Natural Justice in the Minister’s personal cancellation powers

S 501BA canvasses the power of the Minister to set aside a decision to revoke a mandatory visa cancellation decision.

Under certain grounds and circumstances of a significant criminal record, a Minister MUST cancel a person’s visa. This decision can then be subsequently revoked after considering a number of factors including non refoulement obligations of Australia, interests of Australian minor children etc. If a revocation decision has been made, they are taken to have never been canceled a visa. This can either be revoked by a delegate of the Minister or the Administrative Appeals Tribunal after considering the merits of the case.

S 501BA of the Migration Act 1958 provides power for the Minister to set aside the revocation decision (whether or not made by its delegate or by the Administrative Appeals Tribunal) and proceed to cancel a person’s visa. Strangely enough, there are cases where the cancellation goes back and forth from AAT/judicial courts back to the Minister then back to AAT/judicial courts.

 Under this provision, the Minister can proceed to do so, basically, if it is in the national interest to do so. It provides that ‘natural justice does not apply.’

 

‘natural justice does not apply.’

 

What does natural justice actually mean?

Natural Justice is the concept of a ‘duty to act fairly’. In doing so, generally before taking actions like this, the person should be provided with an opportunity to comment or to be heard.

What’s the effect of natural justice?

It has always been understood that the provision means that before the Minister proceeds to cancel the visa again, he is not required to provide any warning to the visa holder or to provide a fair opportunity for him or her to comment.

 

Jurisdictional Error and Understanding of Natural Justice

In a recent case called Ibrahim v Minister for Home Affairs [2019] FCAFC 89, the Full Court held that it was a jurisdictional error (misapplication of the law) by the Minister’s incorrect understanding of what ‘natural justice does not apply’ means.

 

[63] In our opinion, the Assistant Minister proceeding on the basis that he could not provide the appellant with an opportunity to be heard because s 501BA(2) precluded him from doing so was to misunderstand the nature of the power being exercised. He should have understood that it was open to him to invite submissions from the appellant if he chose. The matters to which we referred in [15] above indicate the materiality of the Assistant Minister’s misapprehension: Hossain v Minister for Immigration and Border Protection [2018] HCA 34(2018) 359 ALR 1 at [31], [46], [66][72]. That has the consequence that the decision is affected by jurisdictional error.

 

Effectively, this means that although natural justice does not apply, it was incorrect for the Minister to proceed on the basis that this meant it precluded him from making inquiries, asking for more information or making an invitation to comment if he wished to do so.

How Can Agape Henry Crux Help You

 

If you have received a natural justice letter or if you are experiencing visa cancellation issues, please do not hesitate to contact our immigration lawyers and registered migration agent. Our team members are trained to resolve highly complex migration issues such as visa cancellation.

We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.