In a landmark decision in Australian Immigration law, the High Court of Australia yesterday held that provisions of the Migration Act 1958 ("the Act") excluding visa applicants from an entitlement to be informed of and comment on adverse information, before a decision was made do not apply to offshore applicants.

In reaching its decision in Saeed v Minister for Immigration and Citizenship, [2010] HCA 23 (23 June 2010) the High Court unanimously rejected arguments of the Minister for Immigration that section 51A of the Act excluded the right to general law natural justice for offshore applicants. 

Despite the introduction of section 51A in 2002, the Court concluded that “… the implication of the natural justice hearing rule with respect to offshore visa applicants was maintained. The Minister was obliged to provide the appellant with an opportunity to answer the adverse material.”

The High Court decision has made it clear that any decision made by Australian immigration authorities in relation to an offshore visa application without first affording natural justice is contrary to law and renders a decision void.

With the Department of Immigration commonly refusing offshore applications without first affording an opportunity to comment on adverse information based on the belief that the Migration Act 1958 excluded an applicant’s usual right to be afforded procedural fairness, the effects of this decision will be far reaching.  

Offshore applicants for Australian visas dating back several years may have rights to have their application reconsidered as a result of this landmark decision and unless the Minister formulates a strategy to manage the many cases potentially affected, a wave of judicial review appeals is likely to follow.