Brown v Minister for Home Affairs

Federal Court of Australia|2018-11-15|Before: Colvin J

Counsel for the Applicant: The Applicant appeared in person

Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS WAD 350 of 2018 BETWEEN: NICHOLAS RONALD BROWN Applicant

JUDGE: COLVIN J DATE OF ORDER: 15 NOVEMBER 2018

The respondent's decision of 1 May 2018 to cancel Mr Brown's Class BF Transitional (Permanent) visa be quashed.
The applicant not be removed from Australia on the basis of the respondent's decision of 1 May 2018.
The applicant be released from his present immigration detention forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Brown is a citizen of the United Kingdom. He came to Australia in 1981 when he was 7 years old. He has lived in Australia since then. He has an extended family in Australia. In May 2018, he was notified that his visa had been cancelled by the Minister under s 501(2) of the Migration Act 1958 (Cth) on the basis that he did not pass the character test in the Act. The Minister's decision was made on 1 May 2018. 2 Relevantly for present purposes, a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more: s 501(6) and (7). 3 Since the Minister's decision, Mr Brown has been held in immigration detention. He has been told that he will be removed from Australia on 19 November 2018. 4 Cancellation of Mr Brown's visa has been considered a number of times in the past. He was first warned in 2005 that his offending may result in the cancellation of his visa. In 2012, a delegate of the Minister cancelled his visa under s 501(2). The decision was based upon his offending and convictions to February 2010. The offending included convictions for grievous bodily harm, assaulting a public officer, assault, criminal damage and stealing a motor vehicle. His total effective sentence was 5 years imprisonment. 5 However, the visa cancellation in 2012 was set aside on review by the Administrative Appeals Tribunal on 24 April 2012. The decision was made in the exercise of the power under s 501(2) entrusted to the Tribunal on review and having regard to Mr Brown's offending up until February 2012. 6 In oral submissions on the present application, Mr Brown said that he had been warned by the Tribunal about the risk of a future cancellation of his visa if he offended in the future. He said that he had kept his word and had not been sent to prison since. He said he had turned his life around. 7 The Minister's decision on 1 May 2018 was made on the basis of a finding that there had been failure by Mr Brown to meet the character test by reason that he had been convicted and sentenced to a term of imprisonment of 2 years and 6 months for the offence of grievous bodily harm on 5 February 2010. The sentencing for that offence was one of the offences considered by the Tribunal in 2012 when deciding that Mr Brown's visa should not be cancelled on the basis of his failure to pass the character test as a result of that offending. 8 Since 2012, Mr Brown's offending has been confined to four offences of driving a motor vehicle without a licence and one offence of driving an unlicensed vehicle. He received fines totalling $1,650 and periods of disqualification from holding a driver's licence for those offences. 9 Mr Brown brings an application to review the decision of the Minister. His application was brought out of time by a period of 56 days. Therefore, his application cannot be heard unless he is granted an extension of time. On 4 September 2018, I made an order that Mr Brown's application for relief do stand as if it included an application for an extension of time in which to bring the application. 10 The Minister, quite properly, accepts that Mr Brown has provided an explanation for the delay and also that the Minister would not be prejudiced if an extension was to be granted. The Minister opposes an extension on the sole basis that the application has no merit because it specifies no real grounds. 11 If there is merit in the application, the interests of justice are strongly in favour of the grant of an extension given the subject matter of the application. Therefore, if I am of the view that the application has merit then I would be satisfied that it is necessary in the interests of justice for an extension of time to be granted. It would follow also that the Minister's objection to competency based upon s 477A of the Act should be dismissed. 12 The application says simply that Mr Brown seeks an order that the decision of the Minister be quashed. In order to obtain that relief Mr Brown must demonstrate jurisdictional error.

The jurisdiction of the Minister 13 The Minister submits that it does not appear to be in dispute that Mr Brown does not pass the character test by reason of his past offending and the applicant has identified no grounds of review. The Minister says that reliance can be placed upon the offending in February 2010 as the basis for the formation of a view for the purposes of s 501(2)(b) that Mr Brown does not pass the character test even though there has been no further offending relevant to the character test since the decision of the Tribunal in 2012. 14 However, in the circumstances I have outlined, there is an issue as to whether the statutory power conferred by s 501(2) has been spent. The decision made by the Tribunal in 2012 not to cancel Mr Brown's visa in the exercise of the power conferred by s 501(2) was made in respect of Mr Brown's conviction for the offence of grievous bodily harm in February 2010. The cancellation the subject of these proceedings is made on the basis that the same conviction provides the foundation for the conclusion that Mr Brown does not pass the character test. 15 Having regard to the Minister's position concerning the character test, the following questions arise: (1) if a decision has been made not to exercise the discretionary power conferred by s 501(2), can the same facts (in this case, the convictions in February 2012) form the basis for a later suspicion and satisfaction on the part of the decision-maker (in this case, the Minister) that the person does not pass the character test so as to enliven the power; (2) if the same facts can form the basis for the later suspicion, must there also be a new fact relevant to the exercise of the discretion before the discretionary power again arises or can the discretionary power simply be exercised from time to time; (3) if there must be a new fact, does it have to be a fact which, viewed objectively (that is, by a reasonable decision-maker), could bear upon the exercise of discretion; (4) if there must be a new fact and the judgment as to whether the new fact is sufficiently relevant is to be made by the decision-maker as the person entrusted with the statutory discretion, is it a judgment that must be made according to a standard of reasonableness; and (5) whatever the requirements may be for the discretionary power in s 501(2) to be enlivened, have they been met in the circumstances of the present case. 16 When the matter came on for hearing, I raised the above matters with counsel for the Minister and provided an opportunity for written submissions to be filed according to a timetable that took account of the imminent prospect of Mr Brown being removed from Australia on the basis that his visa had been cancelled.

A question of construction 17 In order to respond to the questions that I have stated it is necessary to form a view as to the proper construction of s 501(2). The reason for the need to focus upon the terms of the statutory power is that the question whether there has been jurisdictional error, in the most generic sense in which it is used, refers 'to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking the characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it': Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24] (Kiefel CJ, Gageler and Keane JJ). The decision made must meet all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the statutory process: at [24]. 18 In forming a conclusion as to whether the decision has the requisite character there must be regard to both the nature of the power and the nature of the repository of the power. 19 In Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 in considering whether there can be review for an error of law, the court expressed the principle in dichotomous terms by reference to the nature of the repository; inferior courts have authority to make decisions on the basis of a view of the law with which a court on review may disagree, but administrative decision-makers do not. However in Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [67]-[70], the assumption that a distinction can readily be drawn between a court and an administrative tribunal was questioned. The relevant inquiry was cast more broadly by reference to statements made in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163]. 20 Nevertheless, where a power is conferred on a repository of a particular character, say an independent administrative tribunal, then any conclusion about the nature and extent of the decision making authority that is conferred must take account of the repository. Put another way, in deciding whether the decision is of a kind that falls outside the bounds of the authority conferred by a particular statutory provision there must be regard both to the terms in which the power is conferred and the nature of the person on whom the power is conferred. In the case of the Tribunal, for example, there are detailed legislative provisions governing the persons to be appointed to the Tribunal and the nature of its decision making. In SZQPY v Minister for Immigration and Border Protection [2018] FCA 359, I described some aspects of the Tribunal's character that may be relevant when considering whether a decision has been made that is within the scope of the decision-making power conferred on the Tribunal at [24]: In addition there are requirements expressed in the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) that apply to the Tribunal and indicate the nature of the decision-making task entrusted to the Tribunal by Part 7 of the Migration Act. By entrusting the decisions on review to members of the Tribunal, the legislature must have intended that the decisions to be made would have the character of decisions to be made by the Tribunal generally. Members of the Tribunal must be a judge or a legal practitioner who has been enrolled for at least five years or a person with special knowledge or skills relevant to the duties of a member: s 7 of the AAT Act. They must take an oath to faithfully and impartially perform the duties of the office of a member of the Tribunal: s 10B of the AAT Act. They are independent of any other part of the Executive and do not form part of a Ministerial department. They must disclose any conflict of interest and must not take part in any proceeding in which they have a conflict without the consent of the President of the Tribunal: s 14. The Tribunal has a registry and staff for that purpose. A person commits an offence if the person engages in conduct that obstructs or hinders the Tribunal: s 63. 21 The same characteristics pertain where the Tribunal is exercising jurisdiction conferred under s 500(1)(b) in respect of decisions under s 501(2). 22 Decisions by the Tribunal in the exercise of a power conferred upon the Tribunal under particular legislation may be expected to have the characteristics of decisions to be made by the Tribunal as an independent statutory body. For example, consideration of the nature of the repository of the power in the context of deciding whether a decision by the Tribunal met the requisite standard of reasonableness can be seen in Minister for Immigration and Border Protection v SZVFW at [51]-[53] (Gageler J), [84] (Nettle and Gordon JJ) and [134]-[135] (Edelman J). 23 Significantly for present purposes, although the decision made on 1 May 2018 to cancel Mr Brown's visa was made by the Minister personally, the power conferred by s 501(2) is one which may be exercised by the Minister, a delegate of the Minister or by the Tribunal on review of a decision by a delegate. So, a consideration of the characteristics of the decision that are necessary to give it force is not to be undertaken on the basis that the Minister personally is the sole repository of the power. Each of the repositories must be born in mind in understanding the characteristics that a decision must bear in order to be the kind of decision entrusted by the statute in the particular decision-makers. In particular, it is significant that the power under s 501(2) may be exercised by an independent statutory tribunal upon review of a decision by a delegate. Therefore, if a delegate was to exercise the power by cancelling a visa it may result in a determination by a Tribunal (after a formal hearing with all the attributes provided for by the Administrative Appeals Tribunal Act 1975 (Cth). It is unlikely that a determination as to whether to exercise a power that is entrusted to a repository of that kind (to be exercised in the manner provided for in that Act) could thereafter be re-exercised on the same facts in a manner contrary to the determination made by the Tribunal.

The proper construction of s 501(2) 24 Some of the issues as to the meaning of s 501(2), particularly the circumstances in which the discretion may be re-exercised on the basis of the same facts as to whether a person passes the character test, have been considered in other decisions. However, before dealing with those cases, I will address the statutory language. 25 Section 501(2) states: 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. 26 There is a like power conferred by s 501(3). It provides that the Minister may refuse to grant a visa or cancel a visa if the matters stated in paras (a) and (b) of s 501(2) pertain and, in addition, if the Minister is satisfied that the refusal or cancellation is in the national interest. It is a power that may only be exercised by the Minister personally: s 501(4) 27 There is a further power conferred by s 501(3A). It provides that the Minister must cancel a visa if the person does not pass the character test for certain specified reasons and the person is serving a sentence of imprisonment. It is a power conferred in addition to the previous powers: s 501(3B). If there is a cancellation of a visa under s 501(3A), the Minister must invite representations about revocation of the original decision and then consider the matters raised if representations are made and act upon that consideration: see Viane v Minister for Immigration and Border Protection [2018] FCAFC 116. 28 As I have noted, the power conferred by s 501(2) may be exercised by the Minister personally or by a delegate of the Minister. Given the terms in which it is expressed it is a power which is conferred in the same terms irrespective of whether it is exercised by the Minister or by a delegate. There are no words used to indicate that the power has a different character or extent when exercised by a Minister compared to when it is exercised by a delegate. 29 If a decision is made by a delegate of the Minister to exercise the statutory power under s 501(2) then the exercise of power may be the subject of an application to review the decision in the Tribunal: s 500(1)(b). 30 If the delegate, or the Tribunal on review, makes a decision not to exercise the power conferred by s 501(2) to cancel a visa then the Minister may set aside the Tribunal's decision (s 501A(1) and (2)). The Minister's power to set aside a decision by the delegate or the Tribunal is limited to circumstances where three matters are satisfied, namely: (a) the Minister reasonably suspects that the person does not pass the character test; (b) the person does not satisfy the Minister that the person passes the character test; and (c) the Minister is satisfied that the cancellation of the visa is in the national interest (s 501A(2)). In effect, the earlier decision can only be set aside by the Minister acting in the national interest. Importantly, the Minister's power to set aside the Tribunal's decision may only be exercised by the Minister personally and the rules of natural justice and other procedural protections expressly stated in the Act do not apply (s 501(3) and (5)). 31 Necessarily implicit in the above provisions is a recognition that the power conferred by s 501(2) cannot simply be re-exercised by the Minister (whether personally or by delegate) if the Tribunal declines to cancel a visa after considering the exercise of a power as a result of a particular failure to pass the character test. Rather, there must be a matter of national interest before that can occur. If it were the case that the power under s 501(2) could be exercised in all cases from time to time irrespective of whether there had been a previous decision concerning the exercise of the power then it would not have been necessary to include the provisions in s 501A. 32 However, care must be taken in considering the limits of what is implicit in the terms of s 501A as part of the context for construing s 501(2). The existence of s 501A provides considerable contextual support for a construction of s 501(2) that would not permit a re-exercise of the power based upon the same facts. Even so, the terms of s 501A are also consistent with a construction of s 501A that would permit a further exercise of power in different circumstances because there were new facts. The real question is what must be new. Must there be a new factual matter upon which to form the suspicion that the person does not pass the character test, relevantly for present purposes, a new conviction. Or, is it sufficient that there is a new fact that is relevant to the exercise of discretion even though there has been no new fact bearing on the question whether the person passes the character test. If the latter, must the new fact be objectively new or is it a matter for assessment by the person making the decision (in this case the Minister personally). Therefore, the terms of s 501A do not assist greatly with the resolution of the questions at hand. 33 As to the statutory context, the Minister has other express statutory powers to undo decisions under s 501(2): s 501B and s 501BA. However, they have a similar character to s 501A. They indicate that the power under s 501(2) cannot be re-exercised by the Minister after a decision has been made where the re-exercise is based on the same facts. Beyond that, they provide no further textual indication. 34 However, the existence of these provisions is also inconsistent with an ability after there has been a decision about whether to exercise the power conferred to cancel a visa by reason of a failure to satisfy the character test to simply revisit the matter and again make a decision to revoke the visa based upon the same facts. 35 Therefore, it is necessary to consider more closely the language used in s 501(2). 36 First, it is to be noted that it takes the form of expressing two conditions that must be satisfied before the 'Minister may cancel a visa'. First, the Minister must reasonably suspect that the person does not pass the character test. Second, the person must fail to satisfy the Minister that the person satisfies the character test. Only if both those conditions (suspicion and satisfaction as to the character test) are met is there power conferred to cancel a visa. 37 Second, the power that is conferred concerns a visa. The Act as a whole is prescriptive about the circumstances in which a visa may be granted, cancelled or revoked. Further a visa confers a right to remain in Australia, a right of a most fundamental character. It is unlikely, within the scheme of the Act, that the right may be subject to ongoing review and revision once an assessment has been made that it should not be cancelled in particular circumstances. Put another way, the subject matter of the Act is broadly inconsistent with an ability to revisit the question whether a visa should be cancelled once a decision has been made, on particular facts, that the visa should or should not be cancelled. It would introduce substantial uncertainty and jeopardy in respect of the rights conferred by visas if they could be subject to repeated consideration as to whether they could be cancelled by reference to the same factual position in respect of matters giving rise to a power to cancel a visa. 38 Third, the terms of s 501(2) and s 501(3) are indistinguishable in their overall form. The first deals with cancellation of a visa. The second deals with refusal or cancellation. If s 501(2) is construed as conferring a continuing power from time to time to cancel a visa even though there has been a decision on the prevailing facts not to do so then the same approach would be required to the construction of s 501(3). However, s 501(3) applies not only to cancellation, but also to refusal to grant. If the provisions are construed as conferring a power that could be exercised from time to time then it would follow that a decision to refuse to grant a visa could be made by the Minister immediately after there has been a decision to grant a visa. This would be the case even where the decision had been made by the Tribunal and despite the existence of s 501A. The overall context indicates that these provisions were not intended to apply from time to time in a manner that would enable a decision to simply be revisited. 39 The more difficult question is whether the contrary intention as to the exercise of power from time to time extends to cases where there has been a change in material factual circumstances and if so is it sufficient that the change concerns a matter that goes only to the discretion that arises if the power to cancel is enlivened. 40 In that regard, s 33(1) of the Acts Interpretation Act 1901 (Cth) now provides: 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. 41 It applies subject to a contrary intention: s 2. As to the scope of s 33(1) and the importance of distinguishing between a power to revoke and a power to re-exercise as well as the importance of text, context and purpose of the particular statutory scheme in issue when construing the scope of the authority entrusted to the repository of a statutory power: see Minister for Indigenous Affairs v MJD Foundation Limited [2017] FCAFC 37 at [239]-[248] (Mortimer J, Perry J agreeing). 42 However, as recently concluded in CRIO26 v The Republic of Nauru [2018] HCA 19 at [60]: [W]here a discretionary power reposed by statute in a decision maker is, upon proper construction, of such a character that it is not exercisable from time to time but rather is spent upon publishing a decision, the decision maker is prevented from later resiling from the decision because the power to do so is spent and the proposed second decision would be ultra vires. 43 For reasons I have given, the terms in which the power to cancel a visa is conferred by s 501(2) are ambiguous at least to the extent that the power is conditioned upon what the Minister reasonably suspects about whether the person passes the character test and whether the person then satisfies the Minister that they pass the character test. It is open to read the words conditioning the power to cancel (suspicion and satisfaction about whether the person passes the character test) as referring impliedly to a suspicion and satisfaction based upon particular factual circumstances. If the words are read in that way then it is only a suspicion and satisfaction formed on the basis of particular circumstances that cannot be re-exercised. If there is a change in those circumstances then s 501(2) would then confer a new power where the conditions were satisfied by new circumstances. Further, construing the words in that way would advance the purpose of conferring a discretion to cancel a visa where a person engages in conduct that means that they do not pass the character test. It would not advance that purpose if a prior consideration of the exercise of the power in respect of a person who then engaged in conduct that provided a fresh basis for the exercise of the power was nevertheless a person in respect of whom the power was spent. The subject matter of the power and the structure of the provision in specifying conditions that must be met before the power to cancel arises are both factors that indicate that a change in the factual circumstances that pertain to the conditions (namely, suspicion and satisfaction as to whether the person passes the character test) enlivens the power. 44 However, the same matters count against a fresh power arising simply where there has been a change in circumstances that bear only upon the exercise of the discretion. To reach such a conclusion it would be necessary to construe the conditions in s 501(2)(a) and (b) as enlivening a power that may be exercised from time to time, contrary to the conclusion I have set out above. There is little to commend such a construction. Further, if such a construction were to be adopted it is difficult to see how the words describing the power (namely, the Minister may cancel a visa) as being impliedly constrained by words to the effect that the Minister may cancel a visa if there has been a change in the factual circumstances relevant to the exercise of the discretion. Unlike the case with the conditions, there is no description of an event that has to occur (a state of suspicion and satisfaction) before the power is enlivened. The only way to allow textually for the power to be exercised again based upon a change of circumstances confined to the exercise of the discretion whether to cancel the visa would be to read the whole provision as applying from time to time. For reasons I have already expressed, such an approach would be contrary to the purpose manifest by the broader statutory context. 45 It follows that as a matter of language and purpose it is difficult to conclude that a change in circumstances that was confined to matters going to the discretion to cancel would re-enliven the power to cancel.

The decided cases 46 In Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443, French J 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 provisions for review of decisions and the making of regulations relating thereto, I do not consider, in the absence of clear words, that it would be proper to imply such a power. 47 French J expressed those views without expressly referring to s 33(1) of the Acts Interpretation Act. 48 In Burgess v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 58, Mr Burgess asked the Minister to revoke an earlier decision to cancel his visa under s 501(2). He then applied to review the refusal to revoke. Katz J considered the decision in Sloane and also had regard to the terms of s 33(1) of the Acts Interpretation Act. After considering the statutory context, his Honour concluded that s 501(2) was not accompanied by a power to revoke. 49 In VQAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 900, the court considered another instance where the Minister was asked to reconsider a decision to revoke a visa. The Minister's position was that he had no power to revoke the original decision. It was a position that was upheld: at [10]. 50 In Minister for Immigration & Multicultural & Indigenous Affairs v Watson [2005] FCAFC 181; (2005) 145 FCR 542 the Full Court considered the terms of s 501(2) in the context of the provisions in the Act as they then stood. Section 501(2) was then in the same terms and the same broad structure applied in respect of the surrounding provisions. In 2001, the Minister decided to cancel the visa of Mr Watson in circumstances where the Minister was not satisfied that Mr Watson passed the character test. The High Court then delivered its decision in Re Paterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 to the effect that a British citizen who had arrived in Australia prior to 1973 could not be deported. Later in 2001, the Minister sent a letter to Mr Watson which said that the Minister had received advice that there was no power to remove him and the Department would not be proceeding with his removal from Australia. 51 In 2002, Mr Watson was convicted of stealing a motor vehicle and sentenced to a further term of imprisonment. The High Court then overruled its decision in Re Paterson: see Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28. After he completed his term of imprisonment, Mr Watson was placed in immigration detention. He sought prerogative relief. The primary judge found that the original decision by the Minister to cancel Mr Watson's visa had been revoked by the Minister's letter sent after the decision in Re Paterson in 2001 in the exercise of an implied statutory power to do so. On that basis, a declaration was granted to the effect that the cancellation of Mr Watson's visa was revoked: Watson v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1654. 52 Interestingly, the Minister did not seek to assert a power to make a fresh decision under s 501(2) to cancel the visa of Mr Watson. Instead, the Minister appealed against the decision. Reliance was placed upon the decisions in Burgess, Sloane and VQAR. Three separate judgments were delivered in the appeal. 53 Lander J delivered the main judgment which considered the facts and the statutory provisions. He explained that the Minister's argument on appeal was that 'there was no power under s 501(2) to revoke a decision to cancel a person's visa': at [45]. Therefore, there had been no revocation and the original decision by the Minister to cancel the visa was still legally operative. It was noted that it was argued for the Minister that s 33 of the Acts Interpretation Act had no application to s 501(2): at [46]. 54 The issue for determination was then expressed by his Honour at [119]-[120] in the following terms: The question which must be addressed is whether there is a contrary intention in the Act to the effect that the power given the Minister may only be exercised once or, to be more precise, cannot be exercised from time to time. If on a construction of the Act it would appear that once the power is exercised the power is spent, then it must be said that the Act evinces a contrary intention. 55 Having stated the question in those terms and having reviewed the statutory provisions and the authorities, Lander J then concluded as follows at [143]: In all those circumstance, in my opinion, the particular legislative provision and the surrounding sections indicate that the power given to the Minister under s 501(1) or s 501(2) may only be exercised once. In those circumstances, no power of revocation can be implied in the legislation. 56 In the present circumstances, it is important to observe the steps in the reasoning process followed by Lander J. First, the legislative scheme was considered and the express powers under other provisions to make different decisions after a decision has been made under s 501(2) were noted. Then, the question whether s 33(1) of the Acts Interpretation Act applies was addressed. It was noted that if there was no contrary intention then the power conferred by s 501(2) may be 'exercised … from time to time as occasion requires'. Then, it was found that the power under s 501(2) may only be exercised once. Finally, on the basis that the power may only be exercised once, the argument that a power of revocation can be implied into s 501(2) was rejected. Accordingly, inherent in the reasoning was a conclusion that the power conferred by s 501(2) was one which could only be exercised once. 57 Hely J found there was no express power to revoke a decision made under s 501(2): at [13]. His Honour noted that under s 501C(4) the Minister did have a power to revoke the decision. He stated the question as being whether the Minister is empowered to revoke a decision to cancel a visa outside the operation of s 501C(4): at [18]. His Honour concluded at [23]: In my view, subs 33(1) of the Interpretation Act (assuming it applies) does not have the effect that once there is a valid exercise of the subs 501(2) power to cancel a visa, the visa can be effectively restored to the former holder by a second exercise of that power. Whilst the Minister has a discretion whether or not to exercise the subs 501(2) power, the power in question is simply a power to cancel a visa which, if validly exercised, results in the former holder acquiring the status of an unlawful non-citizen with the consequences prescribed by the Act. There is no occasion for the re-exercise of the power once it has been validly exercised. 58 Again the reasoning process depended upon a view that the power under s 501(2) once exercised could not be re-exercised. 59 Dowsett J reasoned at [7] in the following way: The Minister's decision does not involve an exercise of discretion. The criteria for a particular visa are either satisfied or they are not. Of course, some criteria may involve discretionary considerations, but that is another matter. The existence of an unlimited power to revisit a decision to cancel a visa would not sit comfortably with the stringent provisions regulating the grant of visas imposed by Division 3 of Part II. After all, the effect of such a decision may be, in effect, to grant a new visa. Similarly, if a decision to refrain from cancelling a visa could be revisited, the visa-holder would, notwithstanding such favourable determination, remain at risk of future cancellation upon the same factual basis as grounded the original decision. That would be an unsatisfactory basis for continued residence in this country. Neither outcome is consistent with the strict regulatory regime established by the Act. If it were possible to limit the time within which, or the circumstances in which, a decision might be revisited, the position might be otherwise. However, as far as I can see, there is no way of doing so. 60 The reasons in each of these judgments, in the terms in which they are expressed, depend upon a view that once the power under s 501(2) has been exercised in respect of a person then there is no ongoing power. However, what was not in view was the issue of a change in material circumstances and whether that is a matter that re-enlivens the power. No argument was advanced for the Minister that the power may be re-exercised in the limited case where there are new factual circumstances. The Minister's position was an unqualified claim that the power, once exercised, could not be re-exercised. It was not necessary to consider whether a change in circumstances might result in a new power being conferred by the same provision. 61 In Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; (2016) 247 FCR 500, Mr Parker was sentenced in 2010 to a term of imprisonment for 13 months. Consideration was given to the cancellation of his visa on character grounds, but he was told that the Minister's delegate had decided not to cancel his visa. He was formally warned that 'visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future'. 62 Later, on 12 June 2014, Mr Parker was convicted in his absence of an offence and fined $700. Over a year later he was told that consideration was being given to cancelling his visa. His visa was cancelled and he was taken into immigration detention. After that, his conviction was annulled with the consequence that it ceased to have effect. Review was sought on the basis, amongst others, that the Minister had no jurisdiction to cancel the visa because he took into account the 2014 conviction which was subsequently annulled. The primary judge dismissed the application for reasons that included the fact that the state of satisfaction about the character test had been based on the 2010 conviction and the 2014 conviction had only been brought to account at the point of considering the exercise of discretion. 63 On appeal, leave was sought to argue that the decision to cancel Mr Parker's visa was void for jurisdictional error because it was 'not available based on the convictions … in 2010 as those convictions were the subject of an explicit, considered earlier decision not to exercise the power under s 501(2) of the Act'. Leave was given. 64 As to the merits, Griffiths and Perry JJ rejected an argument that the words 'may cancel' in s 501(2) implied a singular action and once a decision had been made not to cancel then 'the power to cancel is spent, at least where the same factual basis for the making of the original decision endures and there are no new relevant facts': at [32]-[33]. It was this argument that was the focus of the reasons. 65 Their Honours found that the 2014 conviction was 'a significant new fact'. Even though it did not inform the assessment of the character test, it did inform the exercise of the discretion. Therefore, the circumstances had changed: at [34]. At [36], they said: In our view, in a case such as the present, where a new relevant fact emerges which potentially bears upon the exercise of the power under s 501(2), that power may be exercised in an appropriate case to cancel a person's visa notwithstanding that there was an earlier decision based on more limited facts not to cancel the visa. 66 The construction was said to be consistent with s 33(1) of the Acts Interpretation Act as no contrary intention was manifested in the Migration Act: at [37]. 67 However, their Honours did not separately consider the conditional nature of the power conferred by s 501(2), namely that the Minister had to form a reasonable suspicion that the person did not pass the character test (and the person had to fail to satisfy the Minister that they passed the character test) before any question of discretion arose. Nor was the fact that the provisions also entrusted the power to the Tribunal on review a matter that was specifically considered. This is a significant aspect of the statutory context. It contemplates that a delegate of the Minister may exercise the power and then, on review, a decision may be made not to exercise the power. 68 Nor was the significance of the similarity in language between s 501(2) and s 501(3) considered. If there was a power under s 501(2) to revisit a decision about whether to cancel a visa whenever there was a change in material circumstances relevant to the exercise of that discretion then the same applied in the case of a decision whether to refuse to grant a visa. Such a person would receive a visa burdened with the prospect that the grant may be revisited at any future time, an unlikely intention within the scheme of the Migration Act (which deals with when a visa may be revoked) and the nature of a visa. 69 Their Honours did consider the significance of s 501A. However they did so in the context of an argument advanced for Mr Parker to the effect that it provided the only source of power to remake a decision not to cancel a visa: at [48]-[50]. In effect, s 501A was construed as being confined to circumstances where the Minister was considering the same relevant factual situation as was considered by the delegate of the Minister: at [49]. However, even if it is construed in that way there remains the question whether the terms of s 501(2) mean that there is a new power even if there has been no change in the material circumstances that bear upon whether the conditions to the existence of a power to cancel have been met. The fact that this question was not addressed is a consequence of the way in which the argument was advanced in Parker. The contention advanced was based upon what was meant by the words 'may cancel a visa', not upon whether the conditions to the existence of the power could be satisfied based upon the same factual circumstances relevant to suspicion and satisfaction that the person did not pass the character test. 70 It was in that context that the conclusion was reached that the power could be re-exercised on the basis of new facts. The significance of the distinction between new facts as to whether the conditions to be met before the power to cancel arises and new facts that could only inform the exercise of the discretion to be exercised if the conditions were satisfied was not considered. 71 In separate reasons, Mortimer J agreed with the conclusion that the power under s 501(2) could be exercised in the circumstances. At [69]-[70], her Honour stated: First, the Minister submitted that what had occurred in February 2014 was not an exercise of power under s 501(2) because it was a decision not to cancel the applicant's visa. I do not accept that submission. Where a discretionary power is conferred, once a repository has decided to embark upon consideration of whether or not to exercise a power, the power is exercised by the choice made after that consideration. Whether the choice is, relevantly, to cancel a visa or not to cancel a visa, it is the making of the choice by the repository which constitutes the exercise of power. In Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; 145 FCR 485, Hely J recognised this at [17]: In exercising the power conferred by s 501(2) of the Act the Minister (or the delegate) may either cancel a visa or refrain from cancelling it. (Emphasis added.) Second, I respectfully agree with the reasons given by Griffiths and Perry JJ at [34]-[39] of their Honours' reasons for judgment for rejecting the appellant's construction of s 501(2). For the purposes of this appeal, it is unnecessary to determine whether the power in s 501(2) would be available for exercise in relation to the same person on the same facts and circumstances, where the original exercise of power resulted in a decision not to cancel a person's visa - that is, where there is nothing more than what might colloquially be called a Ministerial change of mind. This case presents a different situation, where there were new facts and circumstances, and the question whether s 501(2) is available where there are no new facts and circumstances should await determination in an appropriate case. 72 These reasons indicate a concern about what might occur where there are no new facts and circumstances. Therefore, the distinction between new facts and circumstances as to the matters conditioning the exercise of the power (suspicion and satisfaction as to whether the person passes the character test) on the one hand and new facts and circumstances as to the discretion whether to cancel the visa on the other hand was also not addressed by Mortimer J. 73 In my view, the decision in Parker deals only with the particular claim that was advanced in that case, namely that the words 'may cancel a visa' must be read as conferring a power which, once exercised in respect of a person, cannot be again exercised from time to time. The words were said to imply a singular action. It was that argument that was rejected. 74 Although the facts in that case admitted of the possibility of a separate argument to the effect that there could be no new power in circumstances where there was no change in the circumstances that were material to a consideration as to whether the conditions in s 501(2)(a) and (b) had been met, an argument of that kind was not separately advanced and therefore was not addressed by the reasons in Parker. Importantly, at [34], Griffiths and Perry JJ noted that the submissions advanced for Mr Parker 'were predicated on the notion that the same express factual basis exists when the initial decision was made'. As to that proposition their Honours stated: 'That is not the case here'. There was 'a significant new fact'. 75 As a result, what was not considered was whether the significant new fact had to be a matter that enlivened the power by reason that it was a matter that was relevant to the conditions that had to be met before the power to cancel arose or whether it was sufficient if the new fact was relevant only to the exercise of the discretion whether to cancel. 76 Instead, the argument was treated as one which depended upon establishing that there was no new fact that was materially relevant to the exercise of the power. There remained a question, not addressed, as to whether there needed to be a new fact that was materially relevant to the satisfaction of the conditions that had to be met before there was any power. 77 In those circumstances, in my view, the decision in Parker does not decide the issue identified in these proceedings. 78 In Chetcuti v Minister for Immigration and Border Protection [2018] FCA 477, the power under s 501(2) had been considered in 2012 and a decision made not to cancel the visa of Mr Chetcuti. In 2017, the Minister exercised the power under s 501(3) to cancel Mr Chetcuit's visa. Although, as I have noted, the power conferred by s 501(3) is expressed in the same terms as the power to cancel conferred by s 501(2) the conditions that must be met before the power can be exercised are different. Importantly, s 501(3) includes a condition concerning the national interest. In those circumstances, Rares J found that the powers were distinct and the fact that there had been a considered decision not to exercise the power under s 501(2) in 2012 did not mean that the separate power under s 501(3) could not be exercised: at [53]. That was found to be the position irrespective of whether there had been no further offending in the interim. 79 Therefore, the case was decided on the basis that the separate power under s 501(3) was being exercised. Once that conclusion was reached, the case did not turn on whether the power under s 501(2) could be exercised from time to time. Rares J found that the prior exercise of the power under s 501(2) could not fetter the exercise of the different power under s 501(3) because the powers are independent and can operate in different factual scenarios: at [59]. 80 At [57], Rares J held as follows concerning the effect of a change in circumstances: I am of opinion, that the Minister was not precluded, in August 2017, from exercising afresh his discretions under each of s 501(2) and (3) in respect of Mr Chetcuti in the circumstances of his case, given the changes that had occurred since the 2012 decision. As Griffiths and Perry JJ held in Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 at 511 [36]-[38], with whom Mortimer J agreed on this aspect at 516-517 [67], 517-518 [71]-[73], the power to cancel a visa under s 501(2) can be exercised after an earlier decision not to cancel it, under that provision, if a relevant new fact emerges that potentially bears upon the exercise of the power. That was because s 33(1) of the Acts Interpretation Act provided that where an Act conferred a power, the power may be exercised "from time to time as occasion requires", and nothing in the Migration Act expressed a contrary intention. 81 Again, the question whether there was any significance in the relevant new fact being a matter that was only relevant to discretion under s 501(2) and not the satisfaction of the conditions (namely, suspicion and satisfaction as to whether the person satisfied the character test) was not addressed. 82 Most recently, in Makasa v Minister for Immigration and Border Protection [2018] FCA 1639, Burley J dealt with an argument that the there was no power in s 501(2) to exercise 'in relation to the same person on the same facts and circumstances': at [50]. The applicant for review accepted that if the Minister had relied upon his more recent offending then the ground of appeal would have merit. His Honour found that the predicate to the argument did not exist because the Minister did rely on the more recent offending and the ground of review was dismissed on that basis: at [51]. Therefore, the point at issue here was also not addressed in that decision.

The Minister's decision 83 The Minister's reasons state that his conclusion that Mr Brown has not satisfied him that he passes the character test is based solely upon the 2010 conviction for grievous bodily harm: at paras 5 to 7. 84 As to the previous decision by the Tribunal and the extent of offending since the previous decision, the Minister's reasons state at paras 43 to 46 as follows: I have also taken into consideration on 23 January 2012 my delegate cancelled Mr BROWN's visa on character grounds. The delegate's decision was set aside by the Administrative Appeals Tribunal (AAT) on 24 April 2012 as the Tribunal found that although there was a real risk that Mr BROWN would re-offend, the risk would not be unacceptable to the Australian community. I note that despite previous visa cancellation warnings, including a warning from the AAT, Mr BROWN has continued to offend and display a lack of respect for the laws of Australia. I note that these latest offences are relatively minor infractions, however they display an inability of Mr BROWN to discontinue re-offending. 85 The reasons do not otherwise identify any change in circumstances that has occurred since the decision by the Tribunal in 2012. There is no attempt to identify any new circumstances since the considered decision of the Tribunal in 2012 that are sufficient to satisfy the conditions that enliven the power. 86 On the contrary, the Minister notes that the new offences 'are relatively minor infractions'. They are plainly matters that could only be relevant to discretion if the power to cancel is enlivened. Further, it is not explained why those relatively minor infractions have a material bearing upon the discretion to be exercised that is of a kind that should cause a different conclusion to be reached. They are simply dealt with in the course of a decision that otherwise deals with all circumstances without regard to any need to identify new circumstances.

Consideration of issues 87 I now consider the five issues stated above. 88 As to issue (1), for reasons I have given, on the proper construction of s 501(2) the same facts that have been brought to account in concluding that the conditions to the power to cancel conferred by s 501(2) have been met (and have been the basis upon which a discretionary decision has been made whether to exercise the power) cannot form the basis for a future satisfaction of those conditions. Rather, there must be new facts that form the basis for the suspicion and satisfaction on the part of the Minister that a person does not satisfy the character test. Relevantly for present purposes, there must be new offending that is the basis for the conditions to be met. 89 If I am wrong in my conclusion concerning issue (1), then my conclusions as to the other issues are as follows. 90 As to issue (2), applying the decision in Parker, there must be a new fact before the power under s 501(2) can again be exercised in respect of the same person. 91 As to issue (3), the difficulty is that the way in which the power is expressed includes no text to indicate that it is a power that is conditioned upon the existence of anything beyond that which is expressed in the conditions stated in paras (a) and (b) of s 501(2). As I have noted, this is a matter that counts against a change in facts that bear only upon discretion being sufficient to re-enliven the power to cancel after a considered decision has been made as to whether to exercise that power. However on the assumption that I am wrong as to my view concerning issue (1), as the discretion is entrusted to the repository I am inclined to the view that it is a matter for the repository to consider whether there is a material change in circumstances. To hold otherwise would be to change the nature of the discretion to one which was not completely entrusted to the repository. It would be inconsistent with a provision that operates more broadly by reference to the state of satisfaction of the Minister. Where a provision adopts that form of words then it is a matter that weighs against the power being subject to the existence of an objective state of affairs: see, for example, Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [42]. As to the character of the power conferred: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [64]-[71]. 92 As to issue (4), the power to cancel a visa under s 501(2) is a discretionary power of a kind that is subject to a presumption that it is to be exercised reasonably: Minister for Immigration and Border Protection v SZVFW. In considering whether the reasonableness standard has been met it is necessary to undertake a factually dependent inquiry that should focus upon the reasons given. 93 However, the issue here is not whether the decision to cancel was reasonable. Rather, the question is whether, on the assumption that it was a matter for the Minister to determine whether there had been a material change in circumstances, it was reasonable to reach that view on the basis of the new offending by Mr Brown. Put another way, the question is whether the subjective view necessary to meet the condition to the exercise of the power implied into s 501(2) that there be a new relevant fact was a view that had to be formed reasonably. In my view, if it was to be implied then the reasonableness standard applied. 94 As to issue (5), the Minister's reasons simply treat the case as one where the Minister is able to revisit all of the considerations as if the power was one that could be exercised irrespective of the fact that there had been a considered decision by the Tribunal as the repository of the power in 2012. There is no attempt to articulate why the offending in relation to driving offences is of a character that should materially alter the result. There are no reasons on that aspect. Therefore, it is necessary to evaluate the matter having regard to the outcome. In my view, it could not be said that a reasonable repository of the power could not consider the additional offending was immaterial to the discretion to be exercised. That is particularly so in circumstances where reliance is placed upon the warnings which Mr Brown accepts he was given in the past which form part of the context in which to evaluate the significance of the subsequent offending.

Conclusion 95 For those reasons, the power conferred by s 501(2) is spent in respect of particular convictions as they stand at a particular date once a decision has been made whether to exercise the power by reference to those convictions (irrespective of whether the decision is made by the Minister personally or a delegate of the Minister or the Tribunal on review of a decision by a delegate of the Minister). 96 A fresh power may arise if there is further offending of the kind described in the definition of 'character test' (and the incorporated definition of 'substantial criminal record') that provides a new basis for the Minister to reasonably suspect that the person does not satisfy the character test and to be satisfied that the person does not satisfy the character test. However, any attempt to exercise the power afresh on the basis that the conditions of suspicion and satisfaction that the person does not pass the character test are met based upon facts which have formed the basis for a formal consideration whether to exercise the power in the past would lack any statutory authority. 97 It follows that in the circumstances of this case the Minister lacked the statutory authority under s 501(2) to cancel Mr Brown's visa because it was based on the same facts concerning suspicion and satisfaction as to the character test that formed the basis for the decision of the Tribunal in 2012. 98 Accordingly, I will make orders quashing the respondent's decision of 1 May 2018 and providing for Mr Brown's release from his present immigration detention forthwith. I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

Migration Act 1958(Cth)ss 477A, 501, 501A, 501B, 501BA

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (30)