brown’s visa was a re-exercise of the power in s 501(2) because of the first exercise of that power by the Tribunal, or was instead the first decision to exercise that power in making a different decision to that made by the Tribunal.

167    The first contextual step in determining whether a decision not to cancel a visa pursuant to the visa cancellation power in s 501(2) is an exercise of that power is to consider s 501(1). Section 501(1) contains one of the intervening discretionary factors referred to in s 65(1)(a)(iii), empowering the Minister to refuse to grant a visa if the visa applicant does not satisfy the Minister that he or she passes the character test. The power is expressed to work only one way: to refuse to grant a visa. If the power in s 501(1) is not exercised, and s 65(1)(a) is otherwise satisfied, the power to grant a visa validly applied for must be exercised. Thus, a decision not to refuse to grant a visa cannot be seen to be the exercise of the power to refuse to grant a visa in s 501(1), both as a matter of textual interpretation of s 501(1) as a power expressed to work only one way, and because there would otherwise be the exercise of two powers in relation to a single valid visa application: i.e., the power in s 501(1) and the power by which the visa may be granted. Is s 501(2) somehow different in this respect?

168    Unlike s 501(1), s 501(2) has no interplay with s 65(1). That is because s 65(1) has no further role to play once a visa has been granted. However, in common with the expression of the visa refusal power in s 501(1), s 501(2) is not expressed in terms of being a power to cancel, or not to cancel, a visa. The decision-maker is not given a discretionary choice between the exercise of two opposing powers, but rather a discretionary choice as to whether or not to exercise a single power.

169    Further, s 501A provides for the setting aside and substitution of a decision by a delegate or by the Tribunal in favour of a visa applicant under s 501(1), or in favour of a visa holder under s 501(2). Each such prior decision not to refuse the grant of a visa, or not to cancel a visa, is defined as an “original decision”. Each “original decision” is described as a decision “not to exercise the power” conferred by s 501(1) or by s 501(2). That is an express recognition that a decision not to cancel a visa does not entail the exercise of the s 501(2) visa cancellation power.

170    This way of reading s 501(2) substantially accords with the way in which the reasons of the plurality in Parker (Griffiths and Perry JJ) at [49] framed the issue on this topic before the Full Court as being “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”. Their Honours had earlier, at [38], found that the phrase “may cancel” in s 501(2) did not necessarily carry with it the notion that a decision not to exercise the power meant the power could only be exercised once and then was spent. To that point, this reasoning is largely consistent with the above analysis, especially in the context of [49]. However, their Honours continued in [38] to state that the phrase “may cancel” indicated that there was a discretionary power whether or not to cancel a visa and a separate question as to whether s 33(1) applied or was displaced by a contrary intention. In light of [49], their Honours should be taken to have been addressing, in the alternative, the validity of the decision of the Minister to reconsider the prior delegate’s decision not to cancel Mr Parker’s visa upon the different basis that the prior decision was an exercise of power. This was more in keeping with the reasoning of the other judge, Mortimer J, discussed below. However, once no prior exercise of power has taken place, the common law presumption as to power being spent once used does not arise and s 33(1) of the Acts Interpretation Act is therefore not required to displace it. The alternative analysis was not required.

171    Mortimer J in Parker, while agreeing with the overall conclusion of the plurality that the Minister was entitled to make a second decision, this time to cancel Mr Parker’s visa, in part expressed different reasons for doing so. Her Honour was of the view that a decision not to cancel a visa under s 501(2) was itself an exercise of power, relying (at [69]) upon a comment by Hely J in Watson at [17] in which his Honour had referred to “exercising the power” in s 501(2) either to cancel or refrain from cancelling a visa. Insofar as Hely J was referring to a decision to cancel a visa, it accords with the above reasoning. The inclusion by Hely J in Watson at [17] of a reference to refraining from cancelling a visa as also constituting an exercise of power was obiter because the decision of the Minister had been to cancel Mr Watson’s visa, not to refrain from doing so.

172    Dowsett J in Watson at [7] questioned the existence of an unlimited power to revisit a decision that has been made to cancel a visa on the same factual basis as not sitting comfortably with the stringent regime regulating the grant of visas, because it would amount to the grant of a new visa, bypassing that regime. That too is consistent with the above reasoning. His Honour then described revisiting a decision to refrain from cancelling a visa as being unsatisfactory. It is not clear that this amounted to a finding that refraining from cancelling a visa was itself an exercise of power, but if it was, that too was obiter.

173    Neither the obiter comment by Hely J in Watson, nor the possible obiter comment by Dowsett J, with respect, explains why exercising the discretion against making a visa cancellation decision under s 501(2) amounts to the exercise of a power described by statute by reference to cancellation only. There was no analysis to support that conclusion. As that was not the issue before their Honours, there is nothing contentious in coming to a different conclusion when the point is squarely raised and analysed, albeit that it was raised in this appeal by the bench rather than the Minister, with the Minister embracing it rather than arguing fully in favour of it. The primary plurality view expressed in Parker on this issue was therefore correct.

174    The conclusion to be reached from the above analysis is that, in the Tribunal setting aside the delegate’s decision and deciding not to cancel Mr Brown’s visa under s 501(2), the power under s 501(2) had not been exercised, and was thereby not spent. However, that does not mean that the Minister’s subsequent decision to exercise that power was able to be carried out as though no decision had previously been made by the Tribunal as to the operation of s 501(2) in relation to Mr Brown’s visa.

Exercise of the visa cancellation power in s 501(2) after a prior decision not to exercise that power

175    The conclusion that the prior decision of the Tribunal not to cancel Mr Brown’s visa was not an exercise of the visa cancellation power in s 501(2) necessitates an analysis of the constraints upon the Minister in making a contrary decision, this time in the exercise of that power. The visa cancellation power in s 501(2) is only available when the express character test circumstances exist. That was not in doubt in this case because there was nothing preventing those circumstances being met upon the same material that was before the Tribunal, the power in s 501(2) not having been exercised before in relation to Mr Brown because the delegate’s decision had been set aside. Mr Brown could not pass the character test because he had been sentenced to well over 12 months’ imprisonment both as to the head sentences and the non-parole period, and had in fact served those sentences a long time ago. Accordingly, a suspicion that he did not pass the character test could never be allayed.

176    Once Mr Brown failed the character test, the Minister’s discretion to exercise the power to cancel the visa is not expressly, nor by any necessary implication, tied to those character test circumstances, nor indeed to any other express criteria, unless the power is being exercised by a delegate or the Tribunal, and a direction under s 499 is in force. However, the character circumstances will usually be generally relevant to the exercise of the power, but other circumstances may be regarded as being more important. As Griffiths J pointed out in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [64], the Minister’s discretion to cancel a visa is substantially unfettered in the sense that there are no express criteria which must be taken into account in deciding whether or not to exercise the power. However, as his Honour also pointed out in some detail at [65] to [71] in Stretton, notwithstanding the absence of express criteria, the power is not without limit. Rather, its exercise is subject to important constraints considered at some length by his Honour, including being legally reasonable, procedurally fair, and otherwise within jurisdiction. That also includes taking into account any mandatory relevant considerations to be inferred from the subject matter, scope and purpose of the Migration Act, such as the possibility of indefinite detention. To that may be added any implied limits to be drawn from the text, context or purpose of the visa cancellation power in s 501(2).

177    The context by which any limitation on the scope of s 501(2) may be inferred includes other provisions of the Migration Act, relevantly here the terms of s 501A. Section 501A gives the Minister express power:

(1)    to set aside a non-adverse decision by a delegate or by the Tribunal under s 501(1) or (2): that is, a decision to grant a visa, or a decision not to cancel a visa (the latter not being an exercise of power for the reasons discussed above); and

(2)    to substitute that decision with a decision to refuse to grant a visa or to cancel a visa,

if the Minister reasonably suspects that the visa applicant or visa holder does not pass the character test and is satisfied that the refusal or cancellation is in the national interest.

178    The power to make a substituted decision under s 501A accommodates a different decision being made on identical facts, with the only real barrier being that the Minister is satisfied that the different decision is in the national interest. It is well-established that the test of “national interest” is largely a political question, although not without constraints: see Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40]; see also Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231 at [18]-[19]. The issue of “national interest” therefore provides very limited scope for judicial review. But it is still an additional step required to be taken before, relevantly, the Minister can exercise the power in s 501A to depart from a prior decision of the Tribunal not to cancel a visa.

179    It is clear that the additional step of being satisfied that a different decision should be made was in the national interest was required by Parliament before the power in s 501A could be exercised, including to make a different decision on the same facts. The imposition of that additional requirement is not lightly to be set at nought. Viewed in that way, s 501A supports a clear inference that a decision about whether or not to exercise the s 501(2) power to cancel Mr Brown’s visa could not simply be revisited on the same facts and circumstances that were before the Tribunal. To conclude otherwise renders otiose the deliberate additional requirement in s 501A of satisfaction that visa cancellation (or refusal) is in the national interest before such a decision may be set aside by the Minister in person on the same facts and circumstances.

180    To justify the existence of s 501A, there must be some change or difference to the facts or circumstances following the Tribunal’s decision not to cancel Mr Brown’s visa before a decision can be made by the Minister to exercise the visa cancellation power in s 501(2). It is reasonable to infer that this change or difference must be material. It cannot simply be a change of mind, or a different view on substantially the same material, because that circumstance is permitted for a decision under s 501A. The materiality of the change or difference is jurisdictional in nature because its existence is an implied precondition to the exercise of the power, and is therefore itself amenable to judicial review, however limited the scope for such review may be. Such materiality must be found in the content of such a change or difference, not merely the effluxion of time. But whether that change or difference is material is a matter for the decision-maker, either expressly or by implication, having regard to the otherwise largely unfettered nature of the power as discussed in Stretton, referred to above.

181    Within the bounds of legal reasonableness, and any other applicable jurisdictional constraints, the question of whether such a material change or difference exists must be based upon an express or implied finding by the repository of power, be it the delegate, the Tribunal or the Minister in person. Sometimes the events since the Tribunal’s decision not to exercise the power will put the question beyond any doubt. If follows that it will not always be necessary for the materiality of the change or difference to be spelt out in the reasons, because in some cases it will be self-evident. Nor does it mean that each and every change or difference needs to be considered and analysed for materiality. But where the new facts identified or otherwise evident are of apparently marginal significance, or even ostensibly irrelevant, a basis for accepting that the jurisdictional precondition of a material change or difference exists at all may be difficult to sustain if that has not been addressed in the reasons. This reasoning accords with the substance of the conclusion in Parker that a significant new fact was present in that case, albeit that the Full Court deliberately did not decide whether that was necessarily required before the decision could be revisited and the power exercised. It is that additional step that has been addressed in these reasons and found to be necessary as going to jurisdiction, applying a test of materiality.

The grounds of appeal

182    The Minister relies upon the following four grounds of appeal:

The Primary Judge erred by finding that the power in s 501(2) could not be exercised by the Appellant to cancel the Respondent’s visa on this occasion without some new basis (postdating decision-making in 2012) grounding a finding that the Respondent did not satisfy the character test;

Contrary to his Honour’s findings, the power under s 501(2) could be exercised afresh in the presence of significant new facts going to the discretion in s 501(2), even if those new facts did not themselves provide a basis for a finding that the Respondent did not pass the character test;

Contrary to his Honour’s findings, Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; (2016) 247 FCR 500 was not relevantly distinguishable and ought to have been applied to dismiss the application;

His Honour also erred if (and to the extent that) he made a finding (at [94] or otherwise) that the Appellant’s decision was legally unreasonable.

183    As it transpires, the grounds of appeal did not arise as framed, because, as found above, the primary judge erred in finding that the Tribunal’s decision not to cancel Mr Brown’s visa was an exercise of the visa cancellation power in s 501(2), such that his Honour considered the Minister’s visa cancellation decision to be a re-exercise of that power. By that different route, however, the first and second grounds of appeal may be considered to have been, in substance, made out because his Honour erred in finding that the power in s 501(2) could not be exercised by the Minister to cancel Mr Brown’s visa without some new basis postdating the Tribunal’s decision to ground a finding that Mr Brown did not pass the character test.

184    The third ground of appeal is made out at least in part, because the aspect of Parker that was raised was directly relevant to the judicial review decision and could not properly be distinguished. However, these reasons go further than Parker and therefore that conclusion is of little moment.

185    The fourth ground of appeal, on the topic of legal unreasonableness, is addressed below.

Legal unreasonableness

186    The primary judge’s reasons were largely focused on the issue of whether the Minister was able to re-exercise the visa cancellation power in s 501(2), having found that the power had already been exercised by the Tribunal’s decision not to cancel Mr Brown’s visa. In forming the view that the Tribunal’s decision not to cancel Mr Brown’s visa was an exercise of power, his Honour had relied upon the reasons of Mortimer J in Parker, her Honour in turn relying upon Hely J’s obiter in Watson discussed above. The error now found in that reliance was not obvious, and it did not initially form any part of the Minister’s appeal arguments, although it was embraced once it emerged as an issue on the first appeal hearing day.

187    The primary judge heard the judicial review application on 31 October 2018, only 19 days before Mr Brown was to be removed from Australia on Monday, 19 November 2018. His Honour delivered a detailed judgment on Thursday, 15 November 2018, only eight days after final submissions had been furnished on 7 November 2018. In those circumstances, the question of legal unreasonableness upon the assumption that the Minister’s decision was within power (contrary to his Honour’s primary finding) could not and did not assume the same degree of prominence as it did in this appeal. In any event, the question of legal unreasonableness now has to be considered in a different legal framework of a new decision to exercise the visa cancellation power, not a re-exercise of that power. The Minister, quite properly, did not take any objection to this Court conducting its own assessment of legal unreasonableness, a task which is an aspect of this appeal by way of rehearing. The Minister submits that his decision was not legally unreasonable.

188    The question of legal unreasonableness may be seen to arise in two discrete ways, going to the reasoning process by which the Minister’s decision was made, rather than the outcome: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [44]. It arises first on the question of whether there was identified, expressly or by implication, and without vitiating error, a material change or difference in the circumstances that prevailed at the time of the Minister’s decision as against those that prevailed at the time of the earlier Tribunal decision, so as to establish the jurisdictional pre-requisite to reconsider whether to cancel Mr Brown’s visa under s 501(2). Secondly, the question of legal unreasonableness arises as to the way in which the Minister characterised, and thereafter relied upon, the Tribunal’s decision. In this case, the factual analysis for both aspects of legal unreasonableness is the same.

189    It is important that this analysis proceeds with the express recognition that the power in s 501(2) was being exercised by the Minister in person. The Minister is a significantly different repository of power than a non-ministerial and non-elected executive decision-maker, freely able to make decisions in accordance with government policy within the framework of the Migration Act: see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 at [61]-[63], [181] and [244].

190    A key part of the Minister’s reasons concerned consideration of the expectations of the Australian community, which were found to be a dominant consideration favouring the cancellation of Mr Brown’s visa. Under that heading, the Minister’s reasons stated (at [54]-[56], emphasis added):

I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa of such a person. Mr BROWN has breached this trust with his lengthy criminal history whilst residing in Australia.

I have considered the opinion of the Tribunal on 24 April 2012 that the Australian community would not find the risk unacceptable.

Given the serious nature of these offences, Mr BROWN’s extensive criminal history, and the violence he has inflicted upon members of the community, I conclude that the Australian community would expect that Mr BROWN should not hold a visa.

191    The Minister’s reasons had earlier characterised the Tribunal’s decision as follows (at [44], emphasis added):

The delegate’s decision was set aside by the Administrative Appeals Tribunal (AAT) on 24 April 2012 as the Tribunal found that although there was a real risk that Mr BROWN would re-offend, the risk would not be unacceptable to the Australian community.

192    The problem with the passages from the Minister’s reasons emphasised above is:

(1)    the Tribunal did not set aside the delegate’s decision by finding that “although there was a real risk that Mr Brown would re-offend, the risk would not be unacceptable to the Australian community”;

(2)    nor did the Tribunal, in context, simply find that “the Australian community would not find the risk unacceptable”.

193    The Tribunal did not merely find that a real risk of reoffending by Mr Brown would not be unacceptable to the Australian community. Rather, the Tribunal expressly and carefully balanced the competing considerations as it was required to do in accordance with the binding direction given to the Tribunal by the Minister under s 499 of the Migration Act then in force, being Direction No. 41 – Visa Refusal and Cancellation under Section 501.

194    The Minister’s incorrect characterisation that the Tribunal simply found that although there was a real risk that Mr Brown would re-offend, that risk would not be unacceptable to the Australian community, gives two false impressions. The first false impression is that the Tribunal was assessing, in a stand-alone fashion, the degree of risk posed by Mr Brown, and the community’s tolerance for such a risk. The second false impression is that the Tribunal was dealing with the risk of any offending at all, whereas the Tribunal had in fact referred to a real risk of re-offending in a seriously violent or other serious manner. Viewed in that way, the summary driving offences committed between March 2016 and September 2017, commencing almost four years after the Tribunal’s decision in April 2012, and even longer after the prior serious offending had taken place in 2008 and 2009, were of much greater apparent significance than if the Tribunal’s reasons had been correctly characterised.

195    The Minister misdirected himself as to what the Tribunal had decided, treating it as a mere line crossing exercise to be revisited, and thereby misapprehended the nature of the change or difference that had taken place. On this erroneous approach, the risk previously identified by the Tribunal had materialised because further offences had been committed, and things had now gone too far in the absolute sense of the community’s tolerance being thereby exceeded. The Minister did not find that the Tribunal’s conclusion was wrong, or form a different view on the facts upon which the Tribunal made its decision, but rather relied upon that decision and what had happened since relative to that decision to justify reaching a different conclusion. None of this analysis involves any want of a beneficial reading of the Minister’s reasons, as is required.

196    When the 2016 and 2017 driving offences are considered against the correct characterisation of the Tribunal’s reasons for deciding not to cancel Mr Brown’s visa, those offences become materially less significant. As noted at the commencement of these reasons, the Tribunal concluded that, having regard to all the circumstances, necessarily including those favouring non-cancellation, the real risk it identified would not be unacceptable to the Australian community. The Tribunal was balancing the real risk it identified against the factors favouring non-cancellation. In that context, the driving offences were a relatively slight addition on the side of the considerations favouring visa cancellation, by reason of being further offending of a much lesser kind.

197    The factors favouring non-cancellation had also changed. While Mr Brown no longer had a 15-year-old daughter, by the time of the Minister’s decision he was four days from turning 45, by then having lived in Australia for over 37 years. The real risk of re-offending in a seriously violent or other serious manner identified by the Tribunal had not materialised in the intervening six years since the Tribunal’s decision (and nine years since the prior serious offending). The false characterisation of the Tribunal’s reasons therefore produced a false comparison and thereby did not correctly identify the nature and extent of the change or difference upon which the exercise of the power depended. The assessment of the materiality of the driving offences, forming the basis for making a different decision, was fundamentally flawed.

198    In circumstances in which the change or difference in circumstances had to be material to permit the power to be exercised at all, the real nature of that change or difference relied upon had to be apparent on the face of the Minister’s reasons. The mischaracterisation of the change or difference since the Tribunal’s reasons was legally unreasonable for that jurisdictional purpose.

199    The mischaracterisation of the change or difference since the Tribunal’s reasons was also legally unreasonable for the assessment purpose for which it was deployed by the Minister in the course of reaching the conclusion that Mr Brown’s visa should be cancelled. As part of the Minister’s conclusions, he found (at [81]) that the Australian community could be exposed to significant harm if Mr Brown reoffended in the violent way he had in the past (in 2009) and could not rule out the possibility of further offending. This followed from the mischaracterisation of the Tribunal’s reasons for deciding not to cancel Mr Brown’s visa, and infected the conclusion reached as to the risk assessment carried out for the purposes of determining the interests of the community.

200    Given that the Tribunal’s reasons in finding that there was a real risk of reoffending were in fact taken into account by the Minister in assessing the current risk posed by Mr Brown and its acceptability to the Australian community, the true nature of that prior risk and the true basis for finding it was not unacceptable to the Australian community had to be addressed in a legally reasonable way. Otherwise that assessment would be conducted on a false premise. The correct premise could realistically have produced a different decision.

201    This is not a mere question of emphatic disagreement. Nor does it amount to any impermissible merits review. At all times that assessment process remained a matter for the Minister, with the wide discretion reposed in him. But there were fundamental errors in the reasoning process, going to the heart of the decision that was made, rendering it legally unreasonable in this way as well.

Conclusion on the appeal

202    The Minister was entitled to consider exercising the power of visa cancellation under s 501(2), that power not having been exercised before. However, the reasons of the Minister leading to the exercise of that power were infected with jurisdictional error by reason of legal unreasonableness in the two ways identified above.

203    Appeals are from orders, not reasons. By reason of jurisdictional error in the Minister’s reasons, his decision was liable to be set aside. The primary judge’s orders must therefore stand, notwithstanding that they were made upon an erroneous basis. For the above reasons, I joined in the order made on 24 December 2019 that the Minister’s appeal be dismissed.

The reasons of the other members of the Court

204    Since writing these reasons I have had the advantage of reading the reasons of Allsop CJ, Kenny and Banks-Smith JJ and the reasons of Besanko J. I will comment on them only very briefly so that my position is clear.

205    I respectfully agree with the comments by Besanko J at [138] concerning the reasons of Allsop CJ, Kenny and Banks-Smith JJ. I go a little further. I am unable to agree with their Honours that it was not open to the Minister (or a delegate, or the Tribunal in reviewing a further decision by a delegate) to exercise the power in s 501(2) of the Migration Act by reason of the previous decisions of either the delegate or the Tribunal. In accordance with my reasons above on this topic, this is subject only to the implied precondition that the Minister (or a delegate or the Tribunal on review of a further decision of a delegate) finds, expressly or by implication, a material change or difference since the Tribunal’s decision.

206    Respectfully, I do not accept that this implied precondition amounts to a de facto drafting of an additional paragraph to s 501(2) of the Migration Act, as suggested by Besanko J at [127], but rather no more than the sometimes difficult, but otherwise conventional, process of implication of limitations on, or preconditions to, the exercise of executive power provided for by statute, which cannot realistically address every limiting circumstance which may arise. Such a process of implication was recognised by the seminal decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, especially at 39-42, but also in the often overlooked passages at 44-45 by which the statutory provisions under consideration were found to contain an obligation to take into account the most recently available information.

207    Further, contrary to the conclusion reached by Allsop CJ, Kenny and Banks-Smith JJ, s 43(1)(c)(i) and (6) of the Administrative Appeals Tribunal Act 1975 (Cth), being, respectively:

(1)    the power exercised by the Tribunal to set aside the delegate’s decision and make a decision in substitution; and

(2)    the statutory deeming of that substituted decision to be the decision of the delegate with effect on and from the day upon which the delegate’s decision had effect,

seems to leave no room for the delegate’s decision to cancel Mr Brown’s visa to have any legal or practical effect once set aside, let alone to constitute the spending of the visa cancellation power in s 501(2) of the Migration Act. As such, the making of the delegate’s decision is incapable of supporting the conclusion that the Minister’s decision was a re-exercise of that power.

208    Moreover, in support of the conclusion that I have reached, it is not desirable as a matter of public administration that the revisiting of a decision not to cancel a visa on character grounds under s 501(2) of the Migration Act be effectively limited to the exercise of personal powers of the Minister under s 501A, or even that this be seen as the only practical way to achieve this objective. That outcome may also have the undesirable effect of limiting the availability of merits review for the myriad of cases that would not ordinarily warrant the personal consideration of the Minister, and diluting the time available for cases that do warrant that degree of escalation.

209    I also respectively disagree with Besanko J’s reasoning and conclusion that the Minister’s jurisdictional error lay in a failure to take into account a mandatory relevant consideration, being the decision of the Tribunal not to cancel Mr Brown’s visa. First, the Minister plainly did take into account the Tribunal’s decision and reasons, and regarded those reasons and the conclusion reached as being important and gave them weight, but in my view did so in a legally unreasonable way by reason of misunderstanding the ultimate basis of the Tribunal’s decision and thereby the materiality of what had occurred since then.

210    Secondly, the decision of Mason J Peko-Wallsend at 41-42 makes it clear that judicial review and intervention by reason of an administrative decision-maker giving too little weight to a mandatory relevant consideration of objectively great importance, or giving too much weight to a mandatory relevant consideration of objectively little importance, does not arise from any failure to take such a consideration into account. Rather, it turns on whether the approach taken to such a consideration was “manifestly unreasonable”. The modern language for that concept is now under the wider umbrella of legal unreasonableness, following Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, especially at [72], not failure to take into account the consideration in question. That is but another way of expressing the conclusion that I have reached as to the erroneous approach that the Minister took to the Tribunal’s prior decision and reasons.

Associate:

Dated:    28 February 2020