Federal Court of Australia
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent | |
DATE OF ORDER: | 3 February 2022 |
THE COURT ORDERS THAT:
1. The parties confer and on or before 7 February 2022 file draft orders to give effect to the reasons for judgment of Rares and Yates JJ including any disagreed terms as to any draft orders in mark up with written submissions limited to 3 pages.
2. The appeal be stood over to 8 February 2022 at 9:30 am for the making of the final orders and any argument as to their form.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
RARES J:
1 This appeal raises a single issue as to the construction of s 501(3A) of the Migration Act 1958 (Cth) and s 33(1) of the Acts Interpretation Act 1901 (Cth) (AI Act). The issue is whether the Minister, a delegate or the Administrative Appeals Tribunal on a review of a delegate’s decision, can act in accordance with s 33(1) of the AI Act to re-exercise the duty to cancel a visa under s 501(3A) (a s 501(3A) decision) after the Minister, a delegate or the Tribunal has decided under s 501CA(4)(b) (a s 501CA decision) that there was another reason to revoke the earlier cancellation. The issue arises where the subsequent s 501(3A) decision is based on the decision maker being satisfied that the visa holder failed the same specific form of the character test prescribed in s 501(3A)(a) as before, but was serving a different sentence of imprisonment within the meaning of s 501(3A)(b). The resolution of the issue depends on whether and, if so, to what extent, the construction of s 501(2) of the Migration Act and ss 33(1) of the AI Act in Minister for Immigration and Border Protection v Makasa (2021) 386 ALR 200 applies to the construction of ss 501(3A) and 501CA.
The legislative context
2 Relevantly, s 501 of the Migration Act provides:
501 Refusal or cancellation of visa on character grounds
(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.
…
(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.
(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).
(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)); or
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child;
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction;
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
3 Next, s 501CA relevantly provides:
501CA 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.
…
(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.
4 An application may be made to the Tribunal under s 500(1)(ba) for review of a delegate’s s 501CA decision not to revoke a s 501(3A) decision. However, s 500(4A)(c) provides that a delegate’s s 501(3A) decision to cancel a visa is not reviewable under s 500 or Pts 5 or 7 of the Act and s 500(4) provides that any decision under s 501 is not reviewable under Pts 5 or 7.
5 The Minister has a personal power to set aside a s 501CA decision that revokes the cancellation of a visa under s 501BA, which provides:
501BA 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.
6 For present purposes, it suffices to say that s 474(3)(b) of the Migration Act provides that a privative clause decision includes a decision cancelling or revoking a visa. A purported privative clause decision is defined in s 5E as follows:
5E Meaning of purported privative clause decision
(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2) In this section, decision includes anything listed in subsection 474(3).
7 By force of s 476(2), the former Federal Circuit Court of Australia, now the Federal Circuit Court and Family Court of Australia (Division 2), had no jurisdiction in relation to a primary decision (defined in s 476(4) as a privative, or purported privative, clause decision). A primary decision includes a decision or purported decision of, first, a delegate, secondly, the Tribunal under s 500 or, thirdly, the Minister acting personally, as provided in ss 501, 501BA or 501CA.
8 However, the Federal Court has original jurisdiction, by force of s 476A(1)(b) and (c) in relation to a migration decision (being, relevantly, a privative, or purported privative, clause decision) of, first, the Tribunal under s 500 or, secondly, the Minister acting personally under ss 501, 501BA and 501CA.
9 Where the Federal Court has jurisdiction in relation to a migration decision under s 476A(1)(b) or (c), s 476A(2) provides that this jurisdiction is the same as that of the High Court under s 75(v) of the Constitution.
10 Section 33(1) of the AI Act provides:
33 Exercise of powers and performance of functions or duties
Powers, functions and duties may be exercised or must be performed as the occasion requires
(1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.
11 It is important to note that the character test in s 501A(3)(a) is narrower (the narrower character test) than that under s 501(6), which applies more generally. The criterion in s 501(3A)(a) is established if the Minister is satisfied that the person does not pass the narrower character test in any one of four objective ways under s 501(6)(a) or (e) on the basis that he or she has been, first, sentenced to death, life imprisonment or to a term of imprisonment of 12 months or more (s 501(7)(a), (b), (c)) or, secondly, convicted, found guilty or been proved to have committed, a sexually based offence involving a child (s 501(6)(e)).
Background
12 The appellant was born in New Zealand in 1976 and moved to Australia in 1992. In 1993, the Children’s Court convicted him of his first offences. He received his first conviction as an adult in 1995.
13 On 29 April 2011, the appellant was granted a class TV subclass 444 special category (temporary) visa.
14 On 4 June 2015, he was sentenced to 45 months imprisonment with a non-parole period of two years on two counts of not keeping a firearm safely, and possession of three prohibited and unregistered firearms, one of which was a pistol. There was no dispute that the Minister could be satisfied that this sentence was a sentence of more than 12 months imprisonment within the meaning of the narrower character test in s 501(3A)(a) (and s 501(7)(c)).
15 On 25 July 2016, pursuant to s 501(3A), a delegate cancelled the appellant’s visa (the 2016 cancellation).
16 On 3 August 2016, the appellant was released on parole and placed in immigration detention.
17 On 20 September 2016, pursuant to s 501CA(4), another delegate decided to revoke the cancellation of the visa (the 2016 revocation) stating:
I accept that the firearm offences are serious however there is no evidence that [the appellant] has engaged in violent offending. [The appellant] has serious health issues, has been in Australia over 25 years, has a wife and daughter he lives with in Sydney. On the basis of the countervailing issues, I have revoked the visa cancellation.
18 Consequently, the appellant was released from immigration detention.
19 On 4 October 2017, the appellant was charged with possession of handcuffs, which were a prohibited weapon. In late 2017 and early 2018, the appellant engaged in two episodes of conduct amounting to domestic violence against his wife. That led to his being arrested on 20 January 2018 and refused bail on 21 January 2018. He was remanded in custody and his parole was revoked, requiring him to serve the balance of his sentence that expired on 3 May 2018. On 2 May 2018, he was convicted on the handcuffs charge and sentenced to six months imprisonment commencing on 20 January 2018. On 1 June 2018, the appellant was sentenced to three months imprisonment on each of two counts in respect of the domestic violence offending.
20 On 13 June 2018, another delegate made another s 501(3A) decision and again cancelled the visa (the 2018 cancellation).
21 Next, the appellant responded to an invitation sent to him in accordance with s 501CA(3)(b) to make representations as to whether he passed the character test or there was another reason why the 2018 cancellation should be revoked.
22 On 19 June 2019, yet another delegate decided not to revoke the 2018 cancellation under s 501CA(4) (the 2018 non-revocation).
23 On 24 June 2019, the appellant applied to the Tribunal to review the 2018 non-revocation.
24 On 11 September 2019, the Tribunal affirmed the 2018 non-revocation.
The primary judge’s reasons
25 The primary judge found that the requirement that the Minister be satisfied that the visa holder does not pass the narrower character test as specified in s 501(3A)(a) was cognate with the requirements in s 501(2)(b) which the High Court held in Makasa 386 ALR at 207 [37]–[39] was the first stage of the decision-making process under s 501(2). His Honour said that if the person was also serving a sentence of imprisonment as defined in s 501(3A)(b), no further consideration by the Minister was possible because he was obliged to cancel the visa. He held that the Tribunal had no power to review a decision under s 501(3A), but that s 501CA created a discretion, if the visa holder made representations in accordance with its terms, to revoke the cancellation. He noted that the Tribunal’s power under s 501CA was different from that of the decision maker under s 501(3A).
26 His Honour recognised that the issue here was that delegates had purported to cancel the appellant’s visa twice under s 501(3A)(a) because he had failed to pass the character test in respect of the same term of 45 months imprisonment. The primary judge noted that ss 501(3A), 501BA and 501CA were part of a package of amendments enacted pursuant to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), the Explanatory Memorandum for which stated of the proposed s 501(3A):
32. This item ensures that the visa of a non-citizen who is in prison and objectively does not pass the character test because they have a substantial criminal record (as set out in subsection 501(7) of the Migration Act and amended by items 13 to 15 of this Schedule) or because of a sexually based offence involving a child (as set out in new paragraph 501(6)(e) inserted by item 12 of this Schedule) must be cancelled without notice to the visa holder.
33. A person whose visa has been cancelled under subsection 501(3A) of the Migration Act is able to seek revocation of this decision under new section 501CA inserted by item 18 of this Schedule. Merits review of a decision of a delegate not to revoke the decision to cancel the visa is available under new paragraph 500(1)(ba) inserted by item 4 of this Schedule.
34. The intention of this amendment is that a decision to cancel a person's visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued.
27 The primary judge observed that the legislative purpose of s 501(3A) appeared to create a scheme, which included s 501CA, in which a person to whom it applied would remain in custody or immigration detention as an unlawful non-citizen until removed from Australia or his or her immigration status was otherwise resolved. He found that, because a person whose visa was cancelled under a s 501(3A) decision could seek the revocation of the cancellation under s 501CA, the scheme created by those two sections “operates to allow the Tribunal to conduct, in substance, merits review of a decision made under s 501(3A)”. His Honour held that, although not identical, the statutory schemes in relation to merits review of a cancellation decision under s 501(2) on the one hand, and ss 501(3A) and 501CA on the other, were sufficiently analogous to make the decision in Makasa 386 ALR 200 applicable to the second scheme. His Honour reasoned that “the nature of the merits review function performed by the Tribunal under s 501CA would be significantly undermined if the power under s 501(3A) could be re-exercised on the basis of the same facts”. He drew support for this conclusion from the Minister’s power, personally, under s 501BA to override a revocation decision by a delegate or the Tribunal under s 501CA(4), which was also analogous to the scheme relating to the cancellation power in ss 501(2) and 501B (an analogue of s 501BA) as construed in Makasa 386 ALR 200.
28 The primary judge considered that, although s 501(3A)(b) used the present tense (“is serving a sentence of imprisonment”), the power of cancellation under s 501(3A) could be exercised only if there was a concurrence of the two conditions that the section prescribed. He held that, once exercised, the power was only re-enlivened if subsequent events or further information satisfied the Minister that the person did not pass the character test in s 501(3A)(a) on a relevantly different basis.
29 His Honour found that the 2018 cancellation must have been based on the same failure to pass the character test used in the 2016 cancellation. This was because none of the 2018 sentences fell within the definitions in ss 501(7)(a), (b) or (c), as he held s 501(3A)(a) required. He held that this construction would reflect the legislative intention that, if the Tribunal made a s 501CA decision to revoke a cancellation based on a particular failure to pass the narrower character test, s 501(3A)(a) required that there be a new basis for the Minister to be satisfied that the person failed to pass the narrower character test, in order to enliven the duty in s 501(3A). The primary judge declined to follow Derrington J’s construction of s 501(3A) in Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 that s 501(3A) required the Minister to cancel the visa if there were a combination of a new imprisonment and the earlier basis on which the person failed the character test under s 501(3A)(a). The primary judge noted that there was no contradictor putting argument in Zyambo [2021] FCA 545 and that Derrington J had not referred to the underlying purpose and policy of the provisions.
30 For those reasons, the primary judge found that the 2018 cancellation was legally ineffective. However, he then held that the meaning of “decision” in s 501CA(1) should be construed in accordance with the principle in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 as meaning a decision in fact, so that the power to revoke a cancellation under s 501CA(4) could be exercised regardless of the legal efficacy of the s 501(3A) decision.
31 The primary judge considered that, although the considerations for a s 501CA(4) decision were different from those applying to s 501(3A), the result at which he had arrived was in accordance with the statutory scheme, because a s 501(3A) decision was not otherwise amenable to any form of merits review. His Honour held that, therefore, the Tribunal had power to conduct the review of the 2018 cancellation decision notwithstanding that it was not legally effective.
32 The primary judge dismissed the other ground of review, which concerned whether the Tribunal had made a jurisdictional error, but that question is not raised in this appeal. His Honour dismissed the application below with costs.
The issues in this appeal
33 The sole ground in the notice of appeal asserted that the primary judge erred in construing s 501CA(1) as being capable of operating on a s 501(3A) decision not to revoke a s 501(3A) decision that was legally ineffective. The ground posited that his Honour should have held that s 501CA(1) made the existence of a legally effective s 501(3A) decision an objective jurisdictional fact and an essential precondition to the exercise of the discretion in s 501CA(4) to revoke the cancellation of a visa.
34 The Minister relied on an amended notice of contention, asserting that the primary judge erred in failing to find that either, first, a s 501CA decision not to revoke a s 501(3A) decision becomes the operative decision once made, so that the s 501(3A) decision ceases to be of any consequence; or, secondly, the 2018 cancellation was valid because the fact of a new imprisonment enlivened the duty to cancel under s 501(3A) and s 33(1) of the AI Act.
The Minister’s submissions
35 The Minister submitted that s 501CA(1) prescribes a jurisdictional fact that a decision has been made “under” s 501(3A), regardless of whether the decision is legally effective. In other words, the Minister argued, all that s 501CA(1) requires so as to enliven the procedure that s 501CA prescribes, is that the Minister (or a delegate) has made a s 501(3A) decision in fact, regardless of its legal efficacy.
36 The Minister argued that the occurrence of any new fact or receipt of any new information that falls within either limb of s 501(3A) creates a new combination that, pursuant to s 33(1) of the AI Act, re-enlivened his obligation to perform the duty of cancelling a visa. He contended that Derrington J was correct in Zyambo [2021] FCA 545 at [43]–[46], to hold that a more recent imprisonment was a new fact that the decision maker had to consider in combination with the previous sentence of 12 months in that case (that had been the basis for the delegate’s previous s 501(3A) decision to cancel the visa), and that s 33(1) of the AI Act operated to revive the delegate’s duty under s 501(3A). The Minister submitted that Makasa 386 ALR 200 was distinguishable because s 501(2) had a sole criterion for cancellation, unlike s 501(3A) which required the existence of a combination of two criteria. He argued that Makasa 386 ALR 200 at [48] recognised that if new facts occurred or new information came to hand after an earlier decision had been made, s 33(1) of the AI Act enabled a decision maker to make a second decision under s 501(3A) to cancel the visa. He argued that it followed that a combination of the same facts that gave rise to the earlier satisfaction that the person did not pass the narrower character test, that founded the earlier ss 501(3A) and 501CA decisions resulting in the revocation of the first mandatory cancellation, could be used with a more recent imprisonment, that was a new fact, to re-enliven the duty to cancel the visa by force of s 33(1) of the AI Act. He contended that s 501(3A) merely required the concurrent and combined existence of the facts establishing each criterion that the section prescribed, so that the same failure to pass the narrower character test (that had founded the revoked s 501(3A) decision) could be combined with a new imprisonment of any length to re-enliven the duty to cancel under s 501(3A), as had occurred with the 2018 cancellation.
37 The Minister argued that, in a review under s 500(1)(ba), the Tribunal could make a valid s 501CA(4) decision not to exercise the power to revoke a legally ineffective s 501(3A) decision. He contended that the primary judge was correct to find that, in accordance with the principle in Brian Lawlor 24 ALR 307, the Tribunal’s decision to make the 2018 non-revocation was legally effective irrespective of any infirmity of the 2018 cancellation.
38 The Minister submitted that s 501CA(1) operated on a s 501(3A) decision that existed in fact, regardless of its legal efficacy, since the person could achieve revocation of the cancellation by following the process in s 501CA and could obtain, in the Tribunal, merits review of an adverse s 501CA decision. He argued that the Tribunal could affirm the s 501(3A) decision by refusing to revoke it because, in substance, the process in s 501CA afforded a merits review of the s 501(3A) decision, albeit the powers in each section were not the same. The Minister argued that the appellant was seeking, impermissibly, to invoke a non-existent jurisdiction of this Court to engage in direct judicial review of the 2018 cancellation. He contended that the 2018 cancellation was a migration decision within the meaning of s 474(2) and did not fall within this Court’s original jurisdiction under s 476A(1).
Consideration
39 The Minister’s arguments should be rejected. I am of opinion that s 501CA(1) depends on the existence of a legally effective decision under s 501(3A) as a precondition for the exercise of the power under s 501CA and cannot be exercised more than once in respect of the same failure to pass the character test in s 501(3A)(a).
40 In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at 406 [12], Keane, Gordon, Edelman, Steward and Gleeson JJ said:
The legal capacity conferred on the Minister by s 501CA of the Act to revoke a decision to cancel a visa is premised upon the prior exercise of the power of cancellation conferred by s 501(3A). Importantly, once the conditions of s 501(3A) are fulfilled, the power of cancellation is mandatory; the Minister must cancel the visa (Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 347 [44] per Kiefel CJ, Bell, Keane and Edelman JJ). In contrast, the power of revocation is broad (Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 at 902 [36] per Nettle, Gordon and Edelman JJ; 383 ALR 194 at 20). Upon receiving representations about revocation in accordance with s 501CA(4), the Minister must determine whether to be satisfied that the person passes the character test (as defined by s 501(6)) or whether there is "another reason why the original decision should be revoked" (Migration Act 1958 (Cth), s 501CA(4)(b)).
(emphasis added)
41 Their Honours held that the statutory scheme comprised in s 501CA necessarily requires the Minister to understand and comprehend the representations that he receives in determining whether there is “another reason” to revoke a cancellation under s 501CA(4)(b).
Is a legally effective s 501(3A) decision a jurisdictional fact under s 501CA(1)?
42 In Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76], Gaudron, McHugh, Gummow, Kirby and Hayne JJ construed the definition of a privative clause decision in s 474(2) of the Migration Act by reference to its prescription that it be “a decision of an administrative character made, proposed to be made or required to be made under this Act”. They held:
Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression “decision[s] . . . made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”. Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision . . . made under this Act'' and is, thus, not a “privative clause decision” as defined in s 474(2) and (3) of the Act.
(footnotes omitted and emphasis added)
43 Ordinarily, the metaphor that a stream cannot rise higher than its source applies to the exercise of legislative and administrative powers as Fullagar J explained, albeit as a principle of constitutional law, in Australian Community Party v The Commonwealth (1951) 83 CLR 1 at 258. However, there are exceptions. The question is whether the Parliament intended that the duty to cancel a visa that it imposed on the Minister in s 501(3A) was imperative or subject to inviolable limitations (being that it could only be performed if the objective factual preconditions prescribed in each of pars (a) and (b) in the subsection actually existed): cf: The King v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248 per Dixon J.
44 As Kiefel CJ, Bell, Keane and Edelman JJ held in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 349 [56], the cancellation of a visa has the immediate effect that the person’s status is changed from a lawful to an unlawful non-citizen. They said that by “selecting the objective facts of conviction and imprisonment [the] Parliament does not seek to impose an additional punishment” (emphasis added). They held that the purpose of s 501(3A) was to keep the person whose visa was cancelled out of the community (in prison or immigration detention) until he or she is removed or his or her immigration status is otherwise resolved (at 348 [48]–[50]).
45 In construing s 501(3A) it is important to have regard to the circumstances in which it operates. Those include the following. First, it imposes an imperative duty on the Minister (in contrast with the conferral of a discretion in s 501(2)). Secondly, the criteria in pars (a) and (b) are objective facts (Falzon 262 CLR at 348 [48]). Thirdly, s 501(5) excludes the rules of natural justice and the procedures in Subdiv AB of Div 3 of Pt 2 of the Act (namely, in ss 51A–64) which is headed “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. Fourthly, the performance of the duty has the consequence that the visa holder loses his or her existing rights and status as a lawful non-citizen (Falzon 262 CLR at 349 [56]). Moreover, even if one or more of the conviction, sentence or finding, by reason of which the Minister is satisfied under s 501(3A)(a), or the sentence of imprisonment that the visa holder is serving, at the time that attracts the operation of s 501(3A)(b), is later set aside, or a verdict of acquittal is entered, the person has no right under the Act to have the visa restored. Instead, he or she must seek the exercise of the Minister’s discretion to revoke the cancellation of the visa under s 501CA(4), provided that he or she first complies with the strict requirements of s 501CA(3)(b) and (4)(a).
46 Those indicia support a construction of s 501(3A) as imposing imperative duties and inviolable constraints on the Minister’s performance of the duty that it creates so that any decision to cancel a visa must be legally effective: Plaintiff S157 211 CLR at 506 [76]. This is because the Minister’s legal capacity under s 501CA to revoke a cancellation decision “is premised upon the prior exercise of the power of cancellation conferred by s 501(3A)”: Viane (2021) 395 ALR 403 at 406 [12]. As Gleeson CJ explained (Plaintiff S157 211 CLR at 488–489 [20]) a judicial determination that legislation has imposed what the Court describes as a duty that is imperative, or a restraint that is inviolable, is “the result of a process of statutory construction, rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made”. The Chief Justice recognised that this process involves the Court attempting to reconcile whether the presence of a privative clause (like s 474(2)) is to give to an exercise of power or the performance of a duty done in breach of the provision validity, in the particular statutory context.
47 Of course, the delegate and the Tribunal had to form a view whether the precondition in s 501CA(1) had been met, which was a jurisdictional fact. However, that issue could only be authoritatively determined by a court as an exercise of the judicial power of the Commonwealth: cf: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 438 [18] per Bell, Gageler and Keane JJ. As their Honours noted, in the course of the regular administration of the Act, a decision maker in the position of the delegate or the Tribunal could be expected to treat the s 501(3A) decision as a sufficient basis on which to proceed in accordance with s 501CA (at 445 [47]). But the legal consequences of those administrative processes being followed can only be authoritatively determined by a court.
48 In SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at 495–496 [25]–[28], Black CJ and Allsop J explained that where a review process, such as is ordinarily followed in the review of decisions under Pts 5, 7 and 7AA of the Migration Act, operates pursuant to the principle in Brian Lawlor 24 ALR 307 (in the absence of a contrary statutory intention) on the decision that a delegate has made in fact, the reviewing body can exercise the powers and discretions of the person who made the decision, regardless of its legal efficacy. That case concerned s 47(3) which provided that “the Minister is not to consider an application that is not a valid application”. Black CJ and Allsop J distinguished the power of the Tribunal to review and, by doing so, cure invalidity of an exercise of a power affected by jurisdictional error caused because the original decision was not legally effective, from a situation in which the original decision maker, and any reviewing decision maker, could never have made the decision in question under the relevant legislation: SZGME 168 FCR at 497–498 [33]–[36]. They held that, where a statutory provision creates a condition essential for the exercise of the power the subject of the proposed review, such as the existence of a valid application for a visa in s 47, the inability of the decision maker to grant the visa cannot be cured on the review: SZGME 168 FCR at 496–497 [29]–[32].
49 I am of opinion that the primary judge erred in applying the principle in Brian Lawlor 24 ALR 307 to a legally ineffective s 501(3A) decision that initiated a review in the Tribunal under s 500(1)(ba) of a delegate’s s 501CA decision refusing to revoke a cancellation of a visa. That principle treats a statutory process for merits review of an administrative “decision”, ordinarily, as a conferral of power on the Tribunal to review “a decision in fact made, regardless of whether or not it is a legally effective decision” (Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 at 514 [88]) as Gageler, Keane and Nettle JJ explained in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 232–233 [39]–[40], 235–237 [47]–[52]. They held that Pt 7AA of the Act provided a review structure that was framed to allow the Immigration Assessment Authority to review a delegate’s decision that itself was not, when made, a legally effective decision (see at 234 [45] and see too at 244 [82], 246 [90] per Gordon J and 248–249 [95]–[97] per Edelman J).
50 In PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050 at [53]–[56], Middleton J applied the reasoning of the primary judge here and found that “the Tribunal can exercise its powers to revoke or affirm a mandatory cancellation decision under s 501CA(4) notwithstanding any purported invalidity of that decision” (at [56], emphasis added). He held, following the primary judge’s reasons at [90]–[91], that the Tribunal does not stand in the shoes of the original decision maker (under s 501(3A)) when making a s 501CA(4) decision, but rather, under the latter provisions, has a power of merits review of the s 501(3A) decision using, however, the broader version of the character test in s 501 rather than the narrow one in s 501(3A)(a) ([2021] FCA 1050 at [58]–[60]).
51 In my opinion, the primary judge and Middleton J erred in deciding that a legally ineffective decision to cancel a visa under s 501(3A) can be “cured” by the Tribunal on a review of a delegate’s s 501CA(4) decision. Here, s 500(4A)(c) prohibits the Tribunal from reviewing a s 501(3A) decision. As s 501(5) provides, a s 501(3A) decision can be made and be legally effective without the need to afford the visa holder natural justice. Thus, a s 501(3A) decision cannot be “cured” independently in a review of another decision pursuant to s 500(1)(ba), namely the subsequent decision of a delegate under s 501CA(4).
52 I also agree with Yates J’s reasons for this conclusion.
53 The task of a decision maker under s 501CA is to, first, give the person whose visa has been cancelled under s 501(3A), notice of the cancellation (s 501CA(3)(a)(i)), particulars of relevant information, as defined in s 501CA(2), and an invitation to make representations to the Minister about revocation of the cancellation and, secondly, if representations are made within time and in accordance with the regulations, consider under s 501CA(4) if he or she is satisfied either that the person passes the character test as defined by s 501(1) or there is another reason why the s 501(3A) decision should be revoked. A s 501CA(4) decision is not reviewable under Pts 5 or 7 of the Act and, if made to revoke the cancellation, has the consequence provided in s 501CA(5) that “the original decision is taken not to have been made”.
54 Thus, the exercise of the power to cancel a visa under s 501(3A) operates to deprive a person of an existing status, being a right or privilege, namely the rights conferred by the visa to be lawfully present in Australia: Falzon 262 CLR at 349 [56]. The power conferred in s 501CA(4) to revoke such a cancellation is, first, discretionary and, secondly, exercised on different criteria than the existence of objective facts as prescribed in s 501(3A): Viane 395 ALR at 406–407 [12]–[14].
55 If s 501CA(1) applied to a s 501(3A) decision that was not legally effective, the consequence would be that the person would lose a right to hold the visa without being afforded natural justice or procedural fairness. Instead, the person would be given a limited period under s 501CA(3) in which to seek, on substantially different criteria, to persuade the Minister to exercise his discretion to revoke the legally ineffective cancellation of an existing legal right to the visa. If, as in the present case, a delegate makes a s 501CA(4) decision not to revoke the cancellation, s 500(1)(ba) confers jurisdiction on the Tribunal to review the delegate’s s 501CA(4) decision, but s 500(4A)(c) prohibits it from reviewing the original decision. In that statutory context, it is difficult to see any policy reason for treating s 501CA as conferring any legal capacity or power on the Minister, let alone a delegate or the Tribunal, that could alter a s 501(3A) decision that lacked legal efficacy. That is because the Act precludes the Tribunal from reviewing a s 501(3A) decision, a preclusion that must flow through to what it can do in the course of a review under s 500(1)(ba) of a s 501CA decision. Nor could a delegate or the Minister review, on any basis, a s 501(3A) decision that was legally effective.
56 In HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 (see at 133–135 [54]–[57], [63]), McKerracher J, with whom Colvin J agreed (at 163 [179]), held that (at 135 [63]:
the jurisdictional facts that underpin the power of revocation under s 501CA(4) of the Migration Act are, first, the legally effective cancellation decision and, secondly, representations by the former visa holder in response to an invitation made under s 501CA(3)(b). As to the former, a legally effective cancellation decision requires the Minister or a delegate to be satisfied that the non-citizen does not pass the character test by operation of, relevantly to this case, s 501(6)(a) and s 501(7)(c) of the Migration Act. It, therefore, required a properly formed state of satisfaction that the non-citizen had been sentenced to a term of imprisonment of 12 months or more. In this sense, the sentence lies at the heart of or is the foundation for the s 501(3A) mandatory cancellation provision, which is the precondition to any revocation decision under s 501CA: see s 501CA(1).
(emphasis added)
57 The Minister did not challenge the correctness of that reasoning in the appeal. It is a recent decision of a Full Court and, on this issue, is correct in my opinion. The issue to which McKerracher J’s reasoning was addressed was whether a decision-maker for a s 501CA decision could go behind the validity of the relevant conviction(s) and matter(s) on which a s 501(3A) decision was based. Although that question is slightly different from that with which this appeal is concerned, the difference is immaterial to the rationale of his Honour’s reasoning that a legally effective s 501(3A) decision is a jurisdictional fact that must exist for the purposes of s 501CA(1) in order to enliven the power in s 501CA(4).
58 Section 501CA(1) operates to make the procedure in s 501CA apply if the precondition it stipulates exists, namely that the Minister “makes a decision… under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa”. Once that jurisdictional fact exists, the power under s 501CA(4) is exercisable. For the same reasons as Lord Atkin gave in his speech in Liversidge v Anderson [1942] AC 206 at 245, s 501CA(1) “applies if the Minister makes a decision”, as opposed to applying if the Minister thinks he has made a decision, under s 501(3A). It follows that the Parliament intended that s 501CA(1) would operate upon a jurisdictional fact, being a legally effective s 501(3A) decision.
59 In my respectful opinion, the primary judge erred in characterising the scheme of ss 501(3A) and 501CA as providing, in substance, merits review of a cancellation of a visa under s 501(3A). A s 501CA decision whether to make a revocation is based on different criteria and material to that on which the duty to cancel the visa operated pursuant to s 501(3A). There is no merits review of the s 501(3A) decision available under the Act: rather, s 501CA proceeds on a statutory assumption, which is a jurisdictional fact, that the requirements of s 501CA(1) have been satisfied by a legally effective decision to cancel the visa. If the s 501(3A) decision to cancel the visa was of no legal effect because, in the words of s 501CA(1), it was not made under s 501(3A) (Plaintiff S157/2002 (2003) 211 CLR 476 at 506 [76]) then the delegate under s 501CA(4) and, later, the Tribunal under s 500(1)(ba) were not authorised by the Act to do anything because the visa remained in place and s 501CA(1) could not be satisfied. The exercise of functions under s 501CA depends on there being a decision made “under s 501(3A)” so that, by force of s 501CA(1) “this section” will then apply.
60 This Court has original jurisdiction under s 476A(1)(b) to review a decision of the Tribunal, under s 500, that is a privative, or purported privative, clause decision, including a decision cancelling or revoking a visa.
61 A decision or purported decision under s 501(3A) is a privative or purported privative clause decision and so a “migration decision” (as defined in s 5(1) of the Act) and the Circuit Court had original jurisdiction to review it by force of s 476(1). However, s 476(2)(a) and (4)(a) have the consequence that the Circuit Court had no jurisdiction in relation to a primary decision, being a decision of a delegate under s 501CA(4) which is reviewable in the Tribunal pursuant to s 500. Also, by force of s 476(2)(b), the Circuit Court had no jurisdiction to review a privative or purported privative clause decision of the Tribunal under s 500, because s 476A(1)(b) conferred original jurisdiction to do so on this Court.
62 This jurisdictional allocation demonstrates that there is a substantive difference between a s 501(3A) decision to cancel a visa (which is a migration decision being, relevantly, a privative, or purported privative, clause decision within the original jurisdiction of the Circuit Court) and a decision of the Tribunal on a review of a delegate’s s 501CA(4) decision (which is a primary decision within the original jurisdiction of this Court). The nature of a s 501(3A) decision is therefore different to a delegate’s s 501CA decision or a decision of the Tribunal on review of the latter under s 500(1)(ba).
63 It follows that s 501CA(1) presupposes that a legally effective s 501(3A) decision resulted in the cancellation of a visa. In that scenario, the decision maker under s 501CA(4) exercises a power to revoke, not review, the anterior s 501(3A) decision. That is, s 501CA is only engaged if there is a legally valid s 501(3A) decision, that is capable of being revoked pursuant to the exercise of the discretion under s 501CA(4).
64 In addition, for the reasons above there is no legislative indication that s 501CA should apply to a legally ineffective cancellation of a visa purporting to have been made under s 501(3A): cf: Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231 at 245–246 [29]–[33] per French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ.
65 If the Minister’s argument were correct, a person who was not serving a sentence of imprisonment at the time of the cancellation of his or her visa purportedly under s 501(3A), would lose his or her status if he or she mistakenly made representations under s 501CA(3)(b) that did not result in the Tribunal revoking the purported cancellation under s 501CA(4).
66 It is difficult to discern a Parliamentary purpose in requiring mandatory cancellation of a visa under s 501(3A) if two objective criteria are met, namely, the person, first, fails the specifically defined character test in s 501(3A)(a) based on the Minister’s positive state of satisfaction (Falzon 262 CLR at 347 [46]) and, secondly, is then serving a full time custodial sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory as prescribed in s 501(3A)(b), if one or both of those criteria were not actually satisfied as an objective fact. The Parliament intended s 501(3A) to apply in objectively clear circumstances which denied the Minister any discretion. But there is no intelligible reason why s 501(3A) should be construed so as to allow it to operate as “a decision in fact” on which s 501CA(1) operates, if one or both of the objective facts that it prescribes did not exist at the time of its exercise. That is why s 501CA(1) is expressed to make s 501CA apply only if the Minister “makes a decision… under subsection 501(3A)”, as opposed to if the Minister thinks that he or she has done so: Liversidge [1942] AC at 245.
67 Does s 33(1) of the AI Act allow the re-exercise of s 501(3A) based on the same failure to pass the character test in an earlier s 501(3A) decision? Whether a visa holder falls within any of the four categories of the narrower character test prescribed under s 501(3A)(a) at a point in time is an objective fact. A fact of that ilk does not depend on contestable evaluative assessments that other provisions of the character test in s 501(6) involve, such as whether the Minister forms a reasonable suspicion about the person being a member of, or associated with, a group, organisation or person involved in criminal conduct (s 501(6)(b)) or involved in conduct constituting people smuggling, trafficking in persons, genocide, crimes against humanity, a crime involving torture, slavery or serious international concern regardless of whether he or she has been convicted in respect of that conduct (s 501(6)(ba)) or is not of good character (s 501(6)(c)). Indeed, s 501(6)(d)–(h) go on to create further circumstances calling for evaluative administrative judgments about a person’s conduct and associations by reference to which the Minister may or may not be satisfied as to whether the person passes the character test.
68 In this context, the purpose for which the Parliament specified the categories of three sentences and one category of criminal guilt or established wrongdoing under s 501(3A)(a) was so that a mandatory visa cancellation would only occur where a person fell within one or more of the four objective categories it prescribed in s 501(3A)(a) and was serving a full time custodial sentence as prescribed in s 501(3A)(b). In other words, the Parliament intended that a mandatory cancellation would occur only in the clearest of situations pursuant to an exceptional, closely confined power. Hence, s 501CA(1) required the s 501(3A) decision to be legally effective so that only the narrowly defined classes of offenders (in s 501(3A)(a)) who were then actually serving a full time custodial sentence, would be able to seek revocation of the cancellation, having regard to the much broader discretions created in s 501CA(4).
69 The Minister has a duty to cancel the person’s visa when the combination of facts prescribed in s 501(3A) occurs, namely, the specific failure of the visa holder to pass the character test and the concurrent serving of a sentence of imprisonment. It is not necessary that the sentence of imprisonment referred to in s 501(3A)(b) has any connection to the basis on which the person failed the character test in the respect or respects that attracts s 501(3A)(a). That is because a sentence, such as death, in s 501(7)(a), or the person’s conviction or finding that he or she committed a sexually based offence under s 501(6)(e) can be imposed by a foreign court: Ketjan v Minister for Immigration and Border Protection (2019) 273 FCR 105 at 114 [41] per Middleton, Reeves and Anderson JJ. Indeed, the category in s 501(6)(e) does not necessarily require the visa holder to be sentenced to any term of imprisonment; a finding of the commission of the offence suffices.
70 In Makasa (2021) 386 ALR at 205 [23] and [27], Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ construed s 501(2) as conferring a discretionary power on the Minister that could be exercised only once in respect of any particular failure to pass the character test, regardless of the subsequent occurrence of a new event or provision of new information that would otherwise be relevant to the Minister’s exercise of the discretion to cancel the visa. They held that s 33(1) of the AI Act did not alter the incidents of the particular statutory power to which s 33(1) applies and that this resulted in a significant limitation of the scope of its application to the power in s 501(2) (at 209 [46]). The power of the Minister under s 501A to override a decision of a delegate or the Tribunal under s 501(2) without any new fact, sentence or occurrence being present reinforced that construction (at 210–211 [52]–[55]).
71 Section 501BA confers a relevantly similar power on the Minister to override a s 501CA(4) decision of a delegate or the Tribunal to revoke a cancellation under s 501(3A). Of course, ss 501(2) and 501(3A) are structured differently because the former creates a discretion while the latter creates a duty. However, by dint of ss 501A and 501BA, the Minister can override the decision of each of a delegate or the Tribunal, respectively, not to cancel a visa under s 501(2), or to revoke the mandatory cancellation of a visa pursuant to s 501(3A) under the discretionary power in s 501CA(4). Those powers are exercisable where the Minister is satisfied that the person does not pass, respectively, the general character test (provided in ss 501(2) and 501A(2)(d)) or the particular character test (provided in s 501(3A)(a) and 501BA(2)(a)) and, in each case, the Minister is satisfied that the cancellation is in the national interest (ss 501A(2)(e), 501BA(2)(b)). The Minister’s power to override the discretionary decision to cancel a visa pursuant to s 501(2) (under s 501A(2)) and the discretionary decision to revoke a mandatory cancellation pursuant to s 501(3A) (under s 501BA(2)) can be exercised regardless of whether there is any different factual context that was before the delegate or Tribunal whose decision the Minister is overriding.
72 While the statutory powers in ss 501(2) and 501A(2), on the one hand, and ss 501(3A), 501CA(4) and 501BA(2) on the other, are capable of being enlivened in different factual settings, they operate within an overall statutory scheme. That scheme respectively allows or requires the cancellation of a visa if particular facts exist (including the satisfaction of the decision-maker). It contemplates that, where the Minister did not make the decision personally, he or she can override it provided that the person has failed to satisfy the Minister that he or she passes the relevant character test and the cancellation is in the national interest. In Makasa 386 ALR at 210 [50], Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ said that it would make a mockery of the conferral of the Tribunal’s function “to do over again” what the delegate has done under s 501(2) in a review if the subject matter of the decision (there, not to cancel the visa), were s 33(1) of the AI Act to operate so that the Tribunal’s decision was “able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the [Tribunal] in the conduct of the review”. Critically, their Honours held (at 210–211 [54]–[55]):
However, the circumstance that each of the specific powers conferred on the Minister by s 501A(2) and (3) can only be exercised by the Minister personally and can only be exercised if the Minister is satisfied that cancellation is in the national interest is sufficient to invoke the well-settled principle of construction that “when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power”. The further qualifications imposed by s 501C on an exercise of power under s 501A(3) reinforce the application of that interpretative principle.
Hence, s 501A of the Act must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, read in light of s 33(1) of the AI Act, to revisit and reverse a previous decision of a delegate not to cancel a visa made in the exercise of the power conferred by s 501(2) where there has been no change to the factual basis on which the previous decision-maker, be it the Minister or a delegate or the AAT, formed a reasonable suspicion that the visa holder did not pass the character test in making the previous decision not to cancel a visa.
(emphasis added)
73 In Zyambo [2021] FCA 545 at [43]–[46], Derrington J construed each limb of s 501(3A) as operating independently. He held that the duty to cancel the visa arose from time to time whenever the Minister had to form a subjective state of satisfaction that the visa holder did not pass the character test, as modified in accordance with s 501(3A)(a) and the visa holder was serving a sentence of imprisonment in accordance with s 501(3A)(b). His Honour reasoned that if, after a s 501CA(4) decision to revoke a mandatory cancellation of the person’s visa, the person was imprisoned again, that imprisonment was a new fact that re-enlivened the duty under s 501(3A), even though there was no change in the basis on which the Minister could be satisfied that the visa holder did not pass the character test in accordance with s 501(3A)(a). He distinguished Makasa 386 ALR 200 on the basis that the serving of a new sentence of imprisonment was a new, subsequent, fact and that it provided a new combination of jurisdictional facts to enliven the duty under s 501(3A).
74 With respect, Derrington J erred in that construction. That is because once the combination prescribed in s 501(3A) has occurred and the duty to cancel the visa has been exercised, the power to cancel the visa is spent. That cancellation will have occurred because of the existence of the combination of factors prescribed in s 501(3A). The circumstances of imprisonment for an offence against a law of an Australian jurisdiction combined with the Minister’s satisfaction as to the visa holder’s failure to pass the specific character test in s 501(3A)(a), creates the duty to cancel the visa. However, s 501CA(4) requires the person to satisfy the Minister that either he or she passes the more plenary character test in s 501(6) or there is another reason why the cancellation of the visa should be revoked. The circumstance of imprisonment is not relevant to the discretion in s 501CA(4) other than its presence as a component of the jurisdictional fact that caused the earlier cancellation of the visa in accordance with s 501(3A)(b). Nor is imprisonment a condition for the exercise of Minister’s power under s 501BA(2) to override a revocation under s 501CA(4).
75 Moreover, if the Minister’s construction, that s 501(3A) evinces a legislative intention that s 33(1) of the AI Act applied to the duty under it were correct, a s 501CA(4) decision could be made to revoke a cancellation while the visa holder was on parole but in immigration detention and, if he or she later breached the conditions of parole, the person would be returned to prison to serve the balance of the sentence, so as to re-enliven the duty under s 501(3A) to cancel the visa without any new fact occurring, since the imprisonment would be for the same offence that triggered the first s 501(3A) decision. Indeed, if the process under s 501CA(4) were completed and the cancellation of the visa revoked before the visa holder was eligible for parole, the duty under s 501(3A) could revive because s 501(3A)(b) does not specify any characteristic about the circumstance of, or reason for, the imprisonment. This potentiality suggests that the nature of any imprisonment is not a relevant fact, so that the duty under s 501(3A) arises once for all when the combination it prescribes first occurs.
76 The fact of imprisonment under s 501(3A)(b) is irrelevant to a decision to revoke the cancellation of a visa, except as a necessary precondition in s 501CA(1) to enliven the operation of the power in s 501CA(4). Once the power to revoke a cancellation based on the combination of the Minister’s satisfaction under s 501(3A)(a) and the fact of imprisonment under s 501(3A)(b) has been exercised under s 501CA(4), the combination of the same two factors cannot revive the duty under s 501(3A) so as to overcome the legal consequence of the s 501CA(4)(b) decision that there was another reason to revoke the cancellation. This is because the decision maker, under s 501CA(4), had been satisfied that there was another reason to revoke the cancellation that had occurred by reason of the existence of the combination of factors prescribed in s 501(3A) despite the person not passing the broader character test in s 501(6). It follows that any combination involving the previous failure to satisfy the decision maker under s 501(3A)(a) that the visa holder passed the specific character test cannot be used to cancel the visa again. The circumstance of, or reason for, any subsequent imprisonment has no relevance to the exercise of the power, because that fact does not change or create a new combination under s 501(3A). The Minister’s satisfaction as to the existence of the same failure to pass the character test is still coupled to an imprisonment and the previous s 501CA(4) decision maker had already decided that there was another reason to revoke the earlier cancellation based on that combination in the context of any failure to pass the broader character test.
77 Moreover, the Minister could always exercise his power under s 501BA(2) to override any decision of a delegate or the Tribunal under s 501CA(4) regardless of any change in the visa holder’s circumstances, including a new imprisonment. The Parliament intended that a decision to revoke a cancellation under s 501CA(4) could be overridden by the Minister under s 501BA(2). It follows that this specific power operates to exclude s 33(1) of the AI Act being available to re-enliven the duty under s 501(3A) where no new failure to pass the character test in s 501(3A)(a) has occurred, even if the person is serving a new sentence of imprisonment (Makasa 386 ALR at 210–211 [52]–[55]).
78 For these reasons, I am of opinion that the Migration Act evinces a contrary intention, within the meaning of s 2(2) of the AI Act, to prevent s 33(1) applying to the power in s 501(3A) merely because of a new imprisonment of the visa holder. It follows that, first, the 2018 cancellation was legally ineffective and, therefore, could not cause s 501CA to apply and, secondly, the 2018 non-revocation was also legally ineffective because the Tribunal was not validly exercising a power to review it under s 500(1)(ba).
What relief can this Court give?
The Minister’s submissions
79 Both parties recognised that the appellant’s claim for relief involved a collateral attack on the 2018 cancellation, being a s 501(3A) decision. The Minister argued that only the High Court under s 75(v) of the Constitution or the Circuit Court under s 476(1) had original jurisdiction to grant constitutional writs or other relief to quash a s 501(3A) decision. He contended that the primary judge had no jurisdiction to make declarations that, first, the decision to cancel the appellant’s visa was legally ineffective, and secondly, he still holds the visa and, thirdly, to order his release from immigration.
Consideration
80 One issue in a review under s 476A(1)(b) by this Court of a decision of the Tribunal made pursuant to s 500(1)(ba) of the Act is, necessarily, whether the Tribunal had power to review the decision of the delegate as it did purportedly under s 501CA(4). That issue would arise where the jurisdictional fact specified in s 501CA(1) for the application of that provision did not exist.
81 Here, the determinations that, first, the 2018 cancellation was not legally effective under s 501(3A), secondly, s 501CA(1) was never engaged and, thirdly, the 2018 non-revocation was also legally ineffective are each within this Court’s jurisdiction pursuant to s 476A(1)(b) of the Act to review the 2018 non-revocation as a purported privative clause decision. That is because s 476A(2) gives this Court the same jurisdiction in relation to a migration decision as the High Court has under s 75(v) of the Constitution: cf: Plaintiff S297/2013 255 CLR at 246–248 [34]–[39].
82 In Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 108 [36], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:
If the determination of a complaint by the Tribunal be characterised as activity of an administrative nature, then in the absence of legislative prescription to the contrary, the determination would be open to collateral review by a court in the course of dealing with an issue properly arising as an element in a justiciable controversy of which the court was seized. This proposition recently was applied in this Court in Ousley v The Queen [(1997) 192 CLR 69 at 79-80, 86-87, 100-105, 125-127, 144-146. See also Boddington v British Transport Police [1999] 2 AC 143 at 161-162, 172-173).
(emphasis added)
83 The consequence of the conclusion that the delegate had no power to make the 2018 cancellation of the appellant’s visa under s 501(3A) is that s 501CA(1) was never engaged and neither the delegate nor the Tribunal had any power or discretion under s 501CA to decide whether the (legally ineffective) 2018 cancellation should be revoked. That is simply because the jurisdictional fact of a s 501(3A) decision prescribed in s 501CA(1) was not satisfied and the visa has remained in full force and effect at all times and is so today.
84 In Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at 58 [7], Rares, Perram and Wigney JJ held that the expression “in relation to a migration decision”, as used in s 486A(1) when fixing a time within which an application could be made to the High Court, related to an application for public law remedies on judicial review and did not impose a time limit for collateral challenges. They followed what Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ had held in Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at 662 [22].
85 As French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ held of the corresponding jurisdiction of the Circuit Court under s 476(1) to this Court’s jurisdiction under s 476A in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 201–202 [60]–[61]:
Conferral of that statutory jurisdiction on the Federal Circuit Court “in relation to migration decisions” is in a statutory context in which “migration decision” is defined to include a “privative clause decision” and a “purported privative clause decision” (Section 5(1) of the Act) and in which s 474(1) operates to render a privative clause decision incapable of being called into question in any court other than for jurisdictional error (Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476). Understood within that statutory context, the words “in relation to” are not words of expansion. They are words which connect the particular relief sought in a matter to a particular migration decision which is relevantly either a privative clause decision (because it is unaffected by jurisdictional error) or a purported privative clause decision (because it is affected by jurisdictional error).
The jurisdiction conferred on the Federal Circuit Court by s 476(1), subject to s 476(2), is jurisdiction in any matter in which relief being or including a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth is sought on a ground that a migration decision is affected by jurisdictional error. That is to say, the jurisdiction is in a matter in which the basis for the claim to relief is that the migration decision is in truth no more than a purported privative clause decision.
(emphasis added)
86 The basis of the appellant’s claim before the primary judge was that the Tribunal erred in concluding that it had jurisdiction because the cancellation decision was affected by jurisdictional error. In other words, he sought relief on the basis that the 2018 non-revocation decision of the Tribunal “was in truth no more than a purported privative clause decision”, being a migration decision under s 476A(1)(b): cf: SZSSJ 259 CLR at 202 [61]. By dint of s 476A(2), because this Court had jurisdiction in that matter, it had the same jurisdiction “in relation to” it as the High Court had. It follows that Middleton J erred in PYDZ [2021] FCA 1050 at [68] in finding that this Court could not grant declaratory relief, under s 476A(1)(b) and (2), in a collateral challenge to a s 501(3A) decision.
87 Here, if a proceeding were brought in the High Court seeking a public law remedy in respect of the 2018 non-revocation decision (namely, the Tribunal’s decision purportedly made under s 500), the High Court could issue any of the constitutional writs in s 75(v) and had authority to grant certiorari or such other ancillary or incidental relief so as to ensure the effective exercise of its jurisdiction with respect to the s 75(v) matter: Bodruddaza 228 CLR at 673 [62]–[64]. It follows that s 476A(2) confers the same jurisdiction on this Court when it is seized of a “matter” being a migration decision (including a purported privative clause decision) under s 476A(1)(b). This Court, as a superior court of record, has inherent jurisdiction to make a declaration of right: Plaintiff M61/2010E v The Commonwealth (The Offshore Processing Case) (2010) 243 CLR 319 at 359–360 [101]–[104] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581–582 per Mason CJ, Dawson, Toohey and Gaudron JJ.
Conclusion
88 For the reasons above, there does not appear to be any lawful reason for the appellant to be held in immigration detention. The appeal should be allowed with costs and the Minister should pay the appellant’s costs of the proceeding before the primary judge. Prima facie, it appears that he is entitled to declarations that, first, the purported s 501(3A) decision of the delegate on 13 June 2018 was of no legal effect, secondly, no decision within the meaning of s 501CA(1) caused s 501CA to apply in respect of the legally ineffective decision of 13 June 2018 and, thirdly, the appellant has continued to hold his visa at all times on and after 13 June 2018. If so, the appellant will be entitled to be released immediately from immigration detention. However, at the hearing of the appeal, the parties sought to address on relief if the appeal were to be allowed. Accordingly, they should prepare draft orders to give effect to these reasons and written submissions, limited to three pages, on the question of relief.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. |
Associate:
REASONS FOR JUDGMENT
YATES J:
89 I have had the advantage of reading, in draft, the reasons of Rares J. I agree with his Honour that the cancellation decision, purportedly made under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on 13 June 2018 was legally ineffective, for the reasons given by his Honour.
90 The primary judge also came to this view but held that a legally invalid decision, purportedly made under s 501(3A) of the Act, is still a “decision” under that provision for the purposes of s 501CA(1) of the Act. As such, authority to exercise the power of revocation under s 501CA(4) of the Act in the present case was conferred.
91 The primary judge’s conclusion was based on the reasoning in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37; 24 ALR 307 (Brian Lawlor) at 313 – 315. In that case, the question arose as to the meaning of “decision” in the context of s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides that an enactment may provide for applications to be made to the Tribunal for “review of decisions made in the exercise of powers conferred by that enactment”. Bowen CJ rejected the interpretation that “decision” means a decision in pursuance of a legally effective exercise of powers conferred by the enactment (which he termed interpretation (a))—preferring the interpretation that “decision” simply refers to a “decision in fact made”, regardless of whether or not it is a legally effective decision.
92 At 314, Bowen CJ said:
… The Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and of law: see ss 25, 27, 28, 31, 33, 42 and 44. The adoption of interpretation (a) would remove the most significant area involving questions of law from the jurisdiction of the Tribunal. It would render the appeal in many cases useless. Whenever it appeared in proceedings before the Tribunal that there was an error of law by reason of which the decision was legally ineffective and that the applicant certainly needed relief, the Tribunal would at that point be obliged to refuse relief on the ground that it had no jurisdiction to entertain the application. It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or set aside by the determination of a court or tribunal. It appears to me that the Act is designed to give a simple remedy in all such cases. I would reject interpretation (a).
93 Here, the primary judge considered this reasoning to be equally applicable, saying (at [88]):
… if only valid decisions made under s 501(3A) are amenable to review under s 501CA(4) then certain decisions most in need of review, being those made in want or excess of jurisdiction, would be precluded from merits review …
94 The difficulty in applying the reasoning in Brian Lawlor, in the particular statutory context provided by s 501(3A) and s 501CA(4) of the Act, is that the Tribunal is precluded by s 500(4A)(c) of the Act from reviewing the decisions most in need of review—namely, legally ineffective cancellation decisions under s 501(3A). The very circumstance that informed a broad interpretation of “decision” adopted in Brian Lawlor is missing in a review by the Tribunal involving the exercise of the power under s 501CA(4). Another difficulty in applying the reasoning in Brian Lawlor is that s 501CA of the Act is not directed simply and solely to the Tribunal as a decision-maker.
95 I agree with Rares J, for the reasons given by his Honour, that s 501CA(1) proceeds on a jurisdictional fact, namely the existence of a legally effective decision under s 501(3A) of the Act. That fact is necessary for the conferral of authority on the decision-maker to exercise the power under s 501CA(4) of the Act to revoke the “original decision”.
96 Given that jurisdiction was conferred on this Court by s 476A(1)(b) of the Act to judicially review the Tribunal’s decision given in a s 500 review, the Court was seized of jurisdiction to consider whether the Tribunal exceeded the jurisdictional bounds of s 501CA(1), which necessarily included consideration of whether the Minister had made a “… decision … under subsection 501(3A)...” .
97 I agree with the orders proposed by Rares J.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. |
Associate:
Dated: 3 February 2022
REASONS FOR JUDGMENT
SNADEN J:
98 I have had the opportunity to review drafts of the reasons for judgment of the other members of the court in this matter. For the reasons that Rares J has stated (and with which Yates J has agreed), I agree that the first respondent’s amended notice of contention should be dismissed. I regret, however, that I am unable to agree with his Honour’s disposition of the appeal. For the reasons that follow, I would dismiss it.
99 The relevant background is neatly traversed in his Honour’s reasons for judgment and does not require elaboration. By way of summary, it suffices to note that:
(1) on 13 June 2018, a delegate of the first respondent (the “Minister”) made a decision under s 501(3A) of the Migration Act 1958 (Cth) (hereafter, “the Act”) to cancel the appellant’s Class TY Subclass 444 Special Category (Temporary) visa;
(2) that decision (the “Cancellation Decision”) was the subject of a request for revocation under s 501CA of the Act;
(3) on 19 June 2019, another delegate of the Minister decided not to revoke the Cancellation Decision;
(4) that decision (the “Non-Revocation Decision”) was then the subject of an application to the second respondent (the “Tribunal”) for review under s 500(1)(ba) of the Act;
(5) on 11 September 2019, the Tribunal affirmed the Non-Revocation Decision (that affirmation is referred to, hereafter, as the “Tribunal Decision”);
(6) the appellant then applied to this court under s 476A of the Act for judicial review of the Tribunal’s Decision, contending (amongst other things) that the Minister’s delegate lacked jurisdiction to make the Cancellation Decision;
(7) on 8 June 2021, the primary judge accepted the appellant’s contention about the validity of the Cancellation Decision but, nonetheless, dismissed his application with costs (see XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 (Burley J));
(8) the appellant now appeals from that judgment (hereafter, the “Primary Judgment”); and
(9) by an amended notice of contention dated 2 November 2021, the Minister contends that the primary judge erred by concluding that the Cancellation Decision was beyond the jurisdiction that the Act conferred upon the Minister’s delegate.
100 In his reasons for judgment, Rares J concludes (like the primary judge before him) that the Cancellation Decision was invalid because the factual prerequisites necessary to excite the jurisdiction to make it were not present. That is so because, en route to making that decision, the Minister’s delegate formed a view about the appellant’s non-satisfaction of the “character test” that was based upon the same convictions that had spawned precisely the same view in the context of a different cancellation decision made some years earlier. Respectfully and on the bases that he identifies, I agree with Rares’s J conclusion. For the reasons recently explained by the High Court in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (albeit in the context of a different statutory power), a decision maker cannot validly be satisfied that a visa holder fails the “character test” (or, as in this case, the abridged facsimile of it to which s 501(3A)(a) of the Act refers)—and cannot, thereafter under s 501(3A) of the Act, decide to cancel his or her visa partly in consequence of that state of satisfaction—if the criminal conduct in respect of which that view was formed was the same conduct upon which the same view was formed in connection with an equivalent decision made earlier in time.
101 It necessarily follows, with respect, that the primary judge was correct to conclude that the Cancellation Decision was invalid for want of jurisdiction and that the Minister’s amended notice of contention should be dismissed.
102 That acknowledged, attention must turn to the validity of the Non-Revocation Decision and, thereafter, the Tribunal Decision. It is at this point that I respectfully depart from the conclusions expressed by my learned colleagues. True it is that the Cancellation Decision, having been made without jurisdiction, is “regarded, in law, as no decision at all”: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 614-615 [51] (Gaudron and Gummow JJ), 618 [63] (McHugh J), 646-647 [152] (Hayne J). But so to acknowledge is not to foreclose upon the possibility that it was revocable under s 501CA.
103 That section empowers the Minister (personally or by his or her delegate) to revoke “…a decision…under subsection 501(3A)”: the Act, s 501CA(1). Notwithstanding that it attracted no legal effect, the Cancellation Decision was, nonetheless and in fact, such a decision: it was, on any view, a decision (namely, a decision to cancel the appellant’s visa); and it was made, validly or otherwise, in reliance upon s 501(3A) of the Act. The question for consideration presently is whether the reference in s 501CA(1) of the Act to “decision[s]…under subsection 501(3A)” should be understood as a reference only to decisions that are validly made under that subsection; or whether, properly construed, it applies more broadly to include decisions that are in fact made, albeit upon a wrongful assumption of jurisdiction.
104 The learned primary judge was attracted to the latter construction and, with respect, correctly so. His Honour reasoned:
88 As a consequence of the separation of the cancellation power under s 501(3A) from the revocation power under s 501CA(4), a Tribunal review under s 501CA(4) does not involve the Tribunal standing in exactly the same shoes as the decision-maker who exercised the power under s 501(3A). Indeed, s 500(4A)(c) forecloses such a proposition by precluding the Tribunal from conducting a merits review of a decision of a delegate made under s 501(3A). Section 501CA(4) is the only means by which a review can be conducted of a decision under s 501(3A) on its merits. This power is only enlivened in circumstances when s 501CA(1) is satisfied; s 501CA(1) is the gateway to s 501CA(4). These matters indicate that the fundamental reason why the Full Court in Brian Lawlor adopted its construction of the word “decision” in the context of s 25 of the AAT Act, is equally applicable in this context; if only valid decisions made under s 501(3A) are amenable to review under s 501CA(4) then certain decisions most in need of review, being those made in want or excess of jurisdiction, would be precluded from merits review: Plaintiff S174/2016 at [39].
89 Furthermore, if the power under s 501CA(4) is conditioned on the existence of a valid decision under s 501(3A), technicality would be introduced at the outset of every decision under s 501CA(4) because the Tribunal would first need to consider the validity of the decision made under s 501(3A) in order to be satisfied that it has jurisdiction to commence its task under s 501CA(4). Similarly, if s 501CA(1) is construed as applying only to valid decisions made under s 501(3A), the Tribunal would have no power to set aside a decision made under s 501(3A) that was made in jurisdictional error. This is because the Tribunal’s powers to revoke a s 501(3A) decision are found in s 501CA(4), a provision which does not apply unless s 501CA(1) is satisfied. This would be remarkable result.
105 Again with respect, I agree with those conclusions.
106 In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 (hereafter, “Brian Lawlor”), Bowen CJ (with whom Smithers J agreed generally, and with whom Deane J relevantly agreed, though not as to the result) observed (at 343) that, “[i]t is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal.” Plainly, that observation rings true in the context of s 501(3A) of the Act. A decision to cancel a person’s visa (whether pursuant to that section or otherwise) results or potentially results in subjection to particular treatment (including his or her admission, as an unlawful non-citizen, to immigration detention for want, or perceived want, of a valid visa). That is the case whether the cancellation decision is validly made or not.
107 That being so, I would be slow to construe a statutory power to revoke a species of administrative decision as a power to revoke only decisions validly made. In the present context, it is to be noted that the power conferred by s 501CA of the Act is not affirmatory. If a cancellation decision in respect of which it is sought to be invoked was invalidly made, there is no power vested in the Minister (or in his or her delegate) to affirm or validate it. Nor does the Tribunal conducting a review under s 500(1)(ba) of the Act possess any such power: Administrative Appeals Tribunal Act 1975 (Cth), s 43. The only power available (in either case) is one of revocation (or, more accurately in the case of the Tribunal, a power to set aside, re-exercise, affirm or vary the exercise of a power of revocation). At the conclusion of the revocation process for which s 501CA provides, a cancellation decision made in excess or want of jurisdiction will either be revoked or it will remain, at law, no decision at all.
108 That reality acknowledged, I discern no warrant for reading the reference to a “decision” in s 501CA(1) of the Act as something other than a reference to a decision that is, in fact, made. As alluded to above, there would seem to be very good reason to construe the power as one that should be available in respect of invalid cancellation decisions. If a cancellation decision is invalidly made, I confess some difficulty identifying a reason of policy favouring its inoculation against the kind of immediate (or relatively immediate) revocation process for which s 501CA provides. To exclude from the possibility of revocation “…decisions made without power would remove from review those decisions most in need of review” and “technicality would be introduced at the outset”: Brian Lawlor, 367-368 (Smithers J, with whom Bowen CJ agreed). That is unlikely to have been the parliament’s intention.
109 If the power conferred by s 501CA included a power to affirm a mandatory cancellation decision—and, in particular, to do so on grounds other than those by which that initial decision was conditioned—the position might be different. In that circumstance, it might be that the exercise of a power to affirm a decision on grounds different to or more easily satisfied than those that conditioned its making in the first place should be limited to decisions that were validly made. At the risk of labouring the point, however, that is not this case.
110 Support for the reasoning to which I am drawn is readily available. In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA 24, Edelman J (exercising the original jurisdiction of the High Court) considered the operation of s 501A of the Act. That section intersects with the powers conferred by subsections 501(1) and (2) of the Act, pursuant to which (respectively) delegates of the Minister (and, on review, the Tribunal) may refuse to grant, or may cancel, a visa on identified grounds. Section 501A of the Act confers upon the Minister a non-delegable power to override non-adverse decisions made under those subsections (that is to say, decisions not to refuse to grant, or to not cancel, a visa). Before his Honour, it was argued that that power was there unavailable because, for reasons that needn’t here be rehearsed, neither the Minister’s delegate nor the Tribunal had any power to refuse the applicant a visa under s 501(1). His Honour reasoned (references omitted):
[68] Section 501A applies, by ss 501A(1)(b) and 501A(1)(c), if the Tribunal makes a decision “not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person”. This precondition for the operation of s 501A is concerned with a decision, described as the “original decision”, that is made, as a matter of fact, by the Tribunal. The precondition is not concerned with whether the decision of the Tribunal is, or is not, valid as a matter of law. Just as the Tribunal had jurisdiction to make its decision under s 501(1) even if the decision of the Second Delegate were invalid, so too the Minister had jurisdiction to make a decision under s 501A(2) even if the decision of the Tribunal were invalid.
111 In PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050, Middleton J applied that reasoning and concluded (at [56]) that it was “…clear that the Tribunal can exercise its powers to revoke or affirm a mandatory cancellation decision under s 501CA(4) of the Act notwithstanding any purported invalidity of that decision.” As concerns the affirmation or setting aside of a decision to not exercise the power to revoke a mandatory cancellation, I respectfully agree.
112 It is of no moment that neither the Minister’s delegate nor the Tribunal was here moved to revoke the Cancellation Decision pursuant to s 501CA(4) of the Act. Neither was obliged to (however preferable that course might now appear with the assistance of hindsight). Upon receipt of representations answering the description in s 501CA(4)(a), the exercise of power under that section required merely that attention be directed to the criteria stipulated in s 501CA(4)(b): could the delegate (or, on review, the Tribunal) be satisfied that the appellant passed the character test; and, if not, was there another reason to revoke the Cancellation Decision? Consideration of the latter required that the delegate (and, thereafter, the Tribunal) take account of the matters that the appellant advanced. Here, there is no suggestion that that didn’t happen. Indeed, it bears noting that the appellant did not—neither before the delegate nor, on review, the Tribunal—contend that “another reason” why the Cancellation Decision should be revoked was that the jurisdictional prerequisites for making it in the first place were absent.
113 Instead, the appellant’s complaint is that the Tribunal had no power “…to ignore or cure a jurisdictional fact that must pre-exist independently of the [non-revocation] decision under review”. The suggestion that anything was “ignored” can be put to one side: to repeat, the appellant did not petition the Tribunal (or, before it, the Minister’s delegate) to revoke the Cancellation Decision on the basis that it was made without jurisdiction. There was nothing about it on its face that ought to have provoked in the mind of the Tribunal some suspicion of irregularity. Nothing was ignored.
114 Nonetheless, the appellant is correct to observe that the Tribunal could not “cure” the jurisdictional deficiency that attended the Cancellation Decision. The Tribunal’s power was to affirm, vary, set aside or re-exercise the power of revocation conferred by s 501CA of the Act. Its failure (and the failure of the Minister’s delegate before it) to revoke a decision that ought never to have been made did not “cure” anything: Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486, 504 [82] (Ryan, Sackville and Emmett JJ); SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487, 497 [30] (Black CJ and Allsop J). The appellant’s complaint, then, rests upon a false premise: namely, that the Tribunal Decision had an effect that, in truth, it did not have.
115 That is a convenient point at which to consider the question of relief. By his notice of appeal, the appellant moves to have the orders of the primary judge set aside and, in their place, seeks relief in the form of certiorari (directed to the setting aside of the Tribunal Decision), declaratory relief (to record the invalidity of each of the Cancellation Decision and the Tribunal Decision) and injunctive relief (requiring that he be released from immigration detention and that the Minister not further act in reliance upon those decisions).
116 As has already been stated, the Tribunal was not obliged to revoke the Cancellation Decision. Its failure to do so cannot be attributed to jurisdictional error sufficient to attract any prerogative or declaratory relief in this court. None should be granted.
117 Insofar as concerns the Cancellation Decision, it bears noting that the appellant does not move for prerogative relief. That likely reflects an appreciation on his part that this court has no jurisdiction to grant any: the Act, s 476A. Nonetheless, he seeks a declaration that the Cancellation Decision “was invalid and of no legal effect”. Although I accept that contention, this is, nonetheless, not an occasion on which to grant declaratory relief of that nature. The justiciable controversy with which this court is seized concerns the validity of the Tribunal Decision. That question is resolved. A declaration in the terms sought would add nothing to that resolution—which is to say, would serve no utility—and should be resisted at least for that reason: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
118 It should also, I think, be resisted as a matter of discretion on the basis that it is a transparent attempt to extract a species of relief that this court has no jurisdiction to award. If there is a problem with the Cancellation Decision (as I accept), the appropriate way to address it is directly via an application for prerogative relief. The appellant ought not to be granted, in the context of a collateral attack deriving from a challenge to a different decision (namely, the Non-Revocation Decision), a different species of relief (specifically, declaratory relief) to achieve that which the legislation says is not for this court to deliver.
119 For equivalent reasons, I would also decline to grant injunctive relief (or relief in the nature of prohibition). Again, the matter in issue here concerns the validity of the Tribunal Decision and the relief that this court should grant if of the view that it is invalid. For the reasons set out above, I have not formed that view. There is, then, no occasion to grant any relief.
120 None of that is to say, however, that the appellant was or is without remedy. Though not in this court, it was (and likely remains) open to the appellant to seek prerogative relief directed to the Cancellation Decision. With respect, he ought to have done so. Jurisdiction is conferred to that end upon the High Court (by s 75(v) of the Constitution) and upon what is now the Federal Circuit and Family Court of Australia (Division 2) (by s 476(1) of the Act). The only court in which he could have sought, in a single proceeding, prerogative relief directed to both decisions is the High Court; but, subject to issues of timing and the need to extend deadlines (see, for example: the Act, s 477), there is no apparent reason why he could not have commenced separate proceedings—one in this court concerning the Tribunal Decision and one in the Federal Circuit and Family Court concerning the Cancellation Decision. Had he done so, he could have made an application to have the matters heard together by this court: the Act, s 476A(1)(a). In that universe, this court would have had jurisdiction to award—and I would have awarded—prerogative relief consistent with the reality that the appellant is a lawful non-citizen and ought not to be in immigration detention.
121 The appeal should be dismissed, as should the amended notice of contention. In the absence of agreement about an appropriate order as to costs, I would invite further submissions from the parties directed to that issue.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. |
Associate:
Dated: 3 February 2022
