Federal Court. In Brown & Makasa: delegates cancelled visas under s 501(2); AAT set aside cancellations; Minister then personally exercised discretion to cancel under s 501(2) based on the same offences; court held power to exercise discretion under s 501 based on the same offences was spent by delegates' decisions. Here, discretion to cancel under s 501(2) was enlivened by an offence, but delegate decided not to cancel. Was Minister then allowed to personally exercise discretion under s 501(2) based on a new offence?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can a delegate, or the Minister acting personally, re-exercise the discretion conferred by s 501(2) of the Migration Act 1958 (Cth) with respect to the visa on another occasion even where the facts or circumstances relied on to enliven the discretion are the same as before, so long as a new fact or circumstance has arisen that potentially bears on the exercise of the discretion?
Question 2: Where a new fact or a different circumstance is relied on to enliven the power in s 501(2), can there be a new exercise of the discretion?
Question 3: Could new facts and circumstances about a criminal conviction potentially bear on the exercise of the discretion under s 501(2)?
Question 4: If the answer to Question 3 is "yes", are those new facts and circumstances a mandatory relevant consideration in the exercise of s 501(2)?
Question 5: Is the matter that led the decision-maker to reasonably to suspect that the visa holder did not satisfy the character test a mandatory consideration in the exercise of the discretion under s 501(2)?
The FCA answered those questions as follows:
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