Can visa cancellation be revoked under s 131 despite visa expiry?

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

Question 1: Is a controversy as to the costs that should have been awarded at first instance sufficient to maintain jurisdiction on an appeal, even though resolution of the substantive controversies has become moot?

Question 2: If the answer to Question 1 is 'yes', will the scope of that “matter” "ordinarily encompass or extend to a consideration of the substantive issues by reference to which the costs orders were made below"?

Question 3: If the answer to Question 1 is 'yes', may the Court still have a discretion to stay or dismiss the appeal?

Question 4: If the answer to Question 3 is 'yes', is it appropriate to address the question of construction sought to be agitated by the Minister on the appeal, in circumstances where: neither party submitted that the Court should exercise any discretion not to hear and determine the appeal; "the present appeal involves an issue of construction having a significance beyond the immediate rights of the present parties and there are serious arguments capable of being advanced as to the correctness of the judgment, which can be disposed of quite shortly"?

Question 5: Before exercising the power to cancel a visa under s 128 of the Migration Act 1958 (Cth), must the Minister "be satisfied that there is a ground for cancellation under s 116 and that it is appropriate to cancel in accordance with Subdiv F, that is, without notice to the non-citizen who is outside Australia?"

Question 6: While a visa can only be in effect during the visa period, is it "possible for a visa to be granted (and the visa period to commence) in circumstances where the visa does not come into effect until a later date"?

Question 7: Is the Minister required to make a decision under s 131 whether to revoke the cancellation of a visa within a reasonable time?

Question 8: If the answer to Question 7 is 'yes', would that be "a reasonable time after the former holder of the visa has provided his or her response to the notice of cancellation under s 129, having regard to the particular facts and circumstances and the subject matter and purpose of the power"?

Question 9: If the answer to Question 7 is 'yes', would the remedy for any failure to make a decision within a reasonable time be mandamus to enforce the performance of the statutory duty?

Question 10: Can it be said that "the power to cancel a visa under s 128, including the formation of the state of satisfaction that it is appropriate to cancel in accordance with Subdiv F (that is, without notice to the holder of the visa while he or she is outside Australia), is subject to an implied condition requiring the power to be exercised in accordance with the principles of legal reasonableness"?

Question 11: In so far as the Minister has power under s 133(2) to vary the time that a reinstated visa is to be in effect or any period in which the visa permits its holder to travel to, enter and remain in Australia, must such a power be exercised reasonably?

Question 12: If the answer to Question 11 is 'yes', would it "be legally unreasonable for the Minister not to exercise the power to vary the visa period under s 133(2) so as to give some utility to the revocation"?

Question 13: Does s 131 confer "power to revoke the cancellation of a visa even where the visa would have ceased to be in effect because the specified period during which the visa permitted its holder to travel to, enter and remain in Australia has ended"? Or rather, if revocation occurs after the original expiry date, is the restored visa 'stillborn'?

The FCA answered those questions as follows: