Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 MIGRATION – protection visa – decision record signed but not dated by delegate of Minister – not communicated – whether grant of a visa – applicant seeks declaration that he has been granted a visa and is a lawful non-citizen – whether Court has power to make an interlocutory order for release pending hearing and determination of application Migration Act 1958 (Cth) ss 5, 13(1), 14(1), 29, 65, 66, 67, 68(1), 70, 186, 188, 196(3), 196, 198, 474, 475A, 479 and 486C Federal Court of Australia Act 1976 (Cth) s 19, 21 and 23 Judiciary Act 1903 (Cth) s 39B(1A)(c) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 15

Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 192 ALR 609 at [54]-[55] referred to NAMU of 2002 v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2002] FCA 907 referred to Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 applied Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 referred to International General Electric Co of New York Ltd v Commissioners of Customs and Excise [1962] Ch 784 at 789 referred to Bond v Sulan (1990) 26 FCR 580 at 590-591 referred to Magman International Pty Ltd v Westpac Banking Corp (1991) 32 FCR 1 at 15 referred to NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 999 at [30] referred to Goldie v Commonwealth of Australia (2002) 188 ALR 708 referred to Nicholas v The Queen (1998) 193 CLR 173 at 185-188, 202, 208-211, 224-225 and 232-233 referred to VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 approved Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 29, 32 applied Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622 applied Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at [30] applied Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 425-426 referred to Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161 referred to Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at [27] referred to Egan v Willis (1998) 195 CLR 424 at [5] referred to R v Home Secretary; Ex parte Khawaja [1984] AC 74 at 99, 111 and 128 referred to Hinks v National Parole Board [1972] FC 925 referred to Sedore v Commissioner of Penetentiaries [1972] FC 898 referred to Re Ellis & The Queen (1972) 9 CCC (2d) 149 (Fed. Ct.) referred to Re Weston and Superintendent of the Prison for Women [1972] 1 OR 342 referred to R v Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518 at 538, 550 referred to Ruddock v Vadarlis (2001) 110 FCR 491 referred to Trobridge v Hardy (1955) 94 CLR 147 at 152 referred to Williams v The Queen (1986) 161 CLR 278 at 292 referred to Coco v The Queen (1994) 179 CLR 427 at 437-438 applied Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 applied Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 referred to Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77and 80-81 referred to Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 referred to Kartinyeri v The Commonwealth (1998) 195 CLR 337 at [97] referred to Peniche v Vanstone (1999) 96 FCR 38 at 44-46 referred to Minister for Immigration, Local Government and Ethnic Affairs v Montero (No 2) (1992) 26 ALD 158 referred to Tuaoi v Minister for Immigration and Multicultural Affairs [1999] FCA 123 referred to Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389 referred to Omar v Department of Immigration and Multicultural Affairs (1997) 48 ALD 607 referred to Pylka v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 483 referred to Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 504 referred to Piroglu v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 99 referred to Unlugenc v Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569 referred to Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471 referred to Habal v Minister for Immigration Local Government and Ethnic Affairs (unreported, 12 September 1990) referred to Towers v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 88 referred to Luu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 161 referred to Ho Song Lu v Minister for Immigration and Multicultural Affairs [1998] FCA 1723 referred to Long v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 366 referred to Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1 referred to Ooi v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 133 referred to Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320 referred to Minister for Immigration and Multicultural Affairs v Madafferi (2001) 106 FCR 76 referred to NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401 referred to Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369 referred to VJAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1253 approved Aronson & Dyer, Judicial Review of Administrative Action, 2nd ed MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v APPLICANT VFAD OF 2002 V 616 of 2002 BLACK CJ, SUNDBERG and WEINBERG JJ 9 DECEMBER 2002 MELBOURNE