Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757

FEDERAL COURT OF AUSTRALIA

Hicks v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 757

MIGRATION – judicial review – New Zealand citizen – cancellation of visa – cancellation by Minister personally – whether Minister bound to have regard to unavailability of review by Administrative Appeals Tribunal in deciding to determine case personally - failure to pass character test – substantial criminal record – reliance upon protected material – irrelevance to existence of substantial criminal record – whether question of judicial power raised – what constitutes substantial criminal record whether applicant sentenced to two or more terms of imprisonment totalling two years or more – concurrent sentences – effective term ten months – nominal total of sentences twenty five months - whether concurrent terms counted in total for purposes of character test – concurrent terms not counted – counting of concurrent terms constituting jurisdictional error – jurisdiction of court to grant relief - applicant returned to New Zealand – utility of relief – certiorari and prohibition issued

JUDGES AND COURTS – single judge decisions – judicial comity – decision of single judge of same or coordinate jurisdiction to be followed unless clearly wrong – authority of and confidence in courts – desirability of referral of important points of difference to Full Court

CRIMINAL LAW - sentencing – concurrent sentences – common law principle – statutory presumption – underlying principles

Migration Act 1958 (Cth) s 32(2)(a), s 5, s 501(2), (6), (7), s 503A(2), (3), (6), s 474

Judiciary Act 1903 (Cth) s 39B

Plaintiff S157/2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 195 ALR 24 cited

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 cited