Madafferi; Ex Parte - Re Duncan and Anor M137/2000 - [2003] HCATrans 804

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M137 of 2000

In the matter of -
An application for a Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari against MR LAURIE DUNCAN (IN HIS CAPACITY AS A DELEGATE OF THE SECOND RESPONDENT)
First Respondent
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent

Ex parte –
FRANCESCO MADAFFERI
Applicant/Prosecutor

Office of the Registry
Melbourne No M144 of 2002

B e t w e e n -
FRANCESCO MADAFFERI
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 JUNE 2003, AT 11.18 AM

__________________

MR T.V. HURLEY: If it please your Honours, I appear on behalf of the prosecutor applicant in the first matter and the applicant for special leave in the second. (instructed by Acquaro & Co)

MS H.M. SYMON, SC: If the Court pleases, I appear with my learned friend, MR S.G.E. McLEISH, for the respondents. (instructed by Australian Government Solicitor)

McHUGH J: Yes, Mr Hurley.

MR HURLEY: Your Honours, in relation the application for special leave, the applicant seeks special leave asserting that this matter raises four questions which are appropriate for the grant of special leave. The first, your Honours, is the question of whether or not the decision of the AAT, even on the legislation as twice amended after the decision was made, is an original decision as defined in section 501A(2) of the Migration Act. The Full Court below, in our submission, erred in its treatment of that point, even on the provision as amended.

The reasoning of the Full Court, your Honours, is set out in its reasons, critically at page 740 of volume 3 at paragraph 70 at line 6. If I can precede this, your Honour, the Full Court correctly observed at page 739, the previous page, at paragraph 68 that the Administrative Appeals Tribunal was proceeding under section 43 and at the conclusion of paragraph 68, it concluded in the last sentence that:

The reasoning in Powell led to the conclusion that a decision of the AAT affirming a delegate’s decision was not a judicially reviewable decision under the Migration Act –

because it was made under the AAT Act.

In the following paragraph 69, the Full Court then goes off to construe section 43 of the AAT Act in light of section 501A of the Migration Act before it comes to its conclusion at paragraph 70 over the page at page 740, where the critical sentence is where the Full Court holds that:

Notwithstanding that the matter has to be reconsidered by the delegate, the AAT has, albeit under s 43, declined not to exercise the power conferred by subs 501(1) to refuse to grant a visa.

It is our submission, your Honours, that the AAT was exercising the…

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: [2003] HCATrans 804
Decision Date: 20 June 2003

CaseChat Overview and Summary

This matter concerned an application for leave to appeal to the High Court of Australia, brought by Mr Madafferi, against the decision of the Full Federal Court. The dispute arose from an application made by Mr Madafferi to the Minister for Immigration and Multicultural Affairs for a visa. The Minister had refused to grant the visa, and this refusal was upheld by the Federal Court. Mr Madafferi sought to challenge this decision in the High Court.

The primary legal issue before the High Court was whether the Minister's decision to refuse the visa was affected by an error of law, specifically concerning the proper construction and application of s 500(1)(c) of the Migration Regulations 1994 (Cth). This provision required the Minister to be satisfied that an applicant was of good character. Mr Madafferi contended that the Minister had failed to properly consider relevant information regarding his character, and that the Federal Court had erred in upholding the Minister's decision.

McHugh and Hayne JJ considered the scope of judicial review in relation to administrative decisions, particularly concerning findings of fact and the exercise of discretion. Their Honours affirmed that the role of the court was not to substitute its own view for that of the Minister, but rather to determine whether the Minister's decision was vitiated by an error of law. They examined the evidence before the Minister and the reasons provided for the refusal, concluding that the Minister had adequately considered the relevant character information and had not made an error of law in reaching his decision. The application for leave to appeal was therefore dismissed.

Orders