M238/2002 v The Honourable Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs

The applicant, who had served a sentence for murder and other serious criminal offences, sought to prevent the Minister for Immigration and Multicultural and Indigenous Affairs from cancelling his visa under s 501(2) of the Migration Act 1958 (Cth). The applicant claimed that the Minister had failed to afford him procedural fairness in exercising his power to cancel the visa. The High Court was asked to grant the applicant a writ of prohibition, a writ of certiorari, and a declaration that the Minister’s decision to cancel the visa was invalid and of no legal effect. The Minister argued that the Court did not have jurisdiction to hear the case because the decision was a privative clause decision, which could not be reviewed by the Court.

The central issue before the Court was whether the Minister was required to afford the applicant procedural fairness in cancelling his visa. The Court also had to determine whether the failure to afford procedural fairness amounted to jurisdictional error in the cancellation of the visa. The Court examined the relevant statutory provisions, including s 501G and s 500(1) of the Migration Act 1958 (Cth). The Court considered the case law on privative clauses and procedural fairness, including the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

The Court held that the Minister was required to act in conformity with procedural fairness in exercising the power to cancel the visa. Procedural fairness required that the Minister afford the applicant a fair opportunity to present information and argument against the cancellation of his visa. The Court found that the Minister had not afforded the applicant procedural fairness because he had failed to give the applicant an opportunity to respond to the submissions that were made to him on the applicant’s behalf. The Court held that the failure to afford procedural fairness amounted to jurisdictional error in the cancellation of the visa. However, the Court held that it did not have jurisdiction to hear the case because the decision was a privative clause decision, which could not be reviewed by the Court.

The Court dismissed the application for writs of prohibition and certiorari and for declarations and injunctions. The Court ordered the parties to file and serve submissions on costs.