Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Akpata [2002] HCA 34

HIGH COURT OF AUSTRALIA

GUMMOW J

RE MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

EX PARTE STEPHEN OGHO AKPATA APPLICANT

Re Minister for Immigration and Multicultural and Indigenous Affairs;

Ex parte Akpata

[2002] HCA 34

2 September 2002

A94/2002

ORDER

Application dismissed with costs.

Representation:

B M O'Brien for the applicant (instructed by Hamdan Lawyers)

S J Maharaj for the respondent (instructed by Sparke Helmore)

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

CATCHWORDS

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Akpata

Administrative law – Jurisdictional error – Natural justice – Privative clause – Failure to inform applicant that refusal of parent visa would result in automatic cancellation of bridging visa and detention of applicant – Alleged failure to afford applicant opportunity to put before Minister material concerning financial and emotional impact detention would have on him and his family and its impact on the preparation by applicant of pending special leave application – Alleged failure by Minister to take into account these matters – Whether Minister's decision protected by s 474 of the Migration Act 1958 (Cth) ("the Act").

Immigration – Refusal by Minister of application for parent visa on "character grounds" under s 501 of the Act – Minister "taken to have decided to cancel" bridging visa held by applicant by force of s 501F(3) of the Act – Applicant thereby became an "unlawful non-citizen" subject to immigration detention – Application under s 75(v) of the Constitution ­– Whether operation of s 474 of the Act attracted – No attack on validity of s 474 – Application of reasoning in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and R v Murray; Ex parte Proctor (1949) 77 CLR 387 to construction of s 474 ­– Whether distinct procedural fairness requirement attached to cancellation of bridging visa under s 501F(3) of the Act.