Minister for Home Affairs v Brown [2020] FCAFC 21 (28 February 2020) (Allsop CJ, Kenny, Besanko, Bromwich and Banks-Smith JJ)


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MIGRATION – appeal from single judge of this Court quashing decision of Minister, acting personally, to cancel the respondent’s visa under s 501(2) – visa holder arrived in Australia in 1981 – the Minister by his delegate cancelled the visa under s 501(2) relying on s 501(6)(a) and s 501(7)(c), that is, on character grounds due to substantial criminal record – the Administrative Appeals Tribunal set aside the decision and substituted a decision not to cancel under s 501(2) – some years later the Minister, acting personally, purported to exercise power under s 501(2) to cancel the visa, relying on the same matters as those relied upon by the Tribunal to enliven the power – cancellation decision set aside by the primary judge due to lack of statutory authority to cancel the visa – whether the Minister can re-exercise the discretion conferred by s 501(2) to cancel a visa where the Tribunal has earlier set aside a delegate’s decision to cancel the visa under that same provision – whether the Minister can re-exercise the discretion relying on the very same facts to enliven the discretion in s 501(2) as the Tribunal did on review – consideration of the terms and structure of the Migration Act 1958 (Cth) as a whole, surrounding provisions (particularly s 501A), and the nature and character of the function of the Tribunal in independent review of decisions of the Executive – appeal dismissed