High Court: June 2024

ADMINISTRATIVE LAW

Judicial review – jurisdictional error

In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (10 April 2024) the High Court was required to determine whether an error by the Administrative Appeals Tribunal (‘AAT’) was material and, as such, a jurisdictional error.

The AAT erred in its determination of the appellant’s application for a review of a decision, made by the Minister’s delegate, not to revoke the cancellation of his visa. The appellant is a Vietnamese national who held a Class BS Subclass 801 (Spouse) visa. The appellant’s visa was mandatorily cancelled, under s 501(3A) of the Migration Act 1958 (Cth) (‘Migration Act’), after his conviction of various offences concerning the trafficking of drugs. The appellant unsuccessfully applied for the cancellation of his visa to be revoked under s 501CA(4) of the Migration Act. In affirming the delegate’s decision, the AAT said it was not satisfied, under s 501CA(4)(b)(ii) of the Act, there was ‘another reason’ why the cancellation of the visa should be revoked. In considering whether there was ‘another reason’, the AAT was required, under s 499(2A) of the Migration Act, to comply with Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of visa under section 501CA (‘Direction 90’). Direction 90 requires the AAT to weigh certain considerations which relevantly included, at paragraphs 8.1.1(1)(a), (b) and (g) of Direction 90, matters going to the seriousness of the appellant’s criminal offending.