FPU18 v Minister for Immigration and Border Protection

In the Federal Court, FPU18 has sought judicial review of a decision by the Minister for Immigration and Border Protection not to revoke the cancellation of his visa under the Migration Act 1958 (Cth). The applicant contends that the Minister failed to respond to a submission he made, did not give proper, genuine or realistic consideration to his submission, and did not afford him procedural fairness by considering an issue he was not on notice of. The court was required to determine whether the Minister's decision was procedurally unfair, whether he gave proper, genuine or realistic consideration to the applicant's submission, and whether he failed to notify the applicant of an issue in the review.

The court rejected the first two grounds of review, finding that the Minister had responded to the applicant's submission and had given proper, genuine and realistic consideration to it. However, the court found that the Minister had denied the applicant procedural fairness by considering a risk of "hands on" offending, an issue the applicant was not on notice of. The Minister had relied on reports from Dr Allnutt, which discussed a single group of sexual offenders, but these reports did not address the risk of "hands on" offending by the applicant. As such, the Minister's decision was flawed and the court set it aside.

The court ordered that the Minister determine the applicant's application for revocation of the decision to cancel his visa according to law. The court also ordered the Minister to pay the applicant's costs of the proceeding, to be fixed by way of a lump sum. If either party seeks a variation of the costs order, they may give notice in writing to the Court and the other party within three business days. If the parties do not agree on the costs within 35 days, the matter of an appropriate lump sum figure for the applicant's costs will be referred to a Registrar for determination.