Ground 1
43 By ground 1, the applicant contended that it was not open to the Minister to re-exercise the power in s 501A(2) to refuse his visa application in circumstances where the first and third respondents had already twice purported to exercise that power (on 25 February and 2 July 2020) by reference to the same facts and circumstances, namely, those concerning his two sexual assault convictions.
44 In support of this proposition, the applicant relied on Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 95 ALJR 117 (Makasa). In Makasa, the respondent, Mr Makasa, had been granted a permanent residence visa. Mr Makasa was convicted of four offences in 2009, one of which was set aside on appeal.
45 There were relevantly three purported decisions concerning his visa. First, a delegate of the appellant, the Minister for Immigration and Border Protection, exercised the power in s 501(2) to cancel the visa, suspecting that Mr Makasa failed to pass the character test because of the sentences imposed in respect of the convictions. Secondly, the AAT re-exercised the s 501(2) power to set aside the delegate's decision and substitute a decision that the visa should not be cancelled. Thirdly, after Mr Makasa was convicted of two further offences in 2017, the appellant purported to exercise the s 501(2) power once more. In doing so, the appellant found that Mr Makasa failed the character test because of the same convictions relied upon by the delegate, although in the exercise of his discretion, he took into account the later convictions.
46 The High Court held that it was not open for the appellant to re-exercise the power in s 501(2) in circumstances where there had been no change to the factual basis on which the previous decision maker had formed a reasonable suspicion that the visa holder did not pass the character test.
47 Although Makasa involved the exercise of power under s 501(2), the applicant submitted that the same conclusion should apply to the relevant provision in this case, s 501A(2). In support of this proposition, the applicant relied on the decision in VQAR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 900 at [8]-[14] (Heerey J) (VQAR).
48 In VQAR, the applicant's application for a spouse visa was refused by a delegate of the relevant Minister at the time under s 501. The AAT set aside the delegate's decision and ordered that the matter be reconsidered. Subsequently, the Minister, under s 501A(2), decided to set aside the AAT's decision and refuse the application. The applicant sought judicial review of that decision but was unsuccessful, and an application for special leave to appeal to the High Court was dismissed. After the High Court's decision, the applicant wrote to the Minister, seeking reconsideration. The Minister responded that there was no reason to reconsider the case, after which the applicant sought a declaration that the Minister did have such ability to revisit, reconsider, and set aside the earlier decision.
49 It was in this context that Heerey J found at [9] that "[i]nsofar 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".
50 The applicant also sought to rely on Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 (which Heerey J cited with approval in VQAR) in which the applicant, having been refused his visa, requested that the Minister reconsider the refusal in light of new information. French J found that "[w]hile 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 … I do not consider, in the absence of clear words, that it would be proper to imply such a power".
51 The respondents contended that the "simple answer" is that, unlike Makasa, VQAR or Sloane, this case does not involve a "re-exercise" of the power in s 501A(2), because the earlier purported decisions were set aside by the court and do not constitute decisions at all (citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 616 [53] (Gaudron and Gummow JJ), 618 [63] (McHugh J), 646 [152] (Hayne J); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ)).
52 I accept the respondents' submission. The lack of any previous legally effective decision immediately distinguishes this case from Makasa, VQAR and Sloane. In both VQAR and Sloane, there had been no quashing of the relevant decisions and the question of re-exercise only arose in the context of the visa applicant requesting the Minister to reconsider an application in light of an earlier refusal. And in Makasa, while the AAT had set aside the relevant Minister's decision, it had substituted its own decision under s 501(2) such that a legally effective decision still existed.
53 Here, there was no such substitution by the court after it had quashed the Minister's decision. Accordingly, there is no decision of the Minister which still stands and in respect of which a further decision under s 501A would be a "re-exercise" of power. In my view, there is no reason why the principles derived from those cases should apply here, where the previous purported decisions have been quashed and are to be properly regarded, in law, as no decisions at all. Where a decision is affected by jurisdictional error, as the first two decisions were here, it has no legal foundation and the statutory duty to make the decision has not been discharged. See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-16 [51]-[53] (Gaudron and Gummow JJ).
54 The High Court also observed in Makasa that the s 501A power has a different character to that of s 501(2), being a power of "ministerial override", and as such, it "can be exercised by the Minister without need for any change to the factual basis on which the delegate or the AAT formed a reasonable suspicion that the visa holder did not pass the character test in making the decision not to cancel a visa [under s 501(2)]" (at [53]). The applicant submitted that Makasa did not concern any exercise of the power in s 501A(2) and that these comments were made against the particular factual background in Makasa. In my view, this only further highlights the very different factual scenario in Makasa which makes it an inapt analogy to the present case.
55 The applicant also submitted that Makasa made no express distinction between earlier decisions that are affected by error and those that are not, so long as there has been a previous decision made using the same power. But, again, this does not address the very different factual scenario that I have described above.
56 The applicant also submitted that the fact that the previous s 501A(2) decisions were affected by jurisdictional error did not necessarily mean they had no consequences, citing Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 (Jadwan) at 16 [42], 22 [64] (Gray and Downes JJ, Kenny J agreeing). The applicant submitted that the preferable view is that, once the Minister had in fact made a decision under s 501A(2), he was prohibited from re-exercising that power unless subsequent events or further information provided a different factual basis on which to form a reasonable suspicion that the applicant did not pass the character test. The applicant submitted that:
This is because while decisions under the Act are treated as having legal effect until set aside by Order of a Court, the text of the Migration Act 1958 reveals that Parliament intended for certain consequences of a decision to refuse a visa under s.501A(2)(a) of the Act to survive the making of any such Order of a Court. For example, a person in Australia without a valid visa is an 'unlawful non-citizen': ss.13 and 14. Unlawful non[-]citizens are required to be detained and removed as soon as reasonably practicable, and any such detention is to continue until they are either removed or a visa is granted: ss.189, 196(1) and 198. In the case of a protection visa applicant, there are [sic] also a statutory prohibition on applying for another visa after they have been the subject of a refusal under s.501A: see for example, s.48A and s.501E.
57 The applicant sought to rely on the following passage from Jadwan at [42]:
In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute.
58 Jadwan does not assist the applicant. It involved an entirely different legislative regime and factual scenario about regulation of nursing homes. In Jadwan, the appellant owned premises which were approved as a nursing home under the National Health Act 1953 (Cth), a consequence of which was that the appellant was entitled to receive certain Commonwealth benefits. That approval was revoked, but the revocation decision was then set aside. In 1997, the approval system changed, such that the question before the Full Court was whether the decision to revoke the approval had no effect for the purposes of certain transitional provisions.
59 The passage in Jadwan at [42] emphasised that the reasoning in Bhardwaj was prefaced on an exercise of statutory construction. Accordingly, their Honours in Jadwan focussed on what was revealed by the text of the National Health Act, concluding at [49] that the decision to revoke the approval "could not be ignored for all purposes", because "[n]othing in the scheme of the National Health Act at the time required that that be done".
60 By contrast here, it is not clear how the provisions advanced by the applicant "reveal" Parliament's intention for "certain consequences of a decision to refuse a visa under s 501A(2)(a) to survive". The provisions highlighted by the applicant concern, broadly speaking, an applicant's inability to apply for a further visa if their application is refused or visa cancelled, or the requirement for unlawful non-citizens to be removed from Australia. But the earlier (now quashed) decisions to refuse to grant a visa under s 501A did not change the fact that the applicant did not, and does not, have a valid visa. The "consequences" of the Act, such as the applicant's ongoing detention, are not ones that were created by the earlier purported decisions under s 501A(2) which have "survived" the court's orders to quash those decisions. They are rather a result of the cancellation of the bridging visa in 2016.
61 Accordingly, ground 1 fails.