Minister for Home Affairs v Brown

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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 Act1901 (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…

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Details
Case
[2020] FCAFC 21
Decision Date

CaseChat Overview and Summary

The case of Minister for Home Affairs v Brown involves the appeal of a decision by the Minister for Home Affairs to cancel the visa of Mr Brown under section 501(2) of the Migration Act 1958 (Cth). The Minister's decision was based on the grounds that Mr Brown did not meet the character test due to his substantial criminal record. This decision followed the Administrative Appeals Tribunal's earlier ruling that had set aside a decision by a delegate of the Minister to cancel Mr Brown's visa and instead decided not to cancel it. The primary judge had quashed the Minister's decision, finding it lacked statutory authority. The central legal issues in this case revolve around the Minister's authority to re-exercise the discretion to cancel a visa under section 501(2) after the Tribunal has set aside a delegate's decision to cancel it, and whether the Minister can rely on the same facts that the Tribunal used to make its decision.

The court considered the structure of the Migration Act, particularly the provisions surrounding the Minister's power to cancel a visa and the role of the Tribunal in reviewing such decisions. The court concluded that once the Tribunal had set aside a delegate's decision not to cancel a visa, the Minister could not re-exercise the discretion under section 501(2) based on the same facts. This conclusion was drawn from the terms of the Act, the existence of a power in section 501A(2) to set aside the Tribunal's decision, and the need for stability and finality in the Tribunal's decision-making process. The court distinguished this case from the Full Court's decision in Parker v Minister for Immigration and Border Protection, where significant changes in the circumstances of the applicant were present.

Based on the reasoning provided, the court dismissed the appeal, affirming the primary judge's decision that the Minister lacked the authority to cancel Mr Brown's visa under section 501(2) after the Tribunal had set aside a delegate's decision not to cancel it. The court did not order any costs to be paid by either party.

Orders

Orders of the court

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.

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

The central questions that arise on this appeal are: whether the Minister can re-exercise the discretion conferred by s 501(2) of the Migration Act to cancel an individual’s visa where the Tribunal has earlier set aside a delegate’s decision to cancel that individual’s visa under that provision and decided instead not to cancel the visa; and if so, can the Minister re-exercise the discretion relying on the very same facts to enliven the discretion in s 501(2) as the Tribunal did on review?Our Conclusion For the reasons that follow we are of the view that the Minister has no power to re-exercise the discretion relying upon the same facts (here facts satisfying the terms of s 501(6)(a)) to enliven the discretion in s 501(2) as were before the Tribunal. By way of summary, we draw this conclusion in particular from the terms and structure of the Act as a whole, the existence of the power in s 501A(2) to set aside the Tribunal decision, and the nature and character of the function of the Tribunal in independent review of decisions of the Executive, including the necessary degree of stability and finality in a fully reasoned decision of the Tribunal setting aside a decision of the Minister by his delegate to cancel the applicant’s visa. This conclusion does not mean that the Minister is precluded from re-exercising the discretion relying on the same facts to enliven the discretion in s 501(2) if, previously, a delegate has decided not to exercise the power in s 501(2) to cancel the visa. In such cases, the Full Court held in Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 that even if the Minister has not availed himself of the power in s 501A(2), if there have been significant changes in the circumstances of the applicant that could reasonably touch on the exercise of discretion, the Minister may act under s 501(2). This is not the situation in this case, which involves the consideration of some additional provisions (including those regulating review rights) that did not fall for consideration in Parker. In this circumstance we would not hold that Parker is plainly wrong, as the appellant invited us to do. We see the position differently if the Tribunal, after a contested proceeding before it, sets aside the decision of a delegate, substituting in its place a decision not to exercise the power to cancel the visa, and the Minister does not seek to set aside the decision of the Tribunal using the express power that is available under s 501A(2). In these circumstances, the power in s 501(2), having been since exercised, and set aside on review, should be seen as exhausted insofar as it was enlivened by a particular set of factual circumstances (here s 501(6)(a)). THE RELEVANT LEGISLATION Section 496 contained provisions relating to the delegation of the Minister’s powers under the Migration Act as exercised in the making of the original cancellation decision. It relevantly provided:Delegation(1)The Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under this Act. (1A)The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister. …

Ratio Decidendi

Legal Principle Established

This is an appeal from a judgment of a single judge of this Court quashing a decision of the Minister, acting personally, to cancel Mr Brown’s visa under s 501(2) of the Migration Act 1958 (Cth), relying on s 501(6)(a) to engage that power: Brown v Minister for Home Affairs [2018] FCA 1722. Section 501(2) is a provision granting to the Minister a discretion to cancel a visa if the Minister reasonably suspects that the visa-holder does not pass the character test and the visa-holder does not satisfy the Minister that he or she passes the character test. Under s 501(6)(a), a visa-holder does not pass the character test if he or she has a substantial criminal record, which is satisfied if the person has been sentenced to a term of imprisonment of 12 months or more (see s 501(7)(c)). The respondent arrived in Australia in 1981 and since then has been convicted of various serious criminal offences, particularly in 2010. The primary judge drew attention at the outset of his reasons for judgment to the fact that, from time to time over the past decade or so, officers of the appellant Minister’s Department have considered whether or not Mr Brown’s visa should be cancelled under s 501(2) of the Migration Act. That they have done so reflects Mr Brown’s lengthy criminal record. Mr Brown was first notified that his criminal offending might result in the cancellation of his visa under s 501 by Departmental letter dated 28 October 2004. By Departmental letter dated 3 October 2005, he was informed that a decision had been made not to cancel his visa. Another notice that his visa might be cancelled under s 501 was sent to him on 9 May 2007 or thereabouts. Again, he was notified (this time by Departmental letter dated 4 June 2007) that a decision had been made not to cancel his visa. A few years later, by letter dated 24 May 2011, the Department notified Mr Brown that consideration was once more being given to cancelling his visa. On 23 January 2012, a delegate of the Minister made a decision to cancel Mr Brown’s visa under s 501(2) and Mr Brown was so advised by notice dated 25 January 2012. Mr Brown applied to the Administrative Appeals Tribunal under s 500(1)(b) of the Migration Act for a review of the delegate’s decision. The Tribunal made a decision on 24 April 2012 under s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to set aside the delegate’s decision and, in substitution, to decide that Mr Brown’s visa not be cancelled. The Tribunal’s decision had regard to Mr Brown’s convictions from February 1988 to February 2010, and in particular that he was given a total effective sentence of 5 years’ imprisonment following his convictions for grievous bodily harm, assaulting a public officer, entering a prison without permission, two counts of assault occasioning bodily harm, two counts of criminal damage and stealing a motor vehicle (2010 offences). Shortly after the Tribunal’s decision, the Department notified Mr Brown, by letter dated 4 October 2012, that the Minister intended personally to consider whether to set aside the decision of the Tribunal and to cancel his visa under s 501A(2) of the Migration Act. This provision expressly provided that the Minister might “in the national interest” set aside the original decision (defined in s 501A(1) to include a Tribunal decision “not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person”). The materials before the Court do not indicate what happened in the immediately ensuing years.