Australian Immigration Daily News

The Full Court of the Federal Court has upheld a decision by the Minister not to revoke the cancellation of a “Return (Residence)" visa that was held by the national president of the Rebels Motorcycle Club. 

The Full Court made this ruling in Vella v Minister for Immigration and Border Protection, (2015) FCAFC 53 (21 April 2015).

The significance of this decision is that it clarifies whether principles of “natural justice” require the Minister to disclose information that has been provided under section 503A of the Act by a “gazetted agency” (in other words, a law enforcement or intelligence agency) on condition that the information be treated as “confidential” and that has been relied upon as the basis of a Ministerial decision not to revoke a visa cancellation.

The Full Court (per Justices Buchanan, Flick and Wigney) unanimously decided that the Minister does not have any obligation to provide this information that has been to the Department under section 503A the person who is the subject of the visa cancellation, and that a visa may be lawfully cancelled notwithstanding the Minister’s refusal to disclose or provide an opportunity to comment upon the information.

The background of this case was that Mr Vella had migrated to Australia from Malta in 1967 (at the age of about 14) and had been the national president of the Rebels Motorcycle Club since 1973. Although he had extensive family ties to Australia, he had never become an Australian citizen. He left Australia in June 2014 and shortly thereafter the Minister decided to cancel his visa. The basis of the Minister’s decision was a finding that Mr Vella did not meet pass the “character test” under section 501(6)((b) of the Act, based upon his association with a “group, organization or person” who the Minister reasonably suspected was involved in criminal conduct.

The sole ground for Mr Vella’s challenge to the Minister’s decision not to revoke the cancellation of his visa was his claim that he had been denied “natural justice” or “procedural fairness”.  The basis for this claim was that the Minister had refused to release information that was “personal and adverse” that the Minister had reviewed and relied upon in making the original cancellation decision and in refusing to revoke the cancellation.  

In considering whether principles of natural justice would require disclosure of sensitive information that has been provided to the Department under section 503A, the Full Court had regard to the underlying legislative history.

This section was introduced into the Act in 1998 through the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act.  The purpose of the legislation (as described in the Second Reading Speech) was to maintain the confidentiality of information supplied to the Department by criminal investigation organisations both in Australia and overseas,  and thus to make it easier for the Department to gain access to this information for making character decisions.  It had been found that prior to the introduction of section 503A that law enforcement authorities had been reluctant to provide this sort of sensitive information to the Department unless they were sure that both the information and the sources who had provided it would be protected from disclosure.

The submissions that were put to the Full Court by Mr Vella’s  legal representatives related to the interpretation of section 503(A)(2)(c) of the Act. 

The language of this section provides that: “the Minister or officer must not be required to divulge or communicate the information (that has been given by law enforcement or intelligence agencies on the condition that it be treated as confidential) to a court, a tribunal, a parliament, or parliamentary committee or any other body or person”.

The submission  by Mr Vella’s lawyers was that this section should be read “narrowly”, and applies to protect the information only when it is sought by compulsory” court processes – in other words, only in circumstances where the information is demanded by means of a subpoena, a notice to produce, a summons or the like.

However, the Court rejected this claimed interpretation.  Instead, the Court held that the provisions of section 503A “override” the requirements that otherwise apply under the Act that information be provided to a person whose visa is the subject of a cancellation action and that the person be given an opportunity to comment upon and respond to that information.

Therefore, this decision makes it very plain that information that has been provided to the Department by a law enforcement or intelligence agency on a confidential basis can be treated very differently than other information that is relied upon for making a decision to cancel a visa.  Information that falls within this class is absolutely protected from disclosure.  Principles of natural justice and procedural fairness do not require that this information be disclosed to the person who is the subject of the cancellation action.

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837