78304 · Migration Law: Compliance And Cancellation
Refusal and the Code of Procedure
The default rule of administrative law is natural justice — the right to know the case against you and to be heard — and it applies to a visa decision unless the statute clearly excludes or replaces it. For most visa applications, the Migration Act replaces common-law natural justice with the Code of Procedure (Subdiv AB, Div 3, Pt 2): comply with the Code and natural justice is taken to have been afforded (s 51A makes the Code an exhaustive statement of the hearing rule for those decisions). The chapter walks the Code's core provisions — s 54 (have regard to all the information in the application; s 54(3) may decide without inviting submissions), s 57 (put adverse information not given by the applicant to them for comment; breach is jurisdictional error that s 474 will not save), and s 58 (the manner of inviting comment) — and the non-disclosable information carve-out (s 5), where the information need not be disclosed but the gist should still be put (Kumar). It then forks on character refusal: s 501(1) (natural justice applies, so a NOICR issues) versus s 501(3) (Minister-personal, national-interest, natural justice excluded).
What this chapter covers
- 01The default: natural justice applies unless excluded or replaced
- 02The Code of Procedure (Subdiv AB) replaces common-law NJ for applications; s 51A exhaustive statement
- 03s 54: regard to all information in the application; s 54(3)
- 04s 57: put adverse information not from the applicant for comment - breach = jurisdictional error
- 05s 58: the manner of inviting comment; reg 2.15 reasonable time
- 06Non-disclosable information (s 5): no disclosure, but the gist should be put (Kumar)
- 07Character refusal: s 501(1) (NJ applies, NOICR, reg 2.53 28 days) vs s 501(3) (NJ excluded)
Worked example: a refusal on adverse information the applicant never saw
- +1Issue. Was the refusal affected by a failure of procedural fairness under the Code of Procedure?
- +1Which regime. A visa application is decided under the Code of Procedure, which replaces common-law natural justice (s 51A); comply with the Code and NJ is taken to be afforded.
- +1s 57. The tip-off is adverse information that was a reason or part of the reason to refuse and was not given by the applicant. s 57 required the delegate to put it to the applicant for comment before deciding.
- +1Carve-out check. Is it non-disclosable information under s 5 (security, public interest, confidence)? An anonymous tip-off is not obviously within the carve-out; even if it were, the gist should still have been put (Kumar).
- +1Conclude. The failure to put the adverse information breaches the Code (s 57), which is a jurisdictional error; s 474 will not protect it. The applicant should seek review and the decision is liable to be quashed and remitted.
Key terms
- Natural justice (procedural fairness)
- The common-law right to know the case against you and to be heard before an adverse decision. It applies to visa decisions unless the statute clearly excludes or replaces it — for applications, the Code of Procedure replaces it.
- Code of Procedure
- The statutory hearing rules in Subdiv AB, Div 3, Pt 2 of the Migration Act that replace common-law natural justice for most visa applications. By s 51A it is an exhaustive statement of the hearing rule: comply with the Code and natural justice is taken to have been afforded.
- s 57 (adverse information)
- Requires the decision-maker to put to the applicant, for comment, information that would be a reason or part of the reason to refuse and was not given by the applicant. Breach is a breach of the Code and likely a jurisdictional error, which the privative clause s 474 will not protect.
- Non-disclosable information (s 5)
- A carve-out from disclosure for security, defence, international-relations, public-interest and breach-of-confidence information. The information itself need not be disclosed, but the gist should still be put to the applicant (Kumar [2009] HCA 10).
- s 501(1) vs s 501(3) refusal
- Two character-refusal limbs. Under s 501(1) natural justice applies, so a notice of intention to consider refusal (NOICR) issues and reg 2.53 gives 28 days to respond. Under s 501(3), a Minister-personal national-interest refusal, natural justice is excluded (s 501(5)) and the decision is not merits-reviewable.
Refusal and the Code of Procedure FAQ
When does natural justice apply to a visa decision?
By default it always applies, unless the statute clearly excludes or replaces it. For most visa applications it is replaced by the Code of Procedure, so complying with the Code is treated as affording natural justice. Some powers exclude it outright — for example a s 501(3) Minister-personal national-interest decision.
What is the effect of breaching s 57?
s 57 requires adverse information not given by the applicant to be put to them for comment. Failing to do so breaches the Code and is generally a jurisdictional error, which means the privative clause s 474 will not protect the decision — it can be quashed on judicial review and remitted to be decided according to law.
Does the department have to disclose everything?
No. Non-disclosable information under s 5 (security, defence, international relations, public interest, breach of confidence) need not be disclosed. But even then the gist of the information should be put to the applicant so they can respond meaningfully (Kumar). You cannot simply rely on undisclosed material without giving the applicant a fair chance to answer its substance.
How does character refusal differ from a general refusal?
Character refusal runs through s 501. Under s 501(1) natural justice applies, so a NOICR issues and reg 2.53 gives 28 days to respond, but a refusal (unlike a cancellation) does not trigger the SRC 5001 lifetime bar. Under s 501(3), a Minister-personal national-interest refusal, natural justice is excluded and there is no merits review.
Exam move
Start every refusal problem from the default — natural justice applies unless excluded or replaced — then identify the regime: an application is governed by the Code of Procedure (s 51A exhaustive statement), so comply with the Code and fairness is taken to be afforded. Make s 57 your reflex: spot adverse information that was a reason to refuse and was not supplied by the applicant, check the s 5 non-disclosable carve-out, and remember the gist must still be put (Kumar). Tie the consequence together: a Code breach is jurisdictional error that s 474 will not save. Finally, keep the s 501(1) (NJ applies, NOICR) versus s 501(3) (NJ excluded, Minister-personal) fork sharp, and note that a character refusal, unlike a cancellation, does not trigger the SRC 5001 lifetime bar.
