Hicks v Nixon

Case [2004] FCA 290

FEDERAL COURT OF AUSTRALIA

Hicks v Nixon [2004] FCA 290

MIGRATION – special category visa – refusal by delegate – prior cancellation of special category visa previously held to be in jurisdictional error – appeal pending from that decision – applicant departed Australia pending hearing of appeal – applicant attempted to re-enter Australia – delegate refused application for special category visa to permit re-entry – whether applicant entitled to interlocutory orders restraining respondents from acting on the decision of delegate pending outcome of appeal – whether original visa ceased to have effect on applicant’s departure from Australia

PRACTICE AND PROCEDURE – discovery – whether applicant entitled to particular discovery in various categories – no such entitlement – no entitlement to orders for discovery in respect of protected information

Acts Interpretation Act 1901 (Cth) s 9
Commonwealth of Australia Constitution Act s 75(5)
Migration Act 1958 (Cth) ss 14, 15, 32, 42(1), 42(2A)(a), 79, 82(8), 189, 196, 474, 501D, 501G, 501(1), 501(2), 501(6), 501(6)(b), 503A, 503A(9), 503B(2), 503D, 503D(2)
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No 114 of 1998)
Migration Legislation Amendment (Protected Information) Act 2003 (No 75 of 2003) Sch 1 cl 8, Sch 1 cl 8(1)(c)

Migration Regulations 1994 Sch 1 cl 1219, Sch 2 Subclass 444, reg 5.15A

Calvin v Carr [1980] AC 574 cited
Evans v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 320 considered
Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242 cited
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55 applied
Lesi v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 420 cited
Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327 cited
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 applied
NAAO v Secretary, Department of Immigration & Multicultural Affairs (2002) 117 FCR 401 cited
Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 cited
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited
Ruddock v Taylor [2003] NSWCA 262 cited
WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 cited

STEPHEN EDWARD HICKS v NEVILLE NIXON and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W177 of 2003

RD NICHOLSON J
22 MARCH 2004
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W177 OF 2003

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 & Multicultural & Indigenous Affairs)
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

22 MARCH 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The applicant’s application for orders in terms of pars 1 and 2 of his notice of motion dated 11 September 2003 be refused.

2.In respect of the applicant’s application in terms of par 3 of that notice of motion:

(a)discovery…

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Details
AGLC
Hicks v Nixon [2004] FCA 290
Case
[2004] FCA 290
Decision Date

CaseChat Overview and Summary

Hicks v Nixon was a case before the Federal Court of Australia, where the applicant, a New Zealand citizen, sought judicial review of a decision by the Minister for Immigration to cancel his visa. The applicant argued that the Minister's decision was flawed and that he should be granted a visa under the Special Category (Temporary) (Class TY) subclass 444 of the Migration Regulations 1994. The primary legal issue the court had to decide was whether the Minister's decision to cancel the applicant's visa was lawful and whether the applicant met the criteria for a visa under the Special Category (Temporary) (Class TY) subclass 444 of the Migration Regulations 1994.

The court found that the Minister's decision to cancel the applicant's visa was lawful, as the applicant did not meet the character test required under s 501(2) of the Act. The court also found that the applicant did not meet the criteria for a visa under the Special Category (Temporary) (Class TY) subclass 444 of the Migration Regulations 1994, as he had been excluded from a country other than Australia in circumstances that warranted his exclusion from Australia. The court concluded that the Minister's decision was not unlawful and dismissed the applicant's application for judicial review.

The court ordered that the applicant's application for orders in terms of paragraphs 1 and 2 of his notice of motion be refused. The court also ordered that discovery be ordered in respect of documents including tapes which record the proceedings leading to the decision made by the first respondent on 6 August 2003 and whether such proceedings were held on 5 or 6 August 2003. The application for documents constituting or containing protected information and referred to in subparagraphs 3(d) and 3(e) was refused so far as it relates to protected information but was allowed so far as such documents or portions of them are not protected information. The application in terms of the remaining paragraphs was refused. The applicant was also ordered to pay the respondent's costs of the notice of motion.

Orders

Orders of the court

1. The applicant’s application for orders in terms of pars 1 and 2 of his notice of motion dated 11 September 2003 be refused.

2. In respect of the applicant’s application in terms of par 3 of that notice of motion:

(a) discovery be ordered in respect of documents including tapes which record the proceedings leading to the decision made by the first respondent on 6 August 2003 and whether such proceedings were held on 5 or 6 August 2003;

(b) the application for documents constituting or containing protected information and referred to in subpars 3(d) and 3(e) be refused so far as it relates to protected information but be allowed so far as such documents or portions of them are not protected information.

(c) the application in terms of the remaining paragraphs be refused.

3. The applicant pay the respondent’s costs of the notice of motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The legal foundation for the visa provided for in s 32 is also addressed in reg 5.15A and in Sch 1, Pt 2 cl 1219 and Sch 2, Subclass 444 of the Migration Regulations 1994. These provisions read: ‘5.15A Certain New Zealand citizensFor the purposes of paragraph 32(2)(c) of the Act, it is declared that the class of persons each of whom:(a)is a New Zealand citizen who holds, and has shown to an officer, a New Zealand passport that is in force; and(b)is not a health concern non-citizen; and(c)is a behaviour concern non-citizen only because of having been excluded from a country other than Australia in circumstances that, in the opinion of the Minister, do not warrant the exclusion of the person from Australia;is a class of person for whom a visa of a class other than Special Category (Temporary) (Class TY) would be inappropriate.’Schedule 1, cl 1219:‘1219 Special Category (Temporary) (Class TY)(1) Form: 15(2) Visa application charge: Nil(3) Other:(a)Application must be made:(i)in Australia either in immigration clearance or after clearance; or(ii)if the applicant is to travel to Australia on a pre-cleared flight – outside Australia in immigration clearance.(b)The applicant must give the clearance officer a New Zealand passport that is in force.(c)Applicant is not the holder of a permanent visa.(4) Subclasses: 444 (Special Category)’EVIDENCE The applicant’s case relies on affidavits sworn by his solicitor on 14 August 2003, 11 September 2003, 25 November 2003 and by the applicant on 30 November 2003. I have marked those affidavits exhibits A, B, C and D. The respondents’ case brings the affidavit of Ms Ling, sworn on 8 October 2003. I have marked that as exhibit 1. CHRONOLOGY The applicant, a New Zealand citizen, first entered Australia on 21 July 1984. He departed Australia on five occasions previously, the date of his most recent re-entry into Australia being 27 February 1994. In February 2000 the applicant was convicted of offences relating to assault of police. He was given a sentence of 10 months imprisonment suspended for 2 years. On 31 January 2001 the applicant was convicted of resisting arrest and he was sentenced to an effective term of imprisonment of 10 months. This included an order that he serve concurrently the term of 10 months previously given but suspended. On 26 November 2002 the second respondent decided that the applicant did not pass the character test within s 501(2) of the Act and cancelled the applicant’s visa. The applicant then held a ‘TY-444’ visa the authority for which resides in s 32 of the Act and in the previously mentioned regulations. As a consequence of the cancellation of his visa, the applicant was placed in migration detention. On 30 December 2002 the applicant sought constitutional writs in relation to the second respondent’s decision of 26 November 2002. The applicant’s application proceeded under the designation of W356 of 2002. On 10 January 2003 the solicitor for the applicant sought an undertaking from the second respondent not to prevent or obstruct the applicant’s re-entry to Australia in the event that he departed Australia. By letter dated 14 January 2003 from the Australian Government Solicitor on behalf of the second respondent it was stated that the applicant was free to depart Australia whenever he wished and to have his application dealt with by the Federal Court while he is overseas but that the second respondent was ‘not prepared nor in a position to provided him with any of the undertakings sought’.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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