Minister for Home Affairs v Brown

Introduction 1 On 24 December 2019, the Court ordered that: (1) The appeal be dismissed. (2) The costs of the appeal be dealt with at the time of publication of reasons. (3) Reasons to be published on a date to be fixed on or after 3 February 2020. (4) To the extent necessary and to the extent the Court has power, time for the filing and serving of any application for special leave to appeal be extended or enlarged to a date 21 days after reasons for judgment are published. 2 We have had the privilege of reading, in draft, the reasons for judgment of Besanko J and Bromwich J. For the reasons set out below, we agreed that the appeal should be dismissed with no order as to costs, but reached this conclusion by a different route to their Honours. 3 This is an appeal from a judgment of a single judge of this Court quashing a decision of the Minister, acting personally, to cancel Mr Brown's visa under s 501(2) of the Migration Act 1958 (Cth), relying on s 501(6)(a) to engage that power: Brown v Minister for Home Affairs [2018] FCA 1722. Section 501(2) is a provision granting to the Minister a discretion to cancel a visa if the Minister reasonably suspects that the visa-holder does not pass the character test and the visa-holder does not satisfy the Minister that he or she passes the character test. Under s 501(6)(a), a visa-holder does not pass the character test if he or she has a substantial criminal record, which is satisfied if the person has been sentenced to a term of imprisonment of 12 months or more (see s 501(7)(c)). The respondent arrived in Australia in 1981 and since then has been convicted of various serious criminal offences, particularly in 2010. 4 The primary judge drew attention at the outset of his reasons for judgment to the fact that, from time to time over the past decade or so, officers of the appellant Minister's Department have considered whether or not Mr Brown's visa should be cancelled under s 501(2) of the Migration Act. That they have done so reflects Mr Brown's lengthy criminal record. 5 Mr Brown was first notified that his criminal offending might result in the cancellation of his visa under s 501 by Departmental letter dated 28 October 2004. By Departmental letter dated 3 October 2005, he was informed that a decision had been made not to cancel his visa. Another notice that his visa might be cancelled under s 501 was sent to him on 9 May 2007 or thereabouts. Again, he was notified (this time by Departmental letter dated 4 June 2007) that a decision had been made not to cancel his visa. 6 A few years later, by letter dated 24 May 2011, the Department notified Mr Brown that consideration was once more being given to cancelling his visa. On 23 January 2012, a delegate of the Minister made a decision to cancel Mr Brown's visa under s 501(2) and Mr Brown was so advised by notice dated 25 January 2012. 7 Mr Brown applied to the Administrative Appeals Tribunal under s 500(1)(b) of the Migration Act for a review of the delegate's decision. The Tribunal made a decision on 24 April 2012 under s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to set aside the delegate's decision and, in substitution, to decide that Mr Brown's visa not be cancelled. The Tribunal's decision had regard to Mr Brown's convictions from February 1988 to February 2010, and in particular that he was given a total effective sentence of 5 years' imprisonment following his convictions for grievous bodily harm, assaulting a public officer, entering a prison without permission, two counts of assault occasioning bodily harm, two counts of criminal damage and stealing a motor vehicle (2010 offences). 8 Shortly after the Tribunal's decision, the Department notified Mr Brown, by letter dated 4 October 2012, that the Minister intended personally to consider whether to set aside the decision of the Tribunal and to cancel his visa under s 501A(2) of the Migration Act. This provision expressly provided that the Minister might "in the national interest" set aside the original decision (defined in s 501A(1) to include a Tribunal decision "not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person"). The materials before the Court do not indicate what happened in the immediately ensuing years. 9 Some years later, in the Magistrates Court at Joondalup, in Western Australia, Mr Brown was convicted of four counts of "No authority to drive (never held)" in March 2016, June 2016, February 2017 and September 2017, and one count of "Used an unlicensed vehicle", also in September 2017. He was fined and disqualified from driving for a period of time. 10 By letter dated 15 April 2016, the Department sought further information from Mr Brown "regarding possible visa cancellation under s 501A(2) of the Migration Act" and in so doing referred to its previous letter of 4 October 2012. The Minister did not at any stage purport to set aside the Tribunal's decision under s 501A(2). 11 On 19 January 2017, the Department wrote to Mr Brown seeking further information "regarding possible visa cancellation under s 501(2) of the Migration Act". This letter referred, apparently erroneously, to "a notice dated 25 August 2016 [notifying Mr Brown of] the intention to consider cancelling [his] Class BF transitional (permanent) visa under s 501(2) of the Migration Act". Nothing is said to turn on this error. By further letters dated 18 July 2017, 8 August 2017 and 18 December 2017, the Department again sought "[f]urther information regarding possible visa cancellation under s 501(2) of the Migration Act". A relevant National Police Certificate accompanied each letter. On 1 May 2018 the Minister, acting personally, made a decision under s 501(2) to cancel Mr Brown's visa and Mr Brown was notified of this decision. 12 The Minister gave written reasons for his decision, which the primary judge described in his reasons for judgment (JR) at [83]-[86] in the following terms: 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. 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. 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. 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. 13 For reasons that we shall examine more closely in a moment, the primary judge held (at [97]) that the Minister lacked statutory authority to cancel Mr Brown's visa "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". 14 The central questions that arise on this appeal are: whether the Minister can re-exercise the discretion conferred by s 501(2) of the Migration Act to cancel an individual's visa where the Tribunal has earlier set aside a delegate's decision to cancel that individual's visa under that provision and decided instead not to cancel the visa; and if so, can the Minister re-exercise the discretion relying on the very same facts to enliven the discretion in s 501(2) as the Tribunal did on review?