Nathanson v Minister for Home Affairs

The High Court of Australia considered an appeal by Mr. Nathanson against a decision of the Minister for Home Affairs, which involved the cancellation of his visa. Mr. Nathanson's visa had been mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his failure to pass the character test, stemming from serious criminal offences for which he received a significant prison sentence. He sought to have this cancellation revoked, but a delegate of the Minister decided against revocation. Mr. Nathanson then sought review of this non-revocation decision by the Administrative Appeals Tribunal (AAT). The AAT ultimately affirmed the visa cancellation, and Mr. Nathanson sought judicial review of the AAT's decision in the Federal Court.

The central legal issue before the High Court was whether the AAT's denial of procedural fairness to Mr. Nathanson was material, thereby constituting jurisdictional error. Specifically, the court had to determine when such an error is considered material and what an appellant must demonstrate to discharge the onus of proving materiality. This involved considering whether Mr. Nathanson was required to establish the precise nature of the evidence or submissions he might have presented had the AAT afforded him procedural fairness, particularly in relation to incidents of domestic violence that became relevant to the primary considerations under a ministerial direction.

The High Court reasoned that the appellant had discharged his onus of demonstrating that the AAT's denial of procedural fairness deprived him of a realistic possibility of a different outcome. This realistic possibility was evident from the record of the AAT's decision. The court held that, contrary to the view of the majority of the Full Court of the Federal Court, the appellant was not required to articulate a specific course of action that could have realistically changed the result. The denial of procedural fairness occurred when the AAT failed to give Mr. Nathanson an opportunity to address the relevance of domestic violence incidents to the primary considerations under the ministerial direction, particularly after the Minister raised this issue in closing submissions. The court found that the AAT's characterisation of the appellant's offending as "very serious" was influenced by this evidence, and it was not accepted that the same characterisation would have been reached without it.

Consequently, the High Court allowed the appeal, set aside the orders of the Full Court of the Federal Court, and in lieu thereof, ordered that the appeal to the Federal Court be allowed. The decision of the AAT was set aside, and the matter was remitted to the Tribunal to be heard and determined according to law. The respondents were ordered to pay the appellant's costs.