Weti-Safwan v Minister for Home Affairs

The case of Weti-Safwan v Minister for Home Affairs concerns an appeal against a decision made by a Federal Court judge dismissing the appellant's application for judicial review of a decision by the Minister for Home Affairs to cancel her visa. The appellant, a New Zealand citizen with a long history of criminal activity, was seeking to overturn a decision to cancel her visa under section 501BA(2) of the Migration Act 1958 (Cth). The appeal was based on the argument that the Minister had misunderstood the operation of section 501BA(2) of the Act, leading to a failure to observe the rules of natural justice.

The central legal issue before the court was whether the Minister's misunderstanding of section 501BA(2) of the Act amounted to a jurisdictional error. The appellant argued that the Minister had incorrectly assumed that the section precluded him from inviting her to make submissions or provide further material, thereby denying her a fair opportunity to respond to the allegations against her. The court considered the implications of two previous decisions, Ibrahim v Minister for Home Affairs [2019] FCAFC 89 and Nguyen v Minister for Home Affairs [2019] FCAFC 128, which provided guidance on the interpretation of section 501BA(2). Additionally, the court examined whether the Minister's conclusions about the appellant's likelihood of reoffending and the risks she posed were based on sufficient evidence.

The court found that the Minister had indeed misunderstood the operation of section 501BA(2) and that this misunderstanding constituted a jurisdictional error. The court held that the Minister was required to provide the appellant with an opportunity to make submissions and present further material, which was not done in this case. This error was deemed material, as it deprived the appellant of a fair chance to respond to the allegations. Consequently, the court allowed the appeal and set aside the decision of the primary judge, ordering that the Minister's decision be quashed. The court also directed that the appellant's costs of the appeal be paid by the respondent, to be determined in a lump sum by a Registrar of the Court.