Stowers v Minister for Immigration and Border Protection

In the Federal Court of Australia, Mr Stowers applied for judicial review of the Minister’s decision not to revoke the cancellation of his visa. The visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) because Mr Stowers had a substantial criminal record. The sole ground of the application was that the Minister denied Mr Stowers procedural fairness by not putting him on notice of the potential adverse effect of the material in the Minister’s possession which informed the decision, namely the National Police Certificate. The application was dismissed with costs.

The legal issue before the court was whether the Minister denied Mr Stowers procedural fairness by failing to put him on notice of the potential adverse effect of the National Police Certificate. The court held that the Minister was not required to give Mr Stowers notice of the potential adverse effect of the material in the Minister’s possession. The court noted that there was no statutory obligation on the Minister to include language in the 30 May 2017 letter noting expressly that some of the material attached to the letter may be adverse. The court found that Mr Stowers could be taken to presume that the documents attached to the 30 May 2017 letter might hold matters which might be taken to be adverse to him but he was not put on notice of how it might be adverse to him. The court held that the Minister was entitled to rely on the contents of the National Police Certificate and that the adverse inference drawn by the Minister from the information in his possession was an obvious inference or a conclusion obviously open on the known material. The denial of procedural fairness did not affect the outcome of the Minister’s consideration of the exercise of power under s 501CA(4).