Kemp v Minister for Immigration and Border Protection

In Kemp v Minister for Immigration and Border Protection, the applicant, Mr Kemp, sought judicial review of the Assistant Minister's decision not to revoke a decision to cancel his visa. Mr Kemp, a New Zealand citizen with a history of criminal offences, had been residing in Australia for several decades. He was serving a prison sentence for drug supply when his visa was cancelled. The Assistant Minister considered various factors, including Mr Kemp's ties to Australia, his health, and the risk he posed to the community, before deciding not to revoke the cancellation. Mr Kemp challenged the decision, arguing it was unreasonable and denied him procedural fairness.

The court had to determine if the Assistant Minister's decision was affected by jurisdictional error and if Mr Kemp was denied procedural fairness. Mr Kemp argued that the Assistant Minister's reasoning was unreasonable, particularly regarding the risk of him being influenced by others to reoffend, given his physical and mental impairments. He also claimed the Assistant Minister disproportionately weighed the risk to the Australian community, which outweighed other favorable considerations.

The court found that the Assistant Minister's reasoning was not unreasonable. The reference to Mr Kemp's "current situation" in the decision likely pertained to his medical conditions, not his inability to work or risk of destitution. The Assistant Minister's consideration of Mr Kemp's history of offending, combined with his current impairments, provided a rational basis for concluding he might still be susceptible to influence by others. Furthermore, the Assistant Minister's conclusion that the risk to the Australian community was significant was supported by the evidence, including Mr Kemp's criminal history and the nature of his offenses.

The court allowed the application, quashed the Assistant Minister's decision, and ordered a re-determination of Mr Kemp's visa cancellation request. The respondent was also ordered to pay Mr Kemp's costs.