The Minister’s Personal Power

 
 

Most decisions made under the Migration Act are made by delegates the power of delegation is found in s 496 which reads :

[496] (1) The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.

[496] (1A) The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.

S 496 does not prevent the Minister making any decision personally although the writer knows of no case outside the character area where the Minister has ever exercised a power under the Migration Act personally.

However, in the character area, there are a series of special provisions such that when the Minister makes the decision personally there are no merit review rights to the AAT.

These personal powers were introduced by the then Minister for Immigration Mr Ruddock and were contained in the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth).

Senator Kemp, representing the Minister in the Senate said (in Commonwealth of Australia, Parliamentary Debates, The Senate, Wednesday, 11 November 1998, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 (No 2), Second Reading Speech, pages 59, 61) said :

In broad terms, the bill seeks to enhance the Government’s ability to deal with non-citizens who are not of good character in three ways:

. First …

. Secondly, in exceptional or emergency circumstances, the Minister, acting personally, will be given powers to act decisively on matters of visa refusal, cancellation and the removal of non-citizens

Minister’s power to intervene or set aside Administrative Appeals Tribunal decisions

Over the past 12 months or so, the AAT has made a number of character decisions that are clearly at odds with community standards and expectations. The AAT has found a number of non-citizens, who have been convicted of very serious crimes, to be of good character, and has ruled that they should be granted a visa. This has alarmed the community and I might say the community, when they are aware of these decisions, hold the Government and not the AAT responsible.

It is essential that the Minister, acting personally, have the power to intervene or set aside such decisions in the national interest. The Minister should, however, continue to be required to table the making of any such decisions in the Parliament.

Once the visa is cancelled, the non-citizen will have a right to make a submission to the Minister as to why the cancellation should be revoked. Natural justice will apply in such cases. However, if they cannot satisfy the Minister that they pass the character test, they should be removed immediately. Parliament should be notified of the making of such decisions but the decisions should not be subject to merits review because of their national significance.

Mr Ruddock began exercising this power over many persons convicted of offences in Australia.  Generally Labor government ministers preferred to leave all character decisions in the hands of delegates. However Mr Morrison was an enthusiastic user of his person power.  We are yet to see what approach the current Minister Mr Dutton has.

Here are these provisions which set the metes and bounds of the Minister’s power to make decisions personally

Section 501A      Refusal or cancellation of visa – setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

[501A] (1)      This section applies if:

(a)      a delegate of the Minister; or

(b)      the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)      not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)      not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister — natural justice applies

[501A] (2)      The Minister may set aside the original decision and:

(a)      refuse to grant a visa to the person; or

(b)      cancel a visa that has been granted to the person;

if:

(c)      the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)      the person does not satisfy the Minister that the person passes the character test; and

(e)      the Minister is satisfied that the refusal or cancellation is in the national interest.

The Minister has similar powers of personal intervention in relation to decisions of delegates or the Administrative Appeals Tribunal where a revocation of mandatory visa cancellation has occurred – see s 501BA:

501BA  Cancellation of visa—setting aside and substitution of non‑adverse decision under section 501CA

            (1)        This section applies if:

            (a)        a delegate of the Minister; or

            (b)        the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

            (2)        The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

            (a)        the Minister is satisfied that the person does not pass the character test because of the operation of:

            (i)         paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

            (ii)        paragraph 501(6)(e); and

            (b)        the Minister is satisfied that the cancellation is in the national interest.

            (3)        The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

            (4)        The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

            (5)        A decision under subsection (2) is not reviewable under Part 5 or 7.

Apart from a decision by the Minister personally under s 501BA, any judicial review against a decision of the Minister must be done in the Federal Court NOT the Federal Circuit Court – see s 476(2)(c).

[476] (2)      The Federal Circuit Court has no jurisdiction in relation to the following decisions:

(c)      a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;

There appears to be an oversight in that s 476(2)(c) was not amended by the Migration Amendment (Character and General Visa Cancellation) Act 2014 to exclude Federal Circuit Court jurisdiction for personal decision by the Minister under s 501BA.

There have been many Federal Court decisions involving the Minister’s personal power. However none have yet come through concerning any power the Minister could exercise to over any decision of a delegate or the AAT over the revocation of a mandatory cancellation. The cases on the Minister’s personal power generally will have some use in relation to any revocation of mandatory cancellation decisions.

In Le v Minister for Immigration and Border Protection [2015] FCA 1018, the Federal Court determined that the Minister must understand the consequences of a decision to cancel a visa.

Here by the time the Minister came to make a personal decision, the visa holder was no longer a Vietnamese citizen and was stateless.

28                       There are two judgments of the Full Court highly relevant to the outcome of this case. The first is NBNB, which has already been mentioned. The second is NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1. Both cases concerned the consequences of a decision of the Minister refusing the grant of a protection visa pursuant to s 501(1) of the Migration Act. In each case, there was a combination of four factors at work. First, the applicants were non-citizens who did not hold visas. Second, Australia’s non-refoulement obligations meant that the applicants could not be returned to their country of origin. Third, ss 189, 196 and 198 of the Migration Act require the detention of a non-citizen until he or she is removed from Australia. Fourth, the consequence of the High Court’s judgment in Al-Kateb v Godwin (2004) 219 CLR 562 was that the applicants faced the prospect of indefinite detention in Australia.

29                    On the evidence before the Minister in the present case, the applicant had lost his Vietnamese nationality.  A consequence of the cancellation of his visa is that he must be detained until removed from Australia; but he is stateless and cannot be removed from Australia in the foreseeable future.

30                    However, counsel for the Minister submits that it is not a necessary consequence of these circumstances that the applicant will be indefinitely detained. Under s 195 of the Migration Act, a detainee may apply for a visa, and under s 195A, the Minister may grant a visa if the Minister thinks it is the public interest to do so. In NBMZ, the Full Court rejected such an argument, saying that the possibility of any visa under s 195A was merely a matter of speculation and the applicant was entitled to have his application determined on the hypothesis that he will be indefinitely detained: Allsop CJ and Katzmann J at [4], Buchanan J at [123]–[129] . The same position applies in this case.

31                    It follows that a legal, or statutory, consequence of the Minister’s decision to cancel the applicant’s visa is that he faces indefinite detention in Australia.

32                    The second issue to be considered is whether the Minister was required to take into account that the applicant faces indefinite detention. In NBMZ, Allsop CJ and Katzmann J held:

[9]       The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

[10]     The Minister was required to take into account the legal consequences of his decision. These consequences (indefinite detention) flowed from Australia’s obligation of non-refoulement and the terms of the Act.

33                    Similarly, in NBNB, Allsop CJ and Katzmann J said:

[2]       …As in NBMZ, in the five decisions here, the Minister failed to take into account the mandatory consideration of the legal consequences of the decision being made in the context of Australia’s obligation of non-refoulement: indefinite detention.

34                    Accordingly, the Minister was required to take into account that the applicant would face indefinite detention if his visa were cancelled.

35                    The third issue to be considered is whether the Minister did take into account that the applicant faced indefinite detention.

36                    The Minister’s reasons did not mention the prospect of indefinite detention. The reasons referred to the ITOA only in the context of whether Australia would breach its treaty obligations against non-refoulement by returning the applicant to Vietnam.  The reasons did not refer to the information in the ITOA concerning the loss of the applicant’s Vietnamese nationality.

37                    In NBMZ, the position was similar.  Allsop and Katzmann JJ said:

[16]     What was entirely absent from the briefing note, however, and also from the Minister’s reasons was any attempt to confront the binary relational legal consequence of Australia’s obligation under Art 33 and Australia’s policy of mandatory detention: indefinite detention. It may be accepted, at one level of abstraction, that the Minister was aware of ss 189, 196 and 198 of the Act and of the High Court’s decision in Al-Kateb. That, however, is not the point. A material omission from a briefing paper may affect the decision-making process based on it: Peko-Wallsend Ltd at 30-31, 45 and 65-66. Also, the written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Acts Interpretation Act 1901 (Cth), s 25D, s 501G of the Act and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [37], [69], [89] and [133].

38                    Counsel for the Minister submits that the Minister must be considered to have taken into account the whole of the ITOA, including the discussion of the loss of nationality.  Counsel notes that the Minister said in para [41] of his reasons “Having given full consideration to all of these matters, I decided to exercise my discretion to cancel…”.  Counsel submits that this is an indication that the Minister must have taken into account the discussion in the ITOA concerning loss of Vietnamese nationality. 

39                    I do not accept that para [41] can be interpreted in this way.  The reference to “all of these matters” is to the matters which the Minister had discussed earlier in his reasons.  It is not a reference to all of the material that was before him.  The Minister’s reasons contain no reference to the possible loss of Vietnamese nationality or indefinite detention. 

40                    Counsel for the Minister also relies on the “catch-all” on the last page of the submission made to the Minister that the Minister had “considered all relevant matters…and all evidence before [him] provided by, or on behalf of, or in relation to Van Linh LE…”.  Paragraph 34 of the Minster’s Statement of Reasons is also in similar terms.  The references to “all relevant matters” must be to the matters which the Minister considered were relevant.  The matters that the Minister considered were relevant were those set out in the Minister’s reasons.  Those matters do not include the possible loss of Vietnamese nationality or indefinite detention. 

41                    The “catch-all” does indicate that the Minister considered “all evidence before [him]”.  That evidence includes the ITO assessment, and the ITO assessment discusses the possible loss of Vietnamese nationality. I will assume, without deciding, that the “catch-all” is sufficient to indicate that the Minister took that issue into account. However, the ITOA makes no reference to the prospect that the applicant would be liable to indefinite detention in Australia. I therefore infer that the Minister did not take into account that the applicant faced indefinite detention.

42                    I consider that the Minister failed to take into account a relevant consideration, namely that a legal consequence of the decision to cancel the visa was that the applicant faced the prospect of indefinite detention in Australia.  This was a jurisdictional error. 

Barbara DavidsonThe Minister’s Personal Power