Brown v Minister for Immigration & Citizenship [2009] FCA 1098

FEDERAL COURT OF AUSTRALIA

Brown v Minister for Immigration & Citizenship [2009] FCA 1098

MIGRATION – cancellation of visa pursuant to s 501(2) of the Migration Act 1958 (Cth) – review of decision of the Administrative Appeals Tribunal – whether the failure to put certain allegations to the applicant constitutes a denial of procedural fairness – whether the Tribunal had a duty to inquiry as to the existence of any sentencing remarks – whether, in the circumstances, a failure to make inquiries of a particular kind into sentencing remarks constituted jurisdictional error – whether the Tribunal applied a standard of proof less than a standard of balance of probabilities – the decision below is not infected with any jurisdictional error. HELD: the application for review be dismissed. WORDS & PHRASES: 'duty to inquire'.

Migration Act 1958 (Cth) ss 476AC(1)(b), 499(1), 499(2A), 501(2), 501(6)(a), 501(6)(c)(i), 501(6)(c)(ii), 501(7) Administrative Appeals Tribunal Act 1975 (Cth) s 33

Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 considered Barbaro (Saverio) v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690 referred to Browne v Dunn [1893] 6 R 67 referred to Collins v Minister for Immigration & Ethnic Affairs (1981) 36 ALR 598 referred to Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576considered John v Rees [1970] Ch 345cited Kioa v West (1985) 159 CLR 550 cited Luu v Renevier (1989) 91 ALR 39referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24referred to Minister for Immigration & Citizenship v Le (2007) 164 FCR 151cited Minister for Immigration & Citizenship v SZIAI & Anor [2009] HCA 39 considered Minister for Immigration & Ethnic Affairs v Baker (1997) 73 FCR 187applied Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666 referred to Minister for Immigration & Multicultural & Indigenous Affairs v Ball (2004) 138 FCR 450 referred to NAOA v Minister for Immigration & Multicultural Affairs [2004] FCAFC 241cited Ngaronoa v Minister for Immigration & Citizenship [2007] FCA 1565considered Ngaronoa v Minister for Immigration & Citizenship (2007) 244 ALR 119 referred to Pilbara Aboriginal Land Council v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539referred to Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155considered Puafisi v Minister for Immigration & Citizenship [2008] FCAFC 39 referred to R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228 referred to Re Kirby and Collector of Customs (1989) 20 ALD 369cited Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 referred to Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 referred to Seyfarth v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 142 FCR 580 applied Tickner v Bropho (1993) 40 FCR 183cited Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 440 referred to