Australian Immigration Daily News

Suppose that a law enforcement agency provides material to the Department on the basis that the material be treated as confidential information.

Suppose then that the Minister has regard to that material when considering whether to cancel a visa on character grounds.

Can the Minister be required to disclose that information to a court in the context of legal proceedings brought to challenge the visa cancellation decision of the Minister? 

If the Minister proceeds on the basis that the information is shielded from disclosure to a court, is a visa cancellation decision that is made on that basis infected by jurisdictional error?

These important questions were the subject of a decision of the High Court that was handed down on 6 September: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (2017) HCA 33.

The proceedings before the High Court involved two separate challenges to visa cancellation decisions.

In both cases, the Minister cancelled the visas based on information that the visa holders were members of the Rebels Outlaw Motorcycle Group, an organization said to have been involved in criminal conduct.

Also, in the statements of reasons for the visa cancellations, the Minister had recorded that he had considered “undisclosed information” that had been provided to the Department on a confidential basis by law enforcement organisations.

The visa holders then challenged the cancellations on the basis the basis that section 503A (2) is an invalid provision of the Migration Act.

To take a quick step back: section 503A(2)(c) provides that when information is communicated to the Department on the basis that it be held on a confidential basis, and that information is then conveyed to the Minister by an officer of the Department on the basis that it also be held by the Minister on a confidential basis and referred to in relation to decisions whether to refuse or cancel a visa on character grounds, the Minister “must not be required to divulge or communicate the information to a court”.

It was claimed that section 503A(2) is invalid because it improperly restricts the power of the courts to review visa cancellation decisions to determine whether they are affected by jurisdictional error, and that it improperly limits the rights of persons who have suffered visa cancellation to seek redress in the courts, again on grounds of jurisdictional error.

The answer given by the High Court was that section 503A(2) is invalid to the extent that it inflexibly enables the Minister to withhold the information provided confidentially by law enforcement authorities from review by a court, regardless of the importance of that information to the review that the court is undertaking.

The High Court concluded that this provision impermissibly curtails the power of a court that is conducting a review of a visa cancellation decision from determining whether that decision has been made in accordance with law.

Further, the High Court held that since the Minister had proceeded with the two cancellation decisions on the basis of a legal erroneous understanding that the confidential information would be shielded from disclosure to and review by a court.

The important consequence of this decision by the High Court is that visa cancellation decisions that have been made by the Minister in which the Minister has relied on information provided on a confidential basis by law enforcement authorities, and that this information would be forever shielded from review by a court no matter how consequential it might be to the ultimate decision to cancel a visa, may very well be open to legal challenge on grounds of jurisdictional error.