Minister for Immigration and Border Protection v Makasa

• Jurisdiction: Australia Federal only
• Judge: Gageler,Edelman JJ,Gordon,Keane,Kiefel CJ
• Judgment Date: 03 February 2021
• Neutral Citation: [2021] HCA 1
• Date: 03 February 2021
• Docket Number: S103/2020
• Court: High Court

Minister for Immigration and Border Protection

Appellant

and

Likumbo Makasa

Respondent

[2021] HCA 1

Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ

S103/2020

HIGH COURT OF AUSTRALIA

Immigration — Visas — Visa cancellation — Character test — Substantial criminal record — Where delegate of Minister for Immigration and Border Protection (“Minister”) cancelled respondent's visa on character grounds under s 501(2) of Migration Act 1958 (Cth) — Where Administrative Appeals Tribunal (“AAT”) made decision under s 43(1)(c)(i) of Administrative Appeals Tribunal Act 1975 (Cth) to set aside delegate's decision and substitute a decision not to cancel visa — Where Minister purported to re-exercise discretion to cancel visa — Whether Minister can re-exercise discretion on same factual basis in circumstances where AAT earlier decided not to cancel visa.

Words and phrases — “Administrative Appeals Tribunal”, “character test”, “different factual basis”, “finality to the administrative decision-making process”, “from time to time as occasion requires”, “general power”, “ministerial override”, “nature of merits review”, “powers of AAT”, “reasonable suspicion”, “re-exercise of a power”, “special power”, “substantial criminal record”, “visa cancellation”.

Acts Interpretation Act 1901 (Cth), ss 2, 33(1).

Administrative Appeals Tribunal Act 1975 (Cth), s 43.

Migration Act 1958 (Cth), ss 501, 501A.

Representation

G T Johnson SC with N D J Swan for the appellant (instructed by Sparke Helmore Lawyers)

A Ahmad with J D Donnelly for the respondent (instructed by Morning Star Legal & Migration Pty Ltd)

ORDER

Appeal dismissed with costs.

1 Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ. The question in this appeal is whether the Minister for Immigration and Border Protection (“the Minister”) can re-exercise the power conferred by s 501(2) of the Migration Act 1958 (Cth) (“the Act”) to cancel a visa after the Administrative Appeals Tribunal (“the AAT”) has made a decision under s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) setting aside a prior decision of a delegate of the Minister to cancel the visa and substituting a decision that the visa should not be cancelled. The answer turns on the construction of s 501(2) of the Act read in the context of the Act and the AAT Act and in light of the prescriptions of ss 2 and 33(1) of the Acts Interpretation Act 1901 (Cth) (“the AI Act”) that, “subject to a contrary intention”, “[w]here an Act confers a power … then the power may be exercised … from time to time as occasion requires”.

2 The Full Court of the Federal Court, by majority, answered the question in the negative in the decision under appeal 1 for reasons given contemporaneously in Minister for Home Affairs v Brown 2.

3 The negative answer is correct, although not precisely for the reasons given in Brown. Convinced of that result, we made orders at the conclusion of the hearing, dismissing the appeal with costs. These are our reasons.

The Act and the AAT Act

4 Section 501(1) of the Act provides that “[t]he Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. Section 501(2) provides:

• “The Minister may cancel a visa that has been granted to a person if:

• (a) the Minister reasonably suspects that the person does not pass the character test; and

• (b) the person does not satisfy the Minister that the person passes the character test.”

5 The “character test” is elaborated in s 501(6). To the extent relevant, that sub-section provides:

“For the purposes of this section, a person does not pass the character test if:

• (a) the person has a substantial criminal record (as defined by subsection (7)); or

• …

• (c) having regard to either or both of the following:

  • (i) the person's past and present criminal conduct;

  • (ii) the person's past and present general conduct;

  the person is not of good character; …

Otherwise, the person passes the character test.”

6 The definition of “substantial criminal record” in s 501(7), to the extent relevant, is as follows:

• “For the purposes of the character test, a person has a substantial criminal record if:

• …

• (c) the person has been sentenced to a term of imprisonment of 12 months or more; or

• (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; …”

7 Each of the powers conferred by s 501(1) and by s 501(2) can be delegated by the Minister under s 496 of the Act. Where a delegate of the Minister exercises the power conferred by s 501(1) to refuse to grant a visa to a person, or exercises the power conferred by s 501(2) to cancel a visa that has been granted to a person, s 500(1)(b) of the Act allows the person to apply to the AAT for review of the decision of the delegate. Subject to the need for the AAT, no less than the delegate, to comply with directions about the exercise of the powers conferred by s 501(1) and s 501(2) given by the Minister under s 499, and subject to procedural modifications effected by s 500(6A)-(6L) of the Act, the powers of the AAT in the conduct of the ensuing review are those authorised to be exercised by the AAT Act.

8 Section 43(1) of the AAT Act provides:

• “For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

• (a) affirming the decision under review;

• (b) varying the decision under review; or

• (c) setting aside the decision under review and:

  • (i) making a decision in substitution for the decision so set aside; or

  • (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”

9 Section 43(6) provides:

“A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes … be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.”

10 Section 501A of the Act then confers powers by which the Minister is permitted to override a decision made by a delegate or by the AAT on review. The Minister can override a decision not to exercise the power conferred by s 501(1) to refuse to grant a visa and instead decide to refuse to grant the visa. Equally, the Minister can override a decision not to exercise the power conferred by s 501(2) to cancel a visa and instead decide to cancel the visa.

11 Section 501A(1) is the gateway to s 501A. Section 501A(1) states:

• “This section applies if:

• (a) a delegate of the Minister; or

• (b) the Administrative Appeals Tribunal;

• makes a decision (the original decision):

• (c) not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

• (d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

• whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.”

12 Application of s 501A through the operation of s 501A(1) triggers the potential for the Minister to exercise one or other of two specific powers. Each can be described as a “non-compellable and non-delegable power” 3 in that each is permitted by s 501A(5) to be exercised only by the Minister personally and in that s 501A(6) makes clear that the Minister need not consider exercising either of them. However, the incidents of each are slightly different.

13 The first of the two powers is that conferred by s 501A(2). Section 501A(2) is expressed to enable the Minister to set aside the original decision and refuse to grant a visa or cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test” and “the Minister is satisfied that the refusal or cancellation is in the national interest”.

14 The second of the two powers is that conferred by s 501A(3). Section 501A(3) is expressed to enable the Minister to set aside the original decision and refuse to grant a visa or cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the Minister is satisfied that the refusal or cancellation is in the national interest”.

15 Exercise by the Minister of the power conferred by s 501A(3) is excused by s 501A(4) from compliance with procedural fairness, but triggers application of s 501C through the operation of s 501C(1). Section 501C(3) obliges the Minister to notify the person whose visa has been refused or cancelled under s 501A(3) and

to invite the person to make representations. Section 501C(4) then empowers the Minister, following receipt of any such representations, to revoke the decision to refuse or to cancel if, but only if, “the person satisfies the Minister that the person passes the character test”. Section 501C(5) requires the power conferred by s 501C(4) to be exercised only by the Minister personally. Section 501C(8) compels the Minister to cause notice of a decision to revoke or not to revoke to be laid before each House of the Parliament

Facts

16 Mr Makasa is a citizen of Zambia. He entered Australia on a student visa in 2001. He was granted a permanent residence visa in 2004.

17 In 2009, Mr Makasa was convicted in the District Court of New South Wales of four offences all of which related to events concerning a...