Wilson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

COLVIN J: 1 Section 501(2) of the Migration Act 1958 (Cth) confers a power upon the Minister to cancel a visa if the Minister reasonably suspects that the person does not pass the character test specified in the Act and the person does not satisfy the Minister that they do pass the character test. Once exercised in respect of facts constituting a failure to pass the character test to decide not to cancel a visa, the power conferred by s 501(2) of the Act cannot be re-exercised in respect of the same failure to pass the character test to decide to cancel the visa: Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430. 2 In XJLR v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619, Burley J found that the reasoning in Makasa also applied to an instance where a visa was cancelled under s 501(3A) with the cancellation being subsequently revoked under s 501CA(4). 3 In order for a visa to be cancelled under s 501(3A), the Minister must be satisfied that a person who is serving a sentence of imprisonment does not pass the character test because of the operation of provisions that include a provision to the effect that the person will not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. 4 In 2009, Mr Wilson was convicted of four charges and sentenced to an aggregate of 12 months' imprisonment. In 2010, after notifying Mr Wilson of an intention to consider cancelling his visa on the basis of his 2009 convictions, a delegate of the Minister decided not to cancel his visa. In 2016, Mr Wilson's visa was cancelled under s 501(3A) when he was serving a further sentence of imprisonment of 8 months imposed on 30 May 2016. The cancellation was based on the 2009 convictions and the fact that he was serving a term of imprisonment. The cancellation was subsequently revoked under s 501CA(4). 5 In 2020, Mr Wilson's visa was again cancelled. Once again it was based upon the 2009 convictions and the fact that he was serving a further term of imprisonment imposed on 15 October 2020 (for less than 12 months). 6 Mr Wilson sought review of the 2020 cancellation in the Administrative Appeals Tribunal. The review was unsuccessful. He then sought judicial review in this Court. One of the grounds of review was a claim that there had been no valid cancellation of his visa under s 501(3A) based upon the reasoning in Makasa and, in consequence, no valid decision by the Tribunal. 7 The parties to the judicial review proceedings proposed orders by consent quashing the decision of the Tribunal and declaring that the cancellation decision under s 501(3A) was void and of no legal effect and that Mr Wilson has continued to hold his visa at all times on and after 2020. 8 I made those orders and indicated that I would provide reasons for doing so. 9 Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error. As explained by French J in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [12], there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. 10 At the time of making the orders, I was satisfied that the reasoning in Makasa applied having regard to the factual matters I have outlined. Further, irrespective of whether s 501(3A) provides for a mandatory cancellation or a duty to cancel, the exercise of which might be impugned in particular circumstances, it required an act of the Minister by which a visa was cancelled. That is to say, the legislation was not self-executing. Therefore, it was appropriate to declare that the purported cancellation was void and of no effect, that there had been no cancellation and that Mr Wilson continued to hold a visa. 11 Ordinarily it would have been appropriate to also specify the grounds upon which review had been granted so that there could be a consideration of those grounds upon remitter: Mackey v CIC Allianz Australia Insurance Limited [2015] NSWSC 505 at [3]. However, in the present case there was no need to do so because there was to be no further consideration of the matter by the Tribunal. 12 The Minister sought to include a note in the orders to the effect that there was no waiver of a right to seek leave to appeal from such orders and declarations and the inclusion of that not was consented to by Mr Wilson. The terms of s 24(1D)(a) of the Federal Court of Australia Act 1976 (Cth) to the effect that a judgment by consent is an interlocutory judgment were drawn to the attention of the parties. They confirmed they sought orders in the terms proposed. 13 It was agreed that the Minister would pay the costs of and incidental to the application to be assessed if not agreed and therefore it was appropriate to make an order in those terms. 14 For those reasons, I made orders by consent in the terms proposed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.