Durani v Minister for Immigration and Border Protection

The Federal Court of Australia heard an appeal by Durani, an Indian national with a permanent visa, against the Minister for Immigration and Border Protection's decision to cancel his visa under section 501A(2) of the Migration Act 1958 (Cth). The appellant, previously a medical practitioner, was convicted of multiple counts of sexual assault and unlawful and indecent assault against a patient while employed at the Royal Perth Hospital. Following his conviction, the appellant's visa was initially cancelled by a delegate of the Minister, but this decision was later set aside by the Administrative Appeals Tribunal. The Minister then personally exercised his power to cancel the appellant’s visa, finding that the cancellation was in the national interest.

The primary legal issues before the court were whether the Minister denied the appellant procedural fairness by failing to inform him of the considerations relevant to the decision-making process and whether the Minister fettered his discretion in exercising the power to cancel the visa. The appellant argued that he was not given an opportunity to respond to the specific grounds upon which the Minister based his decision, thereby breaching the principles of natural justice. Additionally, the appellant contended that the Minister's decision was influenced by a preconceived notion that any risk of reoffending was unacceptable, thus fettering his discretion.

The court found in favour of the appellant on the ground of procedural fairness. It held that the Minister failed to provide the appellant with the opportunity to respond to the specific considerations relevant to the decision, which included the nature and seriousness of the offences, the impact on public confidence in the health care system, and the national interest. The court emphasised that the appellant should have been informed about the grounds upon which the Minister was considering making a determination adverse to him, allowing him to make submissions in response. The court also noted that the Minister’s conclusion that any risk of reoffending was unacceptable, while a permissible value judgment, did not demonstrate that the Minister fettered his discretion. The court concluded that the Minister's reasons reflected an assessment of the seriousness of the crimes and the appropriate response, which was consistent with exercising the discretion provided by the statute.

The court allowed the appeal, set aside the Minister’s decision to cancel the appellant’s visa, and restrained the Minister from giving effect to that decision. The appellant was awarded his costs, subject to certain conditions, while the Minister was ordered to pay the appellant's costs of the appeal.