McCulloch v Minister for Home Affairs

In the Federal Court of Australia, Mr McCulloch, a New Zealand citizen, sought judicial review of a decision by the Assistant Minister not to revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958. The visa was cancelled under s 501(3A) of the Act on the basis that Mr McCulloch had a substantial criminal record and was serving a term of imprisonment. Mr McCulloch contended that the Assistant Minister's decision was void as the Minister did not have jurisdiction to consider whether or not to revoke the cancellation decision due to the failure to comply with s 501CA(3) of the Act. This section requires the Minister to personally give a written notice to the visa holder that sets out the original decision and particulars of relevant information, and to invite the visa holder to make representations about revoking the decision. Mr McCulloch also argued that the Minister misconstrued material information, resulting in a constructive failure to exercise his jurisdiction.

The court considered whether the Minister had jurisdiction to consider whether or not to revoke the cancellation decision and whether the Minister misconstrued material information. In the case of Aciek, the court found that the power to give a written notice to a visa holder about the cancellation of their visa is a power of the Minister under the Act and must be exercised by the Minister personally or delegated by the Minister to another person. The court in the present case found that the person who sent the Cancellation Decision Letter was neither a delegate of the Minister nor expressly authorised by the Minister to send the letter. However, the court held that this did not render the Assistant Minister's decision void. The court held that the failure to comply with s 501CA(3) did not deprive the Minister of jurisdiction to consider whether or not to revoke the cancellation decision. The court also held that there was no evidence that the Minister misconstrued material information.

The court dismissed Mr McCulloch's application and ordered that he pay the respondent's costs.