Federal Court. Was the nature and severity of the risk to Australia’s security a consideration that the delegate was legally required to take into account in exercising the discretion in s 128 of the Migration Act 1958 (Cth)?
Section 128 of the Migration Act 1958 (Cth) provided:
128 Cancellation of visas of people outside Australia
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non‑citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Even if the preconditions for the cancellation of a visa exist under s 128 of the Migration Act 1958 (Cth), is the decision as to whether or not to cancel the visa discretionary?
Question 2: Once a decision was made by a delegate to cancel the visa under s 128(1) on the ground that the Applicant had been assessed by ASIO to be directly or indirectly a risk to security, can it be said that the Minister had no power to revoke the cancellation of her visa under s 131 for so long as she was a person who had been assessed by ASIO to be directly or indirectly a risk to security?
Question 3: In exercising the discretion in s 128, is the decision-maker required to take into account, at least, the existence of the ground which they have found to exist for the purposes of s 128(a)(i)?
Question 4: Was the nature and severity of the risk to Australia’s security a consideration that the delegate was legally required to take into account in exercising the discretion in s 128?
The FCA answered those questions as follows: