Ametllari v Minister for Immigration and Border Protection

The applicant, Ametllari, sought judicial review of a decision by a delegate of the Minister for Immigration and Border Protection to cancel her partner visa. The central dispute concerned the validity of the visa cancellation, particularly as it was made without prior notice to the applicant. The matter was heard before Judge Smith in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the delegate's decision to cancel the visa without notice was affected by jurisdictional error. Specifically, the applicant alleged that the delegate failed to consider her circumstances before making the cancellation decision. Further grounds for review included allegations that the delegate's decision contained factual errors, took into account an irrelevant consideration, and was tainted by apprehended bias. The court also considered whether an extension of time to bring the application was warranted.

Judge Smith reasoned that a failure to provide notice of a proposed visa cancellation, where such notice is required by the relevant legislation or principles of procedural fairness, constitutes a jurisdictional error. The court emphasised that administrative decision-makers must afford procedural fairness to affected individuals, which generally includes an opportunity to be heard or to respond to adverse information before a decision is made. In this instance, the delegate's failure to provide notice and an opportunity to respond to the grounds for cancellation meant the decision was vitiated by jurisdictional error. The court found that the applicant had established grounds for an extension of time due to the alleged jurisdictional error.

The court made orders setting aside the delegate's decision to cancel the applicant's visa and remitted the matter to the Minister for Immigration and Border Protection for redetermination according to law.