Commonwealth of Australia v Pries

The Commonwealth of Australia appealed a decision of the Federal Court of Australia concerning the validity of a notice issued under section 169 of the *Migration Act 1958* (Cth) (the Act). The respondent, Mr Pries, had been granted a Protection Visa. The dispute arose when the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs sought to cancel Mr Pries' visa under section 116(1)(g) of the Act, alleging that Mr Pries had provided false or misleading information in relation to his visa application. The Minister issued a notice under section 169 of the Act, which requires a person to attend an interview for the purpose of determining whether a visa held by that person should be cancelled. Mr Pries challenged the validity of this notice in the Federal Court, arguing that it was invalid because it was issued by an officer who was not authorised to do so.

The primary legal issue before the Full Federal Court was whether the delegate who issued the section 169 notice was validly appointed and therefore authorised to exercise the powers conferred by that section. Specifically, the Court had to determine whether the delegation of powers by the Minister to the delegate was effective, notwithstanding that the instrument of delegation was not published in the *Gazette*. The Court also considered the implications of section 169(2) of the Act, which states that a notice under section 169 is not invalid by reason of any defect or irregularity in the manner of its issue.

The Full Federal Court held that the delegation of powers by the Minister to the delegate was valid and effective, even though the instrument of delegation was not published in the *Gazette*. The Court reasoned that section 169 of the Act does not require the instrument of delegation to be published. Furthermore, the Court found that even if there were any defects or irregularities in the manner of the notice's issue, section 169(2) operated to prevent the notice from being invalidated on that ground. The Court therefore allowed the appeal.