FEDERAL COURT OF AUSTRALIA

VQAR v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 900

MIGRATION – whether Minister’s refusal to grant visa on character grounds can be revisited

Acts Interpretation Act 1901 (Cth) 33(1)

Migration Act 1958 (Cth) ss 198, 501, 501A(2), 501A(6), 501C(8), 501C(9)

[2001] FCA 581 – cited

[2002] FCAFC 220 – cited

Sloane v Minister for Immigration Local Government and Ethnic Affairs (1992) 37 FCR 429 – followed

Burgess v The Minister for Immigration and Multicultural Affairs (2000) FCA 926 – followed

VQAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V652/03

HEEREY J

19 AUGUST 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks a declaration, the effect of which would be that the Minister, having made a decision under s 501A(2) of the Migration Act 1958 (Cth) (the Act) to refuse to grant a visa on character grounds, may subsequently revisit, reconsider and set aside that decision.

2                     The applicant entered Australia on 21 October 1989 on a visitor entry permit valid for either three or six months, the evidence is a little unclear as to which.  In any event, he has remained in Australia ever since.  He was located by officials of the Department and taken into immigration detention on 5 July 1996.  On 12 July 1996 he applied for a spouse visa.  That application was, on 3 June 1997, rejected by a delegate of the Minister pursuant to s 501.

3                     The applicant sought review of that decision in the Administrative Appeals Tribunal (the Tribunal).  On 7 June 2000 the Tribunal set aside the delegate's decision and ordered that the matter be reconsidered.

4                     On 18 October 2000 the Minister made the decision presently under consideration.  He ordered the decision of the Tribunal to be set aside under s 501A(2) which provides:

“The Minister may set aside the original decision and;

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

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

if

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

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

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

“Original decision” includes a decision of the Tribunal: s 501A(1).

5                     It was accepted that the Minister was obliged to, and did in fact, afford the applicant natural justice before making his decision.

6                     There followed substantial litigation by the applicant to challenge the validity of the Minister’s decision.  The application was dismissed by Marshall J on 18 May 2001, see [2001] FCA 581, a decision which was upheld by the Full Court of the Federal Court on 17 July 2002, see [2002] FCAFC 220.  A special leave application and an application for constitutional writs made to the High Court were dismissed by that court on 20 June 2003.

7                     Following the High Court’s decision, the applicant's solicitors by a letter to the Minister dated 7 July 2003 sought reconsideration.  The Minister responded by an undated letter on or about 24 July 2003, stating, amongst other things, that there was "no legal basis for (him) to revoke (his) original decision" and that he was therefore unable to find any reason to reconsider the case further.

8                     If there is the suggested power to reconsider a decision, it must arise from an implication in the Act.  Counsel for the applicant relied on s 33(1) of the Acts Interpretation Act 1901 (Cth), which provides:

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

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

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

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

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

12                  Perhaps most important of all is the reasoning adopted by Katz J in Burgess v Minister for Immigration and Multicultural Affairs [2000] FCA 926 at [19]-[21].  His Honour pointed out that the amendments to the Act in 1998, which introduced a personal role for the Minister in relation to the refusal or cancellation of visas on character and conduct grounds, drew a sharp distinction between subss (2) and (3) of s 501A.  The latter provision is as follows:

“The Minister may set aside the original decision and:

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

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

       if

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

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

13                  Section 501A(4) provides that the rules of natural justice, unlike in the case of subs (2), do not apply to a decision under subs (3).  Section 501C(4) however provides expressly for a power of revocation of a decision under s 501A(3).  Therefore, the alternatives are: s 501A(2), natural justice before decision but no power of revocation; s 501A(3), no natural justice before decision but power of revocation thereafter.

14                  In the face of those express provisions and the general policy already referred to, I do not think the suggested power can be implied.  The application will be dismissed with costs.

Associate:

Dated:              29 August 2003