‘Decision’ to cancel under s 501(3) instead of s 501(2)? Appeal.

Federal Court (Full Court): A single judge of the FCA had held that the choice to cancel a visa under s 501(3) rather than s 501(2) was not a “decision” that was subject to judicial review. The non-citizen appealed that decision to the Full Court (FCAFC). Further, does Ibrahim apply to decisions under s 501(3), with the effect that it would be a jurisdictional error for the Minister to make those decisions based on the wrong understanding that s 501(3) prevents the Minister from according natural justice? Finally, which decision should be followed on materiality: Ibrahim; or Nguyen?

Summary

The Minister chose to cancel the Appellant's visa under s 501(3) of the Migration Act 1994, as opposed to s 501(2). The former provision does not require natural justice. The latter does.

The Minister's reasons include the following passages:

9.    I note that I could have instead elected to consider Mr BURGESS’ visa cancellation under s501(2) of the Act, with natural justice, and that under that provision the person is provided with a Notice of Intention to Consider Cancellation and given 28 days in which to respond to the notice. Under that process the person is afforded an opportunity to provide the Department with information pertaining to their circumstances and to respond to any adverse information, before a decision is made.

10.    However, I decided to proceed to make a decision in Mr BURGESS’ case under s501(3), without natural justice.

The Appellant applied to the Federal Court (FCA), a single judge of which dismissed that application.

The Appellant eventually appealed the FCA's decision to the Full Court of the FCA (FCAFC), the questions to which were as follows.

Question 1: Was the choice to cancel the Appellant's visa under s 501(3) rather than s 501(2) a “decision” which was subject to judicial review?

If the answer to Question 1 is "yes":

Question 2: Was that choice vitiated by legal unreasonableness?

Question 3:

Background: The Appellant argued that the Minister was urged to make his decision as soon as possible and that that urge made the Minister proceed under s 501(3) instead of s 501(2), as the Minister chose to proceed under the former provision based on an incorrect understanding that the latter provision required that the Appellant be given 28 days to respond to a NOICC.

Question: Did the Minister proceed based on the view that the 28 day notice period was a requirement expressly sourced in s 501(2) of the Act?

Question 4:

Background: In Ibrahim, the FCAFC had decided that the Minister's reference in his decision record (in that case) to the fact that s 501BA(2) precluded him from according Mr Ibrahim procedural fairness amounted to jurisdictional error. Subsection 501(3) is similar to s 501BA(2) in that: neither provision required the Minister to accord procedural fairness; and neither provision prevented the Minister from doing so.

Question: Does Ibrahim apply to s 501(3)?

Question 5: Did the Minister's reasons support an inference that the Minister believed that he was prevented by s 501(3) from according the Appellant procedural fairness?

If the answer to Question 5 is "yes":

Question 6:

Background: The FCAFC had also decided in Nguyen that the FCAFC's ruling in Ibrahim was wrong to the extent that it had held that it was incumbent on the appellant to demonstrate what would have occurred had the error not been made.

Question: Was Nguyen correctly decided on that point?

Question 7: Is urgency in the making of a decision under s 501(3) a fundamental ingredient of what is in the national interest pursuant to s 501(3)(d)?

The FCAFC answered those questions as follows:

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