Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 914

FEDERAL COURT OF AUSTRALIA

Applicant S214 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 914

APPLICANT S214 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

N287 OF 2003

EMMETT J

19 JUNE 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N287 OF 2003

BETWEEN:

APPLICANT S214 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

ADMINISTRATIVE APPEALS TRIBUNAL
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	19 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The hearing of this matter commenced on Thursday, 12 June 2003 and was adjourned to Monday, 16 June 2003 and then subsequently adjourned to today.  In the proceeding, the applicant seeks relief in the nature of prerogative writs in respect of a decision of a Deputy President of the Administrative Appeals Tribunal (‘the Tribunal’).  The applicant says that there was jurisdictional error on the part of the Tribunal in so far as he was not afforded procedural fairness in the hearing.

2. In essence, the complaints arise out of the way in which the Tribunal gave effect to orders made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) whereby the applicant was denied access to written evidence adduced before the Tribunal and was denied access to oral evidence given before the Tribunal.

3. Pursuant to leave that I have given today, the applicant has now filed a statement of claim whereby he particularises the complaints said to amount to jurisdictional error on the part of the Tribunal.  The applicant now seeks leave to rely on an affidavit sworn by him on 17 June 2003. 

4. Objection is taken to part of the affidavit which deals with two matters.  The first concerns the action that the applicant says he would have taken had he been given adequate particulars of the allegations made against him.  The second concerns the evidence that he says he would have adduced had he been given particulars of the allegations.

5. Paragraph 1 to par 4 and par 25 to par 34 of the affidavit constitute evidence as to the steps that the applicant says he would have taken, including evidence as to the identity of witnesses whom he says he would have called and the facts that are alleged to give rise to a conclusion that those witnesses could give relevant evidence.  I consider that those paragraphs would be admissible in this proceeding.  However, those paragraphs would be irrelevant before the Tribunal.

6. On the other hand, par 5 to par 24 and par 35 to par 38 of the affidavit constitute evidence that could have been adduced before the Tribunal.  Whether or not those matters were the subject of evidence might be a question for argument.  Nevertheless, those paragraphs constitute evidence that it would have been open to the applicant to adduce before the Tribunal. I will not permit those paragraphs to be read as evidence in this proceeding because they are not relevant. 

7. I will permit the applicant to give evidence, if he wishes to do so, to the effect that, had he been given certain particulars of the matters alleged against him that were found by the AAT, he would have adduced evidence to that effect before the Tribunal.  I will then permit cross-examination of the applicant on behalf of the Minister in relation to the evidence that I have admitted as evidence in this proceeding.  I will treat par 1 to par 4 and par 25 to par 34 as read on the hearing of this proceeding. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             29 August 2003

Counsel for the Applicant:	Dr C J Birch SC with J Hyde
Solicitor for the Applicant:	Griffins Lawyers
Counsel for the Respondent:	R J Bromwich
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12, 16 and 19 June 2003
Date of Judgment:	19 June 2003