FEDERAL COURT OF AUSTRALIA

Marzano v Minister for Immigration and Border Protection [2016] FCA 1180

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding, to be taxed if not agreed.

3.    If any party seeks a variation of the costs order, the party may give written notice to the Court and the other party within three business days.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant is a citizen of Italy, born in 1982. He arrived in Australia in 1990, together with his parents and siblings. Between 2005 and 2012 the applicant committed a number of offences, including armed robbery offences. In September 2014, the applicant was convicted of a further two charges of armed robbery. He was sentenced to 26 months’ imprisonment on each charge, with an order made for partial cumulation of one sentence on the other.

2    On 18 December 2014, a delegate of the respondent (the Minister) decided to cancel the applicant’s Transitional (Permanent) (Class BF) visa (the cancellation decision) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). The delegate was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a) of the Act, on the basis that the applicant had a substantial criminal record as defined in s 501(7)(c) of the Act.

3    The applicant was notified of the cancellation decision and invited to make representations to the Minister about revocation of that decision pursuant to s 501CA of the Migration Act. Section 501CA(4) provides that the Minister may revoke the cancellation decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the character test (as defined in s 501) or that “there is another reason why the [cancellation] decision should be revoked”.

4    The applicant provided representations to the Minister in accordance with s 501CA.

5    A departmental officer prepared an issues paper addressed to the Assistant Minister for Immigration and Border Protection which set out issues for consideration in connection with the possible revocation under s 501CA of the cancellation decision (the Issues Paper). For convenience, I will refer to the Assistant Minister as the Minister in these reasons.

6    On 18 September 2015, the Minister decided not to revoke the decision to cancel the applicant’s visa (the Decision). The Minister was not satisfied that the applicant passed the character test (as defined in s 501). Nor was the Minister satisfied that there was another reason why the cancellation decision should be revoked. The Minister’s reasons were set out in a statement of reasons (the Statement of Reasons).

7    The applicant seeks judicial review of the Decision on three grounds:

(a)    First, the applicant contends that the Minister misunderstood and misapplied s 501CA (thereby failing to exercise jurisdiction) by approaching the provision as if it conferred a general discretion rather than imposing a requirement to revoke if the person satisfies the Minister that there exists a “reason why the [cancellation] decision should be revoked”.

(b)    Secondly, the applicant contends that the Minister did not have power to decide whether to revoke the cancellation decision; such power resides only in the original decision-maker, namely the delegate.

(c)    Thirdly, the applicant contends that, in making the Decision, the Minister took into consideration material which was adverse to the applicant’s case for revocation, but which was outside the scope of material which it was permissible to consider. The Minister is to consider only the “relevant information” given to the person at the time of formal notification of the cancellation decision (pursuant to s 501CA(3)) and the representations made in reply to the invitation.

8    For the reasons that follow, none of these grounds is made out. In summary, my reasons are as follows:

(a)    In relation to the first ground, it was common ground on the hearing of the appeal that, where a person has made representations as referred to in s 501CA(4)(a) and the Minister is satisfied of either matter set out in s 501CA(4)(b), then the Minister is required to revoke the cancellation decision. Contrary to the applicant’s submission, in determining whether the Minister is satisfied that there is “another reason why the [cancellation] decision should be revoked”, the Minister is entitled to weigh factors for and against revocation. That is what the Minister did in this case, concluding that the Minister was not satisfied that there was another reason why the cancellation decision should be revoked.

(b)    In relation to the second ground, neither the text of the provisions nor the statutory scheme requires the decision as to revocation to be made by the person who made the cancellation decision. Where (as here) the cancellation decision was made by a delegate of the Minister, the decision as to revocation may be made by the Minister or Assistant Minister personally.

(c)    In relation to the third ground, subject to the requirements of procedural fairness, the Minister (in considering whether to revoke a cancellation decision) is not confined to the “relevant information” given to the person at the time of formal notification of the cancellation decision and the representations made in reply to the invitation. The Minister did not take into consideration any material that was outside the scope of material that it was permissible to consider.

9    It follows that the application is to be dismissed.

Key legislative provisions

10    It is convenient to set out the key legislative provisions of present relevance before setting out the facts. Section 501 of the Migration Act relevantly provides:

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

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

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

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

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

11    That provision refers, relevantly for present purposes, to paragraphs (6)(a) and (7)(a) of s 501, which provide as follows:

(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));

…

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

…

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

12    Section 501CA provides:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

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

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

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

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

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

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

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

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

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

(b)    the Minister is satisfied:

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

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

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

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

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

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

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

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

Background facts

13    The following description of the facts is based on the Issues Paper.

14    The applicant first arrived in Australia in 1990, together with his parents and siblings, as a permanent resident. He was seven years old when he arrived in Australia. His permanent residence status, from 1 September 1994, was by way of a Transitional (Permanent) (Class BF) visa. This visa allows the holder to remain in Australia indefinitely.

15    The applicant has appeared before the courts on at least 11 occasions, and has been convicted of a number of armed robbery offences.

16    In February 2006, the applicant appeared before the County Court of Victoria and was convicted of six counts of armed robbery and one of attempted armed robbery, for which he was sentenced to a total effective sentence of two years imprisonment. In summary, between 1 May 2005 and 12 June 2005, the applicant committed six armed robberies on service stations with a knife, all in very similar circumstances. The applicant approached the lone attendant armed with a knife, and demanded money or money and cigarettes.

17    As well as describing the offending as “extremely serious”, the sentencing judge considered the negative effect of the applicant’s offending upon his victims, referring to the fear and terror caused to people who were “soft” or “vulnerable” targets. The sentencing judge was satisfied that the applicant’s offending occurred in the context of depression, which led him to drink and then gamble. At the time, the applicant expressed a desire to desist from further offending and, in the sentencing judge’s opinion, the applicant had favourable rehabilitation prospects.

18    As a result of convictions in 2006, the applicant came to the Department’s attention under s 501(2) of the Migration Act on account of his substantial criminal record. The applicant submitted a substantial body of material to the Department (see the Issues Paper at [111]). In August 2006, a delegate of the then Minister of Immigration and Multicultural Affairs decided not to cancel the applicant’s visa, but to issue a formal warning to him.

19    Subsequently, in 2007, the applicant appeared before the Magistrates’ Court of Victoria and was convicted of a number of offences including assault with a weapon. A Community Based Order was imposed requiring the applicant to undergo assessment/treatment for alcohol addiction and submit for medical, psychological and psychiatric assessment/treatment as directed, which treatments were successful completed.

20    On 8 April 2010, the applicant appeared again in the County Court of Victoria. He was convicted of armed robbery, attempted robbery and theft. He was also convicted of breaching a suspended sentence. He was sentenced to one month imprisonment for theft, 18 months’ imprisonment for armed robbery and nine months’ imprisonment for attempted robbery. Taking into account the restoration of part of the suspended sentence, and an order for some parts of the sentences to be served cumulatively, the total effective sentence was 30 months, with a non-parole period of 20 months. In sentencing the applicant, the sentencing judge considered expert psychiatric and psychological reports tendered in court, and was satisfied that the applicant was suffering from a psychiatric illness which “played a part” in his offending. The judge accepted that the applicant’s psychotic symptoms caused him to drink “extravagantly”, and then to gamble, and then to offend once his funds were exhausted.

21    As a result of the convictions and sentences incurred on 8 April 2010, the applicant was once again considered under s 501(2) of the Migration Act on character grounds. The applicant submitted a body of material to the Department, as detailed in the Issues Paper at [116]. In April 2012, a delegate of the then Minister of Immigration and Citizenship decided not to cancel the applicant’s visa, and a warning letter was sent to the applicant.

22    In September 2014, the applicant was convicted of two counts of armed robbery. The two armed robberies were committed at service stations on 21 October 2013, within a short time from one another. In relation to the first robbery, the applicant entered a BP service station wearing a white plastic bag over his head and brandishing a kitchen knife approximately 10 inches in length; he proceeded to the counter and pointed the knife at the service station attendant (the victim) and said, “Give me your money, all you have”; the victim said he did not have any money; the applicant repeated his demands and again the victim refused; the applicant then held the knife at shoulder height pointing it at the victim and repeated his demands; the victim opened the cash register and placed the cash tray on the counter; the applicant took the notes (approximately $150) and left the premises. In relation to the second armed robbery, approximately an hour and a half later, the applicant entered another petrol station wearing a blue T-shirt stretched over his face; the applicant pointed a 30 centimetre black knife over the counter at the service station attendant and demanded money; on that occasion he stole approximately $350 in cash. The following day, the applicant contacted the police and confessed to the crimes.

23    The sentencing judge said that the facts of the case were “most serious” and noted that aggravating features of the offending were the use of a disguise and threatening language. On each charge, the applicant was sentenced to 26 months’ imprisonment. Part of charge 2 was to be served cumulatively upon charge 1, resulting in a total effective sentence of two years and six months imprisonment. The non-parole period was set at 14 months.

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

25    By letter dated 19 December 2014, the applicant responded to the interim letter.

26    On or about 7 January 2015, a notice of visa cancellation under s 501(3A) of the Migration Act was sent to the applicant. The notice set out the grounds for mandatory cancellation of the applicant’s visa and the particulars of the relevant information, and invited the applicant to make representations about possible revocation of the cancelation decision.

27    The applicant responded to the notice with letters of support and a psychological report, received on 12 January 2015. On 19 January 2015, the applicant provided a completed request for revocation form containing his representations. The representations were made in the prescribed manner and within the prescribed time frame.

28    On 20 January 2015, further documents were received by the Department from the applicant.

29    On 19 May 2015, the Department sent a letter to the solicitor now representing the applicant, enclosing further information in relation to the applicant which had been obtained by the Department. The information, which is set out in the Issues Paper at [19], included the sentencing remarks from February 2006, April 2010 and September 2014, and the warning letters from August 2006 and April 2012.

30    On 22 May 2015, the applicant made further representations in support of his revocation request and submitted further letters of support.

31    In a letter dated 26 May 2015, the applicant’s solicitor requested an extension of time to submit further supporting documents. The extension of time was granted.

32    On 17 July 2015, the Department sent the applicant’s solicitor an email enclosing further information and inviting her to make comments on the applicant’s behalf.

33    On 22 July 2015, the applicant’s solicitor submitted further documents on behalf of the applicant.

34    On 28 August 2015, the applicant sent an email to the Department concerning his nieces and nephews.

The Issues Paper, Decision and Statement of Reasons

35    The Department then provided a submission and the Issues Paper to the Minister. The submission contained a series of recommendations, including “Indicate whether you are minded to revoke the original decision to cancel [the applicant’s] visa under s 501CA”. The Minister circled “not revoke” alongside this recommendation and dated her responses to the recommendation 14 September 2015.

36    The Issues Paper was addressed to the Minister. Its subject was “Consideration of decision under s 501CA of the Migration Act 1958”. The purpose of the paper was set out as follows:

To provide information and seek your decision on this case. The power to revoke the original decision (mandatory visa cancellation decision under s501(3A)) under s501CA is enlivened if the person makes representations in accordance with the invitation and you are satisfied:

(i)         Mr MARZANO passes the character test (as defined by s501);

OR

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

37    The heading of Part D of the Issues Paper included the words “whether your revocation power has been enlivened” and the Issues Paper stated at [12] that s 501CA(4) of the Migration Act “empowers you to revoke the original mandatory visa cancellation decision” if certain matters are established, as there set out. The Issues Paper concluded with paragraphs [141]-[142] as follows:

141.    Accepting that Mr MARZANO has made representations in accordance with the invitation (s501CA(4)(a)), your task is to decide whether you are satisfied that there is another reason (that is, other than Mr MARZANO passing the character test which he cannot do) why the original decision to cancel his visa should be revoked (501CA(4)(b)(ii) refers).

142.    Notwithstanding the reasons put forward by Mr MARZANO as to why the decision to cancel the visa should be revoked, it is open to you, having regard to the countervailing considerations discussed above, to conclude that you are not satisfied that there is another reason why the original cancellation decision should be revoked.

38    The Issues Paper had numerous attachments, including all the materials provided by the applicant. The last page of the Issues Paper set out alternative decisions the Minister might make. The Minister indicated (by crossing out the other alternatives) her decision not to revoke the cancellation decision. The Decision was dated 14 September 2015.

39    Also dated 14 September 2015 and signed by the Minister was the Statement of Reasons. The document comprises 77 paragraphs over nine pages. The Minister stated, at [3], that the applicant had made representations in accordance with the invitation, as required under s 501CA(4)(a) of the Migration Act. The Minister stated, at [9], that she was not satisfied that the applicant passed the character test (as defined by s 501), with the result that s 501CA(4)(b)(i) was not met. The Minister then considered, in the balance of the Statement of Reasons, whether the Minister was satisfied that there was another reason why the cancellation decision should be revoked, as referred to in s 501CA(4)(b)(ii). At [11], the Minister noted that, in undertaking this task, she had assessed all of the information set out in the Issues Paper and attachments. That section of the Statement of Reasons was structured under the following headings:

    Best interests of minor children

    Expectations of the Australian community

    Strength, nature and duration of ties

    Extent of impediments if removed

    Protecting the Australian Community.

40    The Statement of Reasons contained the following conclusions at [68]-[77]:

68.    I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by section 501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, Mr MARZANO.

69.    I concluded Mr MARZANO has made representations in accordance with the invitation.

70.    I am not satisfied that Mr MARZANO passes the character test (as defined by section 501).

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

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

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

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

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

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

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

The application

41    The proceeding was commenced in the Federal Circuit Court of Australia and then transferred to this Court.

42    The applicant’s grounds of appeal are set out in an amended application lodged on 26 April 2016. The three grounds are:

1.    The Respondent misunderstood and misapplied s 501CA of the Migration Act 1958 and thereby failed to exercise the jurisdiction.

Particulars

(a)    The Respondent approached the decision whether to revoke the mandatory cancellation of the Applicant’s visa as if it were akin to the general exercise of the discretion whether to cancel the visa of a person who did not pass the character [test], such as is provided by s 501(2) of the Act.

(b)    However s 501CA does not confer on the Minister a general discretion of that kind. Instead the Minister is required to revoke a mandatory cancellation of a visa if a person satisfies the Minister that there exists a “reason why the cancellation should be revoked”.

(c)    The Minister’s findings, including as to the Applicant’s circumstances if he were removed to Italy, the best interests of Australian citizen children and the Applicant’s mental illness and its role in his offending, taken individually and in combination, satisfied the requirements for revocation as provided by s 501CA.

2.    In the circumstances the Respondent did not have the power to decide whether to revoke the cancellation of the Applicant’s visa; such power resided only in the original decision-maker, being a delegate of the Minister.

3.    In deciding not to revoke the mandatory cancellation of his visa the Respondent took into consideration material which was adverse to the Applicant’s case for revocation, but which was outside the scope of material which the Act permits a decision-maker to consider.

Sections 501(3A) and 501CA

43    In describing the background to, and judicial consideration of, ss 501(3A) and 501CA of the Migration Act in the following paragraphs, I have drawn on my judgment in BCR16 v Minister for Immigration and Border Protection [2016] FCA 965.

44    Sections 501(3A) and 501CA, which are set out above, were inserted into the Migration Act by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). The explanatory memorandum to the Bill which became that Act stated that the amendments to the Migration Act would implement a number of reforms to the character and general visa cancellation provisions arising in part from a review carried out by the Department in 2013. It was stated that the character provisions in Pt 9 of the Migration Act had been in place in their current form since 1999, and the general visa cancellation provisions in Subdivision D of Div 3 of Pt 2 had remained largely unchanged since 1994. The explanatory memorandum stated that, since that time, the environment in relation to the entry and stay in Australia of non-citizens had changed dramatically and that “[t]he amendments to the Migration Act that are proposed to be made by the Bill will strengthen the character and general visa cancellation provisions and reform the approach to the cancellation of visas of non-citizens who are in prison”.

45    In relation to proposed s 501(3A), the explanatory memorandum stated that “[t]he 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”. In relation to proposed s 501CA, the explanatory memorandum stated that “[t]he requirement to give notice to the person and invite the person to make representations about revocation of the decision to cancel allows the person the opportunity to satisfy the Minister or delegate that the person passes the character test, or that there is another reason why the original decision should be revoked”.

46    At this stage, there has been little judicial consideration of ss 501(3A) and s 501CA. The provisions were considered by Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430. In that case the applicant contended that there had been a denial of procedural fairness in relation to the Minister's decision under s 501CA not to revoke a cancellation decision. Tracey J explained (at [40]) that s 501(3A) requires the Minister to cancel a visa if he or she (or a delegate) is satisfied that the holder does not pass the character test and is serving a sentence of imprisonment; as a result, the reasons for a cancellation decision can be very shortly stated; there is no need for a decision-maker to have regard to any discretionary considerations. Tracey J then stated (at [40]) that, in this context, s 501CA is an ameliorative provision; it requires the Minister to invite representations from the person whose visa has been cancelled about the revocation of the cancellation decision and confers on the Minister a discretion to revoke the cancellation. In relation to s 501CA(3), Tracey J noted that the Minister is required to provide a person whose visa has been cancelled under s 501(3A) with written notice of the cancellation decision and particulars of “the relevant information” relating to the making of the decision; such “relevant information” is defined in s 501CA(2) as information that the Minister considers “would be the reason, or part of the reason for making the [cancellation] decision” and “is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member”; and that the obligation thus relates to information bearing on the decision to cancel, not information on which the Minister might rely in deciding whether or not to revoke the cancellation decision. Tracey J observed (at [40]) that “[t]his is a somewhat strange provision given that the cancellation will have occurred because the Minister (or his delegate) will have been satisfied of two objectively ascertainable facts”. Tracey J referred (at [41]) to Direction No 65 and stated that it identified a series of broad considerations which the Minister could, but was not obliged to, take into account when reaching a decision. Tracey J then stated (at [42]):

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

47    Sections s 501(3A) and s 501CA were also the subject of decision in Tusitala v Assistant Minister for Immigration and Border Protection [2016] FCA 845; Dunn v Minister for Immigration and Border Protection [2016] FCA 489; BCR16 v Minister for Immigration and Border Protection [2016] FCA 965; Bochenski v Minister for Immigration and Border Protection [2016] FCA 989; and Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166.

The first ground: whether the Minister misunderstood and misapplied s 501CA

48    A central element of the applicant’s submissions in relation to the first ground was accepted by the Minister on the hearing of the appeal. The applicant submitted that, although s 501CA(4) provides that the Minister “may” revoke a cancellation decision if one of the matters referred to in paragraphs (a) and (b) exists, the Minister was required to do so in such circumstances. On the hearing of the appeal, the Minister accepted that each of the matters specified in s 501CA(4)(b) does not, if found to exist, enliven a discretion as to whether or not a cancellation decision should be revoked; properly construed, s 501CA(4) requires that, once the Minister is satisfied of either of the preconditions in s 501CA(4)(b), the Minister must revoke the cancellation decision; and in its particular statutory context, the word “may” in s 501CA(4) should be read as “must”.

49    The applicant next submitted that, in this case, both the Department (in its approach to gathering and presenting information to the Minister) and the Minister (in making the decision not to revoke) incorrectly viewed s 501CA as providing a discretion. The applicant relies on: the Department’s communications dated 19 May 2015 and 17 July 2015; the reference in the submission to the Minister indicating “whether you are minded to revoke the original decision to cancel”; the reference in the stated purpose of the Issues Paper to the power to revoke being “enlivened if” certain matters were established; the similar reference in the heading to Part D of the Issues Paper and at [12] of the Issues Paper; the fact that the Issues Paper and Statement of Reasons follow closely the structure of Direction No 65: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, which Direction suggests the power in s 501CA is discretionary. The applicant submits that, although the question for decision is correctly set out at [141] of the Statement of Reasons, [142] incorrectly suggests the decision whether to revoke is discretionary.

50    The applicant submits that it can be inferred that the Minister erred from: (a) the adoption of the draft Issues Paper and the Statement of Reasons without alteration; (b) the fact that, despite concluding that the best interests of the applicant’s minor nieces and nephews would be best served by revocation of the cancellation (Statement of Reasons, [71]) (that is, that there was another reason why the cancellation decision should be revoked), the Minister proceeded to consider countervailing considerations as to whether another reason existed and sought to balance the various considerations; and (c) the Minister’s statement that, “On the other hand, in considering whether there was another reason why the original decision should be revoked …”. The applicant also submits that the Minister’s findings of fact, taken individually or in combination, satisfied the requirements for revocation in s 501CA(4)(b)(ii), but the Minister misdirected herself as to the question posed by the legislation.

51    For the reasons that follow, in my view the applicant’s first ground is not made out. First, the revocation power is relevantly expressed in terms of the Minister being “satisfied … that there is another reason why the [cancellation] decision should be revoked”. The revocation power is, as these words indicate, conditioned on the formation of an evaluative conclusion by the Minister. The Minister must be satisfied that, although a person does not pass the character test, there is another reason why the cancellation decision in relation to that person “should be revoked”. In determining whether there is another reason why the cancellation decision “should be revoked”, the Minister must weigh factors for and against the revocation.

52    Secondly, in the present case, the Minister considered whether or not, even though the applicant did not pass the character test, the Minister was satisfied that there was another reason why the cancellation decision should be revoked. In forming an evaluative conclusion about this matter, the Minister weighed various factors in favour of and against revocation. Upon weighing those factors, the Minister was not satisfied that there was another reason why the cancellation decision should be revoked.

53    Thirdly, the Minister’s approach does not disclose any misconstruction or misapplication of s 501CA. In particular, there is a distinction between “another reason” for revocation, on the one hand, and the factors which weigh in favour of or against that reason for revocation, on the other. It is erroneous to construe s 501CA(4)(b)(ii) as satisfied whenever a person can point to a factor which might support a state of satisfaction on the part of the Minister about the existence of “another reason why the [cancellation] decision should be revoked”. Rather, the Minister must, having weighed factors in favour of or against revocation, form an evaluative conclusion as to whether or not there is “another reason” why, despite a person’s inability to pass the character test, the cancellation decision should be revoked.

54    For these reasons, the Minister did not err as contended in the applicant’s first ground.

The second ground: whether the Minister did not have power to decide whether to revoke the cancellation decision

55    The applicant submits that to “revoke” means to repeal, annul, withdraw, rescind or cancel; and it implies that the person who gave or made the thing which is revoked is the person who can revoke it. Thus, it is submitted that the power to revoke a mandatory cancellation of a visa resides in the person (or at least the position-holder) who made the cancellation decision.

56    The applicant relies on Minister for Immigration and Multicultural Affairs v Watson (2005) 145 FCR 542 at [106] per Lander J (with whom Hely J agreed on this issue at [15]). The applicant contrasts a power to “revoke” with a power to “set aside” – see, eg, ss 501A, 501B, 501BA. The applicant submits that although s 501CA refers to “the Minister” this is merely shorthand for the Minister or the delegate, as the case requires. The applicant submits that in this case the cancellation decision was made by a delegate and only that person (or the person holding that position if he or she later vacated it) has the power to decide whether to revoke the decision; the Minister did not have the power to do so.

57    In my view, for the following reasons, the applicant’s construction is not correct. It is clear that, subject to the applicant’s contention, the power in s 501CA(4) may be exercised by a delegate of the Minister or the Minister personally. That a decision as to revocation may be made by a delegate is clear from s 500(1)(ba) which provides that “decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa” are reviewable by the Administrative Appeals Tribunal (the AAT). Similarly, s 501G(1)(f) provides that, where a decision is made under inter alia s 501CA by a delegate of the Minister and the person has a right of appeal to the AAT, certain information is to be provided to the person.

58    There is nothing in s 501CA to support the applicant’s construction. The section does not imply or mandate that the person who made the cancellation decision is the only person who can revoke it. The power exercised under s 501CA is a distinct power from that exercised under s 501(3A). To the extent that the applicant relies on an implication from the word ‘revoke’, it is sufficient that both the cancellation decision and the decision as to revocation are reposed in the Minister, albeit that either or both may be made by a delegate of the Minister.

59    Section 501CA can be contrasted with s 501C, which provides for the revocation of decisions made under s 501(3) or 501A(3) by the Minister acting personally (see ss 501(4) and 501A(5)). Where the Minister has acted under s 501(3) or 501A(3), the Migration Act specifically provides that it is only the Minister acting personally who has power to revoke the original decision: s 501C(1), (4) and (5). In contrast, ss 501(3A) and 501CA(4) do not specify that where (for example) a cancellation decision has been made by a delegate of the Minister, it is only the delegate (or a person occupying the same position) who may decide whether to revoke.

60    In Watson, the question was whether or not the Minister had power to revoke a decision made personally by the Minister to cancel the applicant’s visa pursuant to s 501(2), there being no express power to do so in the Act. The Court held that there was nothing in the Act which implied that a visa cancellation decision made by the Minister personally under s 501(2) was subject to later revocation. Thus, the decision does not advance the applicant’s construction.

61    Section 501(3A) provides for cancellation of a visa where certain conditions are met. Section 501CA is an ameliorative provision. The rationale for the s 501CA(4) power is that the visa holder was not afforded the opportunity of being heard before the decision to cancel the visa was taken under s 501(3A). Taking these matters into account, it is difficult to see any legislative purpose in restricting the power of revocation to the original decision-maker and precluding the Minister from exercising the power where the cancellation decision was made by a delegate. To the contrary, taking these considerations into account, the legislative purpose is better served by revocation being able to be determined by the Minister personally where the cancellation decision was made by a delegate.

The third ground: whether the Minister is to consider only the “relevant information” and the person’s representations

62    The applicant relies on the requirement in s 501CA(3)(a) that, as soon as practicable after making a decision to cancel pursuant to s 501(3A), the Minister must give the person written notice of the cancellation decision and particulars of the “relevant information”. The expression “relevant information” is defined as meaning information the Minister considers could be the reason, or a part of the reason, for making the cancellation decision: s 501CA(2). The Minister must also invite the person to make representations about revocation of the cancellation decision: s 501CA(3)(b). Consideration by the Minister (or delegate) of the revocation of a cancellation decision is conditional upon the person making representations in accordance with the invitation: s 501CA(4)(a).

63    The applicant submits that, in consequence of this structure, the Act impliedly mandates that when deciding whether or not to revoke a cancellation decision, the decision-maker is to consider only the relevant information given to the person at the time of formal notification of cancellation and the representations made in reply to the invitation; other material falls outside the scope of matters permitted by the Act to be considered.

64    The applicant submits that the approach taken by the Department in writing to the applicant (after the formal notification of the cancellation decision) may reflect a misunderstanding of the meaning of “relevant information” (see the comments of Tracey J in Picard at [40]); and that, while the sending of subsequent letters can be seen as the Department endeavouring to accord procedural fairness to the applicant, the result was that the Minister was provided with a vast amount of adverse material which is impliedly excluded from the parameters of the material of which the Act permits consideration.

65    For the following reasons, I do not accept the applicant’s construction. That is, I do not accept that the scope of the material that may be considered in connection with a decision as to revocation is limited to the “relevant information” (as defined) and the representations made by the person in response to an invitation.

66    There is nothing in the Act which expressly limits what material the Minister may consider in deciding whether to revoke the cancellation of a person’s visa under s 501CA(4)(b)(ii). It is largely for the Minister to determine the relevance and weight given to material.

67    In Picard, Tracey J referred at [40] to the information that was required to be provided under s 501CA(3)(a); his Honour did not say that providing other information to the person would be an error. To the contrary, his Honour indicated at [41]-[42] that the Minister might be required, as a matter of procedural fairness, to expose other information to the person and give the person the opportunity to respond before making a decision.

68    Finally, if the applicant’s construction were correct, it would inhibit the Minister’s ability to consider (subject to the requirements of procedural fairness) whether there would be a risk of harm posed by the person’s continued presence in Australia (if the cancellation decision were revoked). On the applicant’s construction, this could only be considered to the extent it fell within the definition of “relevant information” or was raised in the person’s representations. But the legislative purpose of the provision, it may be inferred, is to ensure that this matter is fully considered: see, in relation to s 501(2), Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [66] per Rangiah J, North J agreeing.

69    For these reasons, the Minister was not limited as to what could be considered in the way contended by the applicant. No issue arises as to the applicant being denied procedural fairness in relation to the matters taken into account by the Minister. All matters were raised with the applicant for comment.

Conclusion

70    It follows that the application is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore order that the applicant pay the Minister’s costs. However, as the matter of costs was not the subject of submissions, if either party seeks a variation of the costs order, the party may give written notice to the Court and the other party within three business days.

Associate:

Dated:    5 October 2016