Federal Court. The Minister purported to cancel tje Appellant's visa under s 501(2), but that decision was quashed in court. The Minister then purported to cancel the Appellant's visa under s 501(3), but that decision was also quashed in court. The Minister eventually cancelled the visa under s 501(3) 'again'. Is the power to cancel a visa under s 501(3) spent if the Minister previously exercised the power to cancel under s 501(2)?
The Full Court of the Federal Court (FCAFC) said as follows:
15 Makasa decides that, after the Administrative Appeals Tribunal (Tribunal) has made a decision under s 501(2) of the Act in reviewing afresh a decision made by a delegate of the Minister, neither the Minister nor a delegate may again make a decision under s 501(2) in respect of the individual concerned unless, in terms of s 33(1) of the Acts Interpretation Act 1901 (Cth), “occasion” has arisen. In effect, if the status quo as at the time when the Tribunal made its decision continues to obtain, there is no “occasion” for the re-exercise of the statutory power.
Some of the questions to the FCAFC were as follows:
Question 1: Did the Appellant bear the onus of proving that no fresh “occasion” had arisen for the Minister to cancel the visa under s 501(3)?
Answer: Yes. [With respect, query whether the HCA in Makasa in fact framed the test in the way indicated in this answer or whether it rather decided that s 33(1) of the AI Act simply did not apply to s 501(2) of the Migration Act].
Question 2: Is s 501 of the Migration Act 1958 (Cth) the repository of but one grant of power, with the result that a power to cancel a visa under s 501(3) is spent if the Minister previously exercised the power to cancel under s 501(2)?
Answer: No.
The FCAFC answered those questions as follows: