Federal Court (Full Court). In the decision in Stewart plainly wrong? If an invitation issued under s 501CA contained an error in the specification of the deadline for the making of representations, can it nevertheless be said that whether the invitation is invalid will depend on the extent and consequences of the error? If an invitation issued under s 501CA is invalid, does it follow that the anterior mandatory cancellation decision itself under s 501(3A) is also invalid?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: In BDS20, a majority of the FCAFC held that the Minister was not permitted to issue a second invitation to a person to make representations under s 501CA of the Migration Act 1958 (Cth). Does BDS20 mean that the Minister is not permitted to issue a second invitation even if the first one was invalid?
Question 2: In Stewart, the FCAFC held that the word "made" in r 2.52 of the Migration Regulations 1994 (Cth) does not mean "received", but rather means "dispatched". Is the decision in Stewart plainly wrong?
Question 3: If an invitation issued under s 501CA contained an error in the specification of the deadline for the making of representations seeking revocation of a visa cancellation, can it nevertheless be said that whether the invitation is invalid will depend on the extent and consequences of the error?
Question 4: If an invitation issued under s 501CA is invalid, does it follow that the anterior mandatory cancellation decision itself under s 501(3A) is also invalid?
Question 5: Can it be said that s 501CA(3) is invalid by reason of s 116 of the Constitution, as the effect of the former is to prohibit the applicant from exercising his Christian religion both in Australia and in his country of origin if he were to be removed?
Question 6: Is s 116 of the Constitution directed only to the making of a law and not with its administration?
Question 7: Can it be said that the applicant is not an alien for the purposes of the Migration Act 1958 (Cth), because he is stateless and owes no allegiance to any foreign power?
Question 8: Can it be said that, although the applicant did not claim to be Indigenous, he has been absorbed into the Australian community, with the result that the High Court's decision in Love supports the argument that he is not an alien?
Question 9: Is there a Constitutional entitlement to procedural fairness in administrative decision-making?
Question 10: Should the FCAFC be inclined to determine the merits of a constitutional argument in circumstances where a judicial review challenge succeeds on a non-Constitutional ground?
The FCAFC answered those questions as follows: