Brown v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Brown v Minister for Home Affairs [2018] FCA 1722

File number: WAD 350 of 2018
Judge: COLVIN J
Date of judgment: 15 November 2018
Catchwords: MIGRATION - application to review decision by Minister to cancel visa under s 501(2) of the Migration Act 1958 (Cth) - where Tribunal had found in 2012 that power should not be exercised - where Minister relied upon same offending to conclude that there was a suspicion and satisfaction that the applicant did not pass the character test and therefore power under s 501(2) to cancel the applicant's visa - where only offending since decision of Tribunal in 2012 had been driving without a licence and driving an unlicensed vehicle - whether power under s 501(2) was enlivened - held that power under s 501(2) not enlivened unless there was new material to support suspicion and satisfaction that applicant did not pass character test - application upheld and orders made for release of applicant from immigration detention
Legislation:

Migration Act 1958 (Cth) ss 477A, 501, 501A, 501B, 501BA

Administrative Appeals Tribunal Act 1975 (Cth)

Acts Interpretation Act 1901 (Cth) s 33
Cases cited:

Burgess v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 58

Chetcuti v Minister for Immigration and Border Protection [2018] FCA 477

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163

CRIO26 v The Republic of Nauru [2018] HCA 19

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531

Makasa v Minister for Immigration and Border Protection [2018] FCA 1639

Minister for Immigration & Multicultural & Indigenous Affairs v Watson [2005] FCAFC 181; (2005) 145 FCR 542

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Indigenous Affairs v MJD Foundation Limited [2017] FCAFC 37

Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; (2016) 247 FCR 500

Re Paterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28

Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429

SZQPY v Minister for Immigration and Border Protection [2018] FCA 359

Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116

VQAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 900

Watson v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1654
Date of hearing: 31 October 2018
Date of last submissions: 7 November 2018 (Respondent)
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
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Details
Case
[2018] FCA 1722
Decision Date

CaseChat Overview and Summary

In Brown v Minister for Home Affairs, the applicant, Mr Brown, sought judicial review of a decision by the Minister for Home Affairs to cancel his visa under section 501(2) of the Migration Act 1958 (Cth). The primary legal issue was whether the Minister's decision to cancel the visa was lawful, given that the Tribunal had previously determined in 2012 that the power should not be exercised. The Minister argued that subsequent minor offences, such as driving without a license and driving an unlicensed vehicle, were sufficient to re-enliven the power to cancel the visa. The court needed to decide if the power under section 501(2) could be exercised based on new material, or if there had to be new facts that formed the basis for the suspicion and satisfaction on the part of the Minister that the applicant did not pass the character test.

The court held that the power under section 501(2) could not be re-enlivened based on the same facts and circumstances that had been considered in the previous decision by the Tribunal. The court found that there must be new facts, specifically new offending, that form the basis for the suspicion and satisfaction on the part of the Minister that the applicant did not satisfy the character test. Since the Minister did not rely on any new facts and only considered the previous decision and minor infractions, the court concluded that the power under section 501(2) was not enlivened. Consequently, the Minister's decision to cancel the visa was quashed, and the applicant was ordered to be released from immigration detention.

The court's decision underscores the importance of new facts in re-enlivening the power to cancel a visa under section 501(2). The court's reasoning emphasized that the power to cancel a visa cannot be based on the same facts and circumstances that had been considered in a previous decision, unless there are new facts that support a suspicion and satisfaction that the applicant does not meet the character test. This decision provides clarity on the conditions under which the Minister can exercise the power to cancel a visa, ensuring that the decision-making process is fair and based on new evidence.

Orders

Orders of the court

1. The respondent's decision of 1 May 2018 to cancel Mr Brown's Class BF Transitional (Permanent) visa be quashed.

2. The applicant not be removed from Australia on the basis of the respondent's decision of 1 May 2018.

3. The applicant be released from his present immigration detention forthwith.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Most recently, in Makasa v Minister for Immigration and Border Protection [2018] FCA 1639, Burley J dealt with an argument that the there was no power in s 501(2) to exercise 'in relation to the same person on the same facts and circumstances': at [50]. The applicant for review accepted that if the Minister had relied upon his more recent offending then the ground of appeal would have merit. His Honour found that the predicate to the argument did not exist because the Minister did rely on the more recent offending and the ground of review was dismissed on that basis: at [51]. Therefore, the point at issue here was also not addressed in that decision.The Minister's decision The Minister's reasons state that his conclusion that Mr Brown has not satisfied him that he passes the character test is based solely upon the 2010 conviction for grievous bodily harm: at paras 5 to 7. As to the previous decision by the Tribunal and the extent of offending since the previous decision, the Minister's reasons state at paras 43 to 46 as follows:I have also taken into consideration on 23 January 2012 my delegate cancelled Mr BROWN's visa on character grounds.The delegate's decision was set aside by the Administrative Appeals Tribunal (AAT) on 24 April 2012 as the Tribunal found that although there was a real risk that Mr BROWN would re-offend, the risk would not be unacceptable to the Australian community.I note that despite previous visa cancellation warnings, including a warning from the AAT, Mr BROWN has continued to offend and display a lack of respect for the laws of Australia.I note that these latest offences are relatively minor infractions, however they display an inability of Mr BROWN to discontinue re-offending. The reasons do not otherwise identify any change in circumstances that has occurred since the decision by the Tribunal in 2012. There is no attempt to identify any new circumstances since the considered decision of the Tribunal in 2012 that are sufficient to satisfy the conditions that enliven the power. On the contrary, the Minister notes that the new offences 'are relatively minor infractions'. They are plainly matters that could only be relevant to discretion if the power to cancel is enlivened. Further, it is not explained why those relatively minor infractions have a material bearing upon the discretion to be exercised that is of a kind that should cause a different conclusion to be reached. They are simply dealt with in the course of a decision that otherwise deals with all circumstances without regard to any need to identify new circumstances.Consideration of issues I now consider the five issues stated above. As to issue (1), for reasons I have given, on the proper construction of s 501(2) the same facts that have been brought to account in concluding that the conditions to the power to cancel conferred by s 501(2) have been met (and have been the basis upon which a discretionary decision has been made whether to exercise the power) cannot form the basis for a future satisfaction of those conditions. Rather, there must be new facts that form the basis for the suspicion and satisfaction on the part of the Minister that a person does not satisfy the character test. Relevantly for present purposes, there must be new offending that is the basis for the conditions to be met.

Ratio Decidendi

Legal Principle Established

On the contrary, the Minister notes that the new offences 'are relatively minor infractions'. They are plainly matters that could only be relevant to discretion if the power to cancel is enlivened. Further, it is not explained why those relatively minor infractions have a material bearing upon the discretion to be exercised that is of a kind that should cause a different conclusion to be reached. They are simply dealt with in the course of a decision that otherwise deals with all circumstances without regard to any need to identify new circumstances.Consideration of issues I now consider the five issues stated above. As to issue (1), for reasons I have given, on the proper construction of s 501(2) the same facts that have been brought to account in concluding that the conditions to the power to cancel conferred by s 501(2) have been met (and have been the basis upon which a discretionary decision has been made whether to exercise the power) cannot form the basis for a future satisfaction of those conditions. Rather, there must be new facts that form the basis for the suspicion and satisfaction on the part of the Minister that a person does not satisfy the character test. Relevantly for present purposes, there must be new offending that is the basis for the conditions to be met. If I am wrong in my conclusion concerning issue (1), then my conclusions as to the other issues are as follows. As to issue (2), applying the decision in Parker, there must be a new fact before the power under s 501(2) can again be exercised in respect of the same person. As to issue (3), the difficulty is that the way in which the power is expressed includes no text to indicate that it is a power that is conditioned upon the existence of anything beyond that which is expressed in the conditions stated in paras (a) and (b) of s 501(2). As I have noted, this is a matter that counts against a change in facts that bear only upon discretion being sufficient to re‑enliven the power to cancel after a considered decision has been made as to whether to exercise that power. However on the assumption that I am wrong as to my view concerning issue (1), as the discretion is entrusted to the repository I am inclined to the view that it is a matter for the repository to consider whether there is a material change in circumstances. To hold otherwise would be to change the nature of the discretion to one which was not completely entrusted to the repository. It would be inconsistent with a provision that operates more broadly by reference to the state of satisfaction of the Minister. Where a provision adopts that form of words then it is a matter that weighs against the power being subject to the existence of an objective state of affairs: see, for example, Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [42]. As to the character of the power conferred: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [64]-[71].