Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98 (10 June 2021) (Logan, Charlesworth and Wheelahan JJ)


Catchwords:


MIGRATION – appeal from decision of primary judge to dismiss application for judicial review of Minister’s decision to cancel the applicant’s visa under s 501(3) of the Migration Act 1958 (Cth) – whether s 501(3) can be “re-exercised” by the Minister – whether Minister for Immigration and Border Protection v Makasa (2021) 95 ALJR 117 (Makasa) can be applied by analogy – where the evidence showed that the Minister’s earlier decision was in reference to s 501(2) – whether s 501 ought to be construed as conferring but one visa cancellation power – held by the Court that there was no “re-exercise” of the power in s 501(3) – whether the Minister misunderstood the operation of s 501(3) by failing to appreciate that he was not precluded from giving effect to the rules of procedural fairness – where the primary judge did not have a special advantage at trial to make an evaluative decision – where Ministerial reasons and related submissions were neutral as to evidence of the misunderstanding – where the appellant bears the onus of establishing the factual premise – appeal dismissed

PRACTICE AND PROCEDURE – application for leave to rely on grounds not raised in the original jurisdiction – where grounds raised as a result of the High Court Decision in Makasa handed down after final orders made in the original jurisdiction – leave granted