Can Minister give natural justice under s 501BA(2)?

Summary and discussion

A delegate of the Minister cancelled the Appellant's visa under s 501(3A) of the Migration Act 1958 (mandatory character cancellation) and invited him, pursuant to s 501CA(3), to make representations about revocation of that decision.

The Appellant made representations in accordance with s 501CA(4). They included claims that the Appellant would be subjected, if removed from Australia, to harm of the kind referred to by s 36(2)(a) of the Act (protection claim) and also harm not covered by the Act (non-protection claim).

Another delegate then revoked the cancellation. Subsequently, the then Assistant Minister for Immigration and Border Protection set aside the revocation decision, pursuant to s 501BA(2), but the Assistant Minister's decision was later on quashed by the Federal Court (FCA).

Subsequently, the Assistant Minister set aside the revocation decision pursuant to s 501BA(2) once again (the Assistant Minister's second decision), without affording the Appellant procedural fairness. In making that decision, the Assistant Minister found that the protection and non-protection claims could be fully assessed as part of a protection visa application, which the Appellant could validly make.

The Appellant applied to the FCA for judicial review of the Assistant Minister's second decision, but that application was dismissed. The Appellant appealed the FCA decision to the Full Court of the FCA (FCAFC).

Section 501BA of the Act relevantly included (and continues to include) the following provisions (underlining added):

(1)  This section applies if:

(a)  a delegate of the Minister; or

(b)  the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister — natural justice does not apply

(2)  The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)  the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)  paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)  paragraph 501(6)(e); and

(b)  the Minister is satisfied that the cancellation is in the national interest.

(3)  The rules of natural justice do not apply to a decision under subsection (2).

The questions to the FCAFC were as follows:

Ground 1

Question 1: does s 501BA(3) prohibit the Minister from giving natural justice under s 501BA(2) (Alternative A) or does it merely provide that the Minister is not required to give natural justice (Alternative B)?

Question 2: if the answer to Question 1 is "Alternative B" but the decision record of the Assistant Minister's second decision demonstrates that the Assistant Minister believed the answer was "Alternative A", does that mean that the Assistant Minister's second decision involved a legal error?

Question 3: if the answer to Question 2 is "yes", does the decision record in this matter indicate that the Minister believed the answer to Question 1 was "Alternative A"?

Question 4: if the answer to Question 3 is "yes", was that error jurisdictional?

Further, the Appellant argued that:

• if the Appellant did not satisfy any criterion for a protection visa (such as character), case officers would be bound to refuse him a protection visa application;
• as a result, the Appellant would not have the benefit of having the Minister consider his protection claim for the purposes of s 501BA(2);
• although Direction No 75 required case officers to consider protection claims before considering ineligibility criteria such as character, that would not change the fact that he Appellant would not have his protection claim assessed for the purposes of s 501BA(2);
• in any event, his non-protection claim would not be assessed in a protection visa application.

Ground 2

Question 5: was it a jurisdictional error for the Minister to fail to take into account the Appellant's protection claim for the purposes of s 501BA(2)?

Ground 3:

The FCAFC answered the above questions as follows...