Chiorny, Viola v The Minister for Immigration & Multicultural Affairs

Viola Chiorny, an Israeli national, arrived in Australia on a class 676 tourist (short stay) visa which allowed her to remain in Australia for up to three months after her arrival on 28 September 1996. Upon arrival, she was interviewed by a Customs officer and later by a Migration officer. Shortly after, her visa was cancelled by the Minister for Immigration and Multicultural Affairs on the ground that the circumstances which permitted the grant of her visa no longer existed, specifically that she was not a genuine visitor. The applicant sought judicial review of the decision to cancel her visa on several grounds, including that the procedures required by the Act to be observed in connection with the making of the decision were not observed.

The court considered whether the decision-maker followed the procedures set out in sections 119 and 120 before making the decision to cancel the applicant's visa and whether the facts as found by the decision-maker were capable of supporting the conclusion that the provisions of section 116(1)(a) applied to the case. The court found that the decision-maker did not comply with the procedures required by sections 119 and 120, as the applicant was not notified that there appeared to be grounds for cancelling her visa, nor were particulars of those grounds and the information given to the decision-maker. Furthermore, the applicant was not invited to respond during the process of consideration.

As a result, the court found that the decision to cancel the applicant's class 676 visa should be set aside. The Minister for Immigration and Multicultural Affairs conceded that the applicant had remained in Australia lawfully since the cancellation of her visa on 29 September 1996, and there was no need to make any further order concerning the decision. The Minister was ordered to pay the applicant's costs, including any reserved costs, but not including the costs of the proposed witness Peter Bruce, who was a member of the Immigration Review Tribunal.

In conclusion, the court granted the application for review and set aside the decision of the Minister to cancel the applicant's visa, finding that the procedures required by the Act were not observed in connection with the making of the decision. The Minister was ordered to pay the applicant's costs, excluding the costs of the proposed witness Peter Bruce.