XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2021] FCA 619

FEDERAL COURT OF AUSTRALIA
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619

Appeal from: Application for judicial review of the Administrative Appeals Tribunal decision delivered on 11 September 2019 by Senior Member M Griffin QC

File number(s): NSD 1570 of 2019

Judgment of: BURLEY J

Date of judgment: 8 June 2021

Catchwords: MIGRATION – judicial review of Administrative Appeals Tribunal (‘Tribunal’) decision under s 501CA(4) of the Migration Act 1958 (Cth) (‘Act’) to not revoke delegate’s visa cancellation decision under s 501(3A) – whether reasoning in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 applies to power under s 501(3A) – where decision made under s 501(3A) affected by jurisdictional error – whether validity of s 501(3A) decision affects Tribunal’s ability to conduct review under s 501CA(4) – where Tribunal misapplied Direction 79 in considering the expectations of the Australian community – whether error material – application dismissed

Legislation:
Acts Interpretation Act 1901 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth)

Australia, House of Representatives, Migration Amendment (Character and General Visa Cancellation) Bill 2014

Cases cited:
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37; 24 ALR 307

Corporation of the City of Enfield v Development and Assessment Commission [2000] HCA 5; 199 CLR 135

Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333

FYBR v Minister for Home Affairs [2019] FCAFC 185; 319 ALR 601

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123

Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188

Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; 268 FCR 379

Minister for Immigration and Border Protection v Makasa [2021] HCA 1

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500

Plaintiff S174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

VKTT v Minister for Home Affairs [2019] FCA 1018

Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112

Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 112

Date of last submissions: 1 March 2021

Date of hearing: 24 July 2020

Counsel for the Applicant: Mr T Bagley

Counsel for the First Respondent: Ms R Francois

Solicitor for the First Respondent: Clayton Utz

ORDERS

NSD 1570 of 2019

BETWEEN:
XJLR

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

BURLEY J

DATE OF ORDER:

8 JUNE 2021

THE COURT ORDERS THAT:
1.The application be dismissed with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
BURLEY J:

1         INTRODUCTION

[1]

2         THE BACKGROUND

[7]

3         RELEVANT LEGISLATION

[24]

4         THE DECISION OF THE TRIBUNAL

[30]

5         GROUND 1

[40]

5.1      Introduction

[40]

5.2      The submissions

[41]

5.3      Consideration of ground 1 and the jurisdictional fact issue

[45]

5.3.1    Introduction

[45]

5.3.2    Minister for Immigration and Border Protection v Makasa [2021] HCA 1

[51]

5.3.3    Application of Makasa to ss 501(3A) and 501CA

[57]

5.3.4    Application to the present facts

[78]

6         GROUND 2 – ERROR IN APPLICATION OF DIRECTION 79

[96]

6.1      The submissions

[96]

6.2      Consideration

[98]

7         DISPOSITION

[112]

1.                 INTRODUCTION

The applicant was born in New Zealand in 1976 and moved to Australia in 1992. He married in 1998 and had a child in that year. On 13 June 2018 a delegate of the Minister for Home Affairs purported to cancel the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). The applicant made representations in accordance with s 501CA(4)(a) to the effect that the Minister should revoke the decision to cancel the visa, but on 19 June 2019 a delegate of the Minister decided not to do so.
The applicant then applied to the Administrative Appeals Tribunal for review of the 19 June 2019 decision and on 11 September 2019 the Tribunal affirmed the decision of the delegate. The applicant seeks to review that decision in this Court.
By his Further Amended Originating Application the applicant seeks orders including: (1) a declaration that the purported mandatory cancellation decision made on 13 June 2018 was invalid and of no legal effect; (2) that the Tribunal decision be quashed; and (3) that the applicant be released from immigration detention forthwith. He relies on two grounds (particulars omitted):
(1)the Tribunal’s decision was affected by jurisdictional error as it erred in its construction of s 501(3A) of the Act;
(2)the Tribunal’s decision was affected by jurisdictional error as it erred in its construction of clause 13.3 of Direction 79.
The Minister defends the decision of the Tribunal.
The applicant was represented pro bono by Mr Bagley and the Minister by Ms Francois, both of counsel. Both provided written submissions in advance of the hearing and provided supplementary submissions after the conclusion of the hearing which addressed the decision of the High Court of Australia in Minister for Immigration and Border Protection v Makasa[2021] HCA 1. On 26 May 2021, the Minister drew the Court’s attention to Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 (Derrington J).
For the reasons set out below, I have concluded that the purported decision to cancel the applicant’s visa pursuant to s 501(3A) was affected by jurisdictional error because it relied on historical convictions already the subject of an earlier cancellation decision. However, having regard to the terms of s 501CA and the circumstances of the present applicant, ground 1 must be dismissed. I have determined that the applicant has not established jurisdictional error in relation to ground 2. The consequence is that the application must be dismissed with costs.
2. THE BACKGROUND
The relevant factual matters are not in dispute and are conveniently set out in the Minister’s written submissions and the Tribunal decision.
The applicant was born in 1976 and moved to Australia from New Zealand in 1992. He has committed a number of offences in Australia commencing with convictions by the Children’s Court in 1993 and extending to offences in June 2018.
On 4 June 2015 the applicant was sentenced to 45 months imprisonment for the offence of possessing greater than three unregistered firearms. On that date he also received concurrent sentences of 10 months for the offence of entering a dwelling with the intention to steal and 10 months for the offence of “possess or use of prohibited weapon without permit” (the 2015 sentences).
On 25 July 2016 the applicant’s visa was the subject of mandatory cancellation under s 501(3A) of the Act (the 2016 cancellation decision).
On 3 August 2016 he was released on parole and then taken into immigration detention.
On 20 September 2016 a delegate of the Minister revoked the mandatory cancellation pursuant to s 501CA(4) of the Act (2016 delegate’s decision) stating:
I accept that the firearm offences are serious however there is no evidence that [the applicant] has engaged in violent offending. [The applicant] has serious health issues, has been in Australia over 25 years, has a wife and daughter he lives with in Sydney. On the basis of the countervailing issues, I have revoked the visa cancellation.
The applicant was then released from immigration detention although he remained on parole.
On 4 October 2017 the applicant was found in possession of handcuffs without a permit.
In late 2017 and early 2018 the applicant was engaged in various domestic violence offences against his wife and on 20 January 2018 he was taken into custody after the last of these. He was refused bail on 21 January 2018. At about that time the applicant’s parole from his earlier 2015 sentences was revoked and he was required to serve the balance of his term of imprisonment, which ended on 3 May 2018.
On 2 May 2018 the applicant was convicted of the offence of “possess or use prohibited weapon without a permit” (arising from his conduct with the handcuffs in October 2017, whilst on parole) and sentenced to six months imprisonment commencing on 20 January 2018.
On 1 June 2018 the applicant was convicted of the two domestic violence offences against his wife for which he had been earlier charged and was sentenced to three months imprisonment for each. I refer to the sentences imposed on 2 May 2018 and 1 June 2018 collectively as the 2018 sentences.
On 13 June 2018 a delegate of the Minister informed the applicant that his visa had been the subject of mandatory cancellation pursuant to s 501(3A) of the Act (the 2018 cancellation). The stated bases for the mandatory cancellation was that the applicant: (1) failed to pass the character test as a consequence of him having a substantial criminal record arising from the 2015 sentences; and (2) was serving a full-time sentence of imprisonment arising out of the 2018 sentences.
The applicant was invited to make representations to the Minister about the revocation of that decision and he did so.
On 16 July 2018 the applicant was convicted of three further domestic violence offences and received sentences of 10 months imprisonment for each offence to be served concurrently.
On 19 June 2019 a delegate of the Minister considered the matter, and provided reasons as to why he had determined pursuant to s 501CA(4) of the Act not to revoke the cancellation decision (2019 delegate’s decision).
On 24 June 2019 the applicant applied to the Tribunal for a review of the 2019 delegate’s decision.
On 11 September 2019 the Tribunal affirmed the 2019 delegate’s decision.
3. RELEVANT LEGISLATION
Sections 501(1) - (3B) of the Act provide:
501     Refusal or cancellation of visa on character grounds
Decision of Minister or delegate--natural justice applies
(1)       The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note:    Character test is defined by subsection (6).
(2)        The Minister may cancel a visa that has been granted to a person if:
(a)        the Minister reasonably suspects that the person does not pass the character test; and
(b)        the person does not satisfy the Minister that the person passes the character test.
Decision of Minister--natural justice does not apply
(3)        The Minister may:
(a)        refuse to grant a visa to a person; or
(b)        cancel a visa that has been granted to a person;
if:
(c)       the Minister reasonably suspects that the person does not pass the character test; and
(d)       the Minister is satisfied that the refusal or cancellation is in the national interest.
(3A)     The Minister must cancel a visa that has been granted to a person if:
(a)        the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)        paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)       paragraph (6)(e) (sexually based offences involving a child); and
(b)       the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
(3B)     Subsection (3A) does not limit subsections (2) and (3).
For the purposes of s 501, a person does not pass the “character test” in any of the circumstances set out in s 501(6)(a)-(h). However, for the purposes of s 501(3A)(a)(i) the Minister must only cancel a visa if satisfied that the person does not pass the character test because of the operation of s 501(6)(a), which provides that a person does not pass the character test if that person has a “substantial criminal record” (as that term is defined by s 501(7)). Section 501(7) provides that for the purposes of the character test, a person has a “substantial criminal record” if that person satisfies any of the requirements of s 501(7)(a)-(f). However, for the purpose of s 501(3A), only subsection (7)(a), (b) and (c) are applicable. Therefore, for the purposes of s 501(3A), a person has a “substantial criminal record” if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more…
Section 501CA establishes a mechanism by which the Minister may revoke a visa cancellation decision under s 501(3A), providing:
501CA Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)       This section applies if the Minister makes a decision (the original decision ) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)       For the purposes of this section, relevant informationis information (other than non-disclosable information) that the Minister considers:
(a)       would be the reason, or a part of the reason, for making the original decision; and
(b)       is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)       As soon as practicable after making the original decision, the Minister must:
(a)       give the person, in the way that the Minister considers appropriate in the circumstances:
(i)        a written notice that sets out the original decision; and
(ii)       particulars of the relevant information; and
(b)       invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)       The Minister may revoke the original decision if:
(a)       the person makes representations in accordance with the invitation; and
(b)       the Minister is satisfied:
(i)        that the person passes the character test (as defined by section 501); or
(ii)       that there is another reason why the original decision should be revoked.
(5)       If the Minister revokes the original decision, the original decision is taken not to have been made.
(6)       Any detention of the person that occurred during any part of the period:
(a)       beginning when the original decision was made; and
(b)       ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(7)       A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.
Section 501BA provides for a Ministerial override of a revocation decision made under s 501CA:
501BA Cancellation of visa--setting aside and substitution of non-adverse decision under section 501CA
(1)       This section applies if:
(a)       a delegate of the Minister; or
(b)       the Administrative Appeals Tribunal;
makes a decision under section 501CA (the original decision ) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Action by Minister--natural justice does not apply
(2)       The Minister may set aside the original decision and cancel a visa that has been granted to the person if:
(a)       the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)        paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or
(ii)       paragraph 501(6)(e); and
(b)       the Minister is satisfied that the cancellation is in the national interest.
(3)       The rules of natural justice do not apply to a decision under subsection (2).
Minister's exercise of power
(4)       The power under subsection (2) may only be exercised by the Minister personally.
Decision not reviewable under Part 5 or 7
(5)       A decision under subsection (2) is not reviewable under Part 5 or 7.
Note:    For notification of decisions under subsection (2), see section 501G.
Section 33(1) of the ActsInterpretation Act 1901 (Cth) provides:
Powers, functions and duties may be exercised or must be performed as the occasion requires
(1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.
Section 33(1) applies unless there is a contrary intention: Acts Interpretation Act s 2(2).
4. THE DECISION OF THE TRIBUNAL
The Tribunal set out the background matters relevant to the application of ss 501(3A) and 501CA, noting the criminal history of the applicant. It identified the legislation applicable, including noting at [13]:
Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
The Tribunal noted that the Minister has made written directions pursuant to s 499 of the Act in the form of Direction 79 to guide decision-makers in the exercise of the s 501CA(4) revocation power. The Tribunal identified that Part C of the direction notes that the Tribunal must, to the extent that they are relevant to the case, take into account three primary considerations and other considerations. It further noted that Direction 79 obliges the decision-maker to generally give greater weight to the primary considerations than the other considerations.
At the commencement of its dispositive reasons, the Tribunal noted:
35. It is clear according to the Act that because the Applicant has a ‘substantial criminal record’ (s 501(6)(a)) he does not pass the character test. The Applicant’s [sic] accepts this.
36. The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.
In relation to the first primary consideration, being the protection of the Australian community, the Tribunal noted that the applicant had a lengthy and worryingly varied history of offending which included violent offences. It accepted the submissions of the Minister that the offending was both serious and that it was likely that the applicant would offend in the future. The Tribunal considered that this primary consideration weighed heavily against the applicant.
In relation to the second primary consideration, being the best interests of minor children in Australia, the Tribunal noted that the applicant has a granddaughter, K, in Australia, who was born in 2017. It accepted that he has a genuine interest in the child and its welfare and that there is no other male figure likely to be in the child’s life in the foreseeable future. The Tribunal considered that this weighed strongly in favour of the applicant.

In relation to the third primary consideration, the expectations of the Australian community, the Tribunal said:
[48] This consideration expresses a prima face [sic] expectation which may be ameliorated or strengthened by the particular circumstances of the particular case. Direction 79 requires an evaluation, not merely a wholesale attribution, of the Minister’s perception of community expectations. This consideration requires at least an evaluation of all relevant factors, therefore, to determine whether the stated prima face [sic] position should be adjusted. Although the discussion of this consideration appears at this point in the judgment, the consideration itself must be the subject of all relevant factors pertaining to its consideration, those factors which have been referred to and have been considered, and will be subsequently discussed under the relevant headings below. It is sufficient to say that there are a number of matters which heavily weigh against the applicant because of his past behaviour and likely future conduct. This is so, taking into account all those matters discussed above in Consideration 2 and later, which are in his favour.
[49] Having regard to the phraseology of Direction 79, it is impossible to accept other than [that] this consideration, because of the Applicant’s background, criminal history and likelihood of committing further offences, weighs against the applicant.
The Tribunal then proceeded to consider the “other considerations” identified in Direction 79. In relation to the strength, nature and duration of the applicant’s ties to Australia, it noted that he has lived in Australia since he was 16 years old. It noted that he has had a lengthy criminal history, but not one that could be described as continuous offending. He has worked in Australia but not since ill health prevented it. He has very strong family ties in Australia with a close and extended family. It accepted that he had been offered the assistance of living with his mother in Western Australia. It concluded that this consideration clearly weighed in favour of the applicant.
In relation to the impact on victims, another of the “other considerations”, the Tribunal noted that a relevant victim was his former wife, who provided evidence in support of the applicant. It concluded that this consideration weighed in favour of the applicant.
In relation to the extent of impediments to the applicant if removed from Australia and deported to New Zealand, the Tribunal noted that he had no close relatives in New Zealand, that he had spent his entire adult life in Australia, that there would be an adverse impact upon him should he be deported and that to return him to New Zealand would be to return him to the country where he suffered abuse as a child. It considered that this consideration weighed in favour of the applicant.
The Tribunal concluded as follows at [53]:
There are a number of considerations discussed above, not least of which is Consideration 2, which together weigh strongly in the Applicant’s favour. In this case, however, the Tribunal concludes that Consideration 1, the protection of the Australian community and in particularly [sic] not only the seriousness of past offences but the prospect of future offending and therefore the risk to the Australian community so strongly weigh in favour of revocation of the Applicant’s visa, that in the event, the Tribunal concludes, that the original decision should be affirmed.
5. GROUND 1
5.1 Introduction
In ground 1 the applicant contends that the Tribunal erred in its construction of s 501(3A) of the Act. In the particulars appended to this ground the applicant contends: (1) that the proper construction of s 501(3A) is that the power is “spent” in relation to particular facts once a decision has been made under that section to cancel a visa on the basis of those facts; (2) that on 25 July 2016 his visa was cancelled under s 501(3A) on the basis of him failing the character test on account of his being sentenced to 45 months imprisonment for unlawful possession of firearms in 2015, and that by reason of this decision the power conferred by s 501(3A) was spent in relation to this 2015 conviction; (3) that on 13 June 2018 his visa was again cancelled, with the delegate again relying on the 2015 conviction to conclude that he had a substantial criminal record within s 501(7)(c); (4) that the applicant’s 2018 convictions were not “serious offences” within s 501(7)(a)-(c) and the power in s 501(3A) was not re-enlivened by them. Accordingly the Minister lacked the statutory authority under s 501(3A) to cancel his visa in 2018. As a consequence; (5) the Tribunal erred as a matter of law in finding that the mandatory cancellation decision was validly made.
5.2 The submissions
The applicant submits that where a delegate has once relied on a serious criminal offence to enliven the power in s 501(3A), a fresh serious criminal offence must be committed before the power is re-enlivened. In the present case, when the delegate first cancelled the applicant’s visa on 25 July 2016, reliance was placed on the 2015 sentences to establish that the applicant did not pass the character test by reason of him having a substantial criminal record within the meaning of ss 501(6)(a) and 501(7)(c). This cancellation was then revoked in accordance with s 501CA(4). When the delegate decided to cancel his visa a second time on 13 June 2018, the delegate again relied on the 2015 sentences in finding that the applicant had a substantial criminal record within s 501(7)(c) of the Act. This time, a delegate decided not to revoke the mandatory cancellation.
The applicant submits that the Tribunal identified at [10] that an issue under review was whether the original decision to cancel the visa should be revoked under s 501 of the Act. However, it implicitly concluded that the cancellation decision under s 501(3A) was lawfully made on the basis that the applicant had a substantial criminal record and accordingly he did not pass the character test. This, the applicant submits, amounted to a misconception of a jurisdictional fact, being a criterion the satisfaction of which enlivened the exercise of the statutory power in s 501CA which was reviewed by the Tribunal.
At the hearing the applicant relied particularly on the decision of the Full Court in Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188 (Allsop CJ, Kenny, Besanko, Bromwich and Banks-Smith JJ) and sought to distinguish Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 (Griffiths, Mortimer and Perry JJ). In his supplementary submissions he relied on Makasa. The applicant noted that while those decisions are not directly applicable to the present case, because they concerned the application of s 501(2) of the Act, they nevertheless support his contention that a fresh serious criminal offence must be committed before the power is re-enlivened for another delegate of the Minister to reconsider the exercise of power pursuant to s 501(3A).
The Minister disputes the approach of the applicant and submits that three substantial propositions stand in the way of his success on this ground. First, he contends that this Court does not have jurisdiction to review the 2018 cancellation decision. This is because: (1) by operation of s 500(4A)(c), the Tribunal, whose decision is under review in this application, did not have jurisdiction to review the 2018 cancellation decision; and (2) in any event, the Federal Circuit Court, not this Court, has jurisdiction to review a cancellation decision made pursuant to s 500(3A): ss 476 and 476A. Rather, this Court has jurisdiction to review the non-revocation decision of the Tribunal made pursuant to s 501CA(4): s 476A(b). Secondly, because the 2018 cancellation decision was not reviewable by the Tribunal (s 500(4A)(c)), the statutory preconditions to the exercise of power under s 501(3A) is not a jurisdictional fact the satisfaction of which enlivens the ability of the Tribunal to conduct its review under s 501CA(4). Instead, the jurisdictional facts required to exist for the Tribunal to conduct its review are: (1) that there was, in fact, a non-revocation decision; (2) that there was an application to the Tribunal within time; and (3) that there was an application filed with the prescribed documents: ss 500(1)(ba), 500(6B) and 500(6C). Thirdly, the Minister submits that in any event the factual basis for the alleged error in the 2018 cancellation decision is misconceived, because there was a new basis upon which jurisdiction to cancel the applicant’s visa could be exercised. The Minister seeks to distinguish Brown on the basis that the 2018 sentences are plainly significant including because they involved violence, noting that the favourable 2016 delegate’s decision had been made on the basis that the applicant’s offending then at issue did not involve violence. Additionally, the Minister draws attention to the fact that the commission of the offences leading to the 2018 sentences in fact total 12 months for the purpose of s 501(7)(d) of the Act, having regard to s 501(7A). Furthermore, the second limb under s 501(3A), that the person is serving a sentence of imprisonment within (b), was satisfied by reference to different offences to those for which the applicant was imprisoned when the 2016 cancellation decision was made. In this regard, the Minister submits that the new offending on the part of the applicant which led to the 2018 sentences was relevant and important.
5.3 Consideration of ground 1 and the jurisdictional fact issue
5.3.1Introduction
Although in ground 1 the applicant contends that the Tribunal erred in its construction of s 501(3A) of the Act, in fact his contention is that the Tribunal never had jurisdiction under s 501CA(4) because the delegate erred in reaching a state of satisfaction under s 501(3A) that the applicant did not pass the character test, with the result that there was no cancellation of the applicant’s visa in accordance with that section. The consequence was that the precondition to the exercise of power under s 501CA(4) as prescribed by s 501CA(1) was never met, and so the error of the Tribunal was not merely (as ground 1 provides) one of construction of s 501(3A), but that the Tribunal erred in considering that it had jurisdiction to hear the review of the delegate’s decision under s 501CA.
The Minister contends that this point was not foreshadowed in the pleaded case. However, in the Further Amended Originating Application dated 7 July 2020 the applicant sought relief in the form of a declaration that the 2018 cancellation decision was invalid and of no legal effect. That relief was also sought in the Amended Originating Application dated 20 January 2020 on the basis of particulars to a similar effect. Furthermore, whilst complaining about the form of the pleading, the Minister did not submit that he could not address the point raised, and proceeded to do so in the course of argument. I consider that the point was sufficiently raised to enable it to be advanced at the hearing.
At this point it is helpful to recall that this is an application for review of the Tribunal’s decision made under s 501CA(4). However, given the way in which the case was argued, and specifically the applicant’s contention that a valid decision under s 501(3A) is a jurisdictional fact, the satisfaction of which is a necessary precondition to the exercise of the Tribunal’s power under s 501CA(4), it has been necessary for me to consider whether an error was made by the delegate of the Minister who made the 2018 cancellation decision under s 501(3A).
Before turning to the procedural consequences of the case as pleaded I first consider the substantive point that was argued.
In essence the applicant contends that the delegate’s power to cancel the applicant’s visa under s 501(3A) was “spent” in relation to the 2015 sentences following the delegate’s decision on 25 July 2016 to exercise that power in reliance on the fact of those sentences. He uses the word “spent” as shorthand to signify that the criminal convictions forming the basis for the 2016 cancellation were used up in that decision so that they could not also form the basis for the delegate’s satisfaction in the 2018 cancellation that he did not pass the character test. He contends that the Tribunal erred insofar as it accepted that its jurisdiction to revoke the 2018 cancellation had been enlivened, the delegate having no basis to be satisfied of the conditions set out in s 501(3A) for a cancellation decision to have been made in the first place.
It is necessary first to consider whether or not, having regard to the statutory scheme set out in the Act, the operation of s 501(3A) precludes the Minister from having regard to the 2015 sentences because they were, adopting the shorthand of the applicant, “spent” following the 2016 cancellation. As will become apparent, the reasoning on this point is also relevant to the applicant’s contention that the power under s 501CA(4) is only enlivened on the making of a valid decision under s 501(3A).
5.3.2Minister for Immigration and Border Protection v Makasa [2021] HCA 1
In Makasa the High Court considered the construction of s 501(2), which it noted conferred a single power that is exercised according to a two-staged decision-making process, that process being exercised in the first instance by the Minister or a delegate of the Minister and then re-exercised by the Tribunal under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on review: Makasa at [34]. The first stage begins with the decision-maker forming a reasonable suspicion that the visa holder does not pass the character test as prescribed by s 501(6): Makasa at [35]. If the outcome is that the decision-maker is satisfied that the visa holder passes the character test, the only decision open to the decision maker is not to cancel the visa, and the process stops there: Makasa at [39]. The second stage of the decision-making process under s 501(2) is reached only if the decision-maker maintains a reasonable suspicion that the visa holder does not past the character test by reason of the occurrence of one or other of the circumstances under s 501(6): Makasa at [40]. It involves the decision-maker exercising a discretion, the outcome of which is the making of a further binary decision either to cancel the visa in the exercise of discretion, or not to cancel it: Makasa at [40].
The end point of the decision-making process under s 501(2) is a decision whether or not to cancel the visa. This is so whether or not it is a decision reached by the Minister or a delegate in an initial exercise of the power, or a decision reached by the Tribunal on review: Makasa at [42]. The consequence of this is that:
[43] ...if the Minister or a delegate is to make a subsequent decision to cancel a visa under s 501(2) of the Act, superseding a decision of the Minister or a delegate in the first instance or of the AAT on review not to cancel the visa, that subsequent decision can only occur through a re-exercise of the power conferred by s 501(2) of the Act.
(emphasis added)
The determinative question posed by the Court in Makasa was whether, and if so when, the power conferred by s 501(2), having once been exercised, can be re-exercised to cancel the visa. That turned on an examination of whether, and if so to what extent, there appeared sufficiently for the purposes of s 2 of the Acts Interpretation Act an intention, manifest from the scheme of the Act and the AAT Act, contrary to the application of the general prescription in s 33(1) of the Acts Interpretation Act that a statutory power “may be exercised...from time to time as occasion requires”.
In this regard, in a passage upon which the Minister places some reliance in this case, the Court said at [48]:
Turning then to the scheme of the Act and the AAT Act, it is important at the outset to recognise that nothing in the legislative scheme indicates an intention to displace the application of s 33(1) of the AI Act to the power conferred by s 501(2) of the Act to the extent that subsequent events or further information not previously before the Minister or a delegate provide a different factual basis upon which to form a reasonable suspicion that a visa holder does not pass the character test. A new sentence of imprisonment amounting by operation of s 501(7)(c), or contributing by operation of s 501(7)(d), to the coming into existence of a new substantial criminal record within the meaning of s 501(6)(a) is an example. A new conviction providing a reasonable basis for making a revised assessment of the visa holder's "character" - his or her "enduring moral qualities" - under s 501(6)(c) is another example. Section 501(6)(c) was not argued to be engaged in this appeal.
The High Court then considered the circumstance where there are no subsequent events or further information providing a different factual basis for the decision-maker to form a reasonable suspicion that a visa holder does not pass the character test. In this circumstance, the High Court considered that an intention contrary to the application of the general prescription in s 33(1) of the ActsInterpretation Act emerged by reference to two principal considerations. First, having regard to the generic operation of the AAT Act, the High Court discerned an intention not to allow further re-exercise of a power by a primary decision-maker (for example, a delegate of the Minister) after re-exercise of that power by the AAT under s 43(1)(b) or (c)(i) of the AAT Act on review. It considered that the function of the AAT “to do over again” that which was done by the primary decision-maker would be reduced to a mockery where the subject-matter of the decision made by the AAT on review was able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the AAT in the conduct of the review (Makasa at [50]). Secondly, the High Court held that a broader intention to limit the application of s 33(1) of the Acts Interpretation Act to the power conferred by s 501(2) could be found in s 501A of the Act, the purpose of which is to confer specific powers on the Minister to revisit and reverse a decision not to cancel a visa in the exercise of the power conferred by s 501(2), whether that decision is made by the delegate or the Tribunal: s 501A(1); Makasa at [52]. The powers of Ministerial override could be exercised by the Minister without the need for any change to the factual basis on which the delegate or the Tribunal formed its reasonable suspicion that the visa holder did not pass the character test. The High Court found:
[54] However, the circumstance that each of the specific powers conferred on the Minister by s 501A(2) and s 501A(3) can only be exercised by the Minister personally and can only be exercised if the Minister is satisfied that cancellation is in the national interest is sufficient to invoke the well-settled principle of construction that "when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power". The further qualifications imposed by s 501C on an exercise of power under s 501A(3) reinforce the application of that interpretative principle.
[55] Hence, s 501A of the Act must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, read in light of s 33(1) of the AI Act, to revisit and reverse a previous decision of a delegate not to cancel a visa made in the exercise of the power conferred by s 501(2) where there has been no change to the factual basis on which the previous decision-maker, be it the Minister or a delegate or the AAT, formed a reasonable suspicion that the visa holder did not pass the character test in making the previous decision not to cancel a visa.

The Court concluded:
[56] The result, in short, is that a decision of a delegate or the AAT not to cancel a visa made in the exercise of the power conferred by s 501(2) of the Act on the basis of facts giving rise to a reasonable suspicion that a visa holder does not pass the character test is final, subject only to ministerial override in the exercise of the specific power conferred by s 501A.
[57] The Minister or a delegate can re-exercise the power conferred by s 501(2) to cancel the visa if subsequent events or further information provide a different factual basis for the Minister or a delegate to form a reasonable suspicion that a visa holder does not pass the character test at the first stage of the requisite two-stage decision-making process. But neither the Minister nor the delegate can rely on subsequent events or further information simply to re-exercise the discretion to cancel the visa at the second stage of the decision-making process.
5.3.3Application of Makasa to ss 501(3A) and 501CA
The question arises as to whether the reasoning in Makasa with respect to s 501(2) supports the proposition that the power in s 501(3A), having been exercised once in a decision to cancel a person’s visa, can only be re-exercised having regard to a different factual basis, arising from subsequent events or further available information, than that upon which the initial decision was based.
At this point, it is relevant to observe the similarities and differences between the statutory provisions in issue in Makasa and those in this application. Section 501, of which s 501(3A) forms part, provides for the refusal or cancellation of visas on character grounds. Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(2), to which Makasa relates, provides that the Minister may 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. Section 501(3A) obliges the Minister to cancel a visa if the conditions there stated exist: Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at [11].
Section 501(3A) provides that the Minister must cancel a visa if one of the preconditions in subsection (a) is met and the visa holder is serving a sentence of imprisonment as set out in subsection (b). The decision to cancel may be made by either the Minister personally or by a person to whom the Minister’s powers have been delegated under s 496. No discretion is reposed in this decision-maker. It is often referred to as a “mandatory cancellation” provision. It is, however, to be noted that under s 501(3A)(a) the Minister must first be satisfied that the visa holder does not pass the character test. “Satisfaction” requires an actual persuasion of the occurrence or existence of the thing in issue: Makasa at [38]; Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361. This is cognate with the state of mind that the decision-maker must reach under s 501(2)(b) in what the High Court in Makasa described as part of the first stage of the decision-making process under s 501(2). There is, however, no requirement that the decision-maker have a reasonable suspicion as required by s 501(2)(a), nor is there a requirement that the visa holder satisfy the decision-maker that they do pass the character test as required by s 501(2)(b). Nor does s 501(3A) require the decision-maker to exercise the discretion to either cancel or not cancel the visa in what the Court in Makasa described as the second stage of the decision-making process. Upon being satisfied that the person does not pass the character test and if the person is serving a sentence of imprisonment within s 501(3A)(b), the visa must be cancelled; no further consideration on the part of the Minister is required. The Tribunal has no power to review a decision made under s 501(3A). Instead, s 501CA applies and provides a basis for the review of a decision made under s 501(3A) to cancel a visa. By s 501CA(4) the Minister, a delegate, or the Tribunal has a discretion to revoke a cancellation decision under s 501(3A) if the visa holder makes representations in accordance with an invitation given pursuant to s 501CA(3)(b) and the Minister is satisfied either: (1) that the person passes the character test; or (2) there is another reason why the original cancellation decision should be revoked. If the Minister revokes the original cancellation decision, the original cancellation decision is taken not to have been made: s 501CA(5).
When a person’s visa is cancelled pursuant to s 501(2), on review, the Tribunal stands in the shoes of the original decision-maker and exercises the exact power under s 501(2) again: Makasa at [34]. This is not the case when a review is performed on a decision to cancel a person’s visa under s 501(3A). Indeed, unlike s 501(2), the Tribunal has no power to review a decision made under s 501(3A): s 500(4A)(c). As noted above, the Tribunal’s power with respect to a decision made under s 501(3A) is sourced in a separate provision, s 501CA.
The power exercised by the Tribunal under s 501CA is different to that exercised by the decision-maker exercising the power under s 501(3A). First, the character test which the Tribunal considers under s 501CA(4)(b)(i) is broader than that considered under s 501(3A)(a). As such, the Tribunal is able to consider more factors for the purpose of determining whether it is satisfied that a person fails the character test for the purposes of s 501CA than the decision-maker is able to consider when exercising the power under s 501(3A). Secondly, under s 501CA(4)(b)(ii) the Tribunal is empowered to consider whether, notwithstanding its satisfaction that a person fails the character test, there is “another reason” why the visa cancellation decision made under s 501(3A) should be revoked. Thirdly, unlike s 501(3A) which obliges the decision-maker to cancel a person’s visa on the happening of the statutory conditions there imposed, the Tribunal’s power to revoke the visa cancellation under s 501CA(4) is discretionary. Fourth, unlike s 501CA(4), the power under s 501(3A) can only be exercised if the person whose visa is under consideration is serving a sentence of imprisonment on a full time basis at the time the decision is made: s 501(3A)(b).
It is therefore clear that when exercising its power under s 501CA(4), the Tribunal does not re-exercise precisely the same power that is exercised by the decision-maker who makes a cancellation decision under s 501(3A).
The foregoing tends to illustrate that there are some salient differences between the provisions, most notably the bifurcation of the power of visa cancellation in s 501(3A) from the revocation power in s 501CA, and the different considerations relevant to the exercise of those separate powers.
In this application, the Minister seeks to make something of this difference and urges the Court to be cautious in applying the decision in Makasa to the statutory scheme in issue in this case. This issue, as will become apparent, is relevant because it is not in dispute in the present application that, on the basis of an assessment that the applicant failed the character test due to him being sentenced to a single term of imprisonment of 12 months or greater (the 45 month sentence of imprisonment imposed in 2015), the delegate twice purported to cancel the applicant’s visa pursuant to the power in s 501(3A).
However, in my view, the structural differences between s 501(2) and s 501(3A) may be understood by reference to their different purposes. As explained in Makasa at [28] – [33], s 501(2) was inserted into the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) to replace the existing scheme with one where the burden of proof as to whether the character test is passed is placed on the visa holder. Further, the introduction of s 501A was made to enable the Minister in exceptional or emergency circumstances to act personally and decisively in matters of visa cancellation and refusal: Makasa at [33].
On the one hand, sections 501(3A) and 501CA, as well as s 501BA, formed part of a suite of changes introduced with the passing of the Australia, House of Representatives, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (2014 Bill). In the Explanatory Memorandum to the 2014 Bill, it was said of s 501(3A):
32. This item ensures that the visa of a non-citizen who is in prison and objectively does not pass the character test because they have a substantial criminal record (as set out in subsection 501(7) of the Migration Act and amended by items 13 to 15 of this Schedule) or because of a sexually based offence involving a child (as set out in new paragraph 501(6)(e) inserted by item 12 of this Schedule) must be cancelled without notice to the visa holder.
33. A person whose visa has been cancelled under subsection 501(3A) of the Migration Act is able to seek revocation of this decision under new section 501CA inserted by item 18 of this Schedule. Merits review of a decision of a delegate not to revoke the decision to cancel the visa is available under new paragraph 500(1)(ba) inserted by item 4 of this Schedule.
34. The intention of this amendment is that a decision to cancel a person's visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued.
In the course of the Second Reading Speech introducing the 2014 Bill, the then Minister said that s 501(3A) was calculated to ensure that "noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved": Australia, House of Representatives, Parliamentary Debates (Hansard), 24 September 2014 at 10328; see also Falzon at [49].
Relevantly, the Minister also said (at 10327):
The third key measure this bill seeks to introduce is mandatory visa cancellation under section 501 of the act where a noncitizen is serving a full-time sentence of imprisonment in a custodial institution and they are found to objectively not pass the character test on the basis of, for example, having been convicted of an offence or offences and sentenced to a term of imprisonment of 12 months or more, or having been convicted of, or found to have been guilty of, or had a charge proved against them for a sexually based offence involving a child. Under this process, a noncitizen will have their visa mandatorily cancelled without prior notice of an intention to cancel a visa, with a notification of the cancellation decision provided after the fact. Upon notification, the noncitizen will be provided with the opportunity to seek revocation of the cancellation decision. Where a decision is taken by a delegate to not revoke the decision, the former visa holder will have access to merits review. This will be a streamlined process which will deliver the key benefit of providing a greater opportunity to ensure noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved.
(emphasis added)
It is apparent that a legislative purpose of s 501(3A) is to establish a scheme whereby a person in custody who does not pass the character test will not be released from detention until that person is removed from Australia or their immigration status is otherwise resolved: Falzon at [50]; Second Reading Speech at 10328. It is to be observed that such a decision can be made without notice to the visa holder. However, by s 501CA the person has an ability to request the Minister to revoke the cancellation and, by operation of s 500(1)(ba), an ability to seek a merits review from the Tribunal with respect to an unfavourable decision of a delegate of the Minister under s 501CA(4). This is apparent from the language of s 501CA itself which provides that after the person whose visa has been cancelled has made representations in accordance with s 501CA(4)(a), the Minister, a delegate or the Tribunal may revoke the visa cancellation made under s 501(3A).
In my view, the differences outlined at [61] above are explained by reference to the legislative purpose of the scheme established by ss 501(3A) and 501CA. First, whilst the considerations relevant to assessing the character test under s 501(3A) are narrower than those applying under s 501CA, this is explained by those chosen factors being able to be, at least in theory, assessed objectively by the Minister or a delegate in circumstances where the visa holder is not on notice of the cancellation decision: see Explanatory Memorandum at [32]. Secondly, given the visa holder is on notice and must actively participate in a decision under s 501CA(4), it makes sense that this decision takes into account “another reason” why revocation is appropriate, the visa holder being able to make submissions regarding matters favourable to them. Thirdly, the fact that there is no discretion in s 501(3A), but there is in 501CA(4), can also be explained by the intention that the power under s 501(3A) is only to be used by the decision-maker in objective circumstances, such that there is no need for discretionary considerations to be taken in account. Further, the mandatory character of the power in s 501(3A) is consistent with the purpose of ensuring the protection of the community by mandating that they are kept in custody until a time when further consideration can be given to their immigration status on review under s 501CA. Fourthly, the fact that the power under s 501(3A) can only be exercised when a person is currently serving a sentence of imprisonment is consistent with the purpose of the provision being to ensure that a visa holder who is already in custody remains there until their immigration status can be determined.
The question then arises as to whether, by operation of ss 33 and 2 of the Acts Interpretation Act, the power conferred by s 501(3A), having once been exercised by the Minister or delegate in the first instance, can be re-exercised by the Minister to cancel the visa. As in Makasa, this turns on an examination of whether there appears a sufficiently clear intention in the statutory scheme contrary to the application of the general prescription in s 33(1) that a statutory power “may be exercised...from time to time as occasion requires”. In my view, there is a sufficiently clear contrary intention which applies in circumstances where there is no new factual basis upon which the state of satisfaction required by s 501(3A) is reached at the time a subsequent decision is being made.
First, in Makasa the Court considered the generic operation of the AAT Act and the merits review function of the Tribunal to support the discernment of an intention to not allow the further re-exercise of a power by a primary decision-maker after that power has been re-exercised by the Tribunal conducting merits review: Makasa at [50]. In this respect, the Minister submits that the Tribunal is not empowered to review a decision made under s 501(3A) to cancel a person’s visa and accordingly this consideration does not arise. As noted above, it is correct that a decision under s 501(3A) is not amenable to merits review. However, for the reasons I have set out more fully above, s 501(3A) must be understood to form part of a scheme of the Act together with interlocking s 501CA. As happened in this case in relation to the 2016 cancellation decision, a decision under s 501(3A) may be revoked by the Minister, a delegate, or, upon an adverse decision of the delegate, the Tribunal under s 501CA(4). The purpose of the bifurcation of the mandatory cancellation from the review process is explained by the purpose of the provisions; to ensure that a person who can be assessed as objectively not passing the character test remains in custody until they are either deported or have their immigration status determined. For the reasons explained above, I am of the view that the scheme established by ss 501(3A) and 501CA operates to allow the Tribunal to conduct, in substance, merits review of a decision made under s 501(3A). For this reason, despite the differences between the statutory schemes, I consider the position is analogous to that considered by the High Court in Makasa under s 501(2). I consider that the nature of the merits review function performed by the Tribunal under s 501CA(4) would be significantly undermined if the power under s 501(3A) could be re-exercised on the basis of the same facts: see Makasa at [50]. This supports there being a contrary intention in the scheme of the Act to limit the operation of s 33(1) of the Acts Interpretation Act to the power under s 501(3A) absent subsequent events or further information providing a different factual basis for the formation of the relevant state of satisfaction required under that provision; here, the satisfaction that the applicant did not pass the character test within s 501(3A)(a).
Secondly, s 501BA provides for a Ministerial override in similar terms to that provided in s 501A which operates in respect of s 501(2). It provides that if a delegate of the Minister or the Tribunal makes a decision under s 501CA to revoke a decision under s 501(3A) to cancel a visa, then the Minister may set the cancellation decision aside and cancel a visa if satisfied that: (a) the person does not pass the character test for the same reasons prescribed by s 501(3A)(a); and (b) the cancellation is in the national interest. That is so, whether or not a decision to revoke the visa cancellation is made by a delegate or the Tribunal on review of the decision under s 501CA: s 501BA(1). Although the Minister submits that the operation of the Ministerial override power in s 501BA is different to that provided in s 501A, in my view the difference only concerns the bifurcation of ss 501(3A) and 501CA visited by the need to ensure that a person who is in detention and who does not pass the character test remains in custody before they are either deported or their immigration status is otherwise resolved. For the reasons given above, I do not consider that the bifurcation was affected to achieve any other end. Like s 501A, the powers of Ministerial override in s 501BA can be exercised by the Minister without the need for any change to the factual basis on which the decision-maker was initially satisfied that the visa holder did not pass the character test. In this respect the observations made by the High Court in Makasa at [53] and [54] apply equally to the position under s 501(3A).
One countervailing factor may be the language of s 501(3A)(b) which uses the active verb “the person is serving a sentence of imprisonment”. It may be said that this conveys an intention that the power may be exercised from time to time whenever the person is serving a sentence of imprisonment. In this regard, the Minister points out that at the time the applicant’s position was considered for the 2018 cancellation he was serving a sentence in respect of different offences to those for which he was imprisoned when the 2016 cancellation decision was made. In my view, the fact that s 501(3A)(b) is expressed in the present tense simply indicates that the power may only be exercised at the time the visa holder is actually in custody. I note that this is consistent with the legislative purpose of the provision I have set out above. However, the fact that a visa holder is serving a sentence of imprisonment within subsection (b) is neither here nor there unless the Minister is also satisfied that the person does not pass the character test within subsection (a); there must be a concurrence of the two conditions to enliven the power. As I have noted above, I consider the High Court’s reasoning in Makasa can be extended to s 501(3A) to the effect that if the Minister or a delegate exercises that power on the basis that they are satisfied, having regard to particular facts, that a visa holder does not pass the character test within s 501(3A)(a), the Minister or delegate may only re-exercise that power upon becoming satisfied that the visa holder does not pass the character test on the basis of subsequent events or further information which support a relevantly different factual basis.

Furthermore, the position is analogous to the facts in Makasa. Mr Makasa was convicted and sentenced for offences in 2009. In 2011, a delegate exercised the discretion under s 501(2) to cancel his visa which was eventually revoked on a re-exercise of the power by the Tribunal. In 2017, Mr Makasa was convicted of two further but relatively minor offences. The 2017 offences brought Mr Makasa to the attention of the Minister, who was then satisfied, solely by reason of the 2009 offences, that Mr Makasa did not pass the character test. The Minister then took into account the 2017 offences in forming the view that the discretion should be exercised under s 501(2) to cancel his visa: Makasa [18] – [20]. Nevertheless it was the repeat use of the 2009 offences in the review of the character test that the High Court found to be in error, notwithstanding that the facts relevant to the exercise of the discretion in the second stage of the decision making process were different. The same conclusion should be reached here.
The Minister submits that the fact that s 501CA(5) provides that if the Minister revokes the original decision, “the original decision is taken not to have been made” demonstrates that the earlier decision cannot be “spent”. He submits the effect of this provision is that when the 2016 cancellation decision was revoked by the delegate, that decision was taken not to have been made. However, I do not consider that s 501CA(5) provides a basis not to conclude, as I have done, that the general prescription in s 33(1) of the ActsInterpretation Act does not apply.
Furthermore, for the same reasons, the decision of the Full Court in Parker is not binding in the present case.
5.3.4Application to the present facts
The 2016 cancellation of the applicant’s visa pursuant to s 501(3A) occurred because a delegate was satisfied that, first, by reason of the 2015 sentences the applicant did not pass the character test within s 501(3A)(a) and, secondly, the applicant was serving a sentence of imprisonment within s 501(3A)(b). Later that year, the 2016 cancellation decision was revoked on 20 September 2016 by a delegate of the Minister exercising the power under s 501CA(4) of the Act.
On 13 June 2018 a delegate of the Minister informed the applicant that his visa had again been the subject of mandatory cancellation pursuant to s 501(3A) of the Act. In the notification to the applicant, that cancellation was expressed to have been on the basis that he did not pass the character test by reason of the 2015 sentences and that he was serving a full time custodial sentence of imprisonment at the time.
The Minister submits that Makasa does not suggest that all of the facts must be new, citing that decision at [48]. He relies on the example given in that paragraph to the effect that a change in the factual basis since an earlier decision that would be sufficient to re-enliven the power in s 501(2) would be a new sentence of imprisonment “contributing by operation of s 501(7)(d), to the coming into existence of a new substantial criminal record within the meaning of s 501(6)(a)”. However, as noted above, whilst the character test defined by s 501(6) and elaborated on in s 501(7) is applicable in the case of decisions under s 501(2), the character test is more limited in relation to the operation of s 501(3A)(a). Notably, the examples given in Makasa at [48] cannot apply because what constitutes a failure of the character test for the purpose of s 501(3A)(a) is relevantly limited to a person having a “substantial criminal record” within the definitions set out in ss 501(7)(a), (b) and (c). Accordingly, there is no occasion upon which the Minister or his delegate could have taken into account the convictions that led to the 2018 sentences when exercising the power under s 501(3A). The 2018 sentences do not fall within the type of subsequent events or further information not before the delegate at the time the of the 2016 cancellation to provide a different factual basis for the delegate to be satisfied that the applicant does not pass the character test.
Nor, in my view, can the Minister rely on the fact that, at the time of the 2019 delegate’s decision to cancel his visa, the applicant was serving a sentence of imprisonment for a different offence as a basis to contend that the delegate did not exercise the duty imposed in s 501(3A) on the basis of the same facts. As I have noted, it is necessary for each of the preconditions in s 501(3A) to be met. If the state of satisfaction required under s 501(3A)(a) is based on the same facts as an earlier decision, then that will involve re-making a determination on the basis of the same factual background. The Minister or a delegate can re-exercise the power conferred by s 501(3A) if subsequent events or further information provide a different factual basis from which that state of satisfaction can be reached, but neither the Minister nor the delegate can rely on subsequent events or further information simply to repeat the same decision on the basis of the same facts. A fresh serious criminal sentence must be imposed (within s 501(3A)(a)) before the power is re-enlivened for another delegate of the Minister to reconsider the exercise of power. That was the conclusion on analogous facts in Makasa: see [75] above.
If the Minister’s construction were correct, these provisions establish a scheme whereby a visa holder who has once been determined to have a substantial criminal record for the purposes of s 501(3A)(a)(i) will be subjected to a visa cancellation if they are ever to again serve a full-time custodial sentence of imprisonment within s 501(3A)(b). This is notwithstanding whether the Tribunal has already revoked a previous cancellation under s 501CA(4), or the length of the subsequent term of imprisonment or the nature of the offence for which it is imposed. For the reasons given above, I do not consider that this is the correct construction of the scheme established by ss 501(3A), 501BA and 501CA.
In Zyambo, Derrington J concluded that the decision in Makasa was not relevant or analogous to consideration of the correct approach to s 501(3A) substantially due to the structural differences between ss 501(3A) on the one hand, and s 501(2) on the other: see [43]-[44]. However, his Honour did not have the benefit of a contradictor to the position put on behalf of the Minister and did not refer to the underlying policy and purpose of the sections which have persuaded me of the matters to which I have referred above. Accordingly, I must respectfully disagree with the reasoning in Zyambo to the point that I do not consider that it is appropriate for it to be followed.
For the reasons set out above, the power conferred by s 501(3A) cannot be re-exercised in respect of a conviction after a decision has been made to exercise the power by reference to that same conviction. It follows that in the circumstances of this case, the delegate lacked the statutory authority under s 501(3A) to cancel the applicant’s visa in the 2018 cancellation decision. This is because the 2018 cancellation decision was based on the delegate being satisfied that the applicant did not pass the character test on the basis of the same conviction upon which the delegate was satisfied that the applicant did not pass the character test in the 2016 cancellation.
As a consequence, the delegate did not have power to make the 2018 cancellation decision under s 501(3A). The exercise of this power was based on an erroneous construction of s 501(3A). This error was clearly material because had it not been made it is, at the very least, realistic that applicant’s visa would not have been cancelled. I am therefore satisfied that the 2018 cancellation decision is affected by jurisdictional error and “to be regarded for the purpose of the law pursuant to which it was purported to be made as ‘no decision at all’”: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [24] (Kiefel CJ, Gageler and Keane JJ); see also MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [29] and [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
Section 501CA only applies if the Minister (or a delegate) makes a decision under s 501(3A) to cancel a visa that has been granted: s 501CA(1). So expressed, the satisfaction of s 501CA(1) is a precondition to the exercise by the delegate of the power under s 501CA(4) to revoke the cancellation decision, and a precondition to the exercise of power under a merits review of that decision by the Tribunal as is enabled by s 500(1)(ba). It is a requirement, the satisfaction of which enlivens the power of the Minister, a delegate of the Minister or the Tribunal on review, to exercise a discretion, and may be termed a jurisdictional fact: Corporation of the City of Enfield v Development and Assessment Commission [2000] HCA 5; 199 CLR 135 at [28] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
However, that is not the end of the matter. The question arises as to whether, notwithstanding the legal invalidity of the decision purportedly made by the delegate under s 501(3A), the Tribunal is capable of exercising the power under s 501CA(4) to revoke the cancellation decision. This question essentially turns on the statutory construction of the precondition stated in s 501CA(1) to the exercise of power under s 501CA(4); specifically, whether the word “decision” in s 501CA(1) should be understood to include within its scope a decision which is in fact made, regardless of whether it is an effective decision. Such a decision might also be expressed to be a purported decision. In this context the reasoning in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37; 24 ALR 307 at 313-315 (Bowen CJ) and 334-337 (Smithers J) applies: see Plaintiff S174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [39] (Gageler, Keane and Nettle JJ).
As a consequence of the separation of the cancellation power under s 501(3A) from the revocation power under s 501CA(4), a Tribunal review under s 501CA(4) does not involve the Tribunal standing in exactly the same shoes as the decision-maker who exercised the power under s 501(3A). Indeed, s 500(4A)(c) forecloses such a proposition by precluding the Tribunal from conducting a merits review of a decision of a delegate made under s 501(3A). Section 501CA(4) is the only means by which a review can be conducted of a decision under s 501(3A) on its merits. This power is only enlivened in circumstances when s 501CA(1) is satisfied; s 501CA(1) is the gateway to s 501CA(4). These matters indicate that the fundamental reason why the Full Court in Brian Lawlor adopted its construction of the word “decision” in the context of s 25 of the AAT Act, is equally applicable in this context; if only valid decisions made under s 501(3A) are amenable to review under s 501CA(4) then certain decisions most in need of review, being those made in want or excess of jurisdiction, would be precluded from merits review: Plaintiff S174/2016 at [39].
Furthermore, if the power under s 501CA(4) is conditioned on the existence of a valid decision under s 501(3A), technicality would be introduced at the outset of every decision under s 501CA(4) because the Tribunal would first need to consider the validity of the decision made under s 501(3A) in order to be satisfied that it has jurisdiction to commence its task under s 501CA(4). Similarly, if s 501CA(1) is construed as applying only to valid decisions made under s 501(3A), the Tribunal would have no power to set aside a decision made under s 501(3A) that was made in jurisdictional error. This is because the Tribunal’s powers to revoke a s 501(3A) decision are found in s 501CA(4), a provision which does not apply unless s 501CA(1) is satisfied. This would be remarkable result.
The consequence is that the Tribunal had power to conduct its review under s 501CA(4) notwithstanding that the delegate’s decision under s 501(3A) was made in jurisdictional error. However, the effect of this construction is not as harsh as it seems at first. First, this is not to say that decisions made by delegates under s 501(3A) are immune to judicial review. However, such decisions, as opposed to those made by the Tribunal under s 501CA(4) being reviewed here, are not reviewable in this Court: cf s 476A(1). Secondly, as noted above, s 501CA(4) provides a means for the Minister or a delegate of the Minister and, on review, the Tribunal, to consider whether to revoke the cancellation decision. Section 501CA(4)(b)(i) introduces consideration of a broader version of the character test than that which was under consideration at the time of the mandatory cancellation decision made pursuant to s 501(3A) and, of particular relevance to the present case, opens consideration of multiple offences, including those served concurrently by the applicant at the time of the decision being made under s 501CA(4).
The application of the broader version of the character test accords with the statutory scheme of enabling mandatory cancellation under s 501(3A) to take place only in the clearest of cases, and more nuanced consideration to take place under s 501CA(4), when an application has been made to review the mandatory cancellation.
Were it to be the case that an applicant only failed the character test at the s 501CA(4) stage by reason of sentences that had been the cause of a prior cancellation and revocation decision, such as the 2015 sentences in the present case, then for the reasons given earlier, that would amount to a jurisdictional error.
However, that is not the position in the present case. Rather, it is clear that the applicant in the present case fails the character test for the purposes of s 501CA(4)(b)(i) by reason of ss 501(7)(c) and 501(7A) because the 2018 sentences add together to total a term of 12 months of imprisonment. Notwithstanding that the Tribunal reached its conclusion that the applicant did not pass the character test under s 501CA(4)(b)(i) on the basis of the 2015 sentences (as appears to be the case from the paragraphs of the Tribunal’s reasons set out at [30] and [32] above), this very same conclusion was open to it on the basis of the 2018 sentences. Therefore, any error made by the Tribunal in this regard was immaterial to its conclusion that the applicant failed the character test.
The consequence is that although the purported decision under s 501(3A) was invalid, the Minister’s delegate and then the Tribunal had jurisdiction to proceed to consider the applicant’s application to revoke the cancellation decision under s 501CA(4). Having regard to the broader character test applying to a review under s 501CA(4), it was open to the Tribunal to reach the conclusion that it did.
Accordingly, ground 1 must be dismissed.
6. GROUND 2 – ERROR IN APPLICATION OF DIRECTION 79
6.1 The submissions
In ground 2 the applicant contends that the Tribunal’s decision was affected by jurisdictional error as it erred in its construction of cl 13.3 of Direction 79. The applicant submits that in FYBR v Minister for Home Affairs [2019] FCAFC 185; 319 ALR 601 the Full Court found that the enquiry under that paragraph does not concern what the Australian community expects in fact, but rather concerns what the government has deemed the community’s expectations to be: at [68] (Charlesworth J) and [100] – [104] (Stewart J)). He submits that the Tribunal erred in assessing community expectations for itself, rather than applying Direction 79 as a statement of the government’s view of community expectations. It submits that this was a material error in that it is plausible that it led the Tribunal to apply a greater weight to this factor than if it had performed the analysis according to law.
The Minister does not dispute that the Tribunal failed correctly to apply Direction 79, but submits that the error was not material to the outcome, citing Hossain (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA[2019] HCA 3; 264 CLR 421 (Bell, Gageler and Keane JJ) at [45] - [46].
6.2 Consideration
In FYBR the Court considered the equivalent of cl 13.3 as it appeared in Direction 65: see FYBR at [46]. As in cl 13.3, it provided the same expectations of the Australian community, being:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
Such expectations form one of the three “primary considerations” relevant to the decision-maker. In FYBR Charlesworth J said of the equivalent of cl 13.3 at [75]:
...cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
Justice Stewart was in substantial agreement with this approach, although he expressed it differently to mean that Direction 65 dictated three relevant expectations. First, that non-citizens will obey the law. Secondly, that it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere. Thirdly, in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa: FYBR at [100] (Stewart J).
There is no dispute that the Tribunal, which did not have before it the decision in FYBR at the time of its decision, did not correctly apply cl 13.3 of Direction 79. In particular, the Tribunal incorrectly concluded, on the basis of earlier authority, that it was required to evaluate all of the primary and secondary considerations to determine whether or not the Minister’s perception of community expectations was met (at [48]). In so doing, the Tribunal directed itself to a consideration of all of those factors, without giving separate attention to the third of the primary considerations required under Direction 79, namely the expectations of the Australian community.
The case for the applicant proceeded from the premise that a failure to comply with a requirement of the Direction would mean that the Tribunal had failed to undertake its statutory task under s 501CA(4). A failure to comply with a ministerial direction made under s 499 has been held to amount to jurisdictional error: see the analysis in Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [34]-[35] (Mortimer J) and the authorities referred to by myself in VKTT v Minister for Home Affairs [2019] FCA 1018 at [19]. The Direction does not offer mere guidance or a statement of policy that may be departed from if the circumstances justify departure: see Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [42] (Colvin J). The Direction imposes requirements that must be complied with when a decision is made under s 501CA(4).

However, the failure of the Tribunal to comply with the requirements of Direction 79 will not necessarily involve jurisdictional error. As the High Court said in Hossain at [31], jurisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act. Ordinarily, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision: Hossain at [31]. Such a breach will be material only if compliance could realistically have resulted in a different decision: SZMTA at [45]. This is a question of fact on which an applicant bears the onus of proof: SZMTA at [46]; MZAPC at [39]. To determine whether there was a material breach of the requirement that conditioned the valid exercise of power, it is necessary to consider how the Tribunal in fact acted: SZMTA at [50]; MZAPC at [38]. For present purposes, the requirement is compliance with Direction 79. Keeping in mind that the Court should not intrude into the exercise of the statutory function entrusted to the Tribunal, if the Court was to conclude on the evidence that a failure to comply with the Direction was of “such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result” then there was no jurisdictional error: SZMTA at [48].
In assessing materiality it must always be borne in mind that the task of the Court is not to make a finding, on the balance of probabilities, as to what the Tribunal would have done had it taken the missing considerations into account. It is not an assessment of likelihood: Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; 268 FCR 379 at [33]. Rather the question is whether a different decision could realistically have been made by the Tribunal properly taking into account primary consideration 3.
Where, as here, questions of discretion and weight are involved, the difficulty in avoiding the Charybdis, on the one hand, of speculating about matters such as whether the reasoning could support or justify a decision under review and the Scylla, on the other, of making a finding on the balance of probabilities as to what the Tribunal would have done were considered in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [69] - [70] (Mortimer and Bromwich JJ). The correct approach is to evaluate whether or not the error in the decision making is of such marginal significance to the issues that it could not realistically have affected the result. In my view, it is of such marginal significance.
The Tribunal plainly recognised the multifactorial nature of the decision, and, leaving aside its error in relation to primary consideration 3, weighed the factors. It unimpeachably concluded that having regard to the protection of the Australian community (primary consideration 1) there was a real likelihood that the applicant would commit further offences of violence, and that that consideration weighed heavily against the applicant (at [41] - [43]). On the other hand, primary consideration 2, being the best interests of minor children, weighed “strongly” in favour of the applicant. That was because the Tribunal concluded that the applicant has a genuine interest in his granddaughter and that there is no other male figure likely to be in the child’s life in the foreseeable future (at [45]). The “other considerations” that were required to be taken into account by the Tribunal under Direction 79 each weighed in the applicant’s favour. The Tribunal found that the strength, nature and duration of his ties to Australia weighed “clearly” in his favour including because he had lived in Australia since 1992 when he was 16 years old. It considered at [50] that his criminal history did not demonstrate continuous offending, that he had worked in Australia and made some positive contributions to Australian society. It was clear to the Tribunal that he had contributed to the community through church activities and cultural groups and that he had very strong family ties in Australia. It was also clear to it that those close to him would be devastated by his removal from Australia, as would he. In relation to the impact on victims the Tribunal found that this consideration bore “some weight” in his favour, because his former wife (a relevant victim of his conduct) gave evidence that she did not hold any ill-will towards him, which it accepted (at [51]). Also of significance is the Tribunal’s finding that there would be an adverse impact on the applicant if he was deported to New Zealand, specifically because he has suffered from depression and been treated for cancer which is presently in remission. That diagnosis, the Tribunal found, loomed large in his life with the prospect of his return. The Tribunal found that because of the applicant’s treatment for his illness in the past in Australia, he would “be far more comfortable psychologically and emotionally remaining in Australia to continue [the] professional connection with those who have treated him in the past” (at [52]). This consideration weighed in the applicant’s favour.
The requirement that the Tribunal consider the expectations of the Australian community calls for consideration of cl 13.3, having regard to the fact that the visa holder will, by reason of a failure to pass the character test, also fail to meet the community expectation set out in the first sentence of the clause; namely, that non-citizens are expected to obey Australian laws.
This required separate consideration of the nature of the character concerns or offences of the applicant having regard to the expressed community expectations. The question of whether or not it is appropriate to refuse a visa application or revoke a visa cancellation is to be assessed against the nature of the character concerns or offences. As Stewart J pointed out in FYBR at [98], in the case of a particularly egregious offence, or a particularly severe character assessment, that alone may be a sufficient basis to refuse the visa, but on the other end of the spectrum it may not. In each case it will be a question of evaluation and weight, the likelihood being that where there has been an unfavourable character assessment it is unlikely that this factor will weigh other than against the grant of the visa: FYBYR at [79] (Charlesworth J) and [102] (Stewart J).
That is so in the present case. As the applicant himself put it in submissions, a proper application of primary consideration 3 could plausibly have led to a conclusion that it weighed either moderately or slightly against the applicant. He does not submit that it would have weighed in his favour.
The question then remains as to whether, having regard to these matters, the applicant has discharged the onus of demonstrating that there is a realistic possibility that the Tribunal would have reached a different decision had it properly applied primary consideration 3. In my view he has not. It is tolerably clear from the concluding paragraph of the Tribunal’s reasons that it considered primary consideration 1, being the protection of the Australian community, weighed so strongly against the applicant that it outweighed each of the other considerations. Given this, and the fact that the proper assessment of primary consideration 3 could only also have weighed against the applicant, I am not satisfied that the proper assessment of primary consideration 3 could realistically have led the Tribunal to a different result. Consequently, I do not consider that the Tribunal’s error was material.
Accordingly, ground 2 must be dismissed.
7. DISPOSITION
The application should be dismissed with costs.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.
Associate:
Dated: 8 June 2021

Appeal from:	Application for judicial review of the Administrative Appeals Tribunal decision delivered on 11 September 2019 by Senior Member M Griffin QC
File number(s):	NSD 1570 of 2019
Judgment of:	BURLEY J
Date of judgment:	8 June 2021
Catchwords:	MIGRATION – judicial review of Administrative Appeals Tribunal (‘Tribunal’) decision under s 501CA(4) of the Migration Act 1958 (Cth) (‘Act’) to not revoke delegate’s visa cancellation decision under s 501(3A) – whether reasoning in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 applies to power under s 501(3A) – where decision made under s 501(3A) affected by jurisdictional error – whether validity of s 501(3A) decision affects Tribunal’s ability to conduct review under s 501CA(4) – where Tribunal misapplied Direction 79 in considering the expectations of the Australian community – whether error material – application dismissed
Legislation:	Acts Interpretation Act 1901 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) Migration Act 1958 (Cth) Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) Australia, House of Representatives, Migration Amendment (Character and General Visa Cancellation) Bill 2014
Cases cited:	Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37; 24 ALR 307 Corporation of the City of Enfield v Development and Assessment Commission [2000] HCA 5; 199 CLR 135 Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 FYBR v Minister for Home Affairs [2019] FCAFC 185; 319 ALR 601 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Minister for Home Affairs v Brown [2020] FCAFC 21; 275 FCR 188 Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; 268 FCR 379 Minister for Immigration and Border Protection v Makasa [2021] HCA 1 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 Plaintiff S174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 VKTT v Minister for Home Affairs [2019] FCA 1018 Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	112
Date of last submissions:	1 March 2021
Date of hearing:	24 July 2020
Counsel for the Applicant:	Mr T Bagley
Counsel for the First Respondent:	Ms R Francois
Solicitor for the First Respondent:	Clayton Utz

ORDER MADE BY:	BURLEY J
DATE OF ORDER:	8 JUNE 2021

1 INTRODUCTION	[1]
2 THE BACKGROUND	[7]
3 RELEVANT LEGISLATION	[24]
4 THE DECISION OF THE TRIBUNAL	[30]
5 GROUND 1	[40]
5.1 Introduction	[40]
5.2 The submissions	[41]
5.3 Consideration of ground 1 and the jurisdictional fact issue	[45]
5.3.1 Introduction	[45]
5.3.2 Minister for Immigration and Border Protection v Makasa [2021] HCA 1	[51]
5.3.3 *Application of Makasa* to ss 501(3A) and 501CA**	[57]
5.3.4 Application to the present facts	[78]
6 GROUND 2 – ERROR IN APPLICATION OF DIRECTION 79	[96]
6.1 The submissions	[96]
6.2 Consideration	[98]
7 DISPOSITION	[112]