DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerned the judicial review of a decision made by the Administrative Appeals Tribunal (AAT) in relation to the cancellation of the applicant’s visa. The applicant, who was born in South Sudan and arrived in Australia in 2004 under a humanitarian visa, had his visa cancelled by a delegate of the Minister on 16 January 2018. The decision not to revoke the cancellation was upheld on 21 September 2018. The applicant applied to the AAT for review of this decision on 27 September 2018. During the hearing, the applicant sought to call his partner as a witness to provide evidence in relation to his relationship with his step-children. The Minister objected to this, citing s 500(6H) of the Migration Act 1958 (Cth), which restricts the AAT from considering any information presented orally unless it was previously set out in a written statement provided to the Minister at least two business days before the hearing. The AAT declined to allow the partner to testify, citing the statutory provision. The applicant subsequently sought judicial review of the AAT’s decision, arguing that the AAT had misinterpreted the statutory provision and thereby failed to afford procedural fairness.

The court was required to determine whether the AAT correctly interpreted s 500(6H) of the Migration Act 1958 (Cth) and whether this statutory provision precluded the AAT from having regard to the information presented orally unless it was provided in a written statement. The court also had to consider whether the statutory provision ousted the obligation to afford procedural fairness. The applicant argued that the AAT had misunderstood the statutory provision by requiring the written statement to notify the Minister of the identity of the person presenting the information orally. The applicant contended that the provision merely required the information to be provided in writing at least two business days before the hearing. The Minister, on the other hand, maintained that the AAT had correctly interpreted the statutory provision and that the obligation to provide procedural fairness was ousted by the statutory provision.

The court held that the AAT had misinterpreted s 500(6H) of the Act. The court found that the statutory provision did not require the written statement to notify the Minister of the identity of the person presenting the information orally. Rather, it only required the information to be provided in writing at least two business days before the hearing. The court further found that the statutory provision did not oust the obligation to afford procedural fairness. The court concluded that the AAT’s failure to permit the applicant’s partner to give evidence resulted in a failure to afford procedural fairness and, therefore, the AAT’s decision was unlawful. The court granted the applicant’s application for an extension of time to file the application for judicial review and set aside the AAT’s decision. The matter was remitted to the AAT for determination according to law. The court also ordered the Minister to pay the applicant’s costs.