Federal Court. Given the 25-month gap since the Tribunal’s decision, was it "illogical or irrational for the Minister to assume that certain facts at the date of the Tribunal’s hearing remained the same, or that the lack of evidence on certain matters at the date of the Tribunal’s decision meant that there continued to be a lack of evidence at the date of his decision"?
The Tribunal set aside a delegate's decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the Applicant's visa.
25 months after the Tribunal's decision, the Minister set aside the Tribunal's decision, under s 501BA.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that "jurisdictional error can arise if the Minister makes unwarranted assumptions about the circumstances at the time of the s 501BA decision, based on evidence at the time of the Tribunal’s decision"?
Question 2: Given the 25-month gap since the Tribunal’s decision, was it "illogical or irrational for the Minister to assume that certain facts at the date of the Tribunal’s hearing remained the same, or that the lack of evidence on certain matters at the date of the Tribunal’s decision meant that there continued to be a lack of evidence at the date of his decision"?
The FCA answered those questions as follows: