Background
Da Silva held a Class BS Subclass 801 Partner visa. A ministerial delegate mandatorily cancelled the visa in 2017, but the Administrative Appeals Tribunal revoked that cancellation in January 2019, restoring the visa. On 18 June 2024—more than five years after the Tribunal’s decision—the Minister personally exercised the power under s 501BA(2) of the Migration Act 1958 (Cth) to set aside the Tribunal’s decision and cancel the visa.
The Minister obtained a recent criminal-history check and movement records but otherwise relied on substantially older information and chose not to afford natural justice, as s 501BA(3) permitted. Da Silva sought judicial review, arguing that the power had expired through delay, that the timing and delay were legally unreasonable, that the Minister unreasonably failed to seek updated information, and that several aspects of the Minister’s reasoning were unreasonable.
The Court’s Holding
Justice Thawley allowed the application on the fourth ground. The Court held that the Minister breached the implied condition that the s 501BA(2) power be exercised reasonably by assuming that Da Silva had only the four children identified in material from more than five years earlier and by failing to consider the obvious possibility that he had additional children. In fact, when the Minister decided the matter, Da Silva had a fifth child and was expecting a sixth.
The error was jurisdictional and material because the Minister treated affected children’s best interests as a significant consideration, and the ultimate decision might have differed had the assumption not been made. The Court rejected the other challenges: binding Full Court authority foreclosed the claim that the power had expired; departmental resourcing, policy, and institutional changes intelligibly explained the delay; and neither the limited inquiries nor the Minister’s reasoning about rehabilitation and a possible spouse or partner independently established jurisdictional error. The Court issued certiorari quashing the 18 June 2024 decision and ordered the Minister to pay Da Silva’s costs.
Key Takeaways
- On existing Full Court authority, the Minister’s s 501BA(2) power does not automatically expire after an unspecified period, although delay may remain relevant to whether the power was exercised lawfully.
- Section 501BA permits the Minister to proceed without natural justice and on incomplete information, but those features do not eliminate the statutory requirement of legal reasonableness.
- After a delay exceeding five years, it was unreasonable to rely on stale information about children without addressing the obvious possibility that the applicant’s family circumstances had changed, particularly when children’s interests were treated as significant.
Why It Matters
The decision confirms that the broad, personal, and politically evaluative cancellation power in s 501BA remains subject to a meaningful—though stringent—standard of legal reasonableness. Express statutory authority to withhold natural justice does not insulate a decision from review when the Minister’s reasoning depends on an unsupported assumption about circumstances likely to have changed over time.
For migration practitioners, the case highlights the interaction between lengthy administrative delay, incomplete information, and material factual assumptions. A failure to inquire may not itself be unlawful, but reliance on stale facts can still produce jurisdictional error where the decision-maker overlooks an obvious possibility bearing on a consideration treated as important.