Federal Court (Full Court). Is the Minister's ‘decision’ not to afford natural justice in exercising power in s 501BA(2) a migration decision listed in any of s 476A(1)(a)-(d), with the result that the Federal Court lacked jurisdiction to review that 'decision'? Was the power in s 501BA conditioned by an obligation to consider whether to afford procedural fairness? If not, can it nevertheless be said that "the Minister’s choice as to whether to afford a visa applicant natural justice before deciding whether to cancel the visa might be reviewable for legality"?
The Appellant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth), following his his non-revocation request was rejected under s 501CA(4). The Tribunal then set aside the non-revocation decision, with the result that his visa was re-instated.
After that, the Minister personally set aside the Tribunal’s decision and cancelled the Appellant's visa visa pursuant to s 501BA(2) on the basis that the cancellation of his visa was in the national interest. The Minister’s reasons recorded:
114. I find that the considerations favouring non-cancellation in particular the best interests of the affected children treated as a primary consideration, and [the Appellant's] ties to Australia and the hardship to him and his family members, are outweighed by the national interest considerations referred to above and I have decided to exercise my power under s 501BA of the Act to set aside the original decision of the Administrative Appeals Tribunal of 11 September 2019 and to cancel [the Appellant's] Class BC Subclass 100 (Partner) visa.
16 Section 5 of the Migration Act defines a ‘migration decision’ to mean:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non-privative clause decision; or
(d) an AAT Act migration decision.
Section 476A provided (emphasis added):
(1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
a. the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or
b. the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or
c. the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or
d. the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal 1975.
A ‘privative clause decision’ was defined in s 474(2) to mean:
a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
A ‘decision’ (s 474 (3)), and so a ‘privative clause decision’ (s 474(2)), and so a ‘migration decision’ (s 5), for the purposes of s 476A(1) included ‘conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation’ (s 474(3)(h).
Some of the questions to the Full Court of Federal Court (FCAFC) were as follows:
Question 1: Can it be said that the Minister's ‘decision’ not to afford natural justice in exercising power in s 501BA(2) is not a migration decision listed in any of s 476A(1)(a)-(d), with the result that the Federal Court lacked jurisdiction to review that 'decision'?
Question 2: Is there an anterior decision to be made under s 501BA about whether the Minister is or is not satisfied that natural justice should be afforded?
Question 3: Was the power in s 501BA conditioned by an obligation to consider whether to afford procedural fairness?
Question 4: If the answer to Question 3 is 'no', can it nevertheless be said that "the Minister’s choice as to whether to afford a visa applicant natural justice before deciding whether to cancel the visa might be reviewable for legality"?
Question 5: If the answer to Question 4 is 'yes', is legal unreasonableness a relevant species of illegality for the purpose of Question 4?
Question 6: Does s 501BA(2) give the Minister a residual discretion not to cancel or not to refuse to grant a visa even if he finds pursuant to s 501BA(2)(b) that cancellation or refusal is in the national interest?
Question 7: Does s 501BA require the Minister to have regard to any particular matter, such as the materials before the Tribunal, in forming a view about the national interest under s 501BA(2)(b) or in exercising the discretion in s 501BA(2)?
The FCAFC answered those questions as follows: