Ikupu v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This case involved the applicant, a resident of Australia from Papua New Guinea, appealing the decision of the Administrative Appeals Tribunal (AAT) which affirmed the decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the applicant's visa under section 501(3A) of the Migration Act 1958 (Cth). The applicant, who had a history of criminal convictions, was found to be serving a sentence of imprisonment and therefore subject to the mandatory visa cancellation provisions of the Act. The applicant made representations to the Minister to revoke the cancellation decision, but a delegate of the Minister refused to revoke the cancellation. The applicant applied to the AAT for review of the decision of the Minister’s delegate, which the AAT affirmed on 13 August 2019.

The legal issues in this case were whether the Tribunal breached its obligation of procedural fairness owed to the applicant, and whether the decision of the AAT was therefore invalid. The applicant argued that he was misdirected about the evidence he could give and was thereby denied procedural fairness. The respondent submitted that the Tribunal was correct to affirm the decision of the Minister’s delegate to refuse to revoke the cancellation of the applicant’s visa.

The Court found that the Tribunal denied the applicant procedural fairness in the conduct of the hearing, as it did not give the applicant an opportunity to explain and address the police reports and other material before it. The Tribunal did not provide the applicant with a reasonable opportunity to present his case, as required by section 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The Court held that the Tribunal’s failure to give the applicant an opportunity to explain and address the police reports and other material before it was a misdirection which breached the obligation of procedural fairness owed to the applicant. The Court quashed the decision of the AAT, and ordered that the respondent notify the Court and the applicant whether the respondent wishes to make any submissions about the relief sought in the nature of mandamus within 14 days of the date of the orders. If the respondent wishes to make any submissions, the parties are to confer and file an agreed timetable for the making of written submissions within a further 7 days thereafter.