Case: Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580
Outcome: referred to
The power in s 501(2) may be exercised by the Minister or, by reason of s 498 , by his or her delegate. Under s 499 of the Act the Minister may give written directions to a person or body exercising the power in s 501(2) about the exercise of the power. The Minister has given a written direction under s 499 and it is referred to as, "Direction Visa Refusal and Cancellation under s 501(2) No 21" ("Direction No 21"). If the Minister decides that he will personally exercise the power in s 501(2) , he is not bound by Direction No 21 although he may choose to follow it: Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at 585 [31] . 9 If the Minister or his delegate decides to cancel a visa under s 501(2) a written notice setting out the reasons for the decision (among other matters) must be given to the applicant. Section 501G provides: "(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision; and (f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal: (i) states that the decision can be reviewed by the Tribunal; and (ii) states the time in which the application for review may be made; and (iii) states who can apply to have the decision reviewed; and (iv) states where the application for review can be made; and (v) in a case where the decision relates to a person in the migration zone--sets out the effect of subsections 500(6A) to (6L) (inclusive); and (vi) sets out such additional information (if any) as is prescribed. (2) If the decision referred to in subsection (1): (a) was made by a delegate of the Minister under subsection 501(1) or (2); and (b) is reviewable by the Administrative Appeals Tribunal; and (c) relates to a person in the migration zone; the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that: (d) is in the delegate's possession or under the delegate's control; and (e) was relevant to the making of the decision; and (f) does not contain non-disclosable information. (3) A notice under subsection (1) must be given in the prescribed manner. (4) A failure to comply with this section in relation to a decision does not affect the validity of the decision." 10 Section 501G(1) engages s 25D of the Acts Interpretation Act 1901 (Cth) which provides as follows: "Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."