Madafferi v MIMA M144/2002 - [2003] HCATrans 803

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.

Continue reading Madafferi v MIMA M144/2002

Details

AGLC: Madafferi v MIMA M144/2002 [2003] HCATrans 803
Case: [2003] HCATrans 803
Decision Date: 20 June 2003

CaseChat Overview and Summary

The applicants, Mr. and Mrs. Madafferi, sought judicial review of a decision by the Minister for Immigration and Multicultural Affairs (MIMA) to refuse their applications for a partner visa. The applicants were Italian citizens who had been living in Australia for some time. The Minister's decision was based on adverse information concerning Mr. Madafferi's criminal record. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister, in exercising the power to refuse a visa application under s 501(1) of the *Migration Act 1958* (Cth) on character grounds, was required to consider the best interests of the children of the applicant. The applicants contended that the Minister's decision failed to take into account this relevant consideration, thereby rendering the decision unlawful.

McHugh and Hayne JJ held that the *Migration Act* did not impose a positive obligation on the Minister to consider the best interests of children when making a decision under s 501(1). Their Honours reasoned that the language of s 501(1) was clear and did not contain any express or implied requirement to consider such matters. While acknowledging the importance of children's best interests in other areas of law, they found that the specific statutory framework governing migration decisions did not incorporate this consideration as a mandatory factor in character assessments. The Court concluded that the Minister had not erred in law by failing to consider the best interests of the applicants' children.

Orders