Han v Minister for Immigration and Multicultural Affairs

Han v Minister for Immigration and Multicultural Affairs involved a New Zealand citizen, Ms Han, whose subclass 444 visa was cancelled by the Minister for Immigration and Multicultural Affairs. The applicant, Ms Han, had been granted the visa upon entering Australia, as evidenced by a stamp in her New Zealand passport. However, after remaining in Australia for nearly a year, her visa was cancelled upon her departure to Beijing, as the passport she presented was identified as being fraudulently obtained. Ms Han objected to the visa cancellation, arguing that the cancellation process was flawed.

The court had to determine whether the delegate who cancelled Ms Han's visa had the authority to do so and whether the process followed was lawful and procedurally fair. Specifically, the court needed to examine whether the form used for cancelling the visa was appropriate for a person who was not in immigration clearance, as Ms Han was not in immigration clearance at the time of the cancellation.

The court held that the delegate did not have the authority to cancel Ms Han's visa in the manner that was done. The form used for cancelling the visa was suitable for use only when the visa holder was in immigration clearance, which was not the case for Ms Han. Moreover, the warning on the form indicated that if a visa holder chose not to comment, the decision could be made based on the information available, which did not occur in this case. Consequently, the court found the cancellation process to be flawed and the objection to competency was upheld, leading to the dismissal of the proceedings.

In light of the above, the court made an order that the objection to competency be upheld, the proceedings be dismissed, and there be no order as to costs.