High Court of Australia

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

3 Feb 2021

Case Number: S103/2020

Before

KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN JJ

Catchwords

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".

Acts Interpretation Act 1901 (Cth) – ss 2, 33(1).

Administrative Appeals Tribunal Act 1975 (Cth) – s 43.

Migration Act 1958 (Cth) – ss 501, 501A.
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