Bax v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 55

FEDERAL COURT OF AUSTRALIA Bax v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 55

MIGRATION – deportation order – application to AAT for a review of the Minister's decision – denial of procedural fairness by AAT – conceded error of construction of s 474 of the Act by primary judge having regard to subsequent decision of the High Court Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 200, 474, 474(4), 499, 500(1)(a) Mahon v Air New Zealand Ltd [1984] 1 AC 808 followed Stead v State Government Insurance Commission (1986) 161 CLR 141 applied NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (193 ALR 449) referred to Plaintiff S157/2002 v Commonwealth of Australia [2003] 195 ALR 24 followed Re Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82 applied DAVID JOHN BAX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W 294 OF 2002 CARR, MERKEL & HELY JJ 27 MARCH 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 294 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: DAVID JOHN BAX

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: CARR, MERKEL & HELY JJ

DATE OF ORDER: 27 MARCH 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal from the decision of the primary judge be upheld. 2. The decision of the AAT given on 29 October 2001 affirming the respondent's order that the applicant be deported from Australia be quashed. 3. The application for a review of the respondent's decision be remitted to the AAT, differently constituted, for determination in accordance with the law. 4. The respondent pay the appellant's costs of this appeal, and of the proceedings at first instance. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.