Wozniak v Minister for Immigration and Border Protection

In the case of Wozniak v Minister for Immigration and Border Protection, the Federal Court of Australia was asked to decide on an application for leave to appeal out of time from orders dismissing an application for judicial review. The applicant, Mr Wozniak, a United States citizen, sought to challenge the decision not to revoke the mandatory cancellation of his visa, which was grounded on the character test under s 501(3A) of the Migration Act 1958 (Cth). The primary issue before the court was whether the decision-maker was obligated to obtain a pre-sentence report in relation to the risk of re-offending, and if the failure to do so constituted a breach of procedural fairness or a jurisdictional error.

The court determined that there was no obligation on the decision-maker to obtain a pre-sentence report in all circumstances. It found that the limited obligation to make inquiries did not extend to requiring the decision-maker to obtain such a report, and thus there was no procedural unfairness or breach of natural justice. The court also held that the use of the word "privilege" in the reasons for the decision did not constitute a jurisdictional error. The court followed the decision in Minister for Immigration and Border Protection v Tesic and saw no reason to await the outcome of an application for special leave to appeal from that decision. Consequently, the court refused the application for leave to appeal out of time and dismissed the application for an extension of time and leave to appeal on the proposed new grounds.

In summary, the court held that the decision-maker's failure to obtain a pre-sentence report did not amount to a procedural breach or jurisdictional error, and that the use of the word "privilege" did not constitute a jurisdictional error either. The application for leave to appeal out of time was dismissed, and the applicant was ordered to pay the respondents' costs, except in relation to the proposed Falzon ground, which was to be determined after the High Court's decision in that case.