Federal Court (Full Court): An error is only jurisdictional if material and only material if, had it not been made, the decision could have been different (HCA: Hossain). Materiality is a question of fact in respect of which judicial review applicants bear the onus of proof (HCA: SZMTA). It was incumbent on the appellant to demonstrate what would have occurred had the error not been made (FCAFC: Ibrahim). Differently constituted, the FCAFC disagreed with that aspect of Ibrahim, distinguished SZMTA and Hossain and reconciled the latter 2 cases with WZARH.
Summary and discussion
501BA Cancellation of visa––setting aside and substitution of non-adverse decision under section 501CA
(1) This section applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Action by Minister––natural justice does not apply
(2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or
(ii) paragraph 501(6)(e); and
(b) the Minister is satisfied that the cancellation is in the national interest.
(3) The rules of natural justice do not apply to a decision under subsection (2).
Minister’s exercise of power
(4) The power under subsection (2) may only be exercised by the Minister personally.
Decision not reviewable under Part 5 or 7
(5) A decision under subsection (2) is not reviewable under Part 5 or 7.
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.