XMBQ v Minister for Immigration and Multicultural Affairs

In the case of XMBQ v Minister for Immigration and Multicultural Affairs, the applicant, a Somalian national who had been granted a Class XB Subclass 200 Refugee visa, challenged the Minister's decision to cancel his visa and set aside the Administrative Appeals Tribunal's decision to revoke the cancellation. The Tribunal had found that, despite the applicant's serious criminal history, his risk of reoffending was low, and thus, his visa cancellation should be revoked. However, the Minister exercised his power under s 501BA(2) of the Migration Act 1958 (Cth) to set aside the Tribunal's decision and cancel the applicant's visa. The applicant argued that the Minister failed to exercise the power within a reasonable time and that the Minister's possession of irrelevant and prejudicial information about pending criminal charges against the applicant gave rise to a reasonable apprehension of bias.

The primary legal issues before the court were whether the power in s 501BA was subject to an implied temporal limitation requiring it to be exercised within a reasonable time after the Tribunal's decision and whether the Minister's possession of irrelevant and prejudicial information about pending criminal charges against the applicant gave rise to a reasonable apprehension of bias. The court found that the power under s 501BA(2) was indeed subject to an implied temporal limitation, requiring the Minister to exercise the power within a reasonable time after the Tribunal's decision. Given that the Minister exercised the power three years and two months after the Tribunal's decision, the court held that this was not within a reasonable time. Furthermore, the court determined that the Minister's possession of irrelevant and prejudicial information did not give rise to a reasonable apprehension of bias, as the Minister correctly understood that his decision involved both setting aside the Tribunal's decision and cancelling the applicant's visa, and it was not reasonably open to a fair-minded lay observer to conclude otherwise.

Consequently, the court allowed the application for judicial review, quashing the Minister's decision to set aside the Tribunal's decision and cancel the applicant's visa. The court also ordered the Minister to pay the applicant's costs, as agreed or taxed.