Re Nicholson & Ors, Ex parte Kay

The applicants, Nicholson and others, sought a writ of prohibition against the respondents, the Commonwealth and the Minister for Immigration and Ethnic Affairs, to prevent the Minister from making a decision under s 116 of the Migration Act 1958 (Cth) to refuse to grant a visa to the first applicant. The application was heard by Dawson J of the High Court of Australia.

The central legal issue before the Court was whether the Minister's power under s 116 of the Migration Act to refuse to grant a visa on the grounds that the applicant was not a person of good character was a power that could be exercised in a manner that was procedurally unfair. Specifically, the applicants contended that the Minister was obliged to afford the first applicant an opportunity to be heard before making such a decision.

Dawson J held that the power conferred by s 116 of the Migration Act was not one that attracted the implication of a duty to afford procedural fairness. His Honour reasoned that the statutory language and the context of immigration control indicated that the Minister's decision was one of policy and discretion, not one that affected existing rights or interests in a manner that would ordinarily attract procedural fairness. The Court distinguished this power from those where a person's existing rights or legitimate expectations were being adversely affected.

The application for a writ of prohibition was dismissed.