Hay v Minister for Immigration and Border Protection

In the case of Hay v Minister for Immigration and Border Protection, Mr Hay, a British citizen, sought judicial review of the Minister's decision to maintain the cancellation of his Australian visa under section 501(3A) of the Migration Act 1958 (Cth). Mr Hay argued that the Minister’s decision was flawed by jurisdictional error, specifically that the Minister failed to consider certain factors, including the length of time he spent in Australia without conviction, the impact of his time spent in prison and immigration detention on his risk of reoffending, and his plea of "not guilty" being consistent with a denial of the offence. Additionally, Mr Hay contended that section 501(3A) was constitutionally invalid as it purported to confer judicial power on the Minister contrary to the Commonwealth of Australia Constitution Act.

The court examined whether the Minister's decision was affected by jurisdictional error and if section 501(3A) was constitutionally valid. It was noted that the Minister had acknowledged and considered Mr Hay's lengthy residence in Australia and his contributions to the community, implicitly taking into account the fact of non-offending during that time. Regarding the risk of reoffending, the court found that the Minister properly considered the likelihood of recidivism when determining the protection of the Australian community. The court further held that section 501(3A) was valid as it did not confer judicial power on the Minister, a matter that had already been settled by the High Court.

The court dismissed Mr Hay's application for judicial review, finding that the Minister's decision was not affected by jurisdictional error and that section 501(3A) was constitutionally valid. Consequently, the application was dismissed with costs to be paid by Mr Hay. The dismissal and costs order were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.