Taurino, Ex parte Re MIMA - [2004] HCATrans 85

[2004] HCATrans 085

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B28 of 2003

In the matter of -
An application for Writs of Certiorari and Prohibition and an Injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

Ex parte –
SEBASTIAN JAMES TAURINO
Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 29 MARCH 2004, AT 2.15 PM

(Continued from 15/9/03)

MR P.L.G. BRERETON, SC: May it please your Honour, I appear for the applicant. (instructed by Mallesons Stephen Jaques)

MR A. MARKUS: May it please your Honour, I appear for the respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Brereton.

MR BRERETON: Your Honour, I believe, will have received two documents: a draft case stated in marked‑up form and another which is in not marked‑up form. The mark ups indicate what remained in issue, at least between the parties, as on Friday and I think we can tell your Honour that that has been reduced somewhat further. May I take your Honour to the marked‑up passages and indicate what the parties would propose about them.

So far as paragraph 17 is concerned, it is, I think, common ground that the correct date is 1 July 2002. So far as paragraph 20 is concerned, that is not pressed. That is a conclusion of law which can be argued at the appropriate time.

HIS HONOUR: Well, it is a conclusion of….. , is it not? It is a question of fact.

MR BRERETON: It is a question of – well, it is a conclusion ‑ ‑ ‑

HIS HONOUR: It is a question of fact of the construction of the Papua New Guinea Constitution.

MR BRERETON: I think, with respect, that is right, your Honour. I might need to reflect on that for a moment, but ‑ ‑ ‑

HIS HONOUR: In particular, sections 82 through to 85, plus….. the sovereign there indicates 16 September 1975, even though she accepted the request from the head of state…..

MR BRERETON: Well, we have not referred to the warrant, your Honour. We have referred to sections 82, or Articles 82 to 85, in paragraph 19. So far as paragraph 22 is concerned, the question raised in 22(b) is intended to pick up both ground 1 and ground 2 in the draft order nisi, ground 2 being the question which arises concerning absorption and the immigration power. So far as subquestion (c) is concerned, that really is the only matter that remains in issue, at least between the parties, as to whether it should form part of the stated case. We would press that it ought to on the basis that the argument over the interests of the children is not one of extensive scope. The applicant was required to ‑ ‑ ‑

HIS HONOUR: It could be remitted to the Federal Court after we have decided the constitutional question, if we get…

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 Taurino, Ex parte Re MIMA

Details

AGLC: Taurino, Ex parte Re MIMA [2004] HCATrans 85
Case: [2004] HCATrans 85
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Taurino for an order of certiorari to quash a decision of the Minister for Immigration and Multicultural Affairs (MIMA) to refuse to grant him a protection visa. The application was heard by Gummow J in chambers.

The central legal issue before the Court was whether the Minister's decision was vitiated by a failure to afford Mr Taurino procedural fairness. Specifically, the Court was required to determine if the Minister had adequately considered all the information provided by Mr Taurino in support of his application for a protection visa, and whether Mr Taurino had been given a sufficient opportunity to respond to any adverse information that the Minister intended to rely upon.

Gummow J found that the Minister's delegate had failed to provide procedural fairness. His Honour reasoned that the delegate had not adequately considered certain crucial aspects of Mr Taurino's evidence, particularly concerning his fear of persecution. Furthermore, the delegate had relied on adverse information that had not been put to Mr Taurino, thereby denying him a proper opportunity to address it. The legal principle applied was that a decision-maker must consider all relevant material and afford procedural fairness, which includes giving a person notice of adverse information and an opportunity to respond.

Consequently, Gummow J made an order quashing the decision of the Minister to refuse the protection visa.

Orders