Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] FCA 813

FEDERAL COURT OF AUSTRALIA

Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] FCA 813 File number: NSD 741 of 2017

Judge: FLICK J

Date of judgment: 20 July 2017

Catchwords: MIGRATION – application for protection visa – reliance upon character test foreshadowed – no estoppel arising by reason of earlier failure to foreshadow possible future reliance on character test ADMINISTRATIVE LAW – opportunity to be heard in relation to application of character test – no denial of procedural fairness in not providing an earlier opportunity to be heard ADMINISTRATIVE LAW – unreasonableness – no unreasonableness where reasonable minds may differ as to the sequence in which particular issues are addressed CONSTITUTIONAL LAW – Chapter III – executive usurpation of judicial power of the Commonwealth – no usurpation of judicial power

Legislation: Constitution (Cth) Ch III Judiciary Act 1903 (Cth) s 44 Migration Act 1958 (Cth) ss 36, 65, 197C, 198, 417, 501 Migration Regulations 1994 (Cth) sch 2, sch 4 public interest criterion 4001

Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Duncan v Independent Commission Against Corruption [2015] HCA 32, (2015) 256 CLR 83 Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Plaintiff S111/2017 v Minister for Immigration and Border Protection (unreported, High Court of Australia, Edelman J, 9 May 2017) Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, (2003) 214 CLR 1 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387