Federal Court. If a visa is cancelled under s 501(3A) on the basis that the person failed the character test by reason of certain offences and that cancellation is revoked under s 501CA(4), can the visa be cancelled again under s 501(3A) on the basis of the failure to pass the character test by reason of the same offences? If not and a delegate or the Minister nevertheless does so, is the AAT allowed to review the non-revocation of the second cancellation decision?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does the power under s 501CA(4) of the Migration Act 1958 (Cth) involve a discretion?
Question 2: Can it be said that, "if the Minister or a delegate exercises [the power under s 501(3A)] on the basis that they are satisfied, having regard to particular facts, that a visa holder does not pass the character test within s 501(3A)(a), the Minister or delegate may only re-exercise that power upon becoming satisfied that the visa holder does not pass the character test on the basis of subsequent events or further information which support a relevantly different factual basis"?
Question 3: "Section 501CA only applies if the Minister (or a delegate) makes a decision under s 501(3A) to cancel a visa that has been granted: s 501CA(1)". In that sense, can a decision to cancel a visa under s 501(3A) be termed a jurisdictional fact for the purposes of the exercise of the power under s 501CA(4)?
Question 4: If the answer to Question 3 is "yes", does it follow that the Tribunal has no power to conduct its review under s 501CA(4) if the delegate’s decision under s 501(3A) was made in jurisdictional error?
Question 5: Are decisions made under s 501(3A) immune to judicial review?
Question 6: If the answer to Question 5 is "no", does the FCA have jurisdiction to review decisions under s 501(3A)?
Question 7: If the answer to Question 4 is "no", can it be said that, "were it to be the case that an applicant only failed the character test at the s 501CA(4) stage by reason of sentences that had been the cause of a prior cancellation and revocation decision ... , that would amount to a jurisdictional error"?
Question 8: If the answer to Question 7 is "yes" and the Tribunal erroneously finds that the Applicant failed the character test by reason of offences that formed the basis for the initial cancellation under s 501(3A), will that error be immaterial in circumstances where the Tribunal should have found that further offences formed a separate basis for the cancellation under s 501(3A)?
The FCA answered those questions as follows:
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