Federal Court (Full Court). Do the High Court, the Federal Court and/or the Federal Circuit Court have jurisdiction to review decisions under s 501(3A) of the Migration Act 1958 (Cth)? Does XJLR support a conclusion that the FCA has jurisdiction to review the validity of a delegate’s decision under s 501(3A) in the context of an application for judicial review of a decision under s 501CA(4)?
The appellant unsuccessfully applied to the Federal Court (FCA) for judicial review of a decision of the Tribunal that affirmed a delegate's decision made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the appellant's visa, which had occurred under s 501(3A).
By proposed new ground 2 of the notice of appeal, the appellant argued before the Full Court of the FCA (FCAFC) that the Tribunal lacked jurisdiction to review the delegate’s decision under s 501CA(4) because the cancellation decision on which it was premised was legally ineffective, as it arose from a denial of natural justice concerning an asserted anterior decision to choose between cancellation powers. That argument were not agitated at first instance, which means that leave to rely upon it was required on appeal.
Some of the questions to the FCAFC were as follows:
Question 1: Can it be said that, due to s 476A of the Act, the Federal Court did not have jurisdiction to review the validity of the delegate’s decision under s 501(3A)?
Question 2: Was the delegate’s decision under s 501(3A) amenable to judicial review in the High Court under para 75(v) of the Constitution?
Question 3: Did s 476 confer jurisdiction on the Federal Circuit and Family Court of Australia (Division 2) in respect of decisions under s 501(3A)?
Question 4: Does XJLR support a conclusion that the FCA has jurisdiction to review the validity of a delegate’s decision under s 501(3A) in the context of an application for judicial review of a decision under s 501CA(4)?
Question 5: Is it "contrary to the interests of justice to allow a party to raise a new point on appeal unless it could not possibly have been met by further evidence at trial"?
Question 6: Can it be said that, "before exercising the power to cancel the appellant’s visa under s 501(3A), the Minister was required to make an anterior decision whether to exercise power under a different provision such as s 501(2) and afford the appellant the opportunity to be heard about that decision"?
The FCAFC answered those questions as follows: