Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218

FEDERAL COURT OF AUSTRALIA

Long v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 218

MIGRATION – cancellation of visa under s 501 of Migration Act 1958 (Cth) – whether signed Departmental Briefing Paper was a written notice setting out the reasons for the decision made – Briefing Paper indicated that cancellation of appellant's visa and removal of him from Australia would not have a detrimental effect on his children – no consideration of what were the best interests of those children – no notice given to appellant of any intention to take that course – jurisdictional error established.

MIGRATION – constitutional law – British subject resident in Australia since 1981 – whether respondent had the constitutional power to cancel his visa – whether appellant an "alien" – appellant sought declaration of right – appeal on this point further reserved until delivery of judgment by High Court of Australia in Shaw v Minister for Immigration and Multicultural Affairs.

Migration Act 1958 (Cth), s 501 NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 referred to Re Patterson; Ex parte Taylor [2001] HCA 51 referred to Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 referred to Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to Wan v Minister for Immigration and Multicultural Affairs (2000) 107 FCR 133 referred to Minister for Immigration and Multicultural Affairs v W157/00A [2000] FCAFC 281 referred to Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7 Re Ruddock, Minister for Immigration and Multicultural Affairs; Ex parte Truong, 22 March 2001, unreported (HC) referred to Adams v Minister for Immigration and Multicultural Affairs [2001] FCA 552 referred to Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648 referred to Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 referred to Diep v Minister for Immigration and Multicultural Affairs [2001] FCA 1130 referred to Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 followed NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401 distinguished