Asaad v Minister for Home Affairs (No 2)

The case of Asaad v Minister for Home Affairs (No 2) involved an appeal against the decision of a primary judge, who had dismissed the appellant's claim for constitutional writ relief. The appellant had his partner visa cancelled by the Minister for Home Affairs under section 501(2) of the Migration Act 1958 (Cth). The primary issues for the court to determine were whether the primary judge was correct in holding that the Minister was not estopped from cancelling the partner visa after the subsequent conviction of the appellant, and whether the primary judge correctly held that the Minister did not make a jurisdictional error in finding that the appellant was not an Australian citizen.

The court held that no estoppel arose from the 2012 non-cancellation decision. The 2012 decision was made under section 501(1) not to exercise the discretion to refuse to grant the appellant a bridging visa, while the Minister's decision to cancel the partner visa under section 501(2) related to a different visa and the exercise of a different power. The court found that the Migration Act did not manifest a contrary intention to displace the presumption created by section 33(1) of the Acts Interpretation Act 1901 (Cth). The court further held that the Minister's discretion under section 501(2) was unconfined, except to the extent that the subject matter, scope and purpose of the Migration Act evinced a legislative intention to exclude consideration of some matter. There was no such intention in section 501(2) to exclude consideration of a new, more recent, fact that occurred after the making of a decision. The court also held that the delegate's representation in the 2012 non-cancellation decision could not operate as an estoppel as a matter of law. The court concluded that the appeal must be dismissed with costs.

The court found that the Minister did not make a jurisdictional error in having regard to or taking into account certain matters in arriving at his discretionary decision under section 501(2). The Minister had no obligation to conduct his own investigation into the appellant's citizenship status, although he could have chosen to do so. The Minister acted in accordance with law in his consideration of the appellant's assertions as to his citizenship when exercising his discretion to cancel the partner visa under section 501(2). Therefore, the appeal was dismissed with costs.