AB, Ex parte - Re Min for Immig - [2000] HCATrans 366

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S136 of 2000

In the matter of –
An application for Writs of Mandamus, Prohibition, Certiorari and an Injunction against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
CHIEF EXECUTIVE OFFICER AUSTRALIAN CUSTOMS SERVICE
Second Respondent
DIRECTOR, AUSTRALIAN PROTECTIVE SERVICE
Third Respondent
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Fourth Respondent
D. KELLEGHAN sitting as the Member of the Refugee Review Tribunal
Fifth Respondent
DR PETER NYGH in his capacity as Principal Member of the Refugee Review Tribunal
Sixth Respondent

Ex parte –
AB
Applicant

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 21 AUGUST 2000, AT 9.37 AM

__________________

MR R.W. KILLALEA: If the Court pleases, I appear for the applicant. (instructed by Susan N. Goodsell)

MR J.D. SMITH: If the Court pleases, I appear for the first, fifth and sixth respondents. (instructed by the Australian Government Solicitor)

HIS HONOUR: I think in this matter there is an application that there be an anonymity order. I notice that that was done in SZ, but it was not done in the Federal Court, as I read the transcript of the decision of Justice Madgwick. Is there much point in having an anonymity order?

MR KILLALEA: It was not sought. It was overlooked in a simple sense before his Honour Justice Madgwick, but given the adverse consequences which may flow for the applicant, the less publicity the matter has the better, your Honour.

HIS HONOUR: Yes, well it does go on the Internet so it may be a reason for providing an anonymity order. You appear, do you, for some of the respondents, Mr Smith?

MR SMITH: Yes, with your leave, your Honour, for the first, fifth and sixth. I understand that the prosecutor is not seeking to proceed against the second, third and fourth.

HIS HONOUR: I am sorry: what is your understanding?

MR SMITH: That the prosecutor seeks only a writ against the first, fifth and sixth respondents.

HIS HONOUR: Right. Just let me get the papers. I have a note here, but not a certificate, that there is to be no appearance for the second, third and fourth respondents. Have they been served, Mr Killalea?

MR KILLALEA: No, they have not been served. Properly, the prosecutor no longer seeks orders against those parties.

HIS HONOUR: Very well. Am I asked to strike them from the proceedings, remove them from the application for the orders nisi? Is that what you ask?

MR KILLALEA: Yes.

HIS HONOUR: Very well, I delete the second, third and fourth respondents. That is to say, the Chief Executive Officer, Australian Customs Service; the Director, Australian Protective Service and the Commissioner of the Australian Federal Police from the record.

Yes, you have leave to appear for the first, fifth and sixth respondents, Mr Smith. What is your attitude, Mr Smith, to the application that the applicant be named AB?

MR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB, Ex parte - Re Min for Immig

Details

AGLC: AB, Ex parte - Re Min for Immig [2000] HCATrans 366
Case: [2000] HCATrans 366
Decision Date

CaseChat Overview and Summary

This matter concerned an application by AB for an order in the nature of prohibition against the Minister for Immigration. The applicant sought to prevent the Minister from making a decision under s 501(1) of the *Migration Act 1958* (Cth) to refuse to grant, or to cancel, a visa on character grounds. The application was heard by Kirby J in chambers.

The central legal issue before the Court was whether the Minister's power under s 501(1) of the *Migration Act* was amenable to judicial review by way of prohibition. Specifically, the Court was required to determine if the Minister's discretion to refuse or cancel a visa on character grounds was a "decision" within the meaning of the *Administrative Decisions (Judicial Review) Act 1977* (Cth) and, if so, whether prohibition was an available remedy.

Kirby J considered the nature of the power conferred by s 501(1), noting that it involved a broad discretion to assess character and make a decision that could have significant consequences for an individual. His Honour referred to established principles of administrative law, including the distinction between a power to make a decision and the decision itself, and the circumstances in which prohibition might lie. The Court ultimately found that the power to refuse or cancel a visa under s 501(1) was a decision to which the *Administrative Decisions (Judicial Review) Act* applied, and that prohibition was an available remedy to review the exercise of that power.

The application for prohibition was therefore granted.

Orders