Federal Court. Does the Tribunal have jurisdiction to review a delegate's decision made under s 501CA(4) of the Migration Act 1958 (Cth), even if the delegate’s decision was invalid or beyond power?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that "a notice and invitation under s 503CA(3) which fails adequately to “crystallise” the relevant period for the making of representations ascertained in accordance with r 2.52 of the Regulations is invalid"?
Question 2: Can it be said that "an invitation to make representations which stated that representations had to be “received” by the Minister, as opposed to being “made”, within 28 days of being given the invitation", is invalid?
Question 3: Can it be said that "the Minister has no power to issue a second valid invitation to make representations or extend the time for compliance with reg 2.52"?
Question 4: Can it be said that "in circumstances where the Minister issued an invalid invitation and representations were made out of time, the statutory pre-condition for the exercise of the power in s 501CA(4)(a) was never enlivened, and therefore the only relief possible was the setting aside of the delegate’s decision (to refuse to consider the representations) by judicial review"?
Question 5: May the Tribunal have “authority to review” an invalid decision where representations were in fact considered by the delegate?
Question 6: Does an invalid notice in and of itself necessarily prevent the power in s 501CA(4) being enlivened, even if a representation is made within time?
Question 7: Does the FCA have jurisdiction to set aside a delegate’s non-revocation decision?
Question 8: Does the Tribunal have jurisdiction to review a delegate's decision made under s 501CA(4), even if the delegate’s decision was invalid or beyond power?
Question 9: Is there an apparent inconsistency between CVHS and EXT20?
The FCA answered those questions as follows: