RUSSO v Minister for Immigration

The applicant, Mr. Russo, sought constitutional writs against the Minister for Immigration concerning the delegate's decision to cancel his visa. Mr. Russo contended that this decision was affected by jurisdictional error, specifically by denying him his statutory right of review. He argued that he had satisfied the requirements of s 172(1) of the *Migration Act 1958* (Cth) by being "initially immigration cleared," which he asserted had enlivened his right of review under s 338(3)(b) of the Act. Alternatively, he argued that the decision-maker had denied him procedural fairness or made a legally unreasonable decision, citing his uncertainty about why his education provider cancelled his CoEs and his lack of opportunity to ascertain this reason.

The central legal issue before the court was whether the delegate's decision to cancel Mr. Russo's visa was made while he was "in immigration clearance" as defined by s 172(2) of the *Migration Act*. This determination was critical because, under s 338(3) of the Act, a visa cancellation decision made while a non-citizen is in the migration zone is generally a "Part 5-reviewable decision," affording a right of review to the Administrative Appeals Tribunal. However, s 338(3)(b) carves out an exception: such a decision is *not* reviewable if made when the non-citizen is "in immigration clearance." The court also considered whether Mr. Russo had been denied procedural fairness or if the decision was legally unreasonable.

The court reasoned that a serious question was to be tried regarding whether Mr. Russo was "in immigration clearance" at the time of the visa cancellation. The court noted that s 172(2) defines being "in immigration clearance" as being with an officer or at an authorised system for the purposes of s 166, and having not been refused immigration clearance. Section 166(1) requires a person entering Australia to present evidence of identity and visa, and provide any required information. The court found it reasonably arguable that Mr. Russo had satisfied the requirements of s 166(1) by being "initially immigration cleared at the Primary Line," as stated in an email from the Department. Therefore, even if he was with a Departmental officer at the time of cancellation, it was arguable that this was not for the purposes of s 166, meaning he was not "in immigration clearance" and thus his visa cancellation was a Part 5-reviewable decision. The court found a serious question to be tried on this ground.