If a decision-maker seeks to re-make an administrative decision, it can be difficult to discern the precise steps required to ensure that the new decision is legally defensible. This is especially the case in multi-stage decision-making processes, where the decision-maker is required to form a state of mind such as a reasonable belief before proceeding to exercise a discretion. It may not be so straightforward as re-exercising the discretion.
In Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (Makasa), the High Court considered the process set out in s501(2) of the Migration Act 1958 (Migration Act), and the question of whether a decision under that section can be re-made in the absence of further information about whether a person passes the character test.
In Makasa, the issue was whether the Minister could exercise a power to re-make a decision which had already been set aside by the Administrative Appeals Tribunal (Tribunal), on the basis of substantially the same facts as the original decision. In concluding that the Minister could not do so, the High Court considered the interaction between s33(1) of the Acts Interpretation Act 1901 (Acts Interpretation Act) and the power to cancel a visa in s501(2) of the Migration Act.
The decision in Makasa – no new information to re-enliven the power
In 2009, Mr Makasa, a permanent resident, was sentenced to three concurrent terms of imprisonment, each for two years. In 2011, a delegate of the Minister cancelled Mr Makasa’s permanent resident visa on character grounds pursuant to s501(2) of the Migration Act. After Mr Makasa sought merits review, the Tribunal substituted a decision that Mr Makasa’s visa should not be cancelled pursuant to s43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
In 2017, Mr Makasa was convicted of two further offences, neither of which resulted in a sentence of imprisonment. The Minister then personally purported to cancel Mr Makasa’s visa, again pursuant to s501(2), on the basis that Mr Makasa failed the character test solely by reason of the 2009 convictions but also having regard to the 2017 convictions.
On appeal, the Full Federal Court (Allsop CJ, Kenny and Banks-Smith JJ, Besanko J agreeing, Bromwich J dissenting) allowed the appeal and quashed the Minister’s decision. The Minister appealed to the High Court, which unanimously dismissed the appeal.
A two-stage decision-making process
The High Court began by observing that s501(2) of the Migration Act establishes a two-stage decision-making process, as follows:
- the decision-maker forms a reasonable suspicion that the visa holder in question does not pass the character test; and
- if the decision-maker forms a such reasonable suspicion – the decision-maker then exercises the discretion either to cancel the visa or not to cancel the visa.
Whether the decision is to cancel the visa or not to cancel the visa, the decision is the end point of an exercise of the power conferred by s501(2) of the Migration Act. The relevant question is whether that power can be re-exercised having regard to the power to re-exercise decision-making powers in s33(1) of the Acts Interpretation Act.
The effect of s33(1)
Section 33(1) provides that a statutory power ‘may be exercised…from time to time as occasion requires’. The section does not itself confer any power, but rather requires that a provision conferring a power be interpreted as authorising the power it confers to be exercised and re-exercised from time to time, overriding the common law doctrine that a statutory power is exhausted by its first exercise. In this context, their Honours observed (at [45]) that s33(1) does not ‘alter the incidents’ of the power spelt out in the underlying provision – a decision-maker will still need to comply with the requirements at both stages of the s501(2) decision-making process when remaking a decision pursuant to that section.
This significantly limits the potential scope of the application of s33(1) to s501(2) of the Migration Act. Section 33(1) authorises the re-exercise of both steps of the decision-making process under section 501(2), not just the exercise of the discretion.
In the absence of further information modifying the factual basis for the Minister’s decision (eg, a sentence of imprisonment for the requisite length), the High Court reasoned that the Minister was purporting to re-exercise the second stage of the decision-making process only, which was ‘inimical’ to s33(1) of the Acts Interpretation Act.
The High Court also reasoned that, although the legislative scheme for decisions under s501(2) does not displace s33(1) where subsequent events or further information not previously before the decision-maker provide a different factual basis for a decision, the scheme exhibits a contrary intention in the absence of subsequent events or further information.
‘Inherent’ within the Tribunal’s statutory function, according to the High Court’s decision, is the intention not to allow further re-exercise of a power by a primary decision-maker after re-exercise of that power by the Tribunal under paras 43(1)(b) or (c)(i) of the AAT Act on review of an earlier exercise of power by the primary decision-maker. In those circumstances, the High Court noted that the function of the Administrative Appeals Tribunal is to bring finality to the administrative decision-making process, and observed (at [50]) that:
[The Tribunal’s] function would be reduced to a mockery were the subject-matter of the decision made by the AAT on review able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the AAT in the conduct of the review.
Accordingly, the discretion in s501(2) can only be re-exercised if subsequent events or further information ‘provide a different factual basis’ for the decision-maker to form a reasonable suspicion that a visa holder does not pass the character test at the first stage of the requisite two-stage decision-making process. Only then will the discretion to cancel the visa be enlivened. The High Court concluded that the appeal should be dismissed.
What does Makasa mean for you?
The High Court’s judgment in Makasa reminds us that there is a presumption that decisions made by the Tribunal on merits review will be final. As the Court observed (at [51]), the fact that s43(6) of the AAT Act ‘deems’ the Tribunal’s decision to be a decision of the original decision-maker should not be read as requiring a Tribunal decision to be treated as no more than an exercise of power by the primary decision-maker which the primary decision-maker is able to re-exercise, simply by virtue of s33(1) of the Acts Interpretation Act.
It is important to remember that the power to remake decisions in s33(1) of the Acts Interpretation Act cannot enable a decision-maker to go beyond the limits of the original decision-making power. The words ‘as the occasion requires’ in s33(1) implicitly acknowledge that the decision-maker will still be constrained by the underlying statute pursuant to which the original decision was made.
In determining the scope of any power to re-make a decision, government lawyers should carefully step through the process provided for in the enabling statute. If the statute provides a multi-stage decision-making process, the fresh decision will need to follow each stage and avoid simply re-exercising a discretionary component of the decision.
As was the case in Makasa, it may also be necessary to consider whether information has come to light that provides a new factual basis for reaching the state of satisfaction required to re-make the decision. Separately, however, the statute might provide specific powers to remake a decision such as the ministerial override powers found elsewhere in the Migration Act that do not require a new factual basis.
This article was written by Michael Palfrey, Partner, Will Sharpe, Partner and Neil Cuthbert, Senior Associate. The authors would like to thank Thomas Matz for assistance in preparing this case note.
