High Court. Can the discretionary power conferred by s 501(2) of the Migration Act 1958 (Cth), having once been enlivened by circumstances leading to a failure to pass the character test and exercised by the Minister or a delegate or re-exercised by the Tribunal on review not to cancel a visa, be re-enlivened by those same circumstances? Can the power be re-enlivened by different circumstances?
In 2009, the Respondent non-citizen was convicted for offences that occurred in 2006, for which he was sentenced to three concurrent terms of imprisonment each of two years with a non-parole period of 12 months.
In 2011, a delegate of the Minister exercised the discretion conferred by s 501(2) of the Migration Act 1958 (Cth) to cancel the Respondent's visa. In 2013, the Tribunal (AAT) re-exercised the power conferred by s 501(2) to make a decision under s 43(1)(c)(i) of the AAT Act setting aside the decision of the delegate and substituting a decision that the Respondent's visa should not be cancelled.
In 2017, the Respondent was convicted for other offences which did not result in any term of imprisonment. Later in 2017, the Minister was personally satisfied that the Respondent failed the character test solely by reason of the sentences imposed in respect of the 2009 convictions and, taking the 2017 convictions into account in the exercise of discretion under s 501(2), cancelled his visa.
Some of the questions to the High Court (HCA) were as follows:
Question 1: Does s 501(2) confer a single power that is exercised by the Minister or a delegate in the first instance, and that is re-exercised by the AAT under s 43(1) of the AAT Act on review?
Question 2: Paragraph 501(2)(a) provided as follows: "The Minister may cancel a visa that has been granted to a person if ... the Minister reasonably suspects that the person does not pass the character test". What is a reasonable suspicion in the context of s 501(2)(a)?
Question 3: Paragraph 501(2)(b) provided as follows: "The Minister may cancel a visa that has been granted to a person if ... the person does not satisfy the Minister that the person passes the character test". What is satisfaction in the context of s 501(2)(b)?
Question 4: Is a decision to cancel a visa or not to cancel a visa the end point of an exercise of the power conferred by s 501(2)?
Question 5: Does the answer to Question 4 vary depending on whether the decision to cancel or not to cancel was reached by the Minister personally or a delegate in an initial exercise of the power or by the Tribunal on review in a re-exercise of the power under s 43(1)(c)(i) of the AAT Act?
Question 6: If the answers to Questions 4 and 5 are "yes" and "no" respectively, does it necessarily follows that "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"?
Question 7: Subsection 33(1) of the Acts Interpretation Act 1901 (Cth) (AI Act) provided: "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"? Does s 33(1) "alter the incidents of the power spelt out in the terms of the provision conferring the power"? Or does it merely require "a provision conferring a power be interpreted as authorising the power it confers to be exercised and re-exercised from time to time"?
Question 8: Does s 33(1) require s 501(2) to be interpreted as authorising re-exercise of both stages of the two-stage decision-making process which s 501(2) entails? In other words, would it be inimical to s 33(1) to merely re-exercise the discretion that arises at the second stage of that decision-making process?
Question 9: Can s 501(2), having once been exercised to cancel a visa, be re-exercised so as not to cancel the visa?
Question 10: Subsection 2(1) of the AI Act provided: "the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention". Can it be said that "nothing in the legislative scheme [of the Migration Act 1958 (Cth) and the AAT Act] 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"?
Question 11: Can it be said that, "absent subsequent events or further information providing a different factual basis for the formation of a reasonable suspicion that a visa holder does not pass the character test", the scheme of the Migration Act 1958 (Cth) and the AAT Act exhibit an intention contrary to the application of s 33(1) of the AI Act to the power conferred by s 501(2) of the Migration Act? In other words, can it be said that the discretionary power conferred by s 501(2) of the Migration Act 1958 (Cth), having once been enlivened by circumstances leading to a failure to pass the character test and exercised by the Minister or a delegate or re-exercised by the Tribunal on review not to cancel a visa, cannot be re- enlivened by those same circumstances?
Question 12: Can it be said that, "[t]o the extent that the decision of the Full Court in Parker can be read to suggest that s 33(1) of the AI Act authorises re-exercise of the power conferred by s 501(2) of the Act to cancel a visa by reference to events subsequent to an earlier exercise of the power not to cancel the visa which bear only on the exercise of discretion, Parker must be taken to have been wrongly decided"?
The HCA answered those questions as follows: