Nathanson v Minister for Home Affairs [2022] HCA 26

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, KEANE, GORDON, EDELMAN AND GLEESON JJ

NARADA NATHANSON APPELLANT

AND

MINISTER FOR HOME AFFAIRS & ANOR RESPONDENTS

Nathanson v Minister for Home Affairs

[2022] HCA 26

Date of Hearing: 10 March 2022

Date of Judgment: 17 August 2022

M73/2021

ORDER

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 9 October 2020 and, in lieu thereof, order that:

(a) the appeal be allowed;

(b) the orders of the Federal Court of Australia made on 18 October 2019 be set aside and, in lieu thereof, it be ordered that:

(i) the application for review be allowed;

(ii) the decision of the Administrative Appeals Tribunal dated 4 April 2019 be set aside;

(iii) the application be remitted to the Tribunal to be heard and determined according to law; and

(iv) the first respondent pay the applicant's costs; and

(c) the first respondent pay the appellant's costs.

3. The first respondent pay the appellant's costs.

On appeal from the Federal Court of Australia

Representation

C J Horan QC with A Aleksov for the appellant (instructed by Lawson Bayly)

G R Kennett SC with A P Yuile for the first respondent (instructed by Sparke Helmore Lawyers)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Nathanson v Minister for Home Affairs

Administrative law – Judicial review – Jurisdictional error – Requirement that error must be material – When error will be material – Where appellant's visa cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where delegate of Minister for Home Affairs decided not to revoke cancellation – Where appellant sought review of non-revocation decision by Administrative Appeals Tribunal ("AAT") – Where AAT denied appellant procedural fairness by not giving opportunity to address relevance of incidents of domestic violence to primary consideration prescribed by direction made under s 499 of Migration Act – Whether denial of procedural fairness material – Whether, in discharging onus, appellant required to establish nature of evidence or submissions that might have been presented had AAT hearing been procedurally fair.