Significant case in the Federal Court Reports: Decision finally addresses issue that’s affected many visa applicants over the years
In recent years, under the previous government, there had been an explosion of cases involving ss 501(3A) and 501CA(4) of the Migration Act 1958 (Cth) (the Act). Under the former section the Minister was required to cancel a visa of a person, if the person did not pass the character test, and was serving a sentence of imprisonment. The latter section then gave the Minister the right to revoke the visa cancellation, if the person whose visa had been cancelled made representations to that effect and the Minister were satisfied that there was ‘another reason’ why the cancellation should be revoked. Like most empowering sections in the Act, the Minister could choose to exercise the power in s 501CA(4) personally or via one of his delegates.
This case threw up, the important question of what happens when the Minister decides to exercise the power personally but relies on a summary prepared by his or her staff, without personally reading and assessing the submissions made by the person whose visa has been cancelled. In many ways it is a shame that the issue had not been addressed years earlier, because very many cases were in the same position.
The Full Court emphasised the fact that the Minister had the choice of whether to decide the matter personally or to delegate its exercise. In effect the Court said that if the Minister decided on personal exercise of the power, then he or she took on the corresponding obligation of personal assessment. And that the mere reading of a summary provided by staff did not satisfy that requirement.
Unless this decision is overturned on appeal to the High Court, it will bring great comfort to applicants, knowing that one way or another, be it via the delegate or the Minister, there submissions as to why their visa should be restored, will be fully read and investigated. Many would also suggest that the decision would operate as a disincentive to the Minister to exercise the power personally, which would reduce the possibility of political decisions entering into the consideration.
