Federal Court. Do the terms of s 75(v) of the Constitution prevent the abolition of the natural justice rule under s 501BA(3) of the Migration Act 1958 (Cth)? Are there "significant doubts concerning the ability of the applicant to seek “bail” (an order sought in criminal proceedings) in the present administrative context, particularly in light of such authorities as Al-Kateb v Godwin"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that, "while national interest considerations were separate and distinct from the question whether or not a person passed the character test, matters which resulted in a person failing the character test may also provide the foundation for the Minister’s satisfaction that it was in the national interests that that person’s visa be cancelled"?
Question 2: Can it be said that, "in order for the Minister to find that cancellation of a visa is in the national interest, the retention of the visa by the non-citizen must enliven some form of emergency, or involve a significant threat to the nation"?
Question 3: Do the terms of s 75(v) of the Constitution prevent the abolition of the natural justice rule under s 501BA(3) of the Migration Act 1958 (Cth)?
Question 4: Can it be said that, if a judicial review applicant "is entitled to relief by way of certiorari because of jurisdictional error in respect of the primary decision, the applicant would be entitled to be released from migration detention in any event, and “bail” would not be necessary"?
Question 5: Are there "significant doubts concerning the ability of the applicant to seek “bail” (an order sought in criminal proceedings) in the present administrative context, particularly in light of such authorities as Al-Kateb v Godwin"?
The FCA answered those questions as follows: