Douglass v The Queen

[2002] HCA 34

HIGH COURT OF AUSTRALIA

GUMMOW J

RE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS   RESPONDENT

EX PARTE STEPHEN OGHO AKPATA  APPLICANT

Re Minister for Immigration and Multicultural and Indigenous Affairs;
Ex parte Akpata
[2002] HCA 34
2 September 2002
A94/2002

ORDER

Application dismissed with costs.

Representation:

B M O'Brien for the applicant (instructed by Hamdan Lawyers)

S J Maharaj for the respondent (instructed by Sparke Helmore)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Akpata

Administrative law – Jurisdictional error – Natural justice – Privative clause – Failure to inform applicant that refusal of parent visa would result in automatic cancellation of bridging visa and detention of applicant – Alleged failure to afford applicant opportunity to put before Minister material concerning financial and emotional impact detention would have on him and his family and its impact on the preparation by applicant of pending special leave application – Alleged failure by Minister to take into account these matters – Whether Minister's decision protected by s 474 of the Migration Act 1958 (Cth) ("the Act").

Immigration – Refusal by Minister of application for parent visa on "character grounds" under s 501 of the Act – Minister "taken to have decided to cancel" bridging visa held by applicant by force of s 501F(3) of the Act – Applicant thereby became an "unlawful non-citizen" subject to immigration detention – Application under s 75(v) of the Constitution ­– Whether operation of s 474 of the Act attracted – No attack on validity of s 474 – Application of reasoning in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and R v Murray; Ex parte Proctor (1949) 77 CLR 387 to construction of s 474 ­– Whether distinct procedural fairness requirement attached to cancellation of bridging visa under s 501F(3) of the Act.

Constitution, s 75(v).
Migration Act 1958 (Cth), ss 189, 196, 474, 501, 501F(3).

1. GUMMOW J.   The applicant was born in Nigeria in 1962 and is a citizen of that country.  On 10 February 1994, he arrived in Australia with his wife and two children.  The applicant's wife was born in 1966 and is a Nigerian citizen.  They were married in 1987.  Their son was born in Nigeria in 1990.  Their daughter was born in New Zealand in 1993 and is a New Zealand citizen.

2. The applicant entered Australia on a student visa identified as "561 Student Category B Entry Permit" to study at the Adelaide College of Ministries.  On 22 December 1995, he applied for a protection visa.  This was refused by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") and an application for review by the Refugee Review Tribunal ("the RRT") was unsuccessful.  However, on 20 November 1998, the Federal Court of Australia set aside the decision of the delegate and remitted the matter to the RRT[1].…