Milne v Minister for Immigration and Citizenship

In the matter of Milne v Minister for Immigration and Citizenship, the appellant, Milne, sought to challenge the cancellation of his visa by the Minister for Immigration and Citizenship. The dispute centred around whether the Administrative Appeals Tribunal (AAT) denied Milne procedural fairness by not alerting him that his willingness to undertake a sex offender’s course and the potential contribution of such a course to his rehabilitation might be critical to the Tribunal’s decision. The case was heard in the Federal Court of Australia.

The legal issues that the court was required to decide included whether the Tribunal breached the appellant's entitlement to procedural fairness by failing to alert him to the relevance of his willingness to undertake a sex offender’s program and whether the appellant's failure to adduce evidence at first instance of the information or submissions he would have made had he been alerted to this issue, precluded him from succeeding on appeal. The court also considered whether the Tribunal was required to expose Milne to the issue of his potential rehabilitation and whether it was obliged to postpone its decision to enable evidence on that issue to be gathered.

The court concluded that the obligation on a tribunal or other decision-maker to expose a party to material which may be influential in the making of the ultimate decision is not unlimited. It does not extend to reminding the party of information which has been disclosed as part of the party’s own case. The court held that information about Milne’s willingness to undertake a sex offender’s program and the reasons why no such program had been available to him before the Tribunal hearing was within Milne’s own knowledge. Furthermore, the court noted that the Tribunal was not required to make Milne’s case for him or to defer its decision until further evidence about rehabilitation might have become available. The court found that Milne had not demonstrated any appealable error in the reasons of the primary Judge.

ORDERS:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal, such costs to be taxed in default of agreement.