Federal Court. Delegate mandatorily cancelled visa under s 501(3A) on character grounds, but then revoked that cancellation under s 501CA. Applicant offended again and delegate mandatorily cancelled visa under s 501(3A) again, but this time did not revoke the cancellation. AAT affirmed non-revocation decision. Can it be said that, as earlier revocation decision formed part of the background facts against which AAT came to exercise its review jurisdiction, the facts before the AAT were not the same as those before the delegate at the time of revocation, with the result that AAT was not bound to follow that revocation decision?
The questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that, because the earlier revocation decision "formed part of the background facts against which the Tribunal came to exercise its review jurisdiction", the facts before the Tribunal were not the same as those before the Minister at the time of revocation, with the result that the Tribunal was not bound to follow that revocation decision?
Question 2: If the facts before the Tribunal were the same as those before the Minister at the time of the earlier revocation decision, can it be said that "there may be an expectation of consistency in administrative decision-making or it may be that it is unreasonable to depart from an earlier finding of fact"?
The FCA answered those questions as follows:
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