The unchanged circumstances issue
43 The fact that the Minister's predecessor had decided in 2012 not to exercise his power under s 501(2), after Mr Chetcuti's 2011 conviction and sentence, is a matter that the present Minister could take into account, five years later, when considering the exercise of the different power under s 501(3). The reasons stated in par 62 "I note Mr CHETCUTI was issued with formal Departmental warnings on 22 June 2009 and 22 March 2012". The Minister told Mr Hadley in his 17 August 2017 interview that his Ministerial predecessor had made the 2012 decision.
44 Mr Chetcuti argued that effectively these prior decisions had exhausted the Minister's power to cancel his visa under s 501(3) or any provision of the Act. He contended that because his circumstances, including his criminal record, had not changed since the 2012 decision, the Minister could not use s 501(3) to cancel his visa. His argument on this issue and the prior decision issue overlapped in places and I have, at the risk of some unfortunate repetition, tried to address each.
45 I reject that argument. In exercising the discretion under s 501(2) when making the 2012 decision, the then Minister was not concerned with the distinct question that s 501(3)(d) involves, namely the national interest. Each of s 501(2)(a) and 501(3)(c) require, as a condition of the exercise of their separate discretions to cancel a visa, that the Minister reasonably suspects that the person does not pass the character test. Because of his 24 year sentence, first, Mr Chetcuti could not possibly have satisfied any Minister that he did pass the character test and, secondly, any Minister considering the cancellation of Mr Chetcuti's visa inevitably must have formed the reasonable suspicion that Mr Chetcuti did not pass it, as required by s 501(2)(a) and (3)(c).
46 In making the August 2017 decision, the Minister chose to exercise the different power under s 501(3) to that used by his predecessor under s 501(2). The exercise of the power in s 501(3) required the Minister to inform the Parliament specifically of its use. The discretion not to cancel a visa under s 501(2) is largely unconfined. The decision-maker under s 501(2) can therefore consider a wide range of criteria, including the national interest, and weigh those as he or she considers appropriate once the two conditions in s 501(2)(a) and (b) are established.
47 In contrast, s 501(3)(d) creates a single relevant consideration, namely what is in the national interest, once the Minister forms the state of reasonable suspicion required in s 501(3)(c). The only constraint on the exercise of the discretion to cancel a visa under s 501(3)(b) arises after the decision to do so. At that point, the visa holder is afforded a hearing (by exercising his or her right to make representations to seek revocation) under s 501C(3) and (4), to establish that he or she actually passes the character test.
48 While s 501C(4) uses the word "may" to condition the Minister's exercise of power to revoke a visa cancellation under s 501(3), the Parliament must have intended that, if the representations under s 501C(3)(b) do satisfy the Minister, the Minister will revoke the cancellation. That follows because in those circumstances the foundation in s 501(3)(b) for the exercise of the power to cancel would no longer exist. In other words, once the person satisfied the Minister that he or she did pass the character test, as s 501C(4)(b) provides, the Minister could not have any suspicion, let alone a reasonable suspicion under s 501(3)(c). Therefore, the precondition in s 501(3)(c), to the exercise of his power, under s 501(3)(d), to act in the national interest in respect of a person who may not pass the character test, would no longer exist.
49 A decision-maker in exercising the discretion in s 501(2) may weigh a broad variety of considerations to which he or she could have regard in deciding whether to cancel a visa, once the preconditions in pars (a) and (b) of s 501(2) were satisfied. The discretion under s 501(2) is unconfined except to the extent that the subject matter, scope and purpose of the Act excludes consideration of some matter: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ. Thus, a decision-maker, including a Minister, can decide under s 501(2) not to cancel a visa after weighing the national interest against, or with, other counter-veiling considerations.
50 While the discretion in s 501(3) is equally unconfined, once the precondition in s 501(3)(c) is satisfied, s 501(3)(d) authorises the Minister to limit his consideration only to whether the cancellation is in the national interest, but allows him, if he wishes, to weigh that consideration among any others.
51 But, the Minister under s 501(3)(d), can decide to cancel a visa regardless of the strength or weight or even existence of other considerations, if he is satisfied that outcome is in the national interest. This construction, of the paramountcy that s 501(3)(d) gives to the criterion of the national interest, is reinforced by, first, the power being one that only the Minister, personally, can exercise and the fact that he can do so without affording the visa holder any procedural fairness before exercising the power, as s 501(5) provides, and, secondly, confining the visa holder to a right to make representations under s 501C(3)(b) that can only be effective to, or at the very least must, satisfy the Minister that the person passes the character test. That is, however compelling the visa holder's circumstances may be, nothing he or she may say in any representations can affect the cancellation unless, as s 501C(4)(b) provides, that person first satisfies the Minister that he or she passes the character test.
52 As Gavan Duffy CJ and Dixon J said in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (and see too McTiernan J at 20-21; David Grant & Co Pty Ltd (Receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 276 per Gummow J with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed):
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
53 It follows that a prior decision under s 501(2), even by a Minister not to cancel a visa, does not operate to restrict a Minister exercising the power to cancel under s 501(3).
54 The national interest is a flexible criterion involving questions of political judgment by a Minister personally in light of the contemporary circumstances in which he or she exercises the power under s 501(3). I will deal with the nature of this criterion in more detail below in discussing the national interest issue.
55 In arriving at the August 2017 decision, the Minister was also bound to take into account the most up to date information. The reasons included 33 paragraphs addressing the risk to the Australian community. In those paragraphs, the Minister considered Mr Chetcuti's circumstances and behaviour, including as described in reports by the Service on and after 7 February 2011 and the 2012 decision. In particular, the reasons stated:
53. I have also considered the Pre Release Anniversary Report of 18 January 2017. While the report also described Mr CHETCUTI as not representing a 'management issue', it noted Mr CHETCUTI was the subject of disciplinary action in September 2016. Specifically, the report noted Mr CHETCUTI was the aggressor in a physical altercation with an Aboriginal inmate and was subsequently transferred to another correctional facility following threats from other Aboriginal inmates.
54. I accept Mr CHETCUTI's more recent conduct in gaol, leading up to the conclusion of his sentence in April 2017, had generally been satisfactory and note he had not incurred any institutional misconduct charges since 2013. However, while I note Mr CHETCUTI's history of charges largely related to incidents at the lower end of seriousness, I find they were reflective of lengthy pattern of poor compliance within the custodial environment. Furthermore, I note Mr CHETCUTI's conviction and disposition of imprisonment for an assault on a fellow inmate and his 2016 altercation with an Aboriginal inmate. I find Mr CHETCUTI's conduct in gaol to be largely unsatisfactory.
55. I have had regard to Mr CHETCUTI's conduct in immigration detention since 27 April 2017, and find it to be satisfactory to date. (bold emphasis added)
56 The Minister took into account (at pars 63 and 64) Mr Chetcuti's refusal to participate in any offence-targeted programs while incarcerated in the five year period after the 2012 decision as well as his 2016 behaviour when he interacted with the Aboriginal inmate. Self-evidently, all of those matters were new since the 2012 decision. It was open to the Minister to have regard to those matters when informing his state of satisfaction for the purpose of s 501(3)(d).
57 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.