El Mir v Minister for Immigration

El Mir (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration's refusal to grant the applicant a medical treatment visa. The applicant had been issued a notice under s 501(2) of the Migration Act 1958 (Cth) requiring him to show cause why his visa should not be cancelled, and subsequently, the Minister refused to grant him a visa. The AAT had affirmed this refusal.

The central legal issue before the Court was whether the AAT had made a jurisdictional error in its review of the Minister's decision. Specifically, the applicant contended that the AAT failed to afford him procedural fairness by not adequately considering his submissions regarding his health and the availability of medical treatment in Australia, and by failing to provide him with adequate notice of the specific grounds upon which the AAT was considering to affirm the refusal.

Driver J found that an arguable case of jurisdictional error had been established. The Court reasoned that the AAT's decision-making process, particularly in relation to the applicant's health and treatment needs, appeared to have been conducted in a manner that may have deprived the applicant of a proper opportunity to present his case. The Court considered that the AAT's obligation to afford procedural fairness extended to ensuring that the applicant understood the basis of the AAT's potential adverse findings and had a reasonable opportunity to respond.

The Court ordered that the application for judicial review be granted, setting aside the AAT's decision and remitting the matter to the AAT for redetermination according to law.