Minister for Immigration and Border Protection v Makasa [2021] HCA 1

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, KEANE, GORDON AND EDELMAN JJ

MINISTER FOR IMMIGRATION AND BORDER

PROTECTION APPELLANT

AND

LIKUMBO MAKASA RESPONDENT

Minister for Immigration and Border Protection v Makasa

[2021] HCA 1

Date of Hearing: 12 November 2020

Date of Order: 12 November 2020

Date of Publication of Reasons: 3 February 2021

S103/2020

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

G T Johnson SC with N D J Swan for the appellant (instructed by Sparke Helmore Lawyers)

A Ahmad with J D Donnelly for the respondent (instructed by Morning Star Legal & Migration Pty Ltd)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Border Protection v Makasa

Immigration – Visas – Visa cancellation – Character test – Substantial criminal record – Where delegate of Minister for Immigration and Border Protection ("Minister") cancelled respondent's visa on character grounds under s 501(2) of Migration Act 1958 (Cth) – Where Administrative Appeals Tribunal ("AAT") made decision under s 43(1)(c)(i) of Administrative Appeals Tribunal Act 1975 (Cth) to set aside delegate's decision and substitute a decision not to cancel visa – Where Minister purported to re‑exercise discretion to cancel visa – Whether Minister can re-exercise discretion on same factual basis in circumstances where AAT earlier decided not to cancel visa.

Words and phrases – "Administrative Appeals Tribunal", "character test", "different factual basis", "finality to the administrative decision-making process", "from time to time as occasion requires", "general power", "ministerial override", "nature of merits review", "powers of AAT", "reasonable suspicion", "re-exercise of a power", "special power", "substantial criminal record", "visa cancellation".