Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 276

FEDERAL COURT OF AUSTRALIA

Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 276

MIGRATION – visa – cancellation – application of character test – reliance by Minister on document provided by WA Police Service – whether communication to visa holder of information in document prohibited – whether WA Police Service a 'gazetted agency' – whether 'specified' in notice published in gazette – specification by class – whether notice can be read so as not to exceed power PRACTICE & PROCEDURE – order that questions be decided separately from other issues in proceeding – appeal from answer to second question on basis that answer to first question correct – cross-appeal from answer to first question – judges of Full Court taking different views on appeal – no majority on answer to second question – proper form of order – proper order for costs WORDS & PHRASES – 'gazetted agency', 'specifying', 'specified', 'specification' Migration Act 1958 (Cth) ss 4(1), 501, 501A, 501B, 501C, 503A Acts Interpretation Act 1901 (Cth) ss 13(3), 15A, 15AA, 15AB, 17(m), 46, 46A Judiciary Act 1903 (Cth) s 78B Migration Legislation Amendment (Protected Information) Act 2003 (Cth) ss 2, 3, Sch 1 item 5D Federal Court of Australia Act 1976 (Cth) s 16 Public Service Act 1922 (Cth) s 37(5) Federal Court Rules O 29 r 2 Police Force Regulations 1979 (WA) reg 1002 Kioa v West (1985) 159 CLR 550 referred to NAAO v Secretary, Department of Immigration & Multicultural Affairs (2002) 117 FCR 401 considered TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496 referred to Tickner v Chapman (1995) 57 FCR 451 referred to Concord Council v Optus Networks Pty Ltd (1996) 131 FLR 294 referred to Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945 referred to Re The News Corporation Ltd (1987) 15 FCR 227 applied Yong Chao Wu v Minister of Immigration and Multicultural Affairs [2001] FCA 89 referred to Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140 referred to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 referred to Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 referred to Telstra Corporation Limited v Kendall (1995) 55 FCR 221 referred to McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 referred to Annetts v McCann (1990) 170 CLR 596 considered Barratt v Howard (2000) 96 FCR 428 referred to Harrington v Lowe (1996) 190 CLR 311 referred to Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 referred to Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 referred to Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 referred to Re Nolan; Ex Parte Young (1991) 172 CLR 460 referred to Jolly v District Council of Yorketown (1968) 119 CLR 347 referred to Federated Engine-Drivers' and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1913) 16 CLR 245 cited McMorran v A E Marrison (Contractors) Ltd [1944] 2 All ER 448 referred to In re Asbestos Insurance Coverage Cases [1985] 1 WLR 337 referred to In re Westinghouse Electric Corporation [1978] AC 547 referred to Currency Brokers Pty Ltd v Corporate Affairs Commission (1986) 5 NSWLR 483 referred to