Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection

The High Court of Australia considered appeals from decisions of the Federal Court of Australia concerning the lawfulness of decisions made by the Minister for Immigration and Border Protection to refuse to grant visas to the applicants, Mr Graham and Mr Te Puia. The applicants were non-citizens who had been convicted of serious criminal offences and were subject to mandatory detention and potential removal from Australia. The Minister's decisions were made under s 501(3) of the *Migration Act 1958* (Cth), which allows the Minister to refuse to grant a visa if the person passes the character test. The applicants challenged the lawfulness of these decisions, arguing that the Minister had failed to properly consider certain information and had acted in a manner that was procedurally unfair.

The central legal issue before the High Court was whether the Minister, in exercising the power under s 501(3) of the *Migration Act*, was required to afford the applicants procedural fairness. Specifically, the Court had to determine whether the Minister was obliged to provide the applicants with an opportunity to respond to adverse information that might have influenced the Minister's decision to refuse their visa applications, even though the Minister's power to refuse a visa under s 501(3) was discretionary and did not require the Minister to be satisfied of any particular grounds for refusal beyond the applicant failing the character test.

The High Court held that the Minister's power under s 501(3) of the *Migration Act* was not a power that attracted the common law duty to afford procedural fairness. The Court reasoned that the statutory language of s 501(3) indicated a broad, discretionary power vested in the Minister to protect the Australian community, and that the exercise of this power did not necessitate a hearing or an opportunity for the applicant to respond to adverse information. The Court distinguished this power from other decision-making powers under the *Migration Act* where procedural fairness might be required. The appeals were dismissed.