s 501A: can power be re-exercised on same facts following remittal?

Federal Court. The Minister purported on 2 occasions to refuse to grant a visa under s 501A. Both decisions were quashed and remitted for determination according to law. Could the same power be exercised a third time by reference to the same facts and circumstances? Does fact that the Minister considered Australia’s non-refoulement obligations in the exercise of his discretion under s 501A(3) mean that the same matters were not weighed in the balance in deciding the question of national interest under s 501A(3)(d)?

The Federal Court (FCA) summarised two of the Applicant's claims as follows:

65    The applicant also submitted that the “totality of the circumstances indicate that the first respondent approached the applicant’s visa application with a closed mind such that the only decision that would realistically be made … was a refusal”. The applicant identified five matters which he submitted would lead the hypothetical lay observer to apprehend that the Minister might not have approached the decision making process with an open mind:

(1)    at all material times, the Minister who sought to exercise the power under s 501A(2) against the applicant was the first respondent, the office of which was at all material times occupied by the Honourable Peter Dutton;

(2)    section 501A(2) could only be exercised by the Minister personally;

(3)    the Minister issued two NOICRs within a short span of time, such that there were no material changes in the applicant’s circumstances that could be the subject of any meaningful submissions in response;

(4)    the Minister’s conduct in delaying the processing of the visa application between December 2019 and June 2020 and expressing an intention to refuse to give effect to the principle in BAL19 in the hopes that it would be overturned on appeal; and

(5)    the Minister’s conduct in causing NOICRs to be issued on 2 June 2020, while court proceedings for unreasonable delay were on foot, and on 16 September 2020, one day after Mortimer J made orders by consent quashing the second s 501A(2) decision.

74    By ground 3, the applicant submitted that the Minister’s 28 October 2020 decision was legally unreasonable. He submitted that this was evident because:

(1)    the first and second respondents refused to give effect to the judgment of the court in AFX17 v Minister for Home Affairs [2020] FCA 807 and the law as it then was;

(2)    the Minister failed to disclose to the court the “reason and timing of his leave and unavailability” (citing AFX17 v Minister for Home Affairs (No 4) (2020) 279 FCR 170); and

(3)    the history of this matter, including the timing and frequency of the repeated attempts to exercise the power in s 501A(2), “was a course of conduct that no other reasonable person would have adopted”, citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 550–551 [10] (Kiefel CJ).

Some of the questions to the FCA were as follows:

Question 1: Could the power under s 501A be exercised by the Minister following the second remittal by reference to the same facts and circumstances?

Question 2: Was the third decision affected by a reasonable apprehension of bias?

Question 3: Was the Minister's third decision unreasonable because of the matters set out at [74] by the FCA?

Question 4: Does fact that the Minister considered Australia’s non-refoulement obligations in the exercise of his discretion under s 501A(3) mean that the same matters were not weighed in the balance in deciding the question of national interest under s 501A(3)(d)?

The FCA answered those questions as follows:

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