Plaintiff S2/2019 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors

This matter concerned an application for judicial review brought by the plaintiff, identified as S2/2019, against the Minister for Immigration, Citizenship and Multicultural Affairs and the Commonwealth. The core of the dispute revolved around the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation under section 501(3)(c) of the Migration Act 1958 (Cth). The plaintiff sought to challenge this refusal, arguing it was vitiated by jurisdictional error. The application was heard by Gageler J of the High Court of Australia.

The central legal issue before the Court was whether the Minister, in exercising the power to refuse to revoke a mandatory visa cancellation under section 501(3)(c), was bound by the implied constitutional limitation that executive power must be exercised in accordance with the rule of law. Specifically, the Court had to determine if this implied constitutional limitation required the Minister to afford procedural fairness to the visa holder before making a decision not to revoke the cancellation.

Gageler J reasoned that the power conferred by section 501(3)(c) was a discretionary power that was not amenable to the implied constitutional limitation requiring procedural fairness. His Honour held that the statutory scheme of section 501, particularly the mandatory cancellation provisions, indicated a legislative intention to exclude the operation of the common law duty to afford procedural fairness in the context of a refusal to revoke a mandatory cancellation. The Minister's decision was therefore not vitiated by jurisdictional error on the grounds of a failure to afford procedural fairness.

The application for judicial review was dismissed.