Minister for Immigration and Citizenship v Zhang

The case of Minister for Immigration and Citizenship v Zhang involved the cancellation of a criminal justice stay certificate issued to the applicant, Mr Zhang, a citizen of the People’s Republic of China. Mr Zhang had arrived in Australia in June 2003 and had applied for a protection visa, which was refused. Subsequently, Mr Zhang provided information to the Department of Immigration and Citizenship about a migration agent he had engaged. The Department considered that Mr Zhang could assist in an investigation and potential prosecution of that migration agent for breaches of the Migration Act 1958 (Cth). A criminal justice stay certificate was issued to Mr Zhang under section 147 of the Act, and a criminal justice stay visa was granted under section 158. The issue before the court was whether the Minister for Immigration and Citizenship was required to afford Mr Zhang a hearing before cancelling the certificate under section 162(1) of the Act and, if so, whether the failure to do so rendered the decision unlawful.

The court considered the legal precedent set by Merkel J in Wasfi v The Commonwealth, which held that the power to cancel a criminal justice certificate under section 162(1) of the Act was not discretionary and required compliance with the rules of natural justice. The court in Zhang found that the Minister was indeed required to afford Mr Zhang a hearing before cancelling the certificate. The Minister accepted that the rules of natural justice applied but reserved the right to appeal this decision. The court found that the failure to provide Mr Zhang with a hearing rendered the cancellation of the certificate unlawful.

The High Court, on appeal, determined that the Federal Magistrate's decision was in error. The High Court held that the decision to cancel the certificate under section 162(1) of the Act was not subject to the rules of natural justice. The appeal was allowed, and the orders made by the Federal Magistrate were set aside. Instead, the application was dismissed, and the respondent was ordered to pay the appellant’s costs of and incidental to the proceedings below, as well as the costs of the appeal.