Consider this scenario: a law enforcement agency provides evidence to the Immigration Department on condition that the material is treated as confidential. However, in a twist of events, the Minister responsible uses the evidence when deciding on whether to cancel a visa by a questionable character on the part of the visa holder.

Would the minister be required to reveal the information to a court if legal proceedings were instituted to challenge the visa cancellation order by the Minister?

On 6 September the High Court in the matter of Graham v Minister for Immigration and Border Protection and Te Puia v Minister for Immigration and Border Protection handed down a decision on two separate challenges to visa cancellation decisions.

In both cases the minister cancelled the visas based on information that the visa holders belonged to the Rebels Outlaw Motorcycle Group, an organisation thought to be involved in criminal activities.

While submitting his statement of reasons for the visa cancellations, the Minister claimed that he had considered “undisclosed information” which had been shared with the Immigration Department in confidence by law enforcement agencies.

The visa holders then proceeded to challenge the cancellations stating that section 503A (2) of the Migration Act was an invalid provision of the law. Section 503A (2) states that if the Minister is privy to information given in confidence to the Department he “must not be required to divulge or communicate the information to a court”.

The petitioners claimed that section 503A(2) is invalid because it wrongly limits the courts’ ability to review visa cancellation decisions when considering whether they are affected by the jurisdictional error. In so doing it also limits the rights of persons affected by visa cancellation to seek redress in the courts.

The court ruled that section 503A(2) is invalid to the extent that it “inflexibly enables the Minister to withhold the information provided confidentially by law enforcement authorities from review by a court, regardless of the importance of that information to the review that the court is undertaking.”

The court, therefore, concluded that it was bound by the law which curtailed its powers when reviewing a visa cancellation decision.

The court’s decision also means that this information provided to the Minister in confidence and which is used to decide on visa cancellation would “be forever shielded from review by a court no matter how consequential it might be to the ultimate decision to cancel a visa.”

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