Is s 501 Migration Act, 1958 (Cth) to be construed as conferring but one visa cancellation power? Is the exercise of one intended to restrict the exercise of the other?
Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98 (10 June 2021)
Intro:-
This is an appeal from a decision of the primary judge to dismiss an application for judicial review of the Minister’s decision to cancel the applicant’s visa under s 501(3) of the Migration Act 1958 (Cth).
Facts:-
Mr Frederick Chetcuti (Mr Chetcuti), the appellant, was born in the then British Crown Colony of the Island of Malta and its Dependencies on 8 August 1945. He arrived in Australia on 31 July 1948, shortly before his third birthday. Here he has remained ever since. Mr Chetcuti has never become an Australian citizen. On 25 June 1993, Mr Chetcuti was convicted in the Supreme Court of New South Wales of the murder of his former wife on 18 September 1991 and was sentenced to imprisonment for 24 years. On 9 May 2010, while serving that sentence of imprisonment, Mr Chetcuti committed the offence of assault occasioning actual bodily harm against a fellow prisoner and convicted on 6 April 2011 in the Local Court at Burwood, New South Wales of and sentenced to two years imprisonment, to be served concurrently with his then subsisting sentence for murder.
On 28 March 2017, shortly before Mr Chetcuti’s sentence for murder was due to expire, the then Minister for Immigration and Border Protection, acting, or at least purporting to act, under s 501(2) of the Act, cancelled the visa. This decision was quashed by an order of this Court made by consent on 14 August 2017. Later that day, the then Minister for Home Affairs, acting, or at least purporting to act, under s 501(3) of the Act, cancelled the visa. This decision was quashed by the Full Court on 2 July 2019: Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335.
On the same day that this second judgment of the Full Court was published, the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) cancelled the visa under s 501(3) of the Act (cancellation decision).
The evidence before the primary judge in the form of the written record of the cancellation decision indicates that the Minister commenced consideration of a departmental submission and attachments at 1.00 pm on 1 July 2019. That submission had been prepared on a contingency basis, given the then pending judgment of the Full Court. Other evidence at trial indicated, and his Honour found, that the cancellation decision was made at about 2.56 pm on 2 July 2019. The learned primary judge found that, in all, over this period the Minister took an hour to consider the material and make his decision.
The learned primary judge also found that, at 12.30pm on 2 July 2019, nearly two and a half hours prior to the cancellation decision being made, Mr Chetcuti, through his legal representative, provided a submission and further material (further submission) to the department and requested that the material be considered, should any further consideration be given to cancelling Mr Chetcuti’s visa following the publication of the Full Court’s judgment. His Honour also found that, at 3.45 pm on 2 July 2019, Mr Chetcuti was notified of the cancellation decision by an email provided to his legal representative.
In the original jurisdiction and as his originating application came to be amended, Mr Chetcuti challenged the cancellation decision and his application was dismissed, with costs.
Mr Chetcuti has now appealed against that order of dismissal. His grounds of appeal are:-
a) The learned primary judge erred by failing to find that the Minister misunderstood the operation of s 501(3) of the (the Migration Act 1958 (Cth)) (the Act) by believing it precluded him from giving effect to the rules of procedural fairness.
b) The Minister was precluded from re-exercising the power to cancel the appellant’s visa under s 501 of the Act in circumstances where a previous Minister, the Hon. Chris Bowen MP, had decided not to cancel the appellant’s visa on 22 March 2012, and no relevant new fact or circumstance had arisen since that time [2012 decision].
3) Alternatively, the Minister failed to have regard to a mandatory relevant consideration, being the manner in which any relevant new fact or circumstance bore on the re-exercise of the Minister’s discretion to cancel the appellant’s visa under s 501 of the Act.
Grounds 2 and 3 raise issues which were not raised in the original jurisdiction by the pleaded grounds of review. The inspiration for ground 2 was submitted to have arisen after the orders challenged had been made and as a result of the High Court’s judgment earlier this year in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 95 ALJR 117 (Makasa).
When an issue is raised for the first time on appeal, evidentiary embarrassment to another party can, and often will, provide a sufficient basis to refuse leave for the new issue to be raised. Ordinarily, questions of fact are for determination at trial in the exercise of original jurisdiction, not on an appeal in the exercise of appellate jurisdiction. Another consideration, always relevant but not necessarily determinative, is that there should be no encouragement of a view that parties may save up issues instead of raising them at trial for determination. For all that, there can be cases where the interests of justice demand that, though this usual position has not been observed by a party, an issue raised for the first time on appeal should attract a grant of leave and be determined. An exemplar of this type of case can be where a point of law raised by the facts has subsequently been determined and where, had it been earlier decided, the point may have led to a different outcome in law on those facts. Makasa was said to carry such a ramification for the present case.
The Court considers that the interests of justice in the present case are best served by granting leave to Mr Chetcuti to raise ground 2 and by dealing with that ground on the merits. Ground 3 is dependent on the correct characterisation of the power exercised by the Minister in making the cancellation decision.
Issues:-
(a) Did the Minister err in law in that he misunderstood the operation of s 501(3) of the Act by believing it precluded him from giving effect to the rules of natural justice by inviting Mr Chetcuti to make submissions or provide further material?
(b) Was the Minister precluded from re-exercising the power to cancel the appellant’s visa under s 501 of the Act in circumstances where a previous Minister, the Hon. Chris Bowen MP, had decided not to cancel the appellant’s visa on 22 March 2012, and no relevant new fact or circumstance had arisen since that time [2012 decision]?
(c) Alternatively, did the Minister fail to have regard to a mandatory relevant consideration, being the manner in which any relevant new fact or circumstance bore on the re-exercise of the Minister’s discretion to cancel the appellant’s visa under s 501 of the Act?
Analysis:-
Ground 2
Makasa decides that, after the Administrative Appeals Tribunal (Tribunal) has made a decision under s 501(2) of the Act in reviewing afresh a decision made by a delegate of the Minister, neither the Minister nor a delegate may again make a decision under s 501(2) in respect of the individual concerned unless, in terms of s 33(1) of the Acts Interpretation Act 1901 (Cth), “occasion” has arisen.
In making the cancellation decision, the Minister stated that he was exercising the power conferred under s 501(3), not s 501(2), of the Act. This would not prevent argument by analogy in reliance on Makasa that the re-exercise of a power under s 501(3) was not possible, because no fresh “occasion” had arisen, but that argument requires proof of its underlying factual premise.
The difficulty for Mr Chetcuti is that the evidence as to the 2012 decision is consistent only with a conclusion that, on that occasion, the then Minister had decided by reference to s 501(2) of the Act alone not to cancel the visa on character grounds (although the departmental advice to Mr Chetcuti of 22 March 2012 is non-specific, the only provision referred to in the accompanying pro forma acknowledgement of receipt is s 501(2)). There is no evidence that, in 2012, the Minister had turned his mind at all to s 501(3) of the Act.
In oral submissions on his behalf, there was a tendency to obscure the construction issue by referring to s 501 in a compendious way, assuming that it was the repository of but one grant of power.
Suffice it to say, as a matter of construction, s 501 of the Act does not confer but one visa cancellation power. It confers separate visa cancellation powers, the enabling criteria for the exercise of which overlap but which are not identical. It is not apparent that the exercise of one is intended to restrict the exercise of the other.
Moreover, that position is reinforced, not contradicted, by s 501A of the Act. In relation to visa cancellation, the provision made by s 501A for the setting aside by the Minister, acting personally, of an earlier, non-adverse decision is expressly textually keyed to a decision by a delegate or the Tribunal, “not to exercise the power conferred by s 501(2) to cancel a visa that has been granted to a person”. All that s 501A has to say about s 501(3) is the self-evident position that the power conferred by that subsection is unaffected by the particular regime for which s 501A provides.
Ground 2 therefore fails.
Ground 3
As was correctly recognised in submissions, ground 3 is a slave of ground 2 in relation to whatever is the true construction of s 501 of the Act. If the construction promoted for Mr Chetcuti in relation to ground 2 failed, so must ground 3. That is because, if, as between s 501(2) and s 501(3), separate powers are conferred, the Minister did not “re-exercise” any power when making the cancellation decision. For reasons already given, s 501(3) of the Act confers a separate power. Ground 3 must therefore fail.
Ground 1
The learned primary judge correctly identified that whether the Minister misunderstood the operation of s 501(3) of the Act was a question of fact. Once again therefore, the onus of proving that fact fell on Mr Chetcuti. This, too, was correctly understood by his Honour.
Responding to the way in which the case was argued before him, the learned primary judge closely analysed the Minister’s reasons and the procedural course of conduct within his department following the transmission and receipt of the further submission on behalf of Mr Chetcuti, up to the time when the Minister made his decision. His Honour found that it was more likely than not that, prior to the making of the cancellation decision, the Minister was aware of the further submission but also that it was unlikely and not proved that the Minister “would not have correctly understood that he could, but was not obliged, to take the further submission into account”
The process of reasoning which led his Honour to this conclusion was certainly evaluative but it entailed no exercise of a judicial discretion. Nor did his Honour enjoy some special advantage at trial denied in an exercise of appellate jurisdiction. No oral evidence was called either from the Minister as to what he knew and understood, or anyone else as to what was briefed orally to the Minister (if anything). In relation to the reasons of the primary judge, there is occasion for respect and weight to be given but not for any restraint or deference in relation to his Honour’s findings.
It is obvious from internal departmental emails that the further submission was received and its potential significance, in terms of offering a contemporary perspective on Mr Chetcuti’s health and other personal circumstances, as well as the Minister’s ability to consider the same, was understood by officers within the department, up to and including the rank of a relevant Assistant Secretary. These facts are consistent with the inference drawn by the primary judge, that, prior to making the cancellation decision, the Minister had been appraised of the existence of the further submission and provided with at least an outline of the content of that submission. That inference was embraced, not challenged, by counsel for Mr Chetcuti in oral submissions. Neither, unsurprisingly, was its correctness questioned by counsel for the Minister.
The point is that Mr Chetcuti carried the onus of establishing the factual foundation for his asserted jurisdictional error. He did not have to prove the facts to demonstration, only on the balance of probabilities. Proof to that standard was not achieved just by pointing to reasons which were neutral. Especially that was so when there is an inference open from the surrounding circumstances which makes it at least just as likely that the Minister was aware it was possible to consider the further submission but chose not to consider it.
Mr Chetcuti has failed to discharge the onus of proving the underlying factual premise upon which ground 1 depends.
Conclusion:-
The appellant be granted leave to raise on appeal grounds 2 and 3 as pleaded in the notice of appeal.
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, to be fixed by a registrar if not agreed.
