Federal Court. Can it be said that "the threshold for establishing illogicality is very high and requires extreme illogicality such that the decision was one that no rational or logical decision-maker could arrive at on the same evidence"? In Makasa, HCA held that power to cancel visa under s 501(2) was spent by AAT's decision to set aside delegate's original decision. Does Makasa apply to s 501CA(4)? Can the same sentence of imprisonment lead to satisfaction of both ss 501(3A)(a) and (b)?
The Applicant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). Paragraph 501(3A)(a), which required that the Minister be satisfied that the visa holder does not pass the character test, was satisfied by reason of the Applicant's sentence of imprisonment for a period of 12 months in 2006. Paragraph 501(3A)(b), which required that the visa holder be serving a sentence of imprisonment, was satisfied on the basis of his serving a custodial sentence of two months from 25 September 2015.
A delegate later on revoked that cancellation under s 501CA(4), following which another delegate cancelled his visa again under s 501(3A). In the second cancellation, s 501(3A)(a) was again satisfied on the basis of the 2006 sentence and s 501(3A)(b) on the basis of a term of imprisonment of 5 months in 2019.
In Makasa:
- The Respondent non-citizen was convicted in 2009 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) 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.
- The High Court held that the Minister's power to cancel the Respondent's visa under s 501(2) on the basis of the 2009 conviction was spent by the Tribunal's decision.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that "the threshold for establishing illogicality is very high and requires extreme illogicality such that the decision was one that no rational or logical decision-maker could arrive at on the same evidence"?
Question 2: Did Makasa apply here, with the consequence that the same 2006 sentence could not be used by the Minister to cancel the visa under s 501(3A) again?
Question 3: Can the same sentence of imprisonment lead to satisfaction of both ss 501(3A)(a) and (b)?
The FCA answered those questions as follows: