Makasa extended to s 501(3A)?

Federal Court. If a conviction forms the basis for a visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) and the cancellation is then revoked under s 501CA(4), is a decision-maker prevented from using that same conviction as the basis to cancel the visa under s 501(3A)? Did s 501(3A) require an act of the Minister by which a visa was cancelled? Or was the provision rather self-executing?

The Federal Court (FCA) said as follows:

1    Section 501(2) of the Migration Act 1958 (Cth) confers a power upon the Minister to cancel a visa if the Minister reasonably suspects that the person does not pass the character test specified in the Act and the person does not satisfy the Minister that they do pass the character test. Once exercised in respect of facts constituting a failure to pass the character test to decide not to cancel a visa, the power conferred by s 501(2) of the Act cannot be re-exercised in respect of the same failure to pass the character test to decide to cancel the visa: Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430.

2    In XJLR v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619, Burley J found that the reasoning in Makasa also applied to an instance where a visa was cancelled under s 501(3A) with the cancellation being subsequently revoked under s 501CA(4).

3    In order for a visa to be cancelled under s 501(3A), the Minister must be satisfied that a person who is serving a sentence of imprisonment does not pass the character test because of the operation of provisions that include a provision to the effect that the person will not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more.

4    In 2009, Mr Wilson was convicted of four charges and sentenced to an aggregate of 12 months' imprisonment. In 2010, after notifying Mr Wilson of an intention to consider cancelling his visa on the basis of his 2009 convictions, a delegate of the Minister decided not to cancel his visa. In 2016, Mr Wilson's visa was cancelled under s 501(3A) when he was serving a further sentence of imprisonment of 8 months imposed on 30 May 2016. The cancellation was based on the 2009 convictions and the fact that he was serving a term of imprisonment. The cancellation was subsequently revoked under s 501CA(4).

5    In 2020, Mr Wilson's visa was again cancelled. Once again it was based upon the 2009 convictions and the fact that he was serving a further term of imprisonment imposed on 15 October 2020 (for less than 12 months).

6    Mr Wilson sought review of the 2020 cancellation in the Administrative Appeals Tribunal. The review was unsuccessful. He then sought judicial review in this Court. One of the grounds of review was a claim that there had been no valid cancellation of his visa unders 501(3A) based upon the reasoning in Makasa and, in consequence, no valid decision by the Tribunal.

7    The parties to the judicial review proceedings proposed orders by consent quashing the decision of the Tribunal and declaring that the cancellation decision under s 501(3A) was void and of no legal effect and that Mr Wilson has continued to hold his visa at all times on and after 2020.

Some of the questions to the FCA were as follows:

Question 1: Can it be said that, "even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error"?

Question 2: Does the reasoning in Makasa apply to a cancellation under s 501(3A) of the Migration Act 1958 (Cth)? In other words, if a conviction forms the basis for a visa cancellation under s 501(3A) and the cancellation is then revoked under s 501CA(4), is a decision-maker prevented from using that same conviction as the basis to cancel the visa under s 501(3A) again?

Question 3: Did s 501(3A) require an act of the Minister by which a visa was cancelled? Or was the provision rather self-executing?

The FCA answered those questions as follows:

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