Minister for Home Affairs v Brown

• Jurisdiction: Australia Federal only
• Judgment Date: 28 February 2020
• Neutral Citation: [2020] FCAFC 21
• Date: 28 February 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Brown [2020] FCAFC 21

Appeal from:	Brown v Minister for Home Affairs [2018] FCA 1722
File number:	WAD 570 of 2018
Judges:	ALLSOP CJ, KENNY, BESANKO, BROMWICH AND BANKS-SMITH JJ
Date of judgment:	28 February 2020
Catchwords:	MIGRATION – appeal from single judge of this Court quashing decision of Minister, acting personally, to cancel the respondent’s visa under s 501(2) – visa holder arrived in Australia in 1981 – the Minister by his delegate cancelled the visa under s 501(2) relying on s 501(6)(a) and s 501(7)(c), that is, on character grounds due to substantial criminal record – the Administrative Appeals Tribunal set aside the decision and substituted a decision not to cancel under s 501(2) – some years later the Minister, acting personally, purported to exercise power under s 501(2) to cancel the visa, relying on the same matters as those relied upon by the Tribunal to enliven the power – cancellation decision set aside by the primary judge due to lack of statutory authority to cancel the visa – whether the Minister can re-exercise the discretion conferred by s 501(2) to cancel a visa where the Tribunal has earlier set aside a delegate’s decision to cancel the visa under that same provision – whether the Minister can re-exercise the discretion relying on the very same facts to enliven the discretion in s 501(2) as the Tribunal did on review – consideration of the terms and structure of the Migration Act 1958 (Cth) as a whole, surrounding provisions (particularly s 501A), and the nature and character of the function of the Tribunal in independent review of decisions of the Executive – appeal dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1), 35, 43(1), 43(6), 44 Acts Interpretation Act 1901 (Cth) ss 2, 25(1), 33(1) Migration Act 1958 (Cth) ss 65(1), 189, 198(2A), 198(2B), 198(6), 496, 499, 500(1), 501(1), 501(2), 501(6), 501(7), 501A, 501B, 501BA, 501C, 501CA, 501E Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 (Cth) Explanatory Memorandum, Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 (Cth)
Cases cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 Brown v Minister for Home Affairs [2018] FCA 1722 Burgess v Minister for Immigration and Multicultural Affairs [2000] FCA 936; 101 FCR 58 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196 Chetcuti v Minister for Immigration and Border Protection [2018] FCA 477 CRI026 v The Republic of Nauru [2018] HCA 19; 355 ALR 216 Dilatte v MacTiernan [2002] WASCA 100 Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 59; 24 ALR 577 Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; 367 ALR 695 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 Hong v Minister for Immigration and Border Protection [2019] FCAFC 55 Kabourakis v Medical Practitioners Board (Vic) [2006] VSCA 301; 25 VAR 449 Matadeen v Pointu [1999] 1 AC 98 Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Minister for Immigration and Multicultural Affairs v Watson [2005] FCAFC 181; 145 FCR 542 Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic [1990] FCA 19; 21 FCR 193 MJD Foundation Ltd v Minister for Indigenous Affairs [2017] FCAFC 37; 230 FCR 31 Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; 34 ALR 639 Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231 Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 Sloane v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 620; 37 FCR 429 Sunshine Coast Broadcasters Ltd v Duncan (1988) 15 ALD 52; 83 ALR 121 VQAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 900 ; Galligan DJ, Discretionary Powers (Oxford University Press 1990)
Date of hearing:	28 May 2019 and 4 June 2019
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	210
Counsel for the Appellant:	Mr G Johnson SC with Mr N Swan
Solicitor for the Appellant:	Sparke Helmore Lawyers
Counsel for the Respondent:	The respondent did not appear
Amici Curiae:	Mr N Murray SC with Ms E R Doyle-Markwick

ORDERS

		WAD 570 of 2018
BETWEEN:	MINISTER FOR HOME AFFAIRS Appellant
AND:	NICHOLAS RONALD BROWN Respondent

JUDGES:	ALLSOP CJ, KENNY, BESANKO, BROMWICH and BANKS-SMITH JJ
DATE OF ORDER:	24 DECEMBER 2019

THE COURT ORDERS 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 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.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		WAD 570 of 2018
BETWEEN:	MINISTER FOR HOME AFFAIRS Appellant
AND:	NICHOLAS RONALD BROWN Respondent

JUDGES:	ALLSOP CJ, KENNY, BESANKO, BROMWICH and BANKS-SMITH JJ
DATE OF ORDER:	28 FEBRUARY 2020

THE COURT ORDERS THAT:

1. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ, KENNY AND BANKS-SMITH JJ:

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...