An appeal over a visa cancellation has been elevated to the High Court for a 2022 hearing following allegations that the denial of procedural fairness led to a supposed jurisdictional error.
In Nathanson v Minister for Home Affairs & Anor, a Minister for Home Affairs delegate cancelled the visa of New Zealand citizen and Australia resident Narada Nathanson in August 2018 because Nathanson did not pass the “character test” as a result of a “substantial criminal record.”
Nathanson had faced allegations of domestic violence, and after his visa was cancelled, the minister issued a new direction to relevant officers which noted several considerations for visa cancellation assessment. One of the factors added in the new direction was to view “violent crimes against women or children” as “very [serious], regardless of [the] sentence imposed.”
However, the primary judge at the Federal Court found that the tribunal’s “failure to afford Nathanson procedural fairness” did not amount to a jurisdictional error. The court said that the oversight “was not a material breach” because Nathanson had not demonstrated that compliance could have resulted a different decision.