Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975

FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975

PRACTICE AND PROCEDURE – non-compliance with rules – whether letter from applicant invoked Court's jurisdiction – power exercised to waive non-compliance with rules. MIGRATION – cancellation of visa – failure to pass character test – whether respondent's decision to cancel visa a decision made under the Migration Act – procedural fairness – whether partial mis-description of offences and failure to grant interview to applicant led to jurisdictional error – certain adverse information in documents ("the Documents") placed before respondent at time decision made to cancel visa – at trial of application respondent claimed privilege (public interest immunity) in respect of the Documents – asserted that existence of that privilege self-evident on the face of the Documents – unrepresented applicant called for production to him of the Documents – respondent consented to Court examining the Documents – balancing of the relevant public interests – claim for privilege rejected and no direction made under s 130(1) of the Evidence Act 1995 (Cth) – the Documents admitted into evidence – order made restricting access to the Documents to Judges of the Court – whether respondent denied procedural fairness to the applicant by not disclosing the substance of the Documents to the applicant regardless of whether they contained "non-disclosable information". Migration Act 1958 (Cth), ss 5, 474, 501, 501G(1)(e) Evidence Act 1995 (Cth), s 130 Federal Court of Australia Act 1976 (Cth), s 50 Kioa v West (1985) 159 CLR 550 at 629 applied Yong v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 155 referred to Sharif v Minister for Immigration & Multicultural Affairs [1999] FCA 278 referred to Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 referred to D v National Society for the Prevention of Cruelty to Children [1978] AC 171 referred to Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 followed Attorney-General for New South Wales v Smith (1996) 86 A Crim R 308 at 311-312 referred to Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218 followed Javillonar v Minister for Immigration & Multicultural Affairs (2001) FCR 311 followed WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93 distinguished Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 437 followed Ball v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 699 followed Gilson v Minister for Immigration and Multicultural Affairs, 21 July 1997 BC9703148 referred to Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314 referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 referred to Muin v Refugee Review Tribunal [2002] HCA 30 referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 referred to WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W306 of 2002