Federal Court. Does the term "identity" in s 116(1AA) of the Migration Act 1958 (Cth) have a stable meaning, instead of "ambulatory so that it means something different depending on the type of visa in question, or the visa holder’s personal history"? The appellant's half-brother's visa would be automatically cancelled under s 140(1) if the appellant's visa was cancelled. Was there a denial of procedural fairness to the appellant, as he could have submitted a statement from his half-brother or asked the Tribunal to call him?
Section 116(1AA) of the Migration Act 1958 (Cth) provided: "Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity."
Section 140(1)-(2) provided:
(1) If a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.
(2) If:
(a) a person’s visa is cancelled under section 109 (incorrect information) 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas); and
(b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;
the Minister may, without notice to the other person, cancel the visa.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Do ss 5J(a) and 5J(c)(vi) of the Migration Act 1958 (Cth) use the term "identity" in a way that refers to certain social or emotional characteristics of a person?
Question 2: Does s 116(1AA) use the term "identity" in a way that refers to certain social or emotional characteristics of a person?
Question 3: If the answer to Question 2 is 'no', does s 116(1AA) use the term "identity" to "refer (at least) to a concept that distinguishes, in an ongoing manner, one unique individual from another"?
Question 4: Does the term "identity" in s 116(1AA) have a stable meaning, instead of "ambulatory so that it means something different depending on the type of visa in question, or the visa holder’s personal history"?
Question 5: If the applicant used an incorrect test of "identity" for the purpose of s 116(1AA) in his submissions to the Tribunal and the Tribunal adopted that incorrect test, does the use of that incorrect test by the applicant shield the Tribunal's decision from error?
Question 6: Does the Anthony Hordern principle apply, in the sense that, because there are specific cancellation powers relating to the provision of incorrect information such as s 109, the cancellation power in s 116(1AA) cannot take such matters into account?
Question 7: The effect of s 140(1)-(2) is that cancellation of the appellant's visa under s 116(1AA) would or could result in cancellation of a visa held by one of his half-brothers. Was there a denial of procedural fairness to the appellant, in circumstances where he could have submitted, but did not submit, a statement from the half-brother or asked the Tribunal to call him?
Question 8: If that half-brother's visa stood to be cancelled under s 140(1), not s 140(2), was he "owed an obligation of procedural fairness requiring that he be given notice of the prospect that the appellant’s visa would be cancelled"?
Question 9: Did s 119 of the Act establish a "free-standing obligation to accord procedural fairness to the half-brother, that is separate and distinct from the obligation that was contended to arise in relation to s 140(1)"?
Question 10: The Tribunal's reasons said: "The Tribunal is of the view that although the applicant could be detained indefinitely and that he has mental health challenges, these potential consequences are intended legislative consequences and, in the applicant’s case do not outweigh the reasons to cancel the visa." Can it be said that it was "entirely tautologous for the Tribunal to label the consequences as ‘intended legislative consequences’" and that, in relying on this tautology, the Tribunal had "constructively failed to consider the mandatory legal consequences altogether"?
Question 11: Can it be said that, having identified the consequences of its decision, it was "open to the Tribunal to attribute weight to those consequences on a basis that took into account that the legislature intended for those consequences to flow"?
The FCA answered those questions as follows: