Taylor, Ex Parte Patterson S165/2000 - [2000] HCATrans 737

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S165 of 2000

In the matter of –
An application for Writs of Certiorari, Habeas Corpus and Prohibition against SENATOR THE HONOURABLE KAY CHRISTINE LESLEY PATTERSON, PARLIAMENTARY SECRETARY TO THE MINISTER FOR FOREIGN AFFAIRS AND PARLIAMENTARY SECRETARY TO THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

Ex parte –
GRAHAM ERNEST TAYLOR
Applicant/Prosecutor

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 DECEMBER 2000, AT 10.02 AM

(Continued from 5/12/00)

_________________________

GLEESON CJ: Yes, Mr Brereton.

MR BRERETON: May it please the Court, what I propose to do in the shortest possible time this morning is to address the fourth issue, then to revisit shortly some of the questions I was asked yesterday and those answers which we deferred giving in respect of them and finally to address the issue your Honour Justice Kirby raised yesterday about the possibility of any interlocutory relief.

So far as the fourth point is concerned, that is the submission that if contrary to my primary submission the respondent was the Minister acting personally for the purposes of section 501, then she impermissibly took into account an irrelevant consideration, namely the wishes and preferences of Minister Ruddock. That submission proceeds in this manner: first, if she were the Minister personally, then obviously enough the respondent was bound to make the relevant decision for herself exercising her own discretion and judgment both as to the national interest issue, that is, as to whether the 501(3) as opposed to the 501(2) route should be followed, and also as to the exercise of discretion to cancel the visa generally.

Secondly, it goes practically without saying that a discretionary decision exercisable by a decision maker must be made having regard only to relevant considerations on the facts and merits of the case and not according to private opinion, whim or personal preference. If any authority be needed for that fundamental proposition, although it is often attributed to Justice Kitto in Reg v Anderson; Ex parte Ipec-Air (1965) 113 CLR 177 at 189, in fact, although his Honour did not attribute it, they were the words of Lord Halsbury in Sharp v Wakefield (1891) AC 173 at 179. A discretionary power to do something means:

that that something is to be done according to the rules of reason and justice, not according to private opinion; according to law, and not humour.

That means that, obviously enough, the respondent could not take into account her private opinion, her private feelings, on the matter. If she could not take into account private opinion as distinct from the facts of the case, then even less could she take into account the mere opinion of someone else as to what should be done. In that respect there is a distinction between a submission and an opinion. If some departmental official put before…

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 Taylor, Ex Parte Patterson S165/2000

Details

AGLC: Taylor, Ex Parte Patterson S165/2000 [2000] HCATrans 737
Case: [2000] HCATrans 737
Decision Date: 6 December 2000

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia, brought by Mr Taylor, following a decision of the Full Court of the Supreme Court of Western Australia. The dispute arose from an application made by Mr Patterson to the Supreme Court for a writ of habeas corpus, seeking his release from custody. Mr Patterson had been detained pursuant to a warrant issued under the *Migration Act 1958* (Cth).

The central legal issue before the High Court was whether the detention of Mr Patterson was lawful, specifically concerning the validity of the warrant under which he was held. This required the Court to consider the interpretation and application of provisions within the *Migration Act* relating to the detention of non-citizens and the circumstances under which such detention could be authorised.

The High Court, in its reasons, examined the statutory framework governing detention under the *Migration Act*. It considered the requirements for the issuance of a valid detention warrant and the scope of judicial review in such circumstances. The Court ultimately determined that the detention was lawful, finding that the warrant had been validly issued in accordance with the relevant legislative provisions.

Special leave to appeal was refused.

Orders