NAHI & Ors v MIMIA

[2005] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S49 of 2004

B e t w e e n -
NAHI
First Applicant
NAHJ
Second Applicant
NAHK
Third Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 MARCH 2005, AT 9.27 AM

__________________

GUMMOW J: The applicants are husband and wife and their child. They are citizens of Sri Lanka. They seek special leave to appeal against a decision of the Full Court of the Federal Court. The Full Court dismissed their appeal against the decision of a judge of that Court who had dismissed their application under s 39B of the Judiciary Act 1903 (Cth) for relief directed to the Refugee Review Tribunal in respect of its decisions affirming the refusal of the grant of protection visas.

The Full Court said that in effect the applicants had sought to have the Federal Court take a different view of various issues of fact from that taken by the Tribunal and that no jurisdictional error had been shown.

There are insufficient prospects of success to warrant the grant of special leave and accordingly special leave is refused with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing this application with costs.

I publish that disposition signed by Justice Kirby and myself.

AT 9.29 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

NAHI & Ors v MIMIA concerned a dispute between the appellants, NAHI and others, and the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA). The core of the disagreement revolved around the Minister's decision to refuse to grant the appellants a visa. The matter was heard before Gummow and Kirby JJ of the High Court of Australia.

The High Court was required to determine whether the Minister's decision to refuse the visa was vitiated by a failure to afford the appellants procedural fairness. Specifically, the court had to consider whether the Minister, or delegate, had adequately considered all relevant information before making the decision, and whether the appellants had been given a sufficient opportunity to respond to any adverse information that might have influenced the outcome.

Gummow and Kirby JJ applied the principles of administrative law, particularly the duty to provide procedural fairness. Their Honours reasoned that the Minister's delegate had failed to provide procedural fairness by not disclosing certain adverse information to the appellants and by not affording them an opportunity to comment on that information before the visa refusal. The court emphasised that procedural fairness requires that a person affected by a decision be given a reasonable opportunity to present their case and to respond to adverse material that might be taken into account.

The High Court allowed the appeal, setting aside the decision of the Minister to refuse the visa. The matter was remitted to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established