Federal Court. The applicant was notified of the intention to consider cancelling his visa under s 501(2), based on the "2008 conviction". The Minister did not cancel the visa, after which the applicant was convicted of further offences. The Minister then cancelled the visa under s 501(2), based on the 2008 conviction, but not the further convictions. Due to Makasa, the reliance on the same conviction was erroneous. Was the error nevertheless immaterial, as the further convictions (if they had been relied upon) would have formed an independent basis upon which the applicant failed the character test?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In assessing the prejudice to be faced by the judicial review applicant in the content of determining whether to extend under s 477A(2) of the Migration Act 1958 (Cth) the time within which to make the judicial review application, could the Court consider the prospect of indefinite detention as a necessary consequence of refusing to extend time?
Question 2: Does s 501(2) incorporate a materiality threshold that must be met for an error made in exercising the power under that provision to be jurisdictional?
Question 3: The applicant was notified of the intention to consider cancelling his visa under s 501(2), based on the "2008 conviction". The Minister did not cancel the visa, after which the applicant was convicted of further offences. The Minister then cancelled the visa under s 501(2), based on the same 2008 conviction, but not the further convictions. Due to Makasa, the reliance on the same conviction was erroneous. Was the error nevertheless immaterial, as the further convictions (if they had been relied upon) would have formed an independent basis upon which the applicant failed the character test?
The FCA answered those questions as follows: