Nathanson v. Minister for Home Affairs & Anor

Lower Court Judgment

09/10/2020 Federal Court of Australia (Wigney, Steward and Jackson JJ)

[2020] FCAFC 172

Catchwords

Administrative law – Jurisdictional error – Procedural fairness – Materiality – Where applicant’s visa cancelled by delegate on character grounds – Where, after delegate’s decision but before Tribunal review, Minister issued new direction, which relevantly included as additional factor violent crimes against women or children viewed “very seriously, regardless of sentence imposed” – Where applicant not put on notice prior to Tribunal hearing that past incidents of alleged domestic violence would be taken into account, despite not having been charged or convicted of any crimes – Where applicant not given opportunity to call further evidence nor make further submissions on domestic violence issue – Where applicant applied for judicial review of Tribunal decision – Where Minister conceded Tribunal denied procedural fairness and majority of Full Federal Court dismissed application on basis applicant failed to show realistic possibility of different outcome – Whether Full Federal Court applied correct test of materiality – Whether applicant’s denial of procedural fairness material and constituted jurisdictional error.