Wong v MIMIA

The High Court of Australia considered an appeal by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) against a decision of the Federal Court of Australia concerning the immigration status of Mr. Wong. Mr. Wong, a citizen of Malaysia, had been granted a protection visa in Australia. The Minister sought to cancel this visa under section 501(2) of the *Migration Act 1958* (Cth), which allows for cancellation if a person does not pass the character test. The Minister's decision to cancel the visa was affirmed by the Administrative Appeals Tribunal (AAT). Mr. Wong then sought judicial review of the AAT's decision in the Federal Court, which found in his favour, quashing the AAT's decision. The Minister appealed this decision to the High Court.

The central legal issue before the High Court was whether the Minister, in considering whether to exercise the power to cancel Mr. Wong's visa under section 501(2) of the *Migration Act*, was bound by the findings of the AAT regarding Mr. Wong's character. Specifically, the court had to determine if the Minister was entitled to form an independent view on Mr. Wong's character, notwithstanding the AAT's previous assessment, or if the Minister was required to accept the AAT's findings as determinative for the purposes of the character test.

The High Court, by majority, held that the Minister was not bound by the AAT's findings on character when exercising the power under section 501(2). The court reasoned that the power to cancel a visa under section 501(2) is a personal power vested in the Minister, requiring the Minister to be satisfied that the person does not pass the character test. This satisfaction must be formed by the Minister, and the Minister is entitled to reach their own conclusion on the evidence, including evidence that was before the AAT. The AAT's role in reviewing the initial decision to grant a visa did not preclude the Minister from forming an independent assessment of character for the purpose of visa cancellation under section 501(2). The court applied principles of administrative law concerning the exercise of personal powers by a Minister.

The High Court allowed the appeal, setting aside the order of the Federal Court and remitting the matter to the Federal Court for further consideration.