Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The case of Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involved an appeal against the Federal Court’s dismissal of the appellant’s application for judicial review of the Minister’s decision not to revoke a visa cancellation decision. The appellant, a citizen of Fiji who arrived in Australia at a young age, faced visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) due to his criminal record and imprisonment. The Minister considered the appellant's substantial criminal record and his minor children’s best interests but ultimately decided against revoking the visa cancellation, focusing on the appellant's potential to re-establish himself in Fiji.

The legal issues before the court were whether the Minister’s failure to inform the appellant that a decision might be made contrary to Australia’s international obligations under Art 12(4) of the International Covenant on Civil and Political Rights (ICCPR) constituted a denial of procedural fairness, and whether Art 12(4) constituted a mandatory relevant consideration in the decision-making process. The appellant argued that the Minister should have notified him of the potential departure from the ICCPR, thereby denying him procedural fairness. The Minister, on the other hand, contended that there was no obligation to notify the appellant of the potential inconsistency with the ICCPR.

The court examined the principles established in Teoh, where the High Court held that a legitimate expectation arises that decision-makers will act in conformity with Australia’s international treaty obligations, and if they propose to act inconsistently, they must notify the affected person and provide an opportunity to make submissions. However, the court found that the Minister’s decision did not depart from Art 12(4) of the ICCPR, as the appellant's visa was not arbitrarily cancelled but rather remained cancelled under s 501(3A). Consequently, the court concluded that the Minister’s failure to notify the appellant did not constitute a denial of procedural fairness, and Art 12(4) was not a mandatory relevant consideration. Both grounds of appeal were dismissed.

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal. This decision underscores the importance of adhering to statutory mandates and the nuanced application of international obligations in domestic immigration law.