Federal Court (Full Court): In 2012, delegate decided not to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth) to refuse the Appellant a bridging visa and notified him of it. In 2013, Appellant was granted a partner visa. In 2016, Appellant was convicted for conduct occurring for 7 years until 2009. In 2018, Minister found that Appellant failed the character test due to the 2016 conviction and personally exercised the discretion to cancel his visa under s 501(2). Did the 2012 decision estop the Minister from making the 2018 decision?
We encourage readers to compare this decision of the Full Court of the Federal Court (FCAFC) with the decision of a single judge of the FCA that we summarised in November 2018 on whether 2 decisions could be made under s 501(2) on the same facts.
The FCAFC summarised the facts as follows:
4 By letter dated 20 February 2012, the Minister’s Department informed the appellant that a delegate had decided not to exercise the discretion under s 501(1) of the Act to refuse his application for the bridging visa (the 2012 non-cancellation decision). The letter warned the appellant that if he engaged in any further conduct that might bring him within the scope of s 501, the cancellation of any visa that he held and/or refusal of any future visa application may be considered, and if so, the fact of this warning would weigh heavily against him. It also told him that if he ever made a future application for a visa or Australian citizenship or completed an incoming passenger card when entering Australia, he would be required by law to disclose any criminal convictions he might have in that application or passenger card.
5 On 12 August 2013, the appellant was granted the partner visa.
6 The Minister came to consider the cancellation of the partner visa after the appellant’s conviction and sentence to three years and six months imprisonment by the Queensland District Court on 12 May 2016 for the offence of dishonestly obtaining a financial advantage by deception. That conviction was obtained because, in a trial by jury, the Crown proved beyond reasonable doubt that the appellant had falsely represented that he was an Australian citizen, had the name “Michael Boghdadi Asaad”, and had claimed entitlement to an age pension under which he obtained payments for seven years until 2009, totalling$89,161.44.
7 On 8 February 2018, the Minister issued a statement of his reasons for his decision to cancel the appellant’s partner visa. The Minister observed that one of the judges in the Court of Appeal of the Supreme Court of Queensland, when considering the appellant’s appeal against [the 2016] conviction and sentence, had said:
Upon review of the record of the trial, the evidence proved beyond reasonable doubt that the appellant obtained payments from the Commonwealth by the deception of intentionally creating and using the false identity, Michael Boghdadi Asaad; he intentionally induced the Commonwealth to believe that this false identity was his true identity, whilst believing that his conduct in doing so was deceptive; and the appellant thereby dishonestly obtained a financial advantage from the Commonwealth.
The questions to the FCAFC were as follows:
Question 1: "in the 2012 ... decision, [did] the delegate [say] that the Minister would never have regard to, or consider the fact of, any subsequent conviction irrespective of when the offending conduct may have occurred"?
Question 2: If the answer to Question 1 is "yes", is there any "evidence to suggest that the appellant acted to his detriment in reliance on the 2012 ... decision", bearing in mind that one of the elements of an estoppel is reliance by a party upon an undertaking to the detriment of that party?
Question 3: If the answer to Question 2 is "yes", did the 2012 decision estop the Minister from cancelling the Appellant's visa in 2018?
If the answer to Question 3 is "no":
Question 4: Can it be said that one of the reasons why the 2012 decision did not estop the Minister from cancelling the Appellant's visa in 2018 was that the 2012 decision was not a decision to cancel a visa, but a decision to refuse to grant a visa?
Question 5: Had the 2012 decision involved a discretion to cancel (as opposed to refuse) a visa, could it be said that one of the reasons why the 2012 decision did not estop the Minister from cancelling the Appellant's visa in 2018 was that "where a new and relevant fact emerges which potentially bears upon the exercise of the power under s 501(2), that power may be exercised, in an appropriate case, to cancel a person’s visa, notwithstanding the existence of an earlier decision, based on more limited facts, not to cancel the visa"?
Question 6: Can it be said that one of the reasons why the 2012 decision did not estop the Minister from cancelling the Appellant's visa in 2018 was that the Executive cannot, "by representation or promise, disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or the exercise of the power"?
The FCAFC answered those questions as follows:
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