Federal Court. Assuming that the power in s 501BA(2) of the Migration Act 1958 (Cth) is required to be exercised within a reasonable time, and that such requirement is not complied with, is the consequence that a writ of mandamus might issue to compel the Minister to make a decision, instead of the power being treated as spent through certiorari?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the concept of the national interest used in s 501BA of the Migration Act 1958 (Cth) different from the concept of the national interest that applies in relation to ss 501(3) and 501A(2)?
Question 2: In exercise the power in s 501BA, was it permissible for the Minister to treat some matters as relevant to the exercise of his discretionary power, without factoring them into his conclusion as to whether it was in the national interest to cancel the visa?
Question 3: Can it be said that, "even where the Minister finds that cancellation of a visa would be in the national interest, the decision is discretionary, in the sense that the Minister is not obliged to cancel the visa even if it is thought to be in the national interest to do so"?
Question 4: Assuming that the s 501BA(2) power is required to be exercised within a reasonable time, and that such requirement is not complied with, is the consequence that a writ of mandamus might issue to compel the Minister to make a decision, instead of the power being spent?
Question 5: In relation to the Applicant's initial onus of establishing that there was a delay which called for explanation, should it be held against him that, even though he adduced no evidence in this regard, "there are processes available by which applicants for judicial review may compel the production of information or documents from the Minister or the department that would tend to establish the basis for a submission that there had been a delay that calls for explanation"?
Question 6: In relation to the Applicant's initial onus of establishing that there was a delay which called for explanation, is it relevant that the power is one which is to be exercised by the Minister personally?
Question 7: In relation to the Applicant's initial onus of establishing that there was a delay which called for explanation, is it relevant that, unlike the circumstances involving the exercise of the s 501BA power (where the person is no longer in detention), "other decision-making powers exercisable by Ministers and their delegates in connection with character-related visa cancellation and refusal often involve non-citizens who are detained"?
The FCA answered those questions as follows: