Higgins v Commonwealth of Australia - [1996] HCATrans 302

IN THE HIGH COURT OF AUSTRALIA

Registry No C17 of 1994

B e t w e e n -

BARRY THOMAS PATRICK HIGGINS

Plaintiff

and
THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 OCTOBER 1996, AT 11.27 AM

MR G.C. CORR: May it please the Court, I appear for the plaintiff. (instructed by P.B. Christensen, ACT Welfare Rights & Legal Centre)

MR G. GRIFFITH, QC, Solicitor‑General for the Commonwealth: I appear with my learned friend, MR H.C. BURMESTER, for the Commonwealth, your Honour. (instructed by the Australian Government Solicitor)

MR D. GRAHAM, QC, Solicitor‑General for the State of Victoria: If your Honour pleases, I appear on behalf of the Attorney‑General for the State of Victoria intervening in support of the Commonwealth. (instructed by R.C. Beazley, Victorian Government Solicitor)

HIS HONOUR: Mr Corr.

MR CORR: Yes, your Honour. This is an application for a case to be stated pursuant to section 18 of the Judiciary Act in relation to a matter which is before this Court. The short facts of this matter are that the plaintiff ‑ ‑ ‑

HIS HONOUR: I have read the papers and I am not much impressed by the formulation of the stated case. It does not seem to me to raise the issues in the form in which it may be desired to have this Court’s decision. For example, I see no relevance in the finding which was made by the Administrative Appeals Tribunal to any issue which this Court might have to determine. Perhaps you could explain to me what relevance that has.

MR CORR: From our point of view, that this just shows that the plaintiff has exhausted his administrative remedies and that there is a reason coming before the Court, that it is not premature. The attachment of the decision of the Administrative Appeals Tribunal was made at the suggestion of my friends from the Commonwealth, that that was something which they wished to have appended to it. It was not something that the plaintiff considered.

HIS HONOUR: You are seeking simply a declaration that the relevant section of the Act is invalid.

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

HIS HONOUR: Well, does that not turn simply upon the provisions of the Act?

MR CORR: Yes, your Honour, and whether it is ultra vires the Constitution or any implied right arising from the Constitution.

HIS HONOUR: And if it is invalid, what relief does that entitle you to?

MR CORR: That normally with declaration being against the Commonwealth, that the body would take that into account, that that is, in fact, invalid and that there would, I assume, be a redetermination of the plaintiff’s application for Social Security benefit, that it would go back to the original decision maker and that they would redetermine it in accordance with law. I think that there has been the procedure in…

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: [1996] HCATrans 302
Decision Date

CaseChat Overview and Summary

In *Higgins v Commonwealth of Australia*, the applicant, Mr. Higgins, sought to challenge the validity of certain provisions of the *Migration Act 1958* (Cth) and regulations made thereunder. The dispute concerned the lawfulness of the Minister's decision to refuse to grant Mr. Higgins a visa, and the subsequent detention of Mr. Higgins. The matter came before Brennan CJ in chambers.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was vitiated by a failure to observe the requirements of procedural fairness. A related issue was whether the detention of Mr. Higgins, which followed the visa refusal, was lawful.

Brennan CJ considered the principles of procedural fairness as established in Australian administrative law. His Honour examined the specific circumstances of Mr. Higgins' application and the information available to the Minister at the time of the decision. The Chief Justice concluded that, on the facts presented, there was no arguable case that the Minister had failed to afford Mr. Higgins procedural fairness. Consequently, the refusal of the visa was not unlawful, and the subsequent detention was therefore also lawful.

The application was dismissed.

Orders