Federal Court (Full Court). Is the power in s 501BA(2) of the Migration Act 1958 (Cth) subject to an implied limitation that it be exercised within a reasonable period of time after the original decision?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Is the power in s 501BA(2) of the Migration Act 1958 (Cth) subject to an implied limitation that it be exercised within a reasonable period of time after the original decision?
Question 2: Is it arguable that the power in s 501BA(2) "cannot properly be exercised in response to new offending by the visa holder or additional reasons why they do not pass the character test arising after the original decision"?
Question 3: May delay in making a decision under s 501BA(2) "be relevant to questions of legal unreasonableness, particularly if the visa holder has been at liberty for some time and re-established a life in Australia"?
Question 4: Can it be said that court have "generally (and properly) been reticent about second-guessing decisions concerning resource allocation by government; and an assessment of a “reasonable time” that took no account of resource constraints would be somewhat artificial if not arbitrary"?
The FCAFC answered those questions as follows: