Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY AND HEYDON JJ

RE MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

EX PARTE THOMAS PALME PROSECUTOR/APPLICANT

Re Minister for Immigration and Multicultural and Indigenous Affairs;

Ex parte Palme [2003] HCA 56

2 October 2003

S258/2002

ORDER

1. Order nisi, granted on 28 October 2002, discharged. 2. Application for declaration that the decision of the respondent made on 27 June 2002 is invalid and void, dismissed. 3. Prosecutor to pay the respondent's costs.

Representation:

P L G Brereton SC with D P M Ash for the prosecutor/applicant (instructed by Christopher Levingston & Associates)

J Basten QC with G R Kennett for the respondent (instructed by Australian Government Solicitor)

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 Palme

Immigration – Refugees – Minister – Decision to cancel visa – Whether decision affected by jurisdictional error – Whether prosecutor denied procedural fairness – Whether constructive failure to exercise jurisdiction – Whether decision affected by "Wednesbury unreasonableness" – Whether alleged failure by Minister to notify prosecutor in writing of reasons for decision infected decision with jurisdictional error – Migration Act 1958 (Cth), s 501G.

Constitution, s 75(v).

Migration Act 1958 (Cth), ss 69, 501, 501G.

1. GLEESON CJ, GUMMOW AND HEYDON JJ. On 28 October 2002, a Justice of this Court (Gaudron J) ordered that the respondent ("the Minister") show cause why certiorari should not issue removing into this Court to be quashed a decision of the Minister made on 27 June 2002 ("the Decision") and prohibition should not issue prohibiting the Minister from proceeding further with any action in respect of the Decision. An application also was made for a declaration that the Decision "is invalid and void". 2. The Decision was to cancel the visa pursuant to which the prosecutor had been entitled to remain in Australia. That cancellation effected an immediate change of his status. He thereupon became an unlawful non‑citizen within s 15 of the Migration Act 1958 (Cth) ("the Act"), who was to be detained forthwith (s 189) and removed from Australia as soon as practicable (s 198). The prosecutor presently is in immigration detention. 3. Not all of the grounds in the order nisi were pressed before the Full Court. Grounds raising issues of validity of certain provisions of the Act were not argued. The grounds remaining assert jurisdictional error, in particular (a) by the denial to the prosecutor of the necessary measure of procedural fairness in the making of the Decision and (b) in the alleged failure to observe what are said to be the mandatory requirements in s 501G of the Act respecting the giving by the Minister of written notification of the decision to cancel the prosecutor's visa. 4. It is common ground that if the Decision is not a privative clause decision within the meaning of s 474 of the Act there is no legislative impediment to the exercise by this Court of the jurisdiction conferred in this matter by s 75(v) of the Constitution, supplemented by the powers conferred by ss 32 and 33 of the Judiciary Act 1903 (Cth). The reasoning in Plaintiff S157/2002 v Commonwealth[1] supports that stance.