Is a legally effective s 501(3A) decision a jurisdictional fact under s 501CA(1)?
42 In Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76], Gaudron, McHugh, Gummow, Kirby and Hayne JJ construed the definition of a privative clause decision in s 474(2) of the Migration Act by reference to its prescription that it be "a decision of an administrative character made, proposed to be made or required to be made under this Act". They held:
Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision[s] . . . made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints", the decision in question cannot properly be described in the terms used in s 474(2) as "a decision . . . made under this Act'' and is, thus, not a "privative clause decision" as defined in s 474(2) and (3) of the Act.
(footnotes omitted and emphasis added)
43 Ordinarily, the metaphor that a stream cannot rise higher than its source applies to the exercise of legislative and administrative powers as Fullagar J explained, albeit as a principle of constitutional law, in Australian Community Party v The Commonwealth (1951) 83 CLR 1 at 258. However, there are exceptions. The question is whether the Parliament intended that the duty to cancel a visa that it imposed on the Minister in s 501(3A) was imperative or subject to inviolable limitations (being that it could only be performed if the objective factual preconditions prescribed in each of pars (a) and (b) in the subsection actually existed): cf: The King v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248 per Dixon J.
44 As Kiefel CJ, Bell, Keane and Edelman JJ held in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 349 [56], the cancellation of a visa has the immediate effect that the person's status is changed from a lawful to an unlawful non-citizen. They said that by "selecting the objective facts of conviction and imprisonment [the] Parliament does not seek to impose an additional punishment" (emphasis added). They held that the purpose of s 501(3A) was to keep the person whose visa was cancelled out of the community (in prison or immigration detention) until he or she is removed or his or her immigration status is otherwise resolved (at 348 [48]-[50]).
45 In construing s 501(3A) it is important to have regard to the circumstances in which it operates. Those include the following. First, it imposes an imperative duty on the Minister (in contrast with the conferral of a discretion in s 501(2)). Secondly, the criteria in pars (a) and (b) are objective facts (Falzon 262 CLR at 348 [48]). Thirdly, s 501(5) excludes the rules of natural justice and the procedures in Subdiv AB of Div 3 of Pt 2 of the Act (namely, in ss 51A-64) which is headed "Code of procedure for dealing fairly, efficiently and quickly with visa applications". Fourthly, the performance of the duty has the consequence that the visa holder loses his or her existing rights and status as a lawful non-citizen (Falzon 262 CLR at 349 [56]). Moreover, even if one or more of the conviction, sentence or finding, by reason of which the Minister is satisfied under s 501(3A)(a), or the sentence of imprisonment that the visa holder is serving, at the time that attracts the operation of s 501(3A)(b), is later set aside, or a verdict of acquittal is entered, the person has no right under the Act to have the visa restored. Instead, he or she must seek the exercise of the Minister's discretion to revoke the cancellation of the visa under s 501CA(4), provided that he or she first complies with the strict requirements of s 501CA(3)(b) and (4)(a).
46 Those indicia support a construction of s 501(3A) as imposing imperative duties and inviolable constraints on the Minister's performance of the duty that it creates so that any decision to cancel a visa must be legally effective: Plaintiff S157 211 CLR at 506 [76]. This is because the Minister's legal capacity under s 501CA to revoke a cancellation decision "is premised upon the prior exercise of the power of cancellation conferred by s 501(3A)": Viane (2021) 395 ALR 403 at 406 [12]. As Gleeson CJ explained (Plaintiff S157 211 CLR at 488-489 [20]) a judicial determination that legislation has imposed what the Court describes as a duty that is imperative, or a restraint that is inviolable, is "the result of a process of statutory construction, rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made". The Chief Justice recognised that this process involves the Court attempting to reconcile whether the presence of a privative clause (like s 474(2)) is to give to an exercise of power or the performance of a duty done in breach of the provision validity, in the particular statutory context.
47 Of course, the delegate and the Tribunal had to form a view whether the precondition in s 501CA(1) had been met, which was a jurisdictional fact. However, that issue could only be authoritatively determined by a court as an exercise of the judicial power of the Commonwealth: cf: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 438 [18] per Bell, Gageler and Keane JJ. As their Honours noted, in the course of the regular administration of the Act, a decision maker in the position of the delegate or the Tribunal could be expected to treat the s 501(3A) decision as a sufficient basis on which to proceed in accordance with s 501CA (at 445 [47]). But the legal consequences of those administrative processes being followed can only be authoritatively determined by a court.
48 In SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at 495-496 [25]-[28], Black CJ and Allsop J explained that where a review process, such as is ordinarily followed in the review of decisions under Pts 5, 7 and 7AA of the Migration Act, operates pursuant to the principle in Brian Lawlor 24 ALR 307 (in the absence of a contrary statutory intention) on the decision that a delegate has made in fact, the reviewing body can exercise the powers and discretions of the person who made the decision, regardless of its legal efficacy. That case concerned s 47(3) which provided that "the Minister is not to consider an application that is not a valid application". Black CJ and Allsop J distinguished the power of the Tribunal to review and, by doing so, cure invalidity of an exercise of a power affected by jurisdictional error caused because the original decision was not legally effective, from a situation in which the original decision maker, and any reviewing decision maker, could never have made the decision in question under the relevant legislation: SZGME 168 FCR at 497-498 [33]-[36]. They held that, where a statutory provision creates a condition essential for the exercise of the power the subject of the proposed review, such as the existence of a valid application for a visa in s 47, the inability of the decision maker to grant the visa cannot be cured on the review: SZGME 168 FCR at 496-497 [29]-[32].
49 I am of opinion that the primary judge erred in applying the principle in Brian Lawlor 24 ALR 307 to a legally ineffective s 501(3A) decision that initiated a review in the Tribunal under s 500(1)(ba) of a delegate's s 501CA decision refusing to revoke a cancellation of a visa. That principle treats a statutory process for merits review of an administrative "decision", ordinarily, as a conferral of power on the Tribunal to review "a decision in fact made, regardless of whether or not it is a legally effective decision" (Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 at 514 [88]) as Gageler, Keane and Nettle JJ explained in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 232-233 [39]-[40], 235-237 [47]-[52]. They held that Pt 7AA of the Act provided a review structure that was framed to allow the Immigration Assessment Authority to review a delegate's decision that itself was not, when made, a legally effective decision (see at 234 [45] and see too at 244 [82], 246 [90] per Gordon J and 248-249 [95]-[97] per Edelman J).
50 In PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050 at [53]-[56], Middleton J applied the reasoning of the primary judge here and found that "the Tribunal can exercise its powers to revoke or affirm a mandatory cancellation decision under s 501CA(4) notwithstanding any purported invalidity of that decision" (at [56], emphasis added). He held, following the primary judge's reasons at [90]-[91], that the Tribunal does not stand in the shoes of the original decision maker (under s 501(3A)) when making a s 501CA(4) decision, but rather, under the latter provisions, has a power of merits review of the s 501(3A) decision using, however, the broader version of the character test in s 501 rather than the narrow one in s 501(3A)(a) ([2021] FCA 1050 at [58]-[60]).
51 In my opinion, the primary judge and Middleton J erred in deciding that a legally ineffective decision to cancel a visa under s 501(3A) can be "cured" by the Tribunal on a review of a delegate's s 501CA(4) decision. Here, s 500(4A)(c) prohibits the Tribunal from reviewing a s 501(3A) decision. As s 501(5) provides, a s 501(3A) decision can be made and be legally effective without the need to afford the visa holder natural justice. Thus, a s 501(3A) decision cannot be "cured" independently in a review of another decision pursuant to s 500(1)(ba), namely the subsequent decision of a delegate under s 501CA(4).
52 I also agree with Yates J's reasons for this conclusion.
53 The task of a decision maker under s 501CA is to, first, give the person whose visa has been cancelled under s 501(3A), notice of the cancellation (s 501CA(3)(a)(i)), particulars of relevant information, as defined in s 501CA(2), and an invitation to make representations to the Minister about revocation of the cancellation and, secondly, if representations are made within time and in accordance with the regulations, consider under s 501CA(4) if he or she is satisfied either that the person passes the character test as defined by s 501(1) or there is another reason why the s 501(3A) decision should be revoked. A s 501CA(4) decision is not reviewable under Pts 5 or 7 of the Act and, if made to revoke the cancellation, has the consequence provided in s 501CA(5) that "the original decision is taken not to have been made".
54 Thus, the exercise of the power to cancel a visa under s 501(3A) operates to deprive a person of an existing status, being a right or privilege, namely the rights conferred by the visa to be lawfully present in Australia: Falzon 262 CLR at 349 [56]. The power conferred in s 501CA(4) to revoke such a cancellation is, first, discretionary and, secondly, exercised on different criteria than the existence of objective facts as prescribed in s 501(3A): Viane 395 ALR at 406-407 [12]-[14].
55 If s 501CA(1) applied to a s 501(3A) decision that was not legally effective, the consequence would be that the person would lose a right to hold the visa without being afforded natural justice or procedural fairness. Instead, the person would be given a limited period under s 501CA(3) in which to seek, on substantially different criteria, to persuade the Minister to exercise his discretion to revoke the legally ineffective cancellation of an existing legal right to the visa. If, as in the present case, a delegate makes a s 501CA(4) decision not to revoke the cancellation, s 500(1)(ba) confers jurisdiction on the Tribunal to review the delegate's s 501CA(4) decision, but s 500(4A)(c) prohibits it from reviewing the original decision. In that statutory context, it is difficult to see any policy reason for treating s 501CA as conferring any legal capacity or power on the Minister, let alone a delegate or the Tribunal, that could alter a s 501(3A) decision that lacked legal efficacy. That is because the Act precludes the Tribunal from reviewing a s 501(3A) decision, a preclusion that must flow through to what it can do in the course of a review under s 500(1)(ba) of a s 501CA decision. Nor could a delegate or the Minister review, on any basis, a s 501(3A) decision that was legally effective.
56 In HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 (see at 133-135 [54]-[57], [63]), McKerracher J, with whom Colvin J agreed (at 163 [179]), held that (at 135 [63]:
the jurisdictional facts that underpin the power of revocation under s 501CA(4) of the Migration Act are, first, the legally effective cancellation decision and, secondly, representations by the former visa holder in response to an invitation made under s 501CA(3)(b). As to the former, a legally effective cancellation decision requires the Minister or a delegate to be satisfied that the non-citizen does not pass the character test by operation of, relevantly to this case, s 501(6)(a) and s 501(7)(c) of the Migration Act. It, therefore, required a properly formed state of satisfaction that the non-citizen had been sentenced to a term of imprisonment of 12 months or more. In this sense, the sentence lies at the heart of or is the foundation for the s 501(3A) mandatory cancellation provision, which is the precondition to any revocation decision under s 501CA: see s 501CA(1).
(emphasis added)
57 The Minister did not challenge the correctness of that reasoning in the appeal. It is a recent decision of a Full Court and, on this issue, is correct in my opinion. The issue to which McKerracher J's reasoning was addressed was whether a decision-maker for a s 501CA decision could go behind the validity of the relevant conviction(s) and matter(s) on which a s 501(3A) decision was based. Although that question is slightly different from that with which this appeal is concerned, the difference is immaterial to the rationale of his Honour's reasoning that a legally effective s 501(3A) decision is a jurisdictional fact that must exist for the purposes of s 501CA(1) in order to enliven the power in s 501CA(4).
58 Section 501CA(1) operates to make the procedure in s 501CA apply if the precondition it stipulates exists, namely that the Minister "makes a decision… under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa". Once that jurisdictional fact exists, the power under s 501CA(4) is exercisable. For the same reasons as Lord Atkin gave in his speech in Liversidge v Anderson [1942] AC 206 at 245, s 501CA(1) "applies if the Minister makes a decision", as opposed to applying if the Minister thinks he has made a decision, under s 501(3A). It follows that the Parliament intended that s 501CA(1) would operate upon a jurisdictional fact, being a legally effective s 501(3A) decision.
59 In my respectful opinion, the primary judge erred in characterising the scheme of ss 501(3A) and 501CA as providing, in substance, merits review of a cancellation of a visa under s 501(3A). A s 501CA decision whether to make a revocation is based on different criteria and material to that on which the duty to cancel the visa operated pursuant to s 501(3A). There is no merits review of the s 501(3A) decision available under the Act: rather, s 501CA proceeds on a statutory assumption, which is a jurisdictional fact, that the requirements of s 501CA(1) have been satisfied by a legally effective decision to cancel the visa. If the s 501(3A) decision to cancel the visa was of no legal effect because, in the words of s 501CA(1), it was not made under s 501(3A) (Plaintiff S157/2002 (2003) 211 CLR 476 at 506 [76]) then the delegate under s 501CA(4) and, later, the Tribunal under s 500(1)(ba) were not authorised by the Act to do anything because the visa remained in place and s 501CA(1) could not be satisfied. The exercise of functions under s 501CA depends on there being a decision made "under s 501(3A)" so that, by force of s 501CA(1) "this section" will then apply.
60 This Court has original jurisdiction under s 476A(1)(b) to review a decision of the Tribunal, under s 500, that is a privative, or purported privative, clause decision, including a decision cancelling or revoking a visa.
61 A decision or purported decision under s 501(3A) is a privative or purported privative clause decision and so a "migration decision" (as defined in s 5(1) of the Act) and the Circuit Court had original jurisdiction to review it by force of s 476(1). However, s 476(2)(a) and (4)(a) have the consequence that the Circuit Court had no jurisdiction in relation to a primary decision, being a decision of a delegate under s 501CA(4) which is reviewable in the Tribunal pursuant to s 500. Also, by force of s 476(2)(b), the Circuit Court had no jurisdiction to review a privative or purported privative clause decision of the Tribunal under s 500, because s 476A(1)(b) conferred original jurisdiction to do so on this Court.
62 This jurisdictional allocation demonstrates that there is a substantive difference between a s 501(3A) decision to cancel a visa (which is a migration decision being, relevantly, a privative, or purported privative, clause decision within the original jurisdiction of the Circuit Court) and a decision of the Tribunal on a review of a delegate's s 501CA(4) decision (which is a primary decision within the original jurisdiction of this Court). The nature of a s 501(3A) decision is therefore different to a delegate's s 501CA decision or a decision of the Tribunal on review of the latter under s 500(1)(ba).
63 It follows that s 501CA(1) presupposes that a legally effective s 501(3A) decision resulted in the cancellation of a visa. In that scenario, the decision maker under s 501CA(4) exercises a power to revoke, not review, the anterior s 501(3A) decision. That is, s 501CA is only engaged if there is a legally valid s 501(3A) decision, that is capable of being revoked pursuant to the exercise of the discretion under s 501CA(4).
64 In addition, for the reasons above there is no legislative indication that s 501CA should apply to a legally ineffective cancellation of a visa purporting to have been made under s 501(3A): cf: Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231 at 245-246 [29]-[33] per French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ.
65 If the Minister's argument were correct, a person who was not serving a sentence of imprisonment at the time of the cancellation of his or her visa purportedly under s 501(3A), would lose his or her status if he or she mistakenly made representations under s 501CA(3)(b) that did not result in the Tribunal revoking the purported cancellation under s 501CA(4).
66 It is difficult to discern a Parliamentary purpose in requiring mandatory cancellation of a visa under s 501(3A) if two objective criteria are met, namely, the person, first, fails the specifically defined character test in s 501(3A)(a) based on the Minister's positive state of satisfaction (Falzon 262 CLR at 347 [46]) and, secondly, is then serving a full time custodial sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory as prescribed in s 501(3A)(b), if one or both of those criteria were not actually satisfied as an objective fact. The Parliament intended s 501(3A) to apply in objectively clear circumstances which denied the Minister any discretion. But there is no intelligible reason why s 501(3A) should be construed so as to allow it to operate as "a decision in fact" on which s 501CA(1) operates, if one or both of the objective facts that it prescribes did not exist at the time of its exercise. That is why s 501CA(1) is expressed to make s 501CA apply only if the Minister "makes a decision… under subsection 501(3A)", as opposed to if the Minister thinks that he or she has done so: Liversidge [1942] AC at 245.
67 Does s 33(1) of the AI Act allow the re-exercise of s 501(3A) based on the same failure to pass the character test in an earlier s 501(3A) decision? Whether a visa holder falls within any of the four categories of the narrower character test prescribed under s 501(3A)(a) at a point in time is an objective fact. A fact of that ilk does not depend on contestable evaluative assessments that other provisions of the character test in s 501(6) involve, such as whether the Minister forms a reasonable suspicion about the person being a member of, or associated with, a group, organisation or person involved in criminal conduct (s 501(6)(b)) or involved in conduct constituting people smuggling, trafficking in persons, genocide, crimes against humanity, a crime involving torture, slavery or serious international concern regardless of whether he or she has been convicted in respect of that conduct (s 501(6)(ba)) or is not of good character (s 501(6)(c)). Indeed, s 501(6)(d)-(h) go on to create further circumstances calling for evaluative administrative judgments about a person's conduct and associations by reference to which the Minister may or may not be satisfied as to whether the person passes the character test.
68 In this context, the purpose for which the Parliament specified the categories of three sentences and one category of criminal guilt or established wrongdoing under s 501(3A)(a) was so that a mandatory visa cancellation would only occur where a person fell within one or more of the four objective categories it prescribed in s 501(3A)(a) and was serving a full time custodial sentence as prescribed in s 501(3A)(b). In other words, the Parliament intended that a mandatory cancellation would occur only in the clearest of situations pursuant to an exceptional, closely confined power. Hence, s 501CA(1) required the s 501(3A) decision to be legally effective so that only the narrowly defined classes of offenders (in s 501(3A)(a)) who were then actually serving a full time custodial sentence, would be able to seek revocation of the cancellation, having regard to the much broader discretions created in s 501CA(4).
69 The Minister has a duty to cancel the person's visa when the combination of facts prescribed in s 501(3A) occurs, namely, the specific failure of the visa holder to pass the character test and the concurrent serving of a sentence of imprisonment. It is not necessary that the sentence of imprisonment referred to in s 501(3A)(b) has any connection to the basis on which the person failed the character test in the respect or respects that attracts s 501(3A)(a). That is because a sentence, such as death, in s 501(7)(a), or the person's conviction or finding that he or she committed a sexually based offence under s 501(6)(e) can be imposed by a foreign court: Ketjan v Minister for Immigration and Border Protection (2019) 273 FCR 105 at 114 [41] per Middleton, Reeves and Anderson JJ. Indeed, the category in s 501(6)(e) does not necessarily require the visa holder to be sentenced to any term of imprisonment; a finding of the commission of the offence suffices.
70 In Makasa (2021) 386 ALR at 205 [23] and [27], Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ construed s 501(2) as conferring a discretionary power on the Minister that could be exercised only once in respect of any particular failure to pass the character test, regardless of the subsequent occurrence of a new event or provision of new information that would otherwise be relevant to the Minister's exercise of the discretion to cancel the visa. They held that s 33(1) of the AI Act did not alter the incidents of the particular statutory power to which s 33(1) applies and that this resulted in a significant limitation of the scope of its application to the power in s 501(2) (at 209 [46]). The power of the Minister under s 501A to override a decision of a delegate or the Tribunal under s 501(2) without any new fact, sentence or occurrence being present reinforced that construction (at 210-211 [52]-[55]).
71 Section 501BA confers a relevantly similar power on the Minister to override a s 501CA(4) decision of a delegate or the Tribunal to revoke a cancellation under s 501(3A). Of course, ss 501(2) and 501(3A) are structured differently because the former creates a discretion while the latter creates a duty. However, by dint of ss 501A and 501BA, the Minister can override the decision of each of a delegate or the Tribunal, respectively, not to cancel a visa under s 501(2), or to revoke the mandatory cancellation of a visa pursuant to s 501(3A) under the discretionary power in s 501CA(4). Those powers are exercisable where the Minister is satisfied that the person does not pass, respectively, the general character test (provided in ss 501(2) and 501A(2)(d)) or the particular character test (provided in s 501(3A)(a) and 501BA(2)(a)) and, in each case, the Minister is satisfied that the cancellation is in the national interest (ss 501A(2)(e), 501BA(2)(b)). The Minister's power to override the discretionary decision to cancel a visa pursuant to s 501(2) (under s 501A(2)) and the discretionary decision to revoke a mandatory cancellation pursuant to s 501(3A) (under s 501BA(2)) can be exercised regardless of whether there is any different factual context that was before the delegate or Tribunal whose decision the Minister is overriding.
72 While the statutory powers in ss 501(2) and 501A(2), on the one hand, and ss 501(3A), 501CA(4) and 501BA(2) on the other, are capable of being enlivened in different factual settings, they operate within an overall statutory scheme. That scheme respectively allows or requires the cancellation of a visa if particular facts exist (including the satisfaction of the decision-maker). It contemplates that, where the Minister did not make the decision personally, he or she can override it provided that the person has failed to satisfy the Minister that he or she passes the relevant character test and the cancellation is in the national interest. In Makasa 386 ALR at 210 [50], Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ said that it would make a mockery of the conferral of the Tribunal's function "to do over again" what the delegate has done under s 501(2) in a review if the subject matter of the decision (there, not to cancel the visa), were s 33(1) of the AI Act to operate so that the Tribunal's decision was "able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the [Tribunal] in the conduct of the review". Critically, their Honours held (at 210-211 [54]-[55]):
However, the circumstance that each of the specific powers conferred on the Minister by s 501A(2) and (3) can only be exercised by the Minister personally and can only be exercised if the Minister is satisfied that cancellation is in the national interest is sufficient to invoke the well-settled principle of construction that "when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power". The further qualifications imposed by s 501C on an exercise of power under s 501A(3) reinforce the application of that interpretative principle.
Hence, s 501A of the Act must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, read in light of s 33(1) of the AI Act, to revisit and reverse a previous decision of a delegate not to cancel a visa made in the exercise of the power conferred by s 501(2) where there has been no change to the factual basis on which the previous decision-maker, be it the Minister or a delegate or the AAT, formed a reasonable suspicion that the visa holder did not pass the character test in making the previous decision not to cancel a visa.
(emphasis added)
73 In Zyambo [2021] FCA 545 at [43]-[46], Derrington J construed each limb of s 501(3A) as operating independently. He held that the duty to cancel the visa arose from time to time whenever the Minister had to form a subjective state of satisfaction that the visa holder did not pass the character test, as modified in accordance with s 501(3A)(a) and the visa holder was serving a sentence of imprisonment in accordance with s 501(3A)(b). His Honour reasoned that if, after a s 501CA(4) decision to revoke a mandatory cancellation of the person's visa, the person was imprisoned again, that imprisonment was a new fact that re-enlivened the duty under s 501(3A), even though there was no change in the basis on which the Minister could be satisfied that the visa holder did not pass the character test in accordance with s 501(3A)(a). He distinguished Makasa 386 ALR 200 on the basis that the serving of a new sentence of imprisonment was a new, subsequent, fact and that it provided a new combination of jurisdictional facts to enliven the duty under s 501(3A).
74 With respect, Derrington J erred in that construction. That is because once the combination prescribed in s 501(3A) has occurred and the duty to cancel the visa has been exercised, the power to cancel the visa is spent. That cancellation will have occurred because of the existence of the combination of factors prescribed in s 501(3A). The circumstances of imprisonment for an offence against a law of an Australian jurisdiction combined with the Minister's satisfaction as to the visa holder's failure to pass the specific character test in s 501(3A)(a), creates the duty to cancel the visa. However, s 501CA(4) requires the person to satisfy the Minister that either he or she passes the more plenary character test in s 501(6) or there is another reason why the cancellation of the visa should be revoked. The circumstance of imprisonment is not relevant to the discretion in s 501CA(4) other than its presence as a component of the jurisdictional fact that caused the earlier cancellation of the visa in accordance with s 501(3A)(b). Nor is imprisonment a condition for the exercise of Minister's power under s 501BA(2) to override a revocation under s 501CA(4).
75 Moreover, if the Minister's construction, that s 501(3A) evinces a legislative intention that s 33(1) of the AI Act applied to the duty under it were correct, a s 501CA(4) decision could be made to revoke a cancellation while the visa holder was on parole but in immigration detention and, if he or she later breached the conditions of parole, the person would be returned to prison to serve the balance of the sentence, so as to re-enliven the duty under s 501(3A) to cancel the visa without any new fact occurring, since the imprisonment would be for the same offence that triggered the first s 501(3A) decision. Indeed, if the process under s 501CA(4) were completed and the cancellation of the visa revoked before the visa holder was eligible for parole, the duty under s 501(3A) could revive because s 501(3A)(b) does not specify any characteristic about the circumstance of, or reason for, the imprisonment. This potentiality suggests that the nature of any imprisonment is not a relevant fact, so that the duty under s 501(3A) arises once for all when the combination it prescribes first occurs.
76 The fact of imprisonment under s 501(3A)(b) is irrelevant to a decision to revoke the cancellation of a visa, except as a necessary precondition in s 501CA(1) to enliven the operation of the power in s 501CA(4). Once the power to revoke a cancellation based on the combination of the Minister's satisfaction under s 501(3A)(a) and the fact of imprisonment under s 501(3A)(b) has been exercised under s 501CA(4), the combination of the same two factors cannot revive the duty under s 501(3A) so as to overcome the legal consequence of the s 501CA(4)(b) decision that there was another reason to revoke the cancellation. This is because the decision maker, under s 501CA(4), had been satisfied that there was another reason to revoke the cancellation that had occurred by reason of the existence of the combination of factors prescribed in s 501(3A) despite the person not passing the broader character test in s 501(6). It follows that any combination involving the previous failure to satisfy the decision maker under s 501(3A)(a) that the visa holder passed the specific character test cannot be used to cancel the visa again. The circumstance of, or reason for, any subsequent imprisonment has no relevance to the exercise of the power, because that fact does not change or create a new combination under s 501(3A). The Minister's satisfaction as to the existence of the same failure to pass the character test is still coupled to an imprisonment and the previous s 501CA(4) decision maker had already decided that there was another reason to revoke the earlier cancellation based on that combination in the context of any failure to pass the broader character test.
77 Moreover, the Minister could always exercise his power under s 501BA(2) to override any decision of a delegate or the Tribunal under s 501CA(4) regardless of any change in the visa holder's circumstances, including a new imprisonment. The Parliament intended that a decision to revoke a cancellation under s 501CA(4) could be overridden by the Minister under s 501BA(2). It follows that this specific power operates to exclude s 33(1) of the AI Act being available to re-enliven the duty under s 501(3A) where no new failure to pass the character test in s 501(3A)(a) has occurred, even if the person is serving a new sentence of imprisonment (Makasa 386 ALR at 210-211 [52]-[55]).
78 For these reasons, I am of opinion that the Migration Act evinces a contrary intention, within the meaning of s 2(2) of the AI Act, to prevent s 33(1) applying to the power in s 501(3A) merely because of a new imprisonment of the visa holder. It follows that, first, the 2018 cancellation was legally ineffective and, therefore, could not cause s 501CA to apply and, secondly, the 2018 non-revocation was also legally ineffective because the Tribunal was not validly exercising a power to review it under s 500(1)(ba).