Wasfi, Mokhtar Abdel Gawad v The Commonwealth of Australia & Anor [1998] FCA 639

FEDERAL COURT OF AUSTRALIA MIGRATION - applicant who held permanent resident status fled Australia to Spain while on bail to avoid trial for criminal offences - permanent resident status lost on leaving Australia - applicant extradited to Australia from Spain to be tried for criminal offences - Criminal Justice Entry Certificate and Criminal Justice Entry Visa issued to authorise entry to Australia - Minister's decision to cancel certificate on completion of applicant's imprisonment resulting in cancellation of visa - whether long term permanent resident who left Australia is an alien liable to deportation - whether detention under the power to detain pending deportation is unlawful where deportation date uncertain. ADMINISTRATIVE LAW - applicant's right to apply for Resident Return Visa expired while in jail in Spain - failure of Australian officials to advise applicant of time limit on application - whether breach of duty - whether founds an estoppel - Minister's decision to cancel Criminal Justice Certificate resulting in cancellation of Criminal Justice Visa - whether cancellation of visa valid - whether natural justice applies to Minister's decision - whether applicant should first be given a hearing - content of natural justice where giving notice may defeat purpose of the statutory power - whether Court has discretion to refuse relief when no different outcome would be possible had a hearing been granted. NEGLIGENCE - whether failure of Australian government officials to advise applicant of time limit on application for Resident Return Visa is a breach of duty of care - discussion of factors giving rise to duty of care. Migration Act 1958 (Cth) ss 142, 145, 153(1), 162, 162(1), 164, 189, 196(1) Extradition Act 1988 (Cth) Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178 applied Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 cited Pyrenees Shire Council v Day (1998) 72 ALJR 152 discussed and applied Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 applied Nguyen v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1996) 68 FCR 463 cited Grech v Featherstone (1991) 33 FCR 63 considered and distinguished Stead v State Government Insurance Commission (1986) 161 CLR 141 cited Santa Sabina College v Minister for Education (1985) 58 ALR 527 cited Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board (1994) 111 DLR (4th) 1 applied Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation (1990) 96 ALR 153 referred to Hunter Resources Limited v Melville (1988) 164 CLR 234 applied MOKHTAR ABDEL GAWAD WASFI v THE COMMONWEALTH OF AUSTRALIA and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS VG 77 of 1998 JUDGE: MERKEL J PLACE: MELBOURNE DATE 5 JUNE 1998