Hicks v Nixon

FEDERAL COURT OF AUSTRALIA

Hicks v Nixon [2004] FCAFC  223

MIGRATION – judicial review – cancellation of visa – character test – New Zealand citizen – cancellation set aside in earlier proceedings – visa holder departed Australia before cancellation set aside – sought to re-enter Australia – application for visa to re-enter refused – application for judicial review in respect of refusal – claim for interlocutory order for re-entry – claims for discovery – documents the subject of protected information – discovery refused – application for leave to appeal – application dismissed – inconsistent contentions re status of previously cancelled visa – discovered documents not necessary to make out procedural unfairness case

Migration Act 1958 (Cth)

Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 cited
Minister for Immigration & Multicultural & Indigenous Affairs v Hicks [2004] FCAFC 114 cited
WA Pines Pty Ltd v Bannerman (1980) 41 FLR 169 cited

STEPHEN EDWARD HICKS v NEVILLE NIXON (IN HIS CAPACITY AS HOLDER OF POSITION NO 1686 AS A DELEGATE OF THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS) and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W67 OF 2004

FRENCH, EMMETT and SELWAY JJ
12 AUGUST 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W67 OF 2004

BETWEEN:

STEPHEN EDWARD HICKS
APPLICANT

AND:

NEVILLE NIXON (IN HIS CAPACITY AS HOLDER OF POSITION NO 1686 AS A DELEGATE OF THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS)
FIRST RESPONDENT

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGES:

FRENCH, EMMETT AND SELWAY JJ

DATE OF ORDER:

12 AUGUST 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed.

2.        The applicant pay the respondents’ costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W67 OF 2004

BETWEEN:

STEPHEN EDWARD HICKS
APPLICANT

AND:

NEVILLE NIXON (IN HIS CAPACITY AS HOLDER OF POSITION NO 1686 AS A DELEGATE OF THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS)
FIRST RESPONDENT

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGES:

FRENCH, EMMETT AND SELWAY JJ

DATE:

12 AUGUST 2004

PLACE:

PERTH

REASONS FOR JUDGMENT

THE COURT:

1. This is an application for leave to appeal against interlocutory orders made by Nicholson J on 22 March 2004  refusing interlocutory relief and orders for discovery sought by the applicant.  The interlocutory relief was claimed by the applicant in a notice of motion filed on 15 September 2003 in the proceedings below.   In those proceedings, the applicant sought to challenge, by way of constitutional writ, the refusal by the Minister’s delegate, the first named respondent, to grant the applicant a visa to enter Australia from New Zealand.  The interlocutory relief involved an order that the respondents, and each of them, be restrained from acting on the decision of the delegate in…