Background
Chompeay Kim, a Cambodian-born holder of a Subclass 155 Resident Return visa, had an extensive Australian criminal history, including drug, violent and property offences. In 2021, a delegate cancelled his visa under s 501(2) of the Migration Act 1958 (Cth), but the Administrative Appeals Tribunal set aside that cancellation in July 2023. The Tribunal considered expert evidence about Mr Kim’s substance-use treatment and assessed his risk of further offending as low, although it found some risk remained.
After Mr Kim was later convicted of possessing a prohibited drug, the Assistant Minister considered using s 501A(2) to set aside the Tribunal’s decision and cancel the visa. The Department sent notices to two addresses by registered post. The first, sent to Mr Kim’s current address, was returned unclaimed. The second was sent to an older address obtained from Centrelink and was signed for by someone other than Mr Kim. Mr Kim gave unchallenged evidence that he received neither notice. The Department had his mobile number and an email address but did not use them to verify his address or contact him.
The Court’s Holding
Justice O’Bryan held that the Assistant Minister denied Mr Kim procedural fairness. Section 501A(2) required that Mr Kim be given a meaningful opportunity to make representations before his visa was cancelled. While actual notice is not invariably necessary, the Minister must take reasonable steps to notify the affected person, assessed when the cancellation power is exercised.
The Court found real doubt that Mr Kim lived at the Centrelink address or received the second notice: Departmental records showed a more recently updated address, the second notice had apparently not been signed by Mr Kim, and he did not respond despite the serious consequences of cancellation. Simple, readily available verification steps—calling his recorded mobile number or contacting the available email address—were not attempted. Compliance with the postal-notification regulation did not itself determine whether procedural fairness had been afforded. The Court quashed the 3 July 2025 cancellation decision and ordered the Assistant Minister to pay costs.
The Court rejected Mr Kim’s separate challenge alleging that the Assistant Minister’s assessment of rehabilitation and reoffending risk was legally unreasonable, illogical or irrational. The Minister could reach a different conclusion from the Tribunal on the material available, and the stated reasons did not meet the high threshold for that form of jurisdictional error.
Key Takeaways
- A s 501A(2) visa cancellation requires procedural fairness, including reasonable steps to give the visa holder an opportunity to respond.
- Postal service under the Migration Regulations does not conclusively establish procedural fairness where the Department knows facts casting doubt on actual notification.
- When a notice is returned or delivered to an uncertain address, readily available contact methods may need to be used before cancellation.
Why It Matters
The decision confirms that the gravity of visa cancellation—potential detention and removal—shapes what reasonable notification requires. Immigration decision-makers need not make limitless enquiries, but cannot ignore straightforward ways to resolve known uncertainty about whether the affected person has received notice.