ss 501 and 501A “a step in the performance of the duty imposed by s 65”?

A delegate refused to grant the plaintiff a SHEV on the basis of s 501(1) of the Migration Act 1958 (Cth), after which the Tribunal set aside the delegate's decision and concluded that the discretion under s 501(1) should not be exercised. Subsequently, acting personally under s 501A(2)(a), the Minister set aside the Tribunal's decision and substituted it with a decision to refuse to grant a SHEV.

Some of the questions to the High Court (HCA) were as follows:

Question 1: Is it usually an abuse of process for this High Court's original jurisdiction to be used in place of the statutory process of appeals?

Question 2: Is a decision to refuse to grant a visa by reason of s 501 ultimately a decision under s 65?

Question 3: Can it be said that PIC 4001 is "void for uncertainty because it used the expression "character test" without definition"?

Question 4: Can it be said that "the mandatory nature of cl 790.226(a) in its application of PIC 4001 had purported to contradict the discretionary nature of s 501, creating an inconsistency between the Migration Act and the Migration Regulations"?

Question 5: Can it be said that, in the context of a decision under s 65, "a delegate would be bound by a prior, internally recorded view that protection obligations had, or had not, been met"?

Question 6: Is there anything "in the Migration Act which prevents an officer with delegated power to make a decision under s 65 from forming indicative or preliminary views prior to making the decision"?

Question 7: Is there anything in the Migration Act "which prevents a [s 65] officer from referring the application for a decision under s 501"?

Question 8: Can it be said that, as s 474(3)(h) draws into the class of "decision" referred to "in this section" (ie s 474) the "conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation", s 474(3)(h) extends the meaning of a decision under s 65 to such preparatory conduct, with the result that a single decision under s 65 can be segmented into various discrete decisions?

Question 9: Can it be said that the Minister had no power to make a decision under s 501(1) because, by the time the Minister came to do so, all of the visa criteria (except for the character criterion) had already been assessed as satisfied? In other words, are the Minister's powers under ss 501(1) and 501A(2) "spent ... if a visa should have otherwise been granted under s 65, but has not been granted"?

Question 10: If the answer to Question 9 is "yes", would any court remedies be futile on the basis that the Tribunal had authority to, and did, set aside the Minister's decision made under s 501?

Question 11: If a ground of judicial review agitated by the plaintiff for the first time before the High Court in these proceedings "was so relevant to the subject matter of the judicial review application in the Federal Court that the failure to rely upon it either at first instance or upon appeal to the Full Court of the Federal Court or as a new ground in [the plaintiff's] special leave application [to appeal from the Full Court's decision]", is this itself a sufficient basis to refuse to extend time for the plaintiff to bring these proceedings at the High Court?

Question 12: Paragraph 47(2)(b) of the Migration Act 1958 (Cth) provided as follows: "The requirement to consider an application for a visa continues until ... the Minister grants or refuses to grant the visa". Can it be said that, assuming that the delegate was under an obligation to grant the plaintiff a visa (an assumption with which the High Court disagreed), the Minister's duty to consider a valid application for a visa would have ended pursuant to s 47(2)(b) at the time of that grant, with the result that the Minister could not later on refuse to grant the visa under ss 501 or 501A? In other words, can it be said that s 47(2)(b) is not concerned with a factual state of affairs, but rather with a deemed, or legal, state of affairs?

Question 13: Can it be said that, "just as the Tribunal had jurisdiction to make its decision under s 501(1) even if the decision of the Second Delegate were invalid, so too the Minister had jurisdiction to make a decision under s 501A(2) even if the decision of the Tribunal were invalid"? In other words, can it be said that the "precondition for the operation of s 501A is concerned with a decision, described as the "original decision", that is made, as a matter of fact, by the Tribunal", instead of "concerned with whether the decision of the Tribunal is, or is not, valid as a matter of law"?

Question 14: Is the Minister's power under s 501A(2) "a step in the performance of the duty imposed by s 65"?

The HCA answered those questions as follows: