Federal Court: a previous FCA judgement had held that a notice under s 66 of the Migration Act 1958 of a decision to refuse to grant a visa did not itself constitute a "decision" that enlivened the jurisdiction of the Federal Circuit Court (FCCA). Does the same principle apply to visa cancellation revocation notices issued pursuant to s 501CA(3)?
Summary and discussion
8 Before the Federal Circuit Court it was common ground that no challenge was made to the actual decision to cancel the visa under s 501(3A); the challenge which was mounted was to the notification of that decision. In essence, the Applicant contended that the “person who purported to give the Notice to the Applicant … did not hold a delegation from the Respondent [Minister] to carry out his duty under the Migration Act 1958 s 501CA(3)”. If successful in that challenge, the Applicant would have – so the argument ran – 28 days from whatever date a new notification was given in which to make representations.The FCCA dismissed that application and the Applicant eventually filed in the FCA an originating application for relief under s 39B of the Judiciary Act 1903. In a previous FCA judgement (Chung v Minister for Immigration & Multicultural & Indigenous Affairs  FCA 442), it had been held that a notice under s 66 of the Migration Act 1958 of a decision to refuse to grant a visa did not itself constitute a "decision" that enlivened the jurisdiction of the Federal Circuit Court (FCCA). The question to the FCA was whether Chung equally applied to a notice issued pursuant to s 501CA(3) or whether such a notice constituted a "decision" that enlivened the jurisdiction of the FCCA. The FCA answered as follows...
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