Harrington v The Honourable Kevin Andrews MP, Minister for Immigration and Citizenship [2007] FCA 1287

FEDERAL COURT OF AUSTRALIA

Harrington v The Honourable Kevin Andrews MP, Minister for Immigration and Citizenship [2007] FCA 1287

ADMINISTRATIVE LAW – application for constitutional writs – where applicant's visa cancelled under s 501(2) Migration Act 1958 (Cth) – where Minister had regard to non-disclosable information – where substance of non-disclosable information not put to the applicant prior to decision – where departmental representative induced belief in applicant that applicant would have opportunity to put forward further information and submissions in support of his case after any decision to cancel applicant's visa – where applicant did not put forward all the information he would have put forward but for that belief – whether failure to put the substance of the non-disclosable information was a breach of the rules of procedural fairness – whether applicant denied procedural fairness by reason of being denied the opportunity to put all relevant information before the Minister. Held: The substance of adverse non-disclosable information not provided by the applicant or to him from other sources ought to have been disclosed – in the circumstances the failure to disclose was a breach of the rules of procedural fairness – but for the conduct of, or representation by, decision-maker, applicant would have presented additional information – conduct or representation occasioned a breach of the rules of procedural fairness – application allowed. Acts Interpretation Act 1901 (Cth) s 25D Administrative Appeals Tribunal Act 1975 (Cth) s 43 Criminal Law Consolidation Act 1935 (SA) s 56 Criminal Law (Sentencing) Act 1988 (SA) s 18A Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 424, 440, 476A, 498, 499, 501, 501G Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 referred to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 referred to Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 referred to Kioa v West (1985) 159 CLR 550 referred to Minister for Immigration and Multicultural and Indigenous Affairs; Re, Ex parte Lam (2003) 214 CLR 1 referred to Minister for Immigration and Multicultural and Indigenous Affairs; Re, Ex parte Palme (2003) 216 CLR 212 referred to Muin v Refugee Review Tribunal (2002) 76 ALJR 966 referred to Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 referred to SHANE TERENCE HARRINGTON v THE HONOURABLE KEVIN ANDREWS MP, MINISTER FOR IMMIGRATION AND CITIZENSHIP SAD 47 OF 2007