s 501CA(4): possible to revoke visa cancellation after expiry?

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

Question 1: Can it be said that in the judicial review of a Tribunal decision, "although the Tribunal is a necessary party and might be expected almost invariably to file a submitting appearance, it is still necessary to serve the Tribunal, and that service to be proved or an appearance entered in a timely way prior to the hearing"?

Question 2: Can it be said that "the boundaries of the review conducted by the Tribunal, and the powers which it may exercise, are dictated by the particular decision under review and the powers conferred by the statute concerned on the administrator who made the decision under review"?

Question 3: Was there anything "either in s 501CA or elsewhere in the Act which confined the original decision-maker to material in existence as at the time of the original cancellation decision" under s 501(3A) of the Migration Act 1958 (Cth)?

Question 4: Was there anything either in s 501CA or elsewhere in the Act which confined the Tribunal either to material in existence at the time of the cancellation under s 501(3A) or at the time when the Minister or her delegate decided under s 501CA(4) not to revoke the original cancellation decision?

Question 5: The Tribunal was part of an administration decision-making continuum. Can it be said that that continuum "included the fact that, by the time the Tribunal came to make its decision, [the Applicant's] student visa would have expired in any event"?

Question 6: Can it be said that that continuum included the fact that, by the time the Tribunal came to make its decision, "the contents of the representations made by [the Applicant], from his original representation in response to the post-visa cancellation invitation to his closing submission to the Tribunal, as to why the cancellation of that visa should be revoked"?

Question 7: Did the ability lawfully to revoke under s 501CA(4) the cancellation of a visa "expire with the expiry of what would otherwise have been the duration of the term of the visa"? In other words, can it be said that the ability to revoke the cancellation did not exist, as revocation would merely restore a 'stillborn' visa?

Question 8: Was the text of s 501CA(4)(b)(ii) of the Act, in “another reason”, sufficiently broad to encompass a removal of the inhibitions brought about by s 501E(1) and special return criterion 5005(c) of Schedule 5 to the Migration Regulations 1994 (Cth)?

Question 9: Can it be said that, "in DLJ18, disparate statements were made by the members of the Full Court in relation to whether the Minister, her delegate or the Tribunal in place of such a delegate, was obliged to take into account legal consequences for which s 501E and cl 5001(c) in sch 5 of the Regulation provides, irrespective of whether they featured in the representations made by an applicant for revocation"?

Question 10: Can it be said that, under "s 501CA(4) of the Act, the Minister, a delegate of the Minister, or the Tribunal in place of such a delegate were each obliged, as stated in Viane, to take into account the representations made by an applicant for revocation" to the effect that non-revocation would bring about the inhibitions under s 501E(1) and special return criterion 5005(c)?

Question 11: Can it be said that "the Minister, her delegate or the Tribunal in place of such a delegate, was obliged to take into account legal consequences for which s 501E and cl 5001(c) in sch 5 of the Regulation provides, irrespective of whether they featured in the representations made by an applicant for revocation"?

Question 12: As the cancelled visa would have expired anyway by the time of the Tribunal's decision, in which case revocation of the cancellation would result in the Applicant continuing to be held in immigration detention by reason of being an unlawful non-citizen, ?

The FCA answered those questions as follows: