Appeal: can a decision be made twice under s 501(2) on the same facts?

Federal Court (Full Court). Subsection 501(2) of the Migration Act 1958 (Cth) gives the Minister the discretion to cancel a visa if certain pre-conditions are satisfied. If certain facts satisfy those pre-conditions but the Minister decides not to cancel a visa, can the Minister re-exercise the discretion and cancel the visa under that same provision based on the same facts? If certain facts satisfy those pre-conditions and the Minister decides to exercise the discretion under s 501(2) to cancel a visa, but the Tribunal sets aside that decision, can the Minister cancel the visa once again under that same provision based on the same facts that satisfied those pre-conditions?

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Subsection 501(2) of the Migration Act 1958 (Cth) gives the Minister the discretion to cancel a visa if certain pre-conditions are satisfied. If certain facts satisfy those pre-conditions, but the Minister decides not to cancel a visa, can the Minister re-exercise the discretion and cancel the visa under that same provision?

Answer: In obiter, ALLSOP CJ, KENNY and BANKS-SMITH JJ answered, in their joint judgement, "yes" if "there have been significant changes in the circumstances of the applicant that could reasonably touch on the exercise of discretion", even if the power is enlivened based on the same facts. It could be argued that the answer would be "no" if there have been no significant changes to the applicant's circumstances since the original decision was made that could reasonably touch on the exercise of discretion, although the FCAFC did not go that far. BROMWICH J answered "yes", even if the power is enlivened based on the same facts. BESANKO J agreed with BROMWICH J on this point.

Question 2: If certain facts satisfy those pre-conditions and the Minister decides to exercise the discretion under s 501(2) to cancel a visa, but the Tribunal sets aside that decision, can the Minister cancel the visa again under that same provision based on the same facts that satisfied those pre-conditions?

Answer: ALLSOP CJ, KENNY and BANKS-SMITH JJ answered "no" in their joint judgement. BROMWICH J answered "yes", provided that the Minister "finds, expressly or by implication, a material change or difference since the Tribunal’s decision". BESANKO J answered "yes".

Question 3: Would "s 501A ... permit a decision of the Tribunal to be set aside by the Minister 'on the same facts and circumstances' as those before the Tribunal"?

Answer: In obiter, ALLSOP CJ, KENNY and BANKS-SMITH JJ answered "yes" in their joint judgement. In obiter, BROMWICH J answered "yes". BESANKO J did not answer that question.

Question 4: Would s 501A "also permit the Minister to rely on different facts in the exercise of the Minister’s discretion"?

Answer: In obiter, ALLSOP CJ, KENNY and BANKS-SMITH JJ answered "yes" in their joint judgement. BROMWICH and BESANKO JJ did not answer that question.

Question 5: Can the Minister "engage in a new exercise of the power in s 501(2), in respect of an individual’s visa, where new facts or different considerations are relied on to enliven the power"?

Answer: In obiter, ALLSOP CJ, KENNY and BANKS-SMITH JJ answered, in their joint judgement, that in such a case "there may well be a separate and independent exercise of the power". BROMWICH and BESANKO JJ did not answer that question.

Question 6: Once the power to grant or to refuse to grant a visa under s 65 is exercised, is that power spent? Or can the decision to grant or to refuse to grant be made again?

Answer: ALLSOP CJ, KENNY and BANKS-SMITH JJ did not answer that question. In obiter, BROMWICH J answered that the power can only be exercised once. However, his Honour arguably referred to the power being only "validly" exercised once. In other terms, arguably, if a decision under s 65 is vitiated with jurisdictional error , that decision is not a decision in law at all, which means it has not been made in law. In that sense, the decision could be made "again", from a practical (not legal) perspective. BESANKO J did not answer that question.

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