SZAJF v MIMIA

The High Court of Australia heard an appeal in the matter of SZAJF and MIMIA. The dispute concerned the interpretation of a provision within the *Migration Act 1958* (Cth) relating to the cancellation of a visa. The appellant, SZAJF, sought to challenge the lawfulness of the cancellation of their visa by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA).

The central legal issue before the High Court was whether the Minister's delegate had the power to cancel the appellant's visa under section 501(2) of the *Migration Act 1958* (Cth) when the delegate was not the person who had made the initial decision to refuse to grant the visa. Specifically, the court had to determine if the delegate's power to cancel was contingent on them having personally formed the opinion required by section 501(2) at the time of the original refusal, or if the power could be exercised by a delegate who formed that opinion subsequently.

McHugh and Heydon JJ, in their joint judgment, reasoned that the power to cancel a visa under section 501(2) is a distinct power from the power to refuse to grant a visa. They held that the delegate's authority to cancel the visa was not dependent on them having been the decision-maker at the initial refusal stage. The critical factor was that the delegate possessed the requisite authority to exercise the powers conferred by the *Migration Act 1958* (Cth) at the time of the cancellation decision and had formed the necessary opinion that the appellant did not pass the character test. The court applied the principle that statutory powers are to be construed according to their plain language, and that a delegate can exercise powers conferred upon them by the Act, even if those powers are exercised at a different stage of the migration process than an earlier decision made by another officer.

The appeal was dismissed.