Power in s 501BA(2) to be exercised within reasonable time period?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Does s 501BA(2) of the Migration Act 1958 (Cth) confer "a single power of a composite nature, by which the Minister may both set aside a decision to revoke the mandatory cancellation of a person’s visa, and cancel that visa"?

Question 2: Must the subject of a decision under s 501BA(2) be the same visa that was the subject of the original decision?

Question 3: Can it be said that a decision under s 501BA(2) must be based on a review of the findings and reasoning of the delegate or the Tribunal in making the original decision, or that it is necessary for the Minister to disagree with or find error in the original decision?

Question 4: Does 501BA impose a duty on the Minister to consider the exercise of the power to set aside an original decision and cancel a visa that has been granted to a person?

Question 5: Does the absence of a duty to exercise a statutory power preclude an implication that the power must be exercised within a reasonable time?

Question 6: Must a finding by a separate concurring judge of the Full Court of the Federal Court be regarded as obiter, if the question was not determined by the joint judgment of the two other judges?

Question 7: Can the power in s 501BA(2) only be exercised within a reasonable time after the original decision?

Question 8: Is the Minister "likely to have constructive, if not actual, knowledge of decisions made under s 501CA by a delegate or by the Tribunal shortly after such decisions are made"?

Question 9: If the power in s 501BA(2) be exercised only within a reasonable time after the original decision, are any delays to be remedied by Certiorari, instead of Mandamus?

Question 10: Is it artificial to divorce the matters of which the Minister must be satisfied under s 501BA(2)(a) and (b) from the discretionary aspects of the exercise of the power conferred by s 501BA(2)?

Question 11: Can it be said that, "in contrast to the power conferred by s 501(2), s 501BA allows the Minister to revisit the question whether the person’s visa should be cancelled on the same factual basis that attracted the power to make the mandatory cancellation decision under s 501(3A) and the original decision under s 501CA"?

Question 12: If the answer to Question 7 is 'yes', does that mean that the Minister cannot take into account pursuant to s 501BA(2) events or circumstances that arose after the original decision?

Question 13: Can it be said that the powers conferred by s 501(2) or (3A) cannot be re-exercised by the Minister or a delegate in the absence of subsequent events or further information which “provide a different factual basis upon which to form a reasonable suspicion that a visa holder does not pass the character test”?

Question 14: Does s 501BA(2) require the Minister to be satisfied that the cancellation is in the national interest at the time that the power is exercised?

Question 15: If the answer to Question 7 is 'yes', does the question of whether the Minister has exercised the power under s 501BA(2) within a reasonable time after the original decision involve an objective assessment having regard to the facts and circumstances of the particular case?

Question 16: If the answer to Question 7 is 'yes', is the question of whether the Minister has exercised the power under s 501BA(2) within a reasonable time after the original decision couched in terms of whether or not the delay is “in consequence of neglect, oversight or perversity?

Question 17: May there be circumstances in which delay in exercising the power under s 501BA is prima facie unreasonable in the absence of a satisfactory explanation?

Question 18: If the answer to Question 7 is 'yes', is the ultimate question whether the power under s 501BA was exercised within a reasonable time, by reference to the entire period between the original decision and the decision made by the Minister, instead of by reference to sub-periods within that entire period?

Question 19: If the answer to Question 7 is 'yes', can it be said that the "relevant period is not confined to the time taken by the Minister personally to consider the exercise of the power, but encompasses the entire period after the Minister has actual or constructive notice of the Tribunal’s decision"?

Question 20: If the answer to Question 7 is 'yes', in determining what is a reasonable time for power under s 501BA(2) to be exercised, is it important that sufficient time is allowed to enable a proper consideration of the significant issues raised by the potential exercise of the power to set aside the original decision and cancel a visa that has been granted to a person?

Question 21: If the answer to Question 7 is 'yes', in determining what is a reasonable time for power under s 501BA(2) to be exercised, is it "also relevant to take into account the impact of a decision under s 501BA(2) on the rights and interests of the person whose visa is cancelled, including its potential impact on the person’s liberty, having obtained a decision from a delegate or the Tribunal under s 501CA to reinstate a visa that had been cancelled under s 501(3A)"?

Question 22: At some point, must the Minister "exercise his statutory powers and administer the Migration Act in accordance with the prevailing law, rather than await possible legal developments arising from pending or future litigation, including in particular an application for special leave to appeal"?

Question 23: Should the Court be "sceptical of the bald assertion that all cases must be placed on hold until the new Ministerial direction can be assessed and “templates” are updated and cleared, let alone that all such cases must be “restarted”"?

Question 24: If the answer to Question 7 is 'yes', in determining what is a reasonable time for power under s 501BA(2) to be exercised, must each case turn on its particular facts, and on the evidence adduced by the parties?

The FCA answered those questions as follows: