2203863 (Migration)

The applicant, who held a Bridging E (Subclass 050) visa, sought judicial review of a decision to cancel that visa. The dispute centred on whether the grounds for cancellation were made out and, if so, whether the visa should be cancelled, considering the applicant's personal circumstances, including his history of drug use and mental health struggles. The matter was before Senior Member Louise Nicholls of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether a ground for visa cancellation under section 116 of the Migration Act 1958 (Cth) was established, and if so, whether the applicant's visa should be cancelled. A preliminary issue also arose concerning the validity of a non-disclosure certificate issued under section 375A of the Act, which restricted the disclosure of certain information relating to the applicant's criminal record provided by the NSW Police to the Department. The Tribunal also had to consider the procedural fairness obligations regarding the disclosure of such restricted material, particularly in light of High Court authority.

The Tribunal considered the restricted material, which comprised correspondence between the NSW Police Liaison Unit and the Department regarding the applicant's criminal record, to have been provided in confidence by the NSW Police, thus validating the non-disclosure certificate. Applying the principles from *MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP* [2019] HCA 3, the Tribunal found that while there was an obligation of procedural fairness to disclose the existence of the non-disclosure certificate, a breach would only result in jurisdictional error if it was material, meaning the applicant was deprived of the possibility of a successful outcome. The Tribunal concluded that the restricted material did not prejudice the applicant's interests or undermine his prospects of a favourable decision, as its substance had been disclosed for comment. Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa.