Federal Court: Judicial review Applicant was invited under s 501CA(3) to make representations seeking the revocation of the mandatory cancellation of his visa on character grounds under s 501(3A). Invitation attached a form which included health questions. Applicant gave details of health conditions and medications and invited Department to contact his doctor. Can it be said that, "by inviting the applicant to make representations in a particular form, the Minister was under a statutory obligation to consider the representations made" and that by "not obtaining and considering the medical information that the applicant intended to form part of his submissions, the Minister ... breached that statutory duty or denied the applicant procedural fairness"?
The Applicant's visa was mandatorily cancelled on character grounds pursuant s 501(3A) of the Migration Act 1958 (Cth).
A delegate of the Minister invited the Applicant pursuant to s 501CA(3) to make representations seeking revocation of the cancellation of his visa. That invitation attached a personal details form which requested, among other things, information about the Applicant's health.
The Applicant made representations and answered the "health information" section of the form as follows:
As the Applicant did not satisfy the character test, the question to the delegate under s 501CA(4) was whether there was "another reason" why the cancellation should be revoked.
The delegate decided not to revoke the cancellation of the Applicant's visa and there was "nothing in the [delegate's] Reasons, nor any other evidence, to suggest that the [delegate] made any further enquiries regarding the applicant’s health information".
The Applicant applied to the Federal Court (FCA) for judicial review, the questions to which were as follows:
Question 1: Can it be said that, if the Applicant was led to reasonably believe that the Department would contact his doctor and that, as a result, he did not himself request that the doctor give him material that he could provide the Department with, the Applicant was denied procedural fairness?
Question 2: Is it "reasonable for a person in the applicant’s position reading that form and giving consent to believe that the purpose of these matters being on the form is to facilitate the Department itself contacting such people directly"?
Question 3: Can it be said that, "by inviting the applicant to make representations in a particular form, the Minister was under a statutory obligation to consider the representations made" and that by "not obtaining and considering the medical information that the applicant intended to form part of his submissions, the Minister ... breached that statutory duty or denied the applicant procedural fairness"? In other words, can it be said that the Applicant was led to reasonably believe that the Department would contact his doctor?
Question 4: If the answer to Question 3 is "no", does the "applicant’s unilateral request in this case for the Department to contact the medical centre ... alter that conclusion"?
The FCA answered those questions as follows:
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