Vo, Ex parte - Re Min for Imm & Ethnic Affs

This matter concerned an application by Mr Vo for an order nisi for prohibition directed to the Minister for Immigration and Ethnic Affairs. The applicant sought to prohibit the Minister from making a decision under s 501(1) of the *Migration Act 1958* (Cth) to refuse to grant him a visa, or alternatively, to cancel his visa, on the grounds that he did not pass the character test. The application was heard by Hayne J in chambers.

The central legal issue before the Court was whether the Minister's power to refuse or cancel a visa on character grounds under s 501(1) of the *Migration Act* was conditioned upon the applicant or visa holder having been notified of the intention to consider the exercise of that power and being afforded an opportunity to respond. The applicant contended that procedural fairness required such notification and opportunity to respond before the Minister could validly exercise the power under s 501(1).

Hayne J determined that the language of s 501(1) of the *Migration Act* did not impose any requirement for the Minister to notify the applicant of the intention to consider exercising the power to refuse or cancel a visa on character grounds, nor did it mandate providing an opportunity to respond. His Honour reasoned that the section conferred a broad discretion on the Minister, and that the Act itself provided the framework for the exercise of such powers. Consequently, the Court found that the applicant's argument for an implied procedural fairness requirement was not supported by the statutory text.

The application for an order nisi for prohibition was dismissed.