Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS APPELLANT

AND

RAJIV BHARDWAJ RESPONDENT

Minister for Immigration and Multicultural Affairs v Bhardwaj

[2002] HCA 11

14 March 2002

S37/2001

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

J Basten QC with R T Beech-Jones for the appellant (instructed by Australian Government Solicitor)

D F Jackson QC with J R Young for the respondent (instructed by Newman & Associates)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Multicultural Affairs v Bhardwaj

Immigration – Immigration Review Tribunal – Powers and duties of Tribunal – Capacity of Tribunal to correct own error – Decision cancelling visa – Failure to consider correspondence from respondent – Reconsideration of decision – Whether decision involving jurisdictional error is a nullity – Whether Tribunal may of its own motion reconsider its decision – Whether validity of decision open to collateral attack.

Administrative law – Judicial review – Procedural fairness – Administrative decision – Tribunal required to give respondent opportunity to appear – Decision made after Tribunal mistakenly assumed respondent declined to appear – Whether jurisdictional error constituted by denial of procedural fairness – Whether failure to exercise jurisdiction – Whether Tribunal authorised to make fresh decision – Whether invalidity of decision could be raised in collateral attack on validity of decision in proceedings.

Words and phrases – "decision on review".

Migration Act 1958 (Cth), Pts 5 and 8, ss 360, 367 and 368.

Acts Interpretation Act 1901 (Cth), s 33(1).