MINISTER FOR IMMIGRATION AND BORDER PROTECTION APPELLANT
AND
LIKUMBO MAKASA RESPONDENT
Minister for Immigration and Border Protection v Makasa
[2021] HCA 1
Date of Hearing: 12 November 2020 Date of Order: 12 November 2020 Date of Publication of Reasons: 3 February 2021
S103/2020
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
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)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Minister for Immigration and Border Protection v Makasa
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".
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".
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Case
[2021] HCA 1
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Minister for Immigration and Border Protection against a decision of the Full Federal Court. The dispute concerned the Minister's power to re-exercise a visa cancellation decision under section 501(2) of the *Migration Act 1958* (Cth) after the Administrative Appeals Tribunal (AAT) had previously set aside a delegate's cancellation decision and substituted a decision not to cancel the visa.
The central legal issue before the High Court was whether the Minister could validly re-exercise the discretion to cancel Mr Makasa's visa on the same factual basis, notwithstanding the AAT's prior decision that the visa should not be cancelled. This involved an examination of the interplay between the Minister's powers under section 501(2) and the AAT's merits review function under the *Administrative Appeals Tribunal Act 1975* (Cth).
The High Court reasoned that the AAT's decision to set aside the delegate's cancellation and substitute a decision not to cancel the visa was a final determination of the merits of the cancellation at that time. The Court held that the Minister's subsequent attempt to re-exercise the power under section 501(2) on essentially the same factual basis, without any new or different circumstances arising, was an impermissible attempt to revisit a concluded administrative decision. The Court emphasised the principle of finality in administrative decision-making and the nature of merits review, which ordinarily concludes the matter unless new grounds arise.
The High Court dismissed the Minister's appeal, upholding the Full Federal Court's decision. This outcome affirmed that once the AAT has exercised its merits review function to substitute a decision not to cancel a visa, the Minister cannot simply re-exercise the original cancellation power on the same factual foundation.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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 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. 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 single complainant occurring over a period of two days in 2006. One was an offence of aggravated sexual assault, which was later set aside on appeal to the Court of Criminal Appeal. The other three were offences of sexual intercourse with a person aged between 14 and 16 years of age, for which he was sentenced to three concurrent terms of imprisonment each of two years with a non-parole period of 12 months. Suspecting that Mr Makasa failed to pass the character test by reason of the sentences imposed in respect of the 2009 convictions, a delegate of the Minister in 2011 exercised the discretion conferred by s 501(2) of the Act to cancel his permanent residence visa. Mr Makasa appealed to the AAT. Eventually, in 2013, the AAT re‑exercised the power conferred by s 501(2) of the Act to make a decision under s 43(1)(c)(i) of the AAT Act setting aside the decision of the delegate and substituting a decision that his visa should not be cancelled. In 2017, Mr Makasa was convicted in the Local Court of New South Wales of two further offences. One was of failing to comply with a reporting obligation, by failing to advise police in a timely way that he had downloaded a social media application which he used to communicate with his daughter, for which he was fined $300. The other was of driving under the influence of alcohol, for which he was disqualified from driving for 12 months and fined $1,200. The 2017 convictions again brought Mr Makasa to the attention of the Minister. Being satisfied that Mr Makasa failed to pass the character test solely by reason of the sentences imposed in respect of the 2009 convictions, but taking the 2017 convictions into account in the exercise of discretion, the Minister personally purported to again exercise the power conferred by s 501(2) of the Act to cancel his permanent residence visa. Mr Makasa applied to the Federal Court for judicial review of the Minister's decision. Burley J dismissed the application at first instance. The Full Court, by majority (Allsop CJ, Kenny and Banks‑Smith JJ and Besanko J, Bromwich J dissenting), allowed Mr Makasa's appeal, set aside the dismissal, and substituted an order that the decision be quashed. From that decision the Minister, by special leave, appealed.The Full Court decision
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ
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." 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.[3]Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 665 [90]. 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". 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". 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 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.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ