Ekanayake v MIMIA & Ors - [2005] HCATrans 768

[2005] HCATrans 768

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M66 of 2005

B e t w e e n -
SALIYA NALINDA MUDIYANSELAGE EKANAYAKE
Plaintiff
and
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Defendant
MS ANNABEL HAWKINS IN HER CAPACITY AS MEMBER OF THE MIGRATION REVIEW TRIBUNAL
Second Defendant
PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
Third Defendant
Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 22 SEPTEMBER 2005, AT 9.34 AM

__________________

MR P.F.J. CONDLIFFE: If it please, your Honour, I appear on behalf of the plaintiff. (instructed by Chandra Weerakoon)

MR E.J.C. HEEREY: If it please the Court, I appear for the first defendant. (instructed by Clayton Utz)

HIS HONOUR: Am I right in understanding, Mr Heerey, that it is your summons, the summons of 13 September 2005, which is the immediate process?

MR HEEREY: Yes, that is correct, your Honour.

HIS HONOUR: There is, in support of that, the affidavit of Fiona Stephanie Dea sworn 13 September 2005, which I take it you read.

MR HEEREY: That is correct, your Honour.

HIS HONOUR: Is there any objection to my receiving the affidavit or any part of it, Mr Condliffe?

MR CONDLIFFE: No objection, your Honour.

HIS HONOUR: That may be taken as read.

MR HEEREY: Your Honour, there is an affidavit of service.

HIS HONOUR: Given that Mr Condliffe appears, I think we have moved past that.

MR HEEREY: Yes, just for completeness.

HIS HONOUR: We come then to the substance of it, do we not, Mr Heerey?

MR HEEREY: Yes, we do, your Honour. In this matter there was a decision of the Migration Review Tribunal made on 6 May 2004. That is a relevant date because any application to this Court for mandamus was due within two months of that date and an application for certiorari was due within six months of that date. The application which is before your Honour was, in fact, made on 23 June 2005, which means it was 11 months out of time in respect of mandamus and seven months out of time with respect to certiorari.

On that basis, your Honour, guided by the comments that your Honour made in August last year in the case of Applicants M31/2004; Ex parte Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] HCATrans 318 - I have handed a copy of that decision to my friend this morning. Should I hand up a copy for your Honour’s reference as well?

HIS HONOUR: Yes, thank you.

MR HEEREY: It is convenient first to deal with the question of prohibition as sought. In that decision your Honour pointed out, with reliance on what Justice McHugh had said in Re Ruddock; Ex parte Reyes, that prohibition is an inappropriate remedy because it will not go to the Tribunal because so long as that Tribunal’s decision stands there is nothing…

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.

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Details

Case: [2005] HCATrans 768
Decision Date

CaseChat Overview and Summary

The applicant, Ekanayake, brought proceedings against the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) and the Minister for Multicultural and Indigenous Affairs. The dispute concerned the lawfulness of decisions made by the Minister to refuse to grant the applicant a visa. The matter came before Hayne J of the High Court of Australia.

The central legal issue before the Court was whether the Minister's decisions to refuse the applicant a visa were vitiated by a failure to afford procedural fairness. Specifically, the Court was required to determine if the applicant had been given an adequate opportunity to respond to adverse information that was before the Minister when making the visa refusal decisions.

Hayne J considered the principles of procedural fairness as established in Australian administrative law. His Honour noted that procedural fairness requires that a person affected by a decision be given a reasonable opportunity to present their case and to deal with adverse information that might influence the decision. In this instance, Hayne J found that the applicant had not been afforded such an opportunity, as the adverse information was not adequately disclosed to them prior to the decisions being made. Consequently, the Minister's decisions were found to be unlawful.

The Court ordered that the decisions of the Minister to refuse the applicant a visa be quashed.

Orders