Minister for Immigration and Border Protection v Makasa
[2020] HCATrans 190
[2020] HCATrans 190
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S103 of 2020
B e t w e e n -
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
and
LIKUMBO MAKASA
Respondent
KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA BY VIDEO CONNECTION TO MELBOURNE
ON THURSDAY, 12 NOVEMBER 2020, AT 9.51 AM
Copyright in the High Court of Australia
KIEFEL CJ: In accordance with the current practice, I will announce the appearances of counsel.
For the appellant, MR G.T. JOHNSON, SC appears with MR N.D.J. SWAN. (instructed by Sparke Helmore Lawyers)
For the respondent, MR A. AHMAD appears with MR J.D. DONNELLY. (instructed by Morning Star Legal & Migration Pty Ltd)
KIEFEL CJ: Yes, Mr Johnson.
MR JOHNSON: Thank you, your Honours. Your Honours, what I propose to do is to start by just trying to clarify as shortly as possible the facts which may save some time later and then after that I was proposing to address your Honour on the questions arising particularly with reference to the themes identified in the outline of oral submissions that your Honours would have received from us this morning.
Your Honours, the issues on the appeal can be stated as being whether the Minister can exercise the power to cancel under section 501(2) of the Migration Act where the Administrative Appeals Tribunal has set aside a delegate’s decision to cancel under that subsection and decided instead not to exercise the power to cancel the visa and, if so, whether the Minister may rely on the same facts as did the AAT not to be satisfied that the person passes the character test.
Differences in formulation of the issue depended in part upon whether or not to categorise the AAT’s decision as being a decision not to exercise the power to cancel the visa or whether to describe it as not cancelling the visa, but, as your Honours will have noticed from the written submissions, one of our contentions is that the proper legal categorisation of what the Tribunal did was not to exercise the power to cancel.
In relation to the core facts, the respondent had been convicted on 25 October 2009 of three counts of having sexual intercourse without an honest and reasonable belief that the complainant was over the age of 16 years. That offence was on 31 October 2006. For that, he was sentenced to three concurrent terms of imprisonment of two years with a single 12 month non‑parole period. Those facts have been found by Justice Bromwich below at paragraph 26. The other members of the Full Court adopted his factual summary and also the primary judge, Justice Burley, at paragraph 3.
Those were the only convictions that were relied upon by the AAT in its decision of 8 November 2013 as to whether or not the present respondent satisfied the character test. Then, also, they were the only matters relied upon by the Minister in his subsequent cancellation decision on 18 October 2017 as to whether or not the present respondent passed the character test. As your Honours appreciate, through the interaction of sections 501, 506 and 507, the two‑year prison sentence was itself enough to effectively create a situation whereby it objectively met the character test.
Then, in addition, there was later offending after the AAT decision, as found by Justice Bromwich at paragraph 28. One of those matters was a conviction on 3 May 2017 for mid‑range PCA and that was taken into account by the Minister in the exercise of his discretion, but it was not taken into account, as I have already explained, in relation to whether or not the applicant met the character test.
The Full Court divided as to whether the Minister had power to cancel the respondent’s visa under section 501(2), relying upon the same failure to satisfy the character test as had the delegate and the AAT some years prior. The plurality, at paragraphs 5 to 6 found that the Minister did not. Justice Besanko and Justice Bromwich each disagreed in separate reasons at 10 and 44 to 49 respectively.
Also, by way of introduction, all members of the Full Court adopted their prior reasons in the Minister for Home Affairs v Brown, which is now reported at (2020) 376 ALR 133 as to that issue. I will come back to the majority reasoning in a moment. But before I proceed any further I might just take a few minutes to show your Honours how that 3 May 2017 mid‑range PCA offence figured in the Tribunal’s reasons. That will require me to go to a number of paragraphs thereof.
The Minister’s decision and reasons are the first item in the core appeal book, and the character test finding is at paragraphs 5 to 6, on page 1. I will not read those aloud because they are covered in what I have just said. Then, in relation to the effect of the subsequent PCA the Minister noted at paragraph 27 that conviction on 3 May. Then, if your Honours go to paragraph 31, the Minister said:
Alcohol has been a factor in Mr MAKASA’s criminal conduct to date. I note in 2005, Mr MAKASA caused a motor vehicle accident whilst under the influence of alcohol, and he has recently been convicted of a further drink driving offence in 2017. The trial judge presiding over Mr MAKASA’s sexual offences observed that Mr MAKASA had been drinking the evening prior to the sexual offences and highlighted his mother’s evidence that he was drinking a lot more than he should have at the time of the offences.
Then if your Honours go to paragraph 39, paragraph 39 follows a summary at 36 to 38 as to the AAT’s findings where the AAT had referred to a genuine regret of Mr Makasa and also to the time that he had spent in custody and extensive legal proceedings and suggested that that would act as a deterrent. The AAT had also given weight to the 2009 judge’s findings that Mr Makasa was highly unlikely to reoffend, and the Minister noted at 38 that:
Mr MAKASA has been in the community for some three and a half years since his release from immigration detention in November 2013. I considered that some 11 years have passed since the sexual offence and I acknowledge there has been no repetition of this type of conduct.
But then at 39 the Minister says:
However, I have taken into account that Mr MAKASA has reoffended since receiving a favourable outcome from the AAT in 2013, albeit not at the same level of seriousness as his past offending.
Then, if we go to paragraph 43, the Minister says:
In relation to his most current conviction for drive with middle range PCA – 1st offence, I note Mr MAKASA states he takes full responsibility and that he believed he had let enough time pass and consumed enough water after drinking alcohol to enable him to drive. However, I also note that Mr MAKASA’s most recent offending involves drink driving in the mid‑range, and I considered this is his second drink driving offence, albeit 11 years apart.
The first one, incidentally, your Honours, then back in 2005 and had been noted by the Minister at paragraph 11. Returning to paragraph 43, the Minister said:
I find the repeat drink driving offence demonstrates disregard for community safety and that further rehabilitative progress with respect to alcohol is required.
Then, the Minister refers ‑ ‑ ‑
EDELMAN J: Mr Johnson, the first drink driving offence was described as “high range”. Is that right?
MR JOHNSON: That is right, yes.
EDELMAN J: What is the difference between middle range and high range in terms of amounts?
MR JOHNSON: I do not know the answer to that, your Honour, offhand. I am sorry, your Honour. I am not sure either whether or not the difference varies from one jurisdiction to another. Then, in paragraph 45, the Tribunal referred to evidence before it from a psychologist, Dr Peter Ashkar. If I could skip to the second sentence, the Tribunal says:
I also note he reports the offending –
and it is referring here to the offending which led to the conviction:
occurred during a time when Mr MAKASA was consuming large amounts of alcohol to manage stress. He reported –
that is, Dr Ashkar reported:
Mr MAKASA had matured considerable and had reduced his alcohol consumption.
The next paragraph also makes reference to Dr Ashkar’s notation of Mr Makasa, in effect, adding certain anxiety and depression symptoms. Then, at paragraph 49, the Minister says:
Taking the above matters into account, I acknowledge that Mr MAKASA is a low risk of sexual reoffending, however I find Mr MAKASA to represent an ongoing likelihood of non‑sexual reoffending. I find that Mr MAKASA’s ongoing family support, his past term of imprisonment and visa cancellation matters have not had the deterrent effect considered by the AAT, and I therefore view his long term prospects with some caution. While Mr MAKASA’s recent offences are less serious, I am concerned that he still requires further progress with respect to alcohol rehabilitation.
We particularly emphasise that sentence, your Honours:
If Mr MAKASA were to commit further sexual offences against a minor he could cause very serious physical and psychological harm to a member of the Australian community.
Then, the balance of the paragraph the Minister also talks about the harm that might be generated if he commits further domestic violence offences or driving under the influence. Then, there are other factors considered, other subjects, much favourable to Mr Makasa and then the Minister has some conclusion paragraphs at paragraphs 100 to 104. At paragraph 100 the Minister finds:
Mr MAKASA has committed a very serious crime, that of sexual intercourse with a person above the age of 14 years and under the age of 16 years, which is of a sexual nature, and involved a vulnerable member of the community, that being a minor, and Mr MAKASA and non‑citizens who commit such an offence should not generally expect to be permitted to remain in Australia.
I find that the Australian community could be exposed to great harm should Mr MAKASA reoffend in a similar fashion. I could out rule out the possibility of further offending by Mr MAKASA. The Australian community should not tolerate any further risk of harm.
At 102, he then refers to other factors weighing in favour of Mr Makasa and at 103 he says:
I find that in Mr MAKASA’s case the risk of further harm is of such a seriousness that even the strong countervailing considerations outlined above are insufficient for me to not cancel the visa.
In reaching my decision I concluded that Mr MAKASA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.
GAGELER J: Mr Johnson, everything said in paragraphs 100 to 104 could have been said by a reasonable decision‑maker in the position of the Minister in 2013, could it not?
MR JOHNSON: Yes. Except, your Honour, that the drink driving offence of which he was convicted on 3 May 2017 was taken as an indicator that he still required further assistance in relation to alcohol, further rehabilitation in relation to alcohol, whereas the AAT had been positive about prospects that the Minister was taking the view that that indicated grounds to be sceptical about prospects. In fact, the Minister made that positive finding that he needed more rehabilitation in that respect.
GORDON J: Mr Johnson, the analysis you have just taken us through identifying all of those paragraphs is really an analysis that sits much better, does it not, with paragraph 6(c) of what is the character test which enables, as I read 6(c) - if you read that in the context of the other potential pathways to determining whether someone passes it or not - takes into account their past and present criminal conduct and past and present general conduct. In other words, trying to fit it into paragraph (a) in this way seems to me to involve gymnastics which the Act provides a pathway for, which is consideration of either or both of those.
MR JOHNSON: I am grateful for your Honour’s question. Let me be clear about this. The Minister in making these comments that I have taken the Court to has already been satisfied back at paragraphs 5 to 7 that the applicant did not pass the character test as a result of those earlier convictions based on 501(6)(a) and 501(7)(c), and the Minister then moved to consider the exercise of discretion. So, in this case, the later drink driving offence was not taken into account as to whether he satisfied the character test but rather as to whether, looking at the matter in 2017, the Minister should exercise his discretion to cancel or not.
GORDON J: I accept that, but the question is whether or not that is the appropriate approach when one has already had the determination by the delegate going up to the AAT and then going back, given the power that exists in 501A. This focus on (6)(a) I think ignores the statutory scheme that has been set out. It provides a cascading set of pathways to this conclusion.
MR JOHNSON: That is the character test conclusion, your Honour?
GORDON J: Yes.
MR JOHNSON: Yes. Well, your Honour, if the applicant falls foul of any one of those pathways then the applicant does not pass the character test.
EDELMAN J: But, Mr ‑ ‑ ‑
GORDON J: The question is more direct, is it not? Sorry, Justice Edelman.
EDELMAN J: Mr Johnson, I think what might be being put to you is why would one need paragraph (6)(c) if you could have as many bites of the cherry under paragraph (6)(a) as you wanted?
MR JOHNSON: Well, your Honour, the fact is that people can satisfy other paragraphs of section – (5),(6) without satisfying all of them or indeed any one of them.
EDELMAN J: That may be so.
MR JOHNSON: But there can certainly be overlap.
EDELMAN J: Not overlap – (6)(c) would be entirely redundant if your approach is correct, would it not? What work would (6)(c) ever have to do if you could just keep coming back and deciding it under (6)(a)?
MR JOHNSON: Your Honour, in relation to 501(6)(c) it would capture people who, for example, might never have had a conviction which brings them within the particular paragraph (a) informed by (7)(c). To fall within paragraph (c):
the person’s past criminal conduct –
or, indeed –
the person’s past and present general conduct –
can indicate that they are not of good character, and that calls for an assessment by the Minister as to whether or not that is so. But if, on the other hand, the question is looked at through the prism of paragraph (a) and one then goes to (7)(c) one finds that paragraph (a) is met simply by the objective fact of the person having been sentenced to a term of imprisonment of 12 months or more.
So 6(c) is much broader and it might capture people who do not qualify under (7). There can be overlap between these provisions, but as soon as the person does not satisfy the Minister he passes the character test, having regard to any of those paragraphs of subsection (6), well, then, he does not pass the character test. So nothing changed in relation to the applicant passing a character test.
GORDON J: Do you accept that the Minister could have relied on and sought to rely on (c) in relation to this analysis you have just taken us through? Was it not open to him to rely on (6)(c)?
MR JOHNSON: Well, (c) is very, very broadly framed, as I indicated, and so a conclusion under (c) could be reached having regard to any analysis of the person’s past and present criminal conduct. So I accept that there is an overlap, but the fact that an overlap is possible and the fact that (c) might have been capable of being deployed, in my submission, does not really advance the position because, ultimately, either he passes the character test or he does not and if he does not then the discretion – if the Minister is satisfied he does not pass the character test, then the discretion in section 501(2) is activated.
Your Honours, if I could take up from paragraph 5 of the outline that refers to the division on the Full Court as to whether or not the discretion to cancel could be activated based upon the same failure to satisfy the Minister as to the character test and it describes the division between the judges. In effect, the plurality decided that the discretion was not available for a range of factors – and I will come to those in a moment – and the minority took the view that it was available.
In relation to that, there were a number of different themes of the reasoning which we examine after paragraph 6. But it might be helpful to specifically refer, at this point, to the decision in Brown that each member of the Full Court followed his own reasoning in Brown. Brown is in volume 5 of the joint book of authorities at page – it starts at page 1100. There is a summary of the majority approach in paragraphs [15] to [17]. I will read those. I will try to refrain from reading other paragraphs. They are referred to in the submissions, but I think these three might be worth reading aloud. The majority approach is summarised as follows:
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 decision 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 –
and the citation is given:
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 reasonable 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 –
It says, “as the appellant invited us to do”. It was not, in fact, the appellant, it was amicus curiae that was so inviting the Court. Then, in paragraph [17]:
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)).
Then, that is elaborated upon. Your Honours will see that they were taking the view that there would be a different result if the earlier decision not to cancel had been taken by the delegate, so they saw AAT review as being important and they saw as very important the distinction between an AAT decision not to exercise the discretion to cancel and a delegate’s decision not to exercise the discretion to cancel.
They also took into account the provision in section 501A(2) which differs from 501(2). It actually involves a setting aside of the Tribunal decision. It was described by Justice Mortimer in Parker as a personal override power.
KIEFEL CJ: It has an additional requirement, though, does it not, that cancellation be national interest ‑ ‑ ‑
MR JOHNSON: That is right. That is correct. The approach of ‑ ‑ ‑
EDELMAN J: Mr Johnson, just so I understand your position, do you say that it is wrong to conclude that the Minister has the ability to decide a matter under 501(2)(a) on the identical facts that had previously been decided and adjudicated upon also by the AAT? In other words, in this case, if one entirely put to one side the mid‑level subsequent drink driving offence and had the identical facts that had been determined and decided by the Minister and then differently by the Tribunal, could the Minister then come back and make a different decision from the Tribunal?
MR JOHNSON: The monosyllabic answer, I think, is yes, your Honour.
EDELMAN J: The Tribunal would then be able to make a different decision from the Minister and one could go on forever.
MR JOHNSON: No, that one would not be reviewable. So, just to be clear, if when the Tribunal decision was made the Minister disagreed with that decision and was satisfied that it was in the national interest to set aside that decision, the Minister could, on the very same facts, set aside the AAT decision ‑ ‑ ‑
EDELMAN J: Putting aside the A(2) personal override, could the Minister, without that personal override, make a new decision - could the Minister have made a new decision in this case if it were not for the additional mid‑level drink driving offence?
MR JOHNSON: There have been two views expressed on this in the cases that are before your Honour and ‑ ‑ ‑
EDELMAN J: But what is the appellant’s position?
MR JOHNSON: We say, your Honour, that both sections were available but what has happened in that respect in relation to that issue is that the Full Court in Parker, which is in your Honours’ book, took the view that the Minister could approach the matter again through the prism of section 501(2) if there had been a material change in circumstances.
Justice Mortimer, who was writing on her own, expressly did not decide whether or not a change in circumstances was necessary - she decided to leave that to another day – and the plurality of Justices Griffiths and Perry, approached that upon the basis that there was a change of circumstances, a material change of circumstances comprised of further conduct since the decision, not conduct which went to the character test, but conduct which went to the discretion. Also, the Full Court in Parker was of the view that section 33 of the Acts Interpretation Act would apply to enable 501(2) to again be activated.
GAGELER J: If section 33 applies, you do not need a material change of circumstances.
MR JOHNSON: That is right.
EDELMAN J: So the appellant’s position is effectively that 501(2) could just be - assuming there is no national interest engaged or anything like that, 501(2) can be re‑engaged every time the Minister disagrees with a Tribunal decision, so the process could just go up and down forever?
MR JOHNSON: Well, it is a broad provision to be applied on its terms, but if the Minister is in truth setting aside the decision of the Tribunal, well, then 501A covers the field. Otherwise, it does not. But, even if that be wrong, the view of Justice Bromwich was that 501A might – his Honour thought that section 501A would by implication require a change of circumstances if 501(2) were to be used in a case where the power had previously been exercised.
Justice Besanko took the view that that was reading words in and Justice Besanko took the view that section 501(2) could be exercised again, in any event. An important part of the reasoning of Justice Besanko and of Justice Bromwich was that in their Honours’ view there had not been a prior exercise of the power to cancel. Their Honours categorised the Tribunal’s decision whereby the Tribunal set aside the delegate’s decision to cancel and did not itself cancel the visa as being a non‑exercise of the power, not an exercise of the power under 501(2) to cancel.
In those circumstances, if that is correct, then as Justice Gageler was suggesting section 33 would have no work to do. But if, on the other hand, there had been an exercise of the power then section 33 would have work to do. So, I hope that that explanation outlines the different approaches that are ‑ ‑ ‑
GORDON J: Mr Johnson, which one does the Minister say should – reflects the proper approach to this ‑ ‑ ‑
MR JOHNSON: Your Honour, we say the simplest way of approaching this case is that there was a material change of circumstances going to the exercise of the discretion and ‑ ‑ ‑
EDELMAN J: But on your approach you do not need a material change of circumstances. It just does not matter.
MR JOHNSON: On the Justice Besanko approach, that is correct. That is correct. But, if, on the other hand, there is a material change of circumstances well then it probably does not matter whether Justice Besanko was correct about that. If I could just return to Justice Gordon’s question, I think that your Honour Justice Gordon might have been particularly asking what is our position as to whether the power was exercised and ‑ ‑ ‑
GORDON J: Your client administers this Act. I would like to know what…..the Act is intended to work at, rather than the different views.
MR JOHNSON: Indeed, your Honour. We submit that this a case where the power to cancel was not exercised by the AAT. Just to reverse up a little bit, there was a delegate decision to cancel – delegate decision to exercise the power to cancel but then that was set aside by the AAT under section 43(1) of the AAT Act. Then, because of section 43(6) of the AAT Act to which we will come, the delegate’s decision – sorry, the Tribunal’s decision took effect as a decision of the delegate. The Tribunal did not itself decide to cancel the visa and so, in those circumstances, we would say that Justice Besanko and Justice Bromwich were correct to find that there had not been a prior exercise of the power.
GORDON J: Sorry, can I just ask two – sorry, Justice Gageler.
MR JOHNSON: The power being one to cancel the visa under 501(2).
GAGELER J: Mr Johnson, can we just explore the parameters of that position for a moment? The decision of the delegate and the decision of the AAT was each a decision under an enactment.
MR JOHNSON: Yes.
GAGELER J: Each could have been challenged by a party affected, whether it be the visa holder or the Minister on judicial review.
MR JOHNSON: That is correct.
GAGELER J: There was a statutory engagement with the discretion.
MR JOHNSON: Yes, there was. But the discretion was ultimately not exercised to cancel.
GAGELER J: I follow that.
MR JOHNSON: Yes.
GAGELER J: You have the enlivenment of a statutory precondition and you have the intellectual engagement with the statutory discretion. What more do you need for an exercise of power?
MR JOHNSON: The view that was taken by Justice Besanko and by Justice Bromwich is that one has to ask what the power is – one has to understand what the power is before one can then address the subsequent question of whether the power is spent.
EDELMAN J: So, your submission is, effectively, that a positive decision not to do something is not an exercise of power.
MR JOHNSON: It depends on how the provision is drafted. But, in this case, yes.
GORDON J: Mr Johnson, just so I can test that, how does that sit, then, with the operation of 501A? To pick up Justice Gageler’s point, 501A recognises that something has been done – there has been an exercise of something, and the Minister has an override on the satisfaction of a higher condition.
MR JOHNSON: That is correct, your Honour.
GORDON J: You would not need 501A, would you, if your condition is right?
MR JOHNSON: Section 501A is specifically focused – 501A(1) is specifically focused upon what is defined there as an “original decision” – which is a decision:
not to exercise the power conferred by subsection 501(1) to refuse to grant a visa –
or:
not to exercise the power conferred by subsection 501(2) to cancel a visa –
So, the way in which the legislature is describing the prior decision favourable to the visa‑holder is, indeed, in terms of a non‑exercise of the power conferred by section 501(2).
GORDON J: Is it, or is it just dealing with it and defining it by reference to the consequence of the exercise of the power?
MR JOHNSON: They use those words, your Honour, “not to exercise the power conferred” by 501(2).
GORDON J: To cancel a visa.
MR JOHNSON: So, we see, your Honour, that language in 501(1)(d) – also found in the one just before it relating to refusals – we see that as being consistent with what I will describe as the Justice Besanko and the Justice Bromwich view that where, in a case such as this, the Tribunal sets aside the decision that has been made by the delegate – that is, the cancellation decision – but itself decides not to cancel, that is, in truth, a decision not to exercise the power conferred by section 501(2). Justice Bromwich was fairly precise in his articulation of this and said it is not a choice between two powers – there is only the one power and either you exercise it, or you do not.
GAGELER J: Why would you bother setting it aside? It has no consequence, in your submission.
MR JOHNSON: Well, the explanatory memorandum, to which we have referred, suggests the provision was enacted through dissatisfaction with certain decisions of the AAT at the time. It was very much motivated by wishing to secure a power to set aside the decision of the AAT. That is quite different from leaving the decision of the AAT there and seeing how things go and then looking at that again.
GAGELER J: In your submission, Mr Johnson – if I am understanding it correctly – the setting aside is nothing more than a formal expression of disapproval by the Minister. The Minister could just go on the next day, instead of setting the ‑ ‑ ‑
MR JOHNSON: The setting aside has the effect that the delegate’s decision no longer has any practical or legal effect. So the person still has a visa. Two steps: the first step is – and it might be helpful if I open section 43 of the AAT Act in this respect, which is in your Honours’ volume 2 and, in particular, at page 55 of the book. It is at 43(1), and it provides for the powers of the Tribunal and, relevantly, there is a power in (c)(i) to set aside the decision under review and make a decision in substitution. Then when one goes to section 43(6), it provides:
A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), –
that is, appeals to the Federal Court:
be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
So those two provisions, in combination, have the effect that when in this case the Tribunal set aside the delegate’s decision to cancel, the delegate’s decision thereupon had no practical or legal effect. The Tribunal’s decision left the power unexercised. It was as though the delegate had left the power unexercised. I should say, since we have gone to ‑ ‑ ‑
GAGELER J: I am sorry, Mr Johnson, since you have raised this, section 42(1)(c) has two parts. The decision is one setting aside the decision under review and then going on to do something else. What did the Tribunal in the present case go on to do?
MR JOHNSON: What the Tribunal then did after it set aside the decision - in terms what it described itself as having done was, if I could just take your Honours – sorry, your Honours, I need to go to another book. If I could ask your Honours to go to the applicant’s further materials, and that is a copy of the AAT decision. For the moment, I am just describing what the AAT described itself as doing. So if you go to page 26, paragraph 92 of the AAT’s decision, in paragraph 93 the Deputy President described his decision as being:
The decision of the Minister to cancel Mr Makasa’s visa is set aside and there is substituted the decision that the visa should not be cancelled.
EDELMAN J: But you say the second part is not an exercise of power?
MR JOHNSON: We say that is not an exercise of the power to cancel. We are not just relying upon the way that he has described it there, which incidentally is not the same as the way it is described by the Tribunal in the coversheet back on page 4. But it also depends upon the proper characterisation of what happened.
GAGELER J: I am sorry, is this is an order that was within the power of the learned Deputy President to make, on your submission?
MR JOHNSON: The Tribunal does not actually distinguish between orders – they do not have distinct orders in the way that – they distinguish between decisions and reasons for decision, of course, but the decision is one that it should not be cancelled and that is not beyond power, in my submission, because that is not the Deputy President himself deciding to cancel. That is just him saying to the Department that it should not be cancelled. But that discussion that we have just had is focused, of course, on what the Tribunal decision says, on how to ‑ ‑ ‑
EDELMAN J: Do you accept that that decision of the Tribunal falls within section 43(1)(c)(i) as making a decision in substitution, the decision so set aside?
MR JOHNSON: Yes, but guardedly, as your Honour sees, because we say that it is not an exercise of the power to cancel. At most, that last paragraph is the AAT indicating that it is of the view that the visa should not be cancelled.
GAGELER J: Mr Johnson, I see that that the Deputy President was a former judge of the Federal Court.
MR JOHNSON: That is right.
GAGELER J: Equally, the decision could have been made by a person who was a sitting judge of the Federal Court persona designata.
MR JOHNSON: It could have, your Honour, but the effect would have been the same. Either way it is an administrative decision and the proper characterisation of what is happening would depend on the AAT Act.
GAGELER J: It really goes back to the fundamentals, Drake’s Case, does it not, about the status of the AAT within the administrative hierarchy and the respect that is due to the decisions of the AAT?
MR JOHNSON: Well, your Honour, it is not a question of respect, with respect, it is more a matter of trying to categorise what was actually happening here, what was the legal effect of what happened given the particular language that we are talking about. That is the problem. Two judges of the Federal Court, at least, two judges of the Federal Court in the present case have taken the view that what happened was not an exercise of the power to cancel under section 501(2) because the delegate’s decision had been set aside so it no longer had any practical and legal effect. The proper characterisation of the power under section 501(2), once one is satisfied that the person does not pass the character test, is either to cancel or not.
GAGELER J: It may come down to the matter of syntax, but it is perfectly easy to describe what occurred as an exercise of power not to cancel, not to cancel being the outcome of the exercise of the power.
MR JOHNSON: Obviously, that is not my primary submission. That is not the view that was taken by the minority judges. But assume for the moment that that is the correct view. We would still have a situation where section 33 of the AAT Act could be relied upon. The Full Court’s judgment in Parker accepted that section 43 was applicable – sorry, not 43, section 33 of the Act - I will rephrase that, I have made more than one mistake in that sentence. If we are wrong in saying it was not an exercise of the power to cancel, well, then, we are in the realm of section 33 of the Acts Interpretation Act and we say that section 33 was available. The three members ‑ ‑ ‑
GORDON J: Notwithstanding 501A.
MR JOHNSON: Yes, yes, your Honour. Three members of the Federal Court in Parker accepted that section 33 was available, notwithstanding section 501A.
GAGELER J: Mr Johnson, if you get to section 33, as I understand, what is the role of this notion of the material change in circumstances? How does that enter into the analysis?
MR JOHNSON: Yes, yes, what seems to have been understood is some – first of all, we are talking about the exercise of discretion. So, moved out of the character test land and we are into the exercise of the discretion. What seems to be envisaged is some change in circumstances, some new facts, typically, which could affect – reasonably could affect the exercise of the discretion.
GAGELER J: I follow that, but what is the jurisdiction or analytical peg that is being employed here? I do not get where it fits in.
MR JOHNSON: In other words, how do you get to the point of requiring the change of circumstances?
GAGELER J: For what statutory purpose?
MR JOHNSON: Justice Besanko said you could not get to that point because – Justice Besanko took the view you did not need a change of circumstances and he took the view that requiring a change of circumstances was reading words in that were not there. That was his view. The other part of your Honour’s question, why would you need it? Well, you would need it if the effect of 501A was to impliedly confine section 501(2) as members of the Court have been putting to me today. Justice Bromwich accepted that because of 501A it should be implied that a material change of circumstances was necessary to deploy 501(2) if the power had been previously exercised.
GAGELER J: By the Tribunal?
MR JOHNSON: Yes.
GAGELER J: But if the Tribunal had not entered into it – that is, if you just had a decision of a delegate or of the Minister himself not to cancel, then the next day, does there need to be change in circumstances?
MR JOHNSON: I think that Justice Bromwich would have required a change of circumstances there as well. Indeed, the Full Court in Parker proceeded upon the assumption.
GAGELER J: They may have done it, but why? How do you need this change of circumstance?
MR JOHNSON: One would need it if, for example, in its absence, 501A would require an implication that section 501(2) was not available to be exercised strictly according to its terms but required there to be some change. So, that is how it would be rationalised.
GAGELER J: I am sorry, is it how you rationalise it? I am really asking for your assistance here.
MR JOHNSON: I am trying, I am trying, your Honour. But we have respect for the various views which have been expressed, obviously. Our position is that section 501A has a field of operation which is limited to where the Minister is actually setting aside the Tribunal decision. We say that it is not necessary, and one does not draw implications from 501A confining what would otherwise be the breadth of 501(2). That is our primary position. The second part of our position is that if a change of circumstances is required – a material change of circumstances is required – this is such a case – this is such a case.
EDELMAN J: So, your primary submission, really – to come back to earlier questions – has the effect that the procedure could go on forever under section 501(2).
MR JOHNSON: It is the “going on forever” part, your Honour, that I am squabbling with.
EDELMAN J: Why not?
MR JOHNSON: Because there is a limit on the reviewability of the 501A decision.
EDELMAN J: Assuming that the national interest issues are not engaged, if it were just dealing with section 501(2), the process can just go on forever.
MR JOHNSON: I am sorry, your Honour, I am not trying to avoid your Honour. When your Honour says to me, the process can go on forever, what I apprehend your Honour has in mind is yet another application to the Tribunal.
EDELMAN J: And then the Tribunal making the same decision. The Minister making a decision again. The Tribunal making the same decision, and so on.
MR JOHNSON: But, section 500(1)(b), has the effect that a decision made personally by the Minister is not reviewable by the Tribunal and the 501A power can only be exercised by the Minister.
KIEFEL CJ: Mr Johnson, the power under section 501(2) you have described as the power to cancel, that is in its short form. In its fuller form, is it not that the Minister may decide whether to cancel a visa or not, having regard to, one, whether the person passes the character and, two, the exercise of discretion? What it basically authorises is the making of a decision whether to cancel or whether not to cancel because a matter is put before the Minister to determine whether to cancel or not.
MR JOHNSON: Can I just ‑ ‑ ‑
KIEFEL CJ: There are the two – it is a binary choice of the Minister and the decision has to be made.
MR JOHNSON: To assist your Honour, can I say two things. One, if the Minister decides not to cancel, the status quo has changed ‑ ‑ ‑
KIEFEL CJ: I really would just like an answer to the question. What is the nature of the power under 501(2)? Is it more fully described not just as the power to cancel, which is the process which is undertaken after a decision is made? Is it more fully described as the power of the Minister to decide whether to cancel a visa or not?
MR JOHNSON: In my submission, your Honour, we adopt what Justice Bromwich said, that there is a single power to cancel. It is not a choice between two competing powers – one is to cancel ‑ ‑ ‑
KIEFEL CJ: No, no, I am talking about the decision. Put aside the cancellation of the visa, which would be effected once the Minister made a decision. If one focuses upon the nature of the power being to authorise the making of a decision, it must logically follow that the power encompasses to decide to cancel or to decide not to cancel. You agree with that?
MR JOHNSON: Yes, your Honour, but what is happening is the person is exercising his authority not to exercise the power to cancel.
KIEFEL CJ: No, the person is deciding in the first place. What the Act authorises is a decision.
MR JOHNSON: Yes.
KIEFEL CJ: If the Minister decides that, on the conditions set out for that decision, the person does not pass the character test and there is no reason to exercise the discretion in favour of the person, then the Minister may decide to cancel the visa.
MR JOHNSON: That is right.
KIEFEL CJ: So they are the conditions.
MR JOHNSON: Yes.
KIEFEL CJ: The cancellation of the visa is the result of the decision. If the Minister, however, decides that, even though the person passes the character test that, nevertheless, a discretion should be exercised the Minister may decide not to cancel the visa. That, too, is authorised under 501(2).
MR JOHNSON: Yes, he does not need to make a decision for us to let it go on.
KIEFEL CJ: No, but if one looks at what is truly authorised in relation to decision‑making, it is to either make the decision to cancel or make the decision not to cancel. Now, when the delegate comes to perform the task they are the two decisions that the delegate can make. When it comes to the AAT, at paragraph 17 of the AAT’s decision, the Deputy President says there is no issue that:
he has a substantial criminal record –
but finds that there are reasons to exercise that the discretion should be exercised. So the decision that the AAT actually comes to is, as the Deputy President says, that the visa should not be cancelled. It is the decision not to cancel the visa. Now, is that authorised by section 501(2)?
MR JOHNSON: Yes, one could decide not to cancel the visa, but what you are then doing is leaving – sorry ‑ ‑ ‑
KEANE J: You say that you are leaving the power unexercised?
MR JOHNSON: Yes, if ‑ ‑ ‑
KEANE J: Is not the difficulty with that that you are treating the grant of the power in 501(2) as if it were a grant of a power to a decision‑maker whose powers are hedged in by all these qualifications that published law introduces – you are treating the conferral of that power as a grant of a power to cancel a licence or a lease on the lessee or the lessor or the licensor, which can be exercised at the whim of the lessor or the licensee, without reference to the body of public law considerations that trench upon the decision‑making power of the Minister.
MR JOHNSON: No, I would engage with that, your Honour. The administrative decision‑maker is not simply acting at will. He or she has to act according to law and of course it is within authority for the person to say either, “I think this should be cancelled” or “I don’t think it should be cancelled”. But that which the section envisages being exercised, a power to cancel the visa, is a decision which, if the person finds that the visa should be cancelled as a matter of discretion, well, then the visa comes to an end. That decision has an effect. If, on the other hand, the person is not of that view and would have weighed the discretionary factors against a cancellation, the visa just remains on foot.
KIEFEL CJ: Mr Johnson, we might be at cross‑purposes, but on the view that I put to you about the proper description of the power being one to make a decision based upon the statutory requirements and public law requirements, as Justice Keane pointed out, if one views section 501(2) as the power to make a decision whether to cancel or whether not to cancel, the point is, is it not, that once the delegate or the AAT enters upon that task and completes it and makes a decision, the power has been exercised. That is the point.
MR JOHNSON: Your Honour, obviously I am arguing against that on the basis that Justice Bromwich in particular outlined. I will not repeat that, but obviously the primary position that I am contending is that you either make a decision to cancel, or you do not. But if, on the other hand, the alternative view is correct - and as I indicated to you, Justice Mortimer for instance in Parker was of the view that your Honour is suggesting - if that view is correct, well, then the power could still be exercised if there was a material change of circumstances and section 33 of the AAT Act would be available.
GAGELER J: I am sorry, are they alternative – I am just not getting the material change of circumstances – are they are alternatives that you are putting there?
MR JOHNSON: If you have the material change of circumstances, well, then the power can be re‑exercised without resort to section 33.
GAGELER J: How?
MR JOHNSON: I am sorry - if you have a material change of circumstances, then section 33 would authorise the re‑exercise of the power, assuming that there had previously been an exercise of the power. One only gets to the point of not needing section 33 if the proper characterisation of events, as suggested by Justice Besanko and Justice Bromwich, is that there has been no exercise of the power to cancel.
KIEFEL CJ: Would the change of circumstances, to be material, have to be that there was a different basis upon which the person failed the character test?
MR JOHNSON: No, no, they were quite clear about this. These cases proceeded upon the basis – Parker and this one. Indeed, there was another Full Court decision which we briefly mentioned in our written submissions called Asaad which followed Parker.
KIEFEL CJ: So, you say it goes to the second limb, the decision‑making process, the material change of circumstance goes to the exercise of discretion.
MR JOHNSON: Exactly.
KIEFEL CJ: So, it is a circumstance which could not have been before the decision‑maker in the first place and which could have had a material change in the outcome.
MR JOHNSON: Yes, and if I have not been clear about that, I apologise.
EDELMAN J: Why would you need to make that implication or to draw that implication from the second limb of section 501(2)(a) when you have 501(6)(c)?
MR JOHNSON: Section 501(6)(c) is one of the gateways for not passing the character test. What Justice Kiefel, with respect, was clarifying, as I understood it, was that when we speak of a material change of circumstances what we have in mind and what the Full Court in Parker and Justices Bromwich and Besanko in the present case had in mind is a material change going only to the exercise of discretion after you are satisfied as to the character test. So, we are at the discretionary stage of section 501 not the character test phase of section 501.
KIEFEL CJ: On your submission, that remains the same. It is the objective fact of the criminal conviction ‑ so it remains on your submissions – that remains for all purposes.
MR JOHNSON: That is correct. That is correct.
GORDON J: Do you accept that in the 501(6)(c) analysis one would take into account all of the factors, both the objective facts under (a) plus this additional material you say would otherwise only go to discretion?
MR JOHNSON: Again, your Honour, the same question. Section 501(6)(c) ‑ ‑ ‑
GORDON J: The answer requires yes or no, does it not, I think?
MR JOHNSON: Well, 501(6)(c) is a gateway to not passing the character test.
GORDON J: That is right and under (6)(c) one can take into account of that limb not only the objective facts that satisfy (a) but the other additional facts and matters.
MR JOHNSON: One could, your Honour, yes.
GORDON J: So, this is…..if you accept the power has been exercised and there is no change in circumstance then the Minister retains the override under section 501A?
MR JOHNSON: Well, yes. The Minister definitely has the override in 501A, your Honour, but the question here is really whether he needs it. Just to be clear, what we say is we are dealing with somebody who has already not passed the character test and the question is whether or not a material change, in effect, is going to exercise the discretion, something which realistically could affect the exercise of the discretion. It would enable the discretion to again be exercised as a discretion under section 501(2) based on the same failure to pass the character test.
EDELMAN J: Mr Johnson, if you were to express expressly that which you say arises by implication, how would it be expressed?
MR JOHNSON: Justices Bromwich and Besanko both addressed this question arriving at different conclusions.
EDELMAN J: Perhaps you could tell me what the Minister’s position is as to how you say 501(2), or 501(2)(a) and (b) would be expressed if it included expressly the implication.
MR JOHNSON: The implication - sorry, could your Honour just bear with me a moment?
KIEFEL CJ: Perhaps you might like to have a look at that while the Court takes an adjournment.
MR JOHNSON: Yes, I wanted to go to Brown, your Honour. That is what I was struggling to find, the passage in Brown.
KIEFEL CJ: The Court will take its morning adjournment.
MR JOHNSON: Thank you, your Honour.
AT 11.11 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.26 AM:
KIEFEL CJ: Yes, Mr Johnson.
MR JOHNSON: Yes, thank you, your Honours. In answer to your Honour Justice Edelman’s question, if the implication thought to be required by Justice Bromwich in Brown at 180 were to be implied, well, then, the implication would be something to the effect that in a case where there has been an earlier decision under this subsection not to cancel the person’s visa there has been a material change in the facts and circumstances. So that would be the effect of the change.
KIEFEL CJ: Are you moving then to the notice of contention, Mr Johnson?
MR JOHNSON: I was going to leave the notice of contention to reply, if that accords with your Honours’ convenience.
KIEFEL CJ: I think you could probably deal with it at this point.
MR JOHNSON: I am happy to do that, your Honour. Could I correct one other thing that I said before to Justice Edelman or, at least, elaborate upon it.
KIEFEL CJ: Yes, of course.
MR JOHNSON: Your Honours will recall that the discussion that we were having about whether the process of Tribunal review could go on, and I referred the Court to section 500(1)(b) of the Migration Act, which has the effect that the Tribunal could only review delegates – well, it is only delegates’ decisions that authorises the review, as opposed to Ministers’ decisions. Section 501A(5) is to be borne in mind in that respect as well, because it provides that power under subsection (2) or (3) – that is (2) or (3) of section 501A - may only be exercised by the Minister personally.
So, if I could move to the notice of contention. Two ways in which legal unreasonableness were contended are answered in paragraphs 9 and 10 of our reply. Firstly, in relation to the proposition that it was legally unreasonable to see the 2017 PCA offence as bearing upon the risk posed by the respondent, including as to sexual offences, the short answer is that, on the Minister’s findings, the respondent’s drinking had played a role in such offending and he had a need for further alcohol rehabilitation. So it went to the risk that he posed of similar offending.
That was a conclusion within the range of what would be available to the Minister acting reasonably. In relation to that proposition, can I ask your Honours to go to our reply in paragraph 9. The proposition that there was evidence or material before the Minister on a link between alcohol and the respondent’s past offending, including sexual offending, and as for alcohol being a risk factor for him, we have referred to evidence in footnote 13 and in particular there was a report from a Dr Ashkar before the Minister, and we have given a number of paragraph numbers of that report.
Dr Ashkar refers repeatedly to the applicant having been drinking at the time of a prior offending and suggests that there is in that sense a link. That was something which he was opining on the history given to him by the applicant. I am happy to take your Honours to the various relevant paragraphs of Dr Ashkar’s report if your Honours wish, and I think ‑ ‑ ‑
KIEFEL CJ: I do not think that will be necessary, thank you, Mr Johnson.
MR JOHNSON: Thank you, your Honour. Then, also, in addition to that evidence, there was evidence before the Minister in the form of a statement from the applicant’s mother, and if we go to page 321 of the respondent’s further materials, quite a large book of material more recently filed, I will give your Honours an opportunity to find that. At page 321, or the page numbered RM321, there is a letter dated 14 August 2017 to the Department of Immigration. In the fifth paragraph of that letter, in the third sentence, she says:
I am also aware of his continued drinking problem which I have been and continue to support him in his effort to recovery. I am however willing to continue to support him in rebuilding his life, his relationships, including pursuing education and a career.
Dr Ashkar’s report incidentally, and I will not take your Honours to the paragraphs, of course, but the report starts at RM328, and we have also referred again in footnote 14 to paragraphs within the Minister’s reasoning, so you can see his reasoning process, and I took your Honours to that at the beginning. We add that both the primary judge, Justice Burley, and
Justice Bromwich found there was no legal unreasonableness in the finding, and the plurality of the Full Court did not address the question, they decided the matter entirely on the legal issues that were the subject of the appeal.
In relation to the other point which is raised in the notice of contention to the effect that it was legally unreasonable for the Minister, at paragraph 95, to make reference to the respondent’s aunt and extended family in Zambia, as he did, we say that there was no finding made by the Minister that specific assistance would be given, and the balance at paragraph 95 accepts that the respondent would:
face practical and financial hardship in adjusting to life in Zambia.
The Minister had earlier noted, at 92, that the respondent had little contact with Zambia since coming to Australia, and both Justice Bromwich and the primary judge, we say, were correct to reject the argument as they did, at paragraphs 44 of the primary judgment and 47 to 48 of Justice Bromwich’s judgment. The Minister’s approach was not arbitrary or irrational. It was a predictive finding that these relatives might go some way towards helping him in adjusting. But it was a predictive finding. It was not dependent upon specific evidence that one or more of the relatives would give specific assistance.
Your Honours, those are the two ways in which it is contended that there was legal unreasonableness. There is another paragraph of the notice of contention upon that, but that really comes down to the proposition that the power was not available to the Minister, and that is dependent upon the appeal.
KIEFEL CJ: Within your substantive argument?
MR JOHNSON: Yes. So, if your Honours please, those are the Minister’s submissions.
KIEFEL CJ: Thank you, Mr Johnson. Yes, Mr Ahmad. Mr Johnson has some housekeeping to do first, Mr Ahmad.
MR JOHNSON: I have some housekeeping to do, yes. I apologise to my friend and to your Honours - new habits, your Honour.
KIEFEL CJ: Yes.
MR AHMAD: I thank my learned friend. Thank you, your Honours. Might I start by embracing some propositions that fell between your Honours and my learned friend, all of which I will develop in due course by reference to the respondent’s outline of oral argument and the several questions that I and my learned friend, Dr Donnelly, articulate in the document.
The first point I wish to identify is Justice Gageler’s observation that paragraphs 100 to 104 of the decision were conclusions that could have and were available to be made by the original decision‑maker in 2013. Might I also make this observation as consistent with what I describe as question 8 to what is the textual implication of section 501(6)(c) of the Migration Act, does it provide a complete answer, and we say respectfully it does.
Might I also make this observation that the question of the Minister’s position by reference to the same facts, material new facts or tangential ancillary facts has been illusive and the constructional choices that are open to the Court on the Minister’s construction very much require an analysis of those different propositions because if the power is conditioned on new material facts, why can it not be the same facts, and if it is the same facts, why would it not be inherently circular for all time, as Justice Edelman observed, that is, section 501(2) could be used again and again and again for any ministerial change of mind and, yes, 501B of the Migration Act precludes an AAT Tribunal review by reference to the Minister, but it is always open to the delegate, and 501(2) is a power that the Minister can decide who will exercise – the delegate or himself personally. Each have different consequences.
The Minister’s construction I say respectfully is to leave the discretionary limb of section 501(2) open for all time as though Mr Makasa, who sits behind me, will forever be subject to scrutiny of any conduct.
GAGELER J: What is it that you say shuts the door to a second exercise of discretion. Is it simply the first exercise of discretion under section 501(2) or is it the decision of the AAT or is it something else?
MR AHMAD: It is a combination of both, might I say respectfully, but the ‑ ‑ ‑
GAGELER J: Are they alternatives?
MR AHMAD: I will answer it this way if I might, your Honour. Section 501(2) is conditioned on the satisfaction of a jurisdictional fact. It is not the triggers that are in 501(7) or the definitions of what fails a character test. Once the satisfaction of the jurisdictional fact, suspicion and acceptance, has been triggered then the controversy arises and the controversy is resolved in an administrative sense that has finality and character by reference to the Administrative Appeals Tribunal decision with all of the – if I may respectfully, bells and whistles that that Tribunal acts under by reference to its statutory source of powers, functions, processes.
But, I say respectfully, it also equally applies as a matter of statutory construction to the delegate because what we are actually doing when we are focusing on the words “exercising a power to cancel” we are respectfully being distracted by syntax, nomenclature. What is power to cancel mean? It is, in fact, as the Chief Justice identified, it is the discretionary choice that has an apparent effect on legal rights that carries the finality.
EDELMAN J: Is the finality just from the decision under 501(2) and any decision of the AAT or is it from the whole of the scheme of the part including, for example, the existence of 501(2)(a), the existence of 501(6)(c), and so on?
MR AHMAD: Yes, but the answer is definitely by reference to the scheme but before we get to the solution, if I might say respectfully, we need to understand the problem that has arisen here and that is why I start in the oral argument by saying what is the nature of administrative decision‑making that is taking place here and to that extent was the plurality right to reason it differently between the Tribunal and the delegate.
Now, our submissions and our outline make it plain that as a matter of statutory construction we say that it is available, that that finality is attracted to the delegate’s decision and the Tribunal’s decision, quite right the plurality was.
KIEFEL CJ: Is that simply because whichever way you look at it both are exercises of the power granted by statute?
MR AHMAD: If your Honours forgive me, I need to….. When we get distracted by exercise of power to cancel, we are omitting to focus on the analysis of the exercises of functions and duties. Now, the feature of the delegate in making a decision on 501(2) is provided by section 34AB of the Acts Interpretation Act. Now, that specific provision is not in your Honours’ bundle but if I can read it to your Honours if ‑ or if it is there.
KIEFEL CJ: Whereabouts do we find the Acts Interpretation Act in the ‑ ‑ ‑
MR AHMAD: I am sorry, that particular provision is not in the court book. I am reading section 34AB.
KIEFEL CJ: I see, of the AAT Act.
MR AHMAD: I apologise – of the Acts Interpretation Act:
Where an Act confers a power on a person or body . . . to delegate a function, duty or power:
. . .
(c)a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority -
So, what the delegate is actually doing – it has been conferred on by reference to section 499. Your Honours will find that in ‑ ‑ ‑
EDELMAN J: There may be a question under 34AB whether the delegate is a delegate that is contemplated by 34AB, in other words, whether section 34AB is speaking of delegation in a strict sense or delegation in a sense which might connote administrative agency.
MR AHMAD: Yes, and I think both have the same effect – as I can discern it. So, what 499 does, though, is it provides – your Honours will find this at page 15 of the joint book of authorities, volume 1. Your Honour is quite right. That power provides that:
The Minister may give written directions to a person or body having functions or powers under this Act. . . about:
(a)the performance of those functions; or
(b)the exercise of those powers.
I draw section 499 with section 34AB to make the submission that the delegate, when considering to decide to cancel a visa or not to cancel a visa – those powers which are conferred under 43(6) and 43(1) of the AAT Act on the Tribunal – are relevantly functions and duties that are entrusted to them and that is, it is not – the simple point is to say, let us not focus on Justice Bromwich’s description of this is a choice to exercise a single power and if it is not exercised it is not a power, the functions and duties have been exhausted by either the delegate but, in this case, the Tribunal to make a decision. That decision has finality in character.
GORDON J: Do you get support for that? If one looks at section 500, it identifies “decision” in the context of the ability of the AAT to review decisions as picking up the definition of “decision” in the AAT Act which includes, of course, making, refusing to make orders or doing things. Does that support that contention?
MR AHMAD: Yes, your Honour, quite.
GORDON J: Which subsection of 500 is the one that is relied upon here when it went to the Tribunal?
MR AHMAD: I believe it is 500(1)(b).
GORDON J: Under 500(1)(b), is it?
MR AHMAD: Yes.
GORDON J: Thank you.
GAGELER J: Mr Ahmad, as I see it, there are at least two ways you can win. One is to say that a decision under section 501(2) once made is final in the sense that the power cannot be re‑exercised by the Minister or a delegate. Another way is to say that the decision of the AAT, on appeal from a decision under 501(2), has that element of finality and does not allow for a decision‑maker to go back for his hat. There may be another way of getting there. But, of those two alternatives, which one do you take?
MR AHMAD: I answer directly both, because they are not mutually incompatible. Both those answers can sit together and properly. Quite rightly, the plurality in this case took a certain route and they took a route to give significance to the Tribunal’s decision. There is, of course, a consequence that we must grapple with by reference to section 43(6) – that is, the deeming effect of that decision as, for all purposes, being a decision of the delegate or the original decision-maker.
EDELMAN J: If you take the second route, how do you deal with section 43(1)(c)(ii) of the AAT Act, which empowers the Tribunal to remit the matter for reconsideration in accordance with directions or recommendations of the Tribunal?
MR AHMAD: I cannot, save to say that in this case they exercised the substitution power.
EDELMAN J: So the element of finality does not come simply from the fact of a decision by the Tribunal, but it might come from the fact of a decision that involves the exercise of a substitution power?
MR AHMAD: Yes, which was the same power that was entrusted to the delegate.
GORDON J: You would say, just to complete that circle, on both of those pathways that have been put to you, they would sit consistently, would they, with the override in 501A?
MR AHMAD: Yes, quite. In fact, the element of finality in decision‑making and the role that section 33 will play in this will turn on looking at how section 33 - the extent of its operation. If it is there to imply powers that leave the respondent in a holding pattern or if it is to be gleaned, contrary to the Act as a whole more specifically, that it is the satisfaction of the jurisdictional fact and the door that opened from that satisfaction that is the occasion that was required.
What section 33 also has is relevantly “occasion requiring” and one must glean, if the Acts Interpretation Act is not a source of power in itself but the source of the power is the enabling statute, then what does “occasion requires” mean? Does “occasion requires” mean the same facts, if there is any change of mind, or is it in fact a forward-looking concept, as Justice Perram described in MJD at paragraph 30. I will take your Honours to this. I am jumping probably to the middle of my submissions but I am quite happy to engage in this.
GAGELER J: I want you to tell me one more time. The provision of the Acts Interpretation Act to which you refer, section 33, is a provision relevantly about how we construe section 501(2). It is subject, like any other provision of that Act, to a contrary intention ‑ that is subsection(2)(ii).
MR AHMAD: Quite.
GAGELER J: Both of the pathways that I put to you before are different ways of seeing a contrary intention in the scheme of the Act.
MR AHMAD: Yes, your Honour.
GAGELER J: Is there another pathway or does that really exhaust the scope of your argument?
MR AHMAD: They are both pathways but there might be a third hybrid pathway.
GAGELER J: Do you put it?
MR AHMAD: Yes.
GAGELER J: What is it?
MR AHMAD: That section 33 does not have a role to play because the Act is so prescriptive in its sense. Your Honour, that might well be the contrary intention, so that might just be that second pathway. I do not want to overcomplicate that analysis.
GAGELER J: But I want to understand your analysis.
MR AHMAD: Yes.
GAGELER J: I understand the two pathways. Is there something else?
MR AHMAD: No. I hope it will be more elucidated as I develop the point. There are generally six themes that we explore in our written submissions as to why the implications for the invocation of a new jurisdictional fact – that is how Justice Bromwich described it: “a jurisdictional fact”, at paragraphs 180 and 205.
KIEFEL CJ: Just excuse me for a moment. Mr Ahmad, the Court does not need to hear further from you just at this point. It will adjourn to consider the course that it will take.
MR AHMAD: If the Court pleases.
AT 11.57 AM SHORT ADJOURNMENT
UPON RESUMING AT 12.00 PM:
KIEFEL CJ: Mr Johnson, is there anything that you would wish to add by way of reply to the written and oral submissions of the respondent?
MR JOHNSON: Only very, very, very briefly, your Honour. Firstly, section 499 of the Act obviously is not relevant here. That is the power to give directions. This is a decision made by the Minister personally. It has nothing to do with the issues before this Court. Section 496 is the delegation power, but in relation to the question of finality, the decision of the AAT may very well be determinative of the application for review, subject to any appeal to this Court, but the AAT decision does not, of its nature, have finality in the sense of binding the determination of future questions of fact that might arise between the parties. So I have nothing further to add.
KIEFEL CJ: Thank you. The Court will then adjourn to consider the course that it will take.
AT 12.02 PM SHORT ADJOURNMENT
UPON RESUMING AT 12.03 PM:
KIEFEL CJ: In this matter, the Court is unanimously of the view that the appeal should be dismissed with costs. The order of the Court is that the appeal be dismissed with costs. Reasons will be published at a later date.
The Court will now adjourn until 9.30 am tomorrow.
AT 12.03 THE MATTER WAS CONCLUDED
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