Federal Court (Full Court). Does the word "practicable" as used under s 501CA(3) of the Migration Act 1958 (Cth) ("as soon as practicable") mean feasible? If so, can it be said that "the question of what is feasible extends beyond the mere act of delivery of the notice and related material prescribed by s 501CA(3) to an assessment by the Minister of the recipient’s ability to respond to a notice"?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Does the word "practicable" as used under s 501CA(3) of the Migration Act 1958 (Cth) ("as soon as practicable") mean feasible?
Question 2: Can it be said that "the question of what is feasible extends beyond the mere act of delivery of the notice and related material prescribed by s 501CA(3) to an assessment by the Minister of the recipient’s ability to respond to a notice"?
Question 3: Is the question of when giving notice under s 501CA(3) of the Act is “practicable” a question of "objective jurisdictional fact that can be determined on the basis of new material not known to the Minister at the time the notice was given to the person"?
Question 4: Is the general purpose of s 501CA(3) to give the person whose visa has been cancelled a real opportunity to make representations about revocation of the cancellation decision?
Question 5: A special leave application was made to the High Court to appeal from a judgment of the Full Court of the Federal Court in BDS20. However, the High Court did not need to consider that application, as the respondent conceded that the Full Court's judgment was wrong. As a result, the High Court made orders granting special and allowing the appeal. Is the effect of such orders that there is "some doubt as to the authority of the" reasons of the Full Court in BDS20 and that such reasons are not binding, irrespective of whether they are considered to be "plainly wrong"?
Question 6: Did the High Court's orders have the effect that the reasons of the majority in BDS20 are analogous to a dissenting judgment?
Question 7: Where a binding authority cannot be extracted from majority judgments, may a dissenting judgement deserve respectful consideration?
Question 8: Was the reasoning of the majority of the Full Court in BDS20 wrong in that there can be more than one notification under s 501CA(3)?
Question 9: Is the 'decision' under s 501CA(3) as to when it is reasonably practicable to notify a person of a decision made under s 501(3A) amenable to judicial review in the form of legal unreasonableness?
Question 10: Can it be said that legal unreasonableness "is to be judged at the time the power is exercised or should have been exercised and is not to be assessed through the lens of procedural fairness to the applicant"?
The FCAFC answered those questions as follows: