Dunn v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUNN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1349

MIGRATION – Migration Review Tribunal – denial of opportunity to cross examine – allegation of bias – alleged failure to take into account the fact that a Customs officer’s usual practice did not comply with MSI 383 – alleged failure of the delegate to afford natural justice.

Migration Act 1958, ss.5(1), 32(2), 98, 99, 100, 101, 102, 359, 359A, 366D
Migration Regulations 1994, reg.2.41, Sch 1, item 1219

Minister for Aboriginal Affairs & Anor v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration & Multicultural & Indigenous Affairsv Ahmed [2005] FCAFC 58
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561

Applicant: DARREL EDWARD JAMES DUNN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 157 of 2007

Judgment of: Riley FM

Hearing date: 21 June 2007

Date of last submission: 21 June 2007

Delivered at: Melbourne

Delivered on: 21 August 2007

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Warren S. Mosley

Solicitors for the First Respondent: DLA Phillips Fox

ORDERS

1. The application filed on 15 February 2007 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 157 of 2007

DARREL EDWARD JAMES DUNN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application filed on 15 February 2007 seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 13 February 2007. That decision affirmed a cancellation by the first respondent’s delegate of the applicant’s Special Category (Temporary) (Class TY) subclass 444 visa under s.109 of the Migration Act 1958 (“the Act”).

2. The applicant is a 38 year old male citizen of New Zealand.  He arrived in Australia on 18 October 2004 and was granted a subclass 444 visa at the airport.  On 2 June 2005, a delegate of the first respondent cancelled the applicant’s visa on the basis that he had provided an incorrect answer on his incoming passenger card.  The incorrect answer concerned criminal convictions.

3. On 9 June 2005, the applicant applied to the Tribunal for review of the delegate’s decision.  On 15 August 2005, the Tribunal affirmed the delegate’s decision.  An application for judicial review of the Tribunal’s decision was filed in this court.  On 2 March 2006, orders were made by consent setting aside the Tribunal’s decision and remitting the matter for further hearing.  On 20 June 2006, the Tribunal, differently constituted, again affirmed the delegate’s decision.  The applicant sought judicial review of the Tribunal’s second decision.  On

   
   

   10 October 2006, the Tribunal’s second decision was set aside by consent and remitted to the Tribunal, differently constituted, for further hearing. 

4. On 13 February 2007, the Tribunal as reconstituted again affirmed…