Federal Court (Full Court). Does 501CA(1) depend on "the existence of a legally effective decision under s 501(3A) as a precondition for the exercise of the power under s 501CA"? Is the duty to cancel a visa under s 501(3A) is not re-enlivened "where no new failure to pass the character test in s 501(3A)(a) has occurred, even if the person is serving a new sentence of imprisonment" specified under s 501(3A)(b)? Did the FCA have jurisdiction to declaratory relief, under s 476A(1)(b) and (2), in a collateral challenge to a s 501(3A) decision?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that "even if one or more of the conviction, sentence or finding, by reason of which the Minister is satisfied under s 501(3A)(a), or the sentence of imprisonment that the visa holder is serving, at the time that attracts the operation of s 501(3A)(b), is later set aside, or a verdict of acquittal is entered, the person has no right under the Act to have the visa restored" and that the person must instead seek a positive exercise of the discretion under s 501CA(4) of the Migration Act 1958 (Cth)?
Question 2: Can it be said that "s 501CA(1) depends on the existence of a legally effective decision under s 501(3A) as a precondition for the exercise of the power under s 501CA"?
Question 3: In order for cancellation to occur under s 501(3A), it it "necessary that the sentence of imprisonment referred to in s 501(3A)(b) has any connection to the basis on which the person failed the character test in the respect or respects that attracts s 501(3A)(a)"?
Question 4: Can it be said that the duty to cancel a visa under s 501(3A) is not re-enlivened "where no new failure to pass the character test in s 501(3A)(a) has occurred, even if the person is serving a new sentence of imprisonment" specified under s 501(3A)(b)?
Question 5: Did the FCA have jurisdiction to declaratory relief, under s 476A(1)(b) and (2), in a collateral challenge to a s 501(3A) decision?
The FCAFC answered those questions as follows:
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