By Dr Michelle Sharpe -
Key decisions
- Nathanson v Minister for Home Affairs [2022] HCA 26
Administrative law
Judicial review
In Nathanson v Minister for Home Affairs [2022] HCA 26 (17 August 2022) the High Court was required to determine whether procedural unfairness by the Administrative Appeals Tribunal (‘AAT’), during the hearing of the appellant’s application for a review of a decision not to revoke the mandatory cancellation of his visa, involved jurisdictional error.
The appellant, Mr Nathanson, a citizen of New Zealand, arrived in Australia in 2010. In 2013, Mr Nathanson was granted a Class TY Subclass 444 Special Category Visa. But, in 2018, the Minister cancelled the visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘Migration Act’). The Minister was satisfied that Mr Nathanson did not pass the character test in s 501(6) of the Migration Act because Mr Nathanson was serving time in prison for, among other things, theft and aggravated assault. The circumstances of Mr Nathanson’s offending – which included an unprovoked attack on an elderly man and a high-speed car pursuit with police – were egregious.
In 2019, the Minister decided not to revoke the mandatory cancellation of Mr Nathanson’s visa pursuant to s 501CA(4) of the Migration Act. In making that decision, the Minister was required to comply with a ministerial direction known as ‘Ministerial Direction 65’. Ministerial Direction 65 required the Minister to have regard to a range of considerations in exercising the relevant power. Relevantly, these considerations included crimes against vulnerable members of the community such as minors. By the time of the AAT hearing, Ministerial Direction 65 had been replaced by Ministerial Direction 79. The significant difference between the two directions is that the latter direction included the following consideration: ‘[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’.
