Minister for Home Affairs v Hunt

The Minister for Home Affairs appealed against the decision of a single judge of the Federal Court to grant an extension of time to Mr Hunt, a New Zealand national, to seek judicial review of the Minister’s decision to cancel his visa on character grounds under section 501(2) of the Migration Act 1958 (Cth). The primary judge had quashed the Minister’s decision and the Minister sought to appeal this decision. The appeal was allowed and the notice of contention was dismissed.

The legal issues before the court were whether the primary judge erred in finding that the Minister’s decision was tainted by jurisdictional error, specifically by failing to regard the suspended nature of Mr Hunt’s March 2003 convictions, and whether the Minister’s decision was based on evidence obtained in breach of the Information Privacy Act 2009 (Qld). The court also considered whether the Queensland Privacy Act applied to Commonwealth officers and if a breach would render the Minister’s decision invalid. Additionally, the court examined whether the discretion to exclude evidence under section 138 of the Evidence Act 1995 (Cth) applied to the Minister in making the decision.

The court found that the primary judge erred in quashing the Minister’s decision. The court held that the Minister did not commit jurisdictional error by failing to regard the suspended nature of Mr Hunt’s March 2003 convictions. The court emphasised that the critical issue was whether the Minister actually had regard to the fact that the sentence was suspended, and not what he may have read or considered. The court also dismissed the argument regarding the breach of the Queensland Privacy Act, finding that the Commonwealth Privacy Act applied to the Department’s actions, and any breach would not invalidate the Minister’s decision. The court further held that the discretion to exclude evidence under the Evidence Act did not apply to the Minister in making the decision.

The court allowed the Minister’s appeal and dismissed the notice of contention. In lieu of the orders made by the primary judge, the application for judicial review was dismissed. The respondent was ordered to pay the appellant’s costs of the appeal and the costs of the hearing below, to be assessed if not agreed.