Evans v Minister for Immigration and Multicultural and Indigenous Affairs

The case before the court is an appeal by Michael John Evans against a decision of the Minister for Immigration and Multicultural Affairs to cancel his absorbed person visa. Mr Evans, a non-citizen, held an absorbed person visa under the Migration Act 1958 until its cancellation by the Minister on 11 August 2005. The Minister's decision was affirmed by the Administrative Appeals Tribunal, and Mr Evans subsequently appealed to the Federal Court, which was dismissed. The appeal now before the Full Court concerns the legality of the Minister’s decision to cancel the visa based on Mr Evans’ criminal record.

The primary legal issue before the court is whether the Minister's power under s 501(2) of the Act to cancel a visa due to a person's failure to pass the character test is independent of other provisions in the Act, such as ss 200 and 201, which deal with the rights of non-citizens in Australia. The court had to determine if s 501(2) could be used to cancel an absorbed person visa, as it was in Mr Evans’ case, or if it was limited by the other provisions of the Act. The resolution of this issue was critical as it directly affected Mr Evans’ status as a lawful non-citizen and his right to remain in Australia.

The court considered the statutory framework and the High Court’s decision in Nystrom, which held that s 501(2) was an independent source of power to cancel a visa, including an absorbed person visa. The court concluded that the Minister’s decision to cancel Mr Evans’ visa was valid under s 501(2) because Mr Evans did not satisfy the Minister that he passed the character test, as he had a substantial criminal record. The court rejected Mr Evans' argument that the Minister’s decision was constrained by other sections of the Act. Therefore, the appeal was dismissed, and Mr Evans was ordered to pay the costs of the appeal to the Minister.

The final orders of the court were that the appeal be dismissed and that the appellant, Mr Evans, pay the costs of the appeal to the first respondent, the Minister.