Consideration and determination of ground 1(a)
32 While acknowledging that the Minister's power under s 501(2) was largely unfettered, the appellant submitted that an express limit on that discretionary power could be derived from the text of the provision in the sense that the phrase "may cancel" implied a singular action. This limitation, so it was submitted, meant that once a decision has been made not to cancel a visa under s 501(2), 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. It was submitted that this construction was also supported by the obligation to provide a statement of reasons for a decision as required by s 501G(1).
33 For the following reasons, the appellant's construction should be rejected.
34 It is significant to note that the appellant's submissions regarding the proper construction of s 501(2) were predicated on the notion that the same express factual basis exists when the initial decision was made not to cancel the visa as is the case subsequently when the matter is reconsidered. That is not the case here. Unlike the position at the time of the delegate's decision in February 2014 not to cancel the appellant's visa, the Minister had before him on 2 March 2016 a significant new fact, namely the 2014 conviction. This fact was relied upon by the Minister in determining to exercise his discretion to cancel the visa. As emphasised above, the Minister's reliance upon this fact did not inform his assessment of the character test, but rather informed the exercise of his discretion once he was reasonably satisfied that the appellant did not pass the character test based upon the 2010 conviction. The circumstances had changed when the question of cancelling the appellant's visa was revisited in 2015.
35 The appellant contended that the 2014 conviction was not a new fact because that conviction was subsequently annulled so the Court should approach the matter on the basis that the fact never existed at all. That submission should be rejected. At the time the Minister decided to cancel the appellant's visa the fact of the 2014 conviction plainly did exist. For reasons which are developed below, we do not accept the appellant's contention that s 10 of the Crimes (Appeal and Review) Act operated in a Stalinesque fashion to erase that fact as though it never existed (see [54]-[58] below).
36 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. That construction is consistent with s 33(1) of the AI Act:
33 Exercise of powers and performance of functions or duties
Powers, functions and duties may be exercised or must be performed as the occasion requires
(1) 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.
37 No contrary intention is manifested in the Migration Act to displace the presumption created by s 33(1). In particular, for reasons which are given in [48] to [50] below, we do not consider that s 501A constitutes the only source of the power to revisit an earlier decision not to cancel a visa. Rather, s 501A is directed to a particular situation where the facts have not changed and the Minister takes a different view to the original decision-maker and wants to set aside that decision and substitute his or her own decision.
38 We do not consider that the phrase "may cancel" necessarily carried with it the notion that, in the case of a decision not to exercise the power, the power may only be exercised on the one, single occasion and is then spent. Rather, this phrase indicates that there is a discretionary power whether or not to cancel and a separate question then arises as to whether s 33(1) of the AI Act applies to the exercise of that power from time to time or whether the presumption is displaced by a contrary intention.
39 Nor is the appellant's construction supported by the obligation imposed by s 501G on a decision-maker who has decided to cancel a visa under s 501(2) to give the visa holder a written notice that sets out inter alia the reasons (other than non-disclosable information) for the decision. It is notable that this obligation attaches to a decision to cancel a visa. It does not, in terms, apply to a decision under s 501(2) not to cancel a visa. In our view, the provision has no relevance to the question whether the power under s 501(2) is spent when a decision is made not to cancel a visa.
40 That is sufficient to dispose of the appellant's case concerning functus officio. In view, however, of the parties' detailed submissions, it is appropriate to address the other matters raised by the appellant in support of ground 1(a).
41 Watson does not support the appellant's construction. Watson involved the question whether the Minister had the power to revoke her own earlier decision to cancel a visa under s 501(2) on character grounds. It was argued that, in the absence of any express power of revocation, such a power should be implied. The Full Court held that, on a proper construction of the relevant provisions of the Migration Act at that time, there was a legislative intention that the power in s 501 should be exercised only once, with the consequence that there was no power to revoke a visa cancellation decision after it was made under s 501(2). Justice Dowsett said at [7]:
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.
42 The appellant's reliance upon this passage from Dowsett J's judgment in Watson at [7] is misdirected. In our view, it is notable that what his Honour said there was expressly directed to the situation where there is no change in the factual basis which underpinned the original decision and consideration is subsequently given to cancelling a visa. For reasons which have been emphasised, that is not the position here.
43 Justice Hely observed in Watson at [15] that there was nothing in the legislation which implied that a visa cancellation under s 501, and its consequences, are subject to a Ministerial change of mind subsequently. His Honour referred to some observations by Gummow J, as a member of the Full Court, in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 (Kurtovic). At 218 Gummow J said:
In the present case, there is nothing in the Migration Act which suggests an intention contrary to the presumption embodied in s 33(1) of the Acts Interpretation Act 1901, to which I have already referred. Accordingly, the power to make a deportation order is exercisable from time to time, so as to revoke or revive a deportation order previously made, whether on the same facts as before or otherwise. Even if the facts upon which the original decision was based remain constant, it may be the policy of the donee of the power which changes and thus requires a reconsideration of decisions previously made: cf Laker Airways Ltd v Department of Trade [1977] QB 643 at 707, 708-709, 72B. The significance of a change in either the facts or in ministerial policy would go merely to the merits of the decision upon which the Court is not entitled to decide. The appellant could not therefore have been functus officio, and an estoppel could not be allowed which would have the effect of stifling the future exercise of the statutory discretion: Southend-on-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416; Rootkin v Kent County Council (supra) at 1195. These principles were affirmed in the application of the Migration Act in Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432, per Smithers J (at 441-442) and in Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98, per Northrop and Pincus JJ (at 103-104). I would respectfully agree with what was there said, that if a deportation order is revoked, there is power to make another deportation order in reliance upon the same facts as those upon which the previous deportation order was based.
44 Kurtovic involved a decision to revoke a deportation order which had been made under s 12 of the Migration Act. A second deportation order was then made under s 12 and was challenged on the basis that there had been no material change in circumstances between the revocation of the first deportation order and the making of the second. Significantly, unlike the position in the proceeding here, Kurtovic involved a new decision by a new Minister based on the same facts as an earlier decision by the previous Minister.
45 The Full Court in Kurtovic held that the power conferred upon the Minister by s 12 was not spent once used but was exercisable from time to time whether or not there had been a change in the relevant facts. In Watson, Hely J described the observations of Gummow J in Kurtovic at 218 as obiter. His Honour doubted that s 33(1) of the AI Act applied so that, once there has been a valid exercise of the s 501(2) power to cancel a visa, the visa could effectively be restored to the former visa holder by a second exercise of the power. His Honour then added at [24] that, if s 33(1) did have that effect, he would have concluded that there was a contrary intention so far as the power to cancel a visa is concerned. Justice Hely's observations were all directed to the position where the original decision was to cancel a visa under s 501(2), which is not the position here.
46 The third member of the Full Court in Watson, Lander J, held at [138] that the Minister did not have the power to revoke a decision under s 501(2) and that the legislation manifested a contrary intention to the proposition that the power may be exercised from time to time as the occasion required. His Honour's analysis of the legislation caused him to conclude that the power in s 501(2) could be exercised only once. Again, that analysis addressed the situation where the original decision was to cancel a visa.
47 Watson is directed to a different issue to that which arises here. Watson was concerned with whether the Minister had a power to revoke an earlier visa cancellation decision. It is also significant that the separate observations in that case of Dowsett, Hely and Lander JJ which are set out above were directed to the situation where the facts were substantially similar at the two relevant points in time. That is not the case here. It is true that Gummow J's observations in Kurtovic contemplate the possibility of the facts upon which the original decision were based remaining constant, but those obiter observations were directed to the power to deport under s 12 and not the power to cancel a visa under s 501(2).
48 Finally, as noted above, the appellant submitted in reply that s 501A (which is set out in [16] above) provided the only source of power for the Minister to remake a non-adverse decision of the delegate under s 501(2). The appellant also relied upon Watson in support of this submission, where it was held that the only source of the Minister's power to revoke an adverse decision under s 501(2) is to be found in ss 501B, 501C and 501CA.
49 These submissions should also be rejected. As emphasised above, the issue here is not whether there is a power of revocation, as was the case in Watson, but rather whether there is no power to make a decision under s 501(2) where a new relevant fact emerges and there is an earlier decision not to exercise the power.
50 In our view, s 501A applies where the Minister is considering the same relevant factual situation as was considered by the delegate. The Minister's submission that this construction is consistent with ss 501A(2) and (3), which expressly provide for the Minister to "set aside" the original decision, should be accepted. There is no need to set aside a decision not to cancel a visa which was based on different facts because the power may simply be re-exercised in the light of all of the facts, including the new facts.
51 We also accept the Minister's submission that, because the Minister's decision here was based on different facts to those considered by the delegate, it is unnecessary to consider the hypothetical issue of whether the Minister could have exercised the power in s 501(2) rather than s 501A on the same facts as considered by the delegate.
52 For these reasons, ground 1(a) is rejected.