Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, HAYNE AND CALLINAN JJ

RE MINISTER FOR IMMIGRATION AND RESPONDENT

MULTICULTURAL AFFAIRS

EX PARTE HIEU TRUNG LAM APPLICANT/PROSECUTOR

Re Minister for Immigration and Multicultural Affairs;

Ex parte Lam

[2003] HCA 6

12 February 2003

B33/2001

ORDER

Application dismissed with costs.

Representation:

B W Walker SC for the applicant/prosecutor (instructed by Boe Callaghan)

S J Gageler SC with S J Lee for the respondent (instructed by Blake Dawson Waldron)

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 Affairs; Ex parte Lam

Administrative Law – Application for certiorari and prohibition – Procedural fairness – Cancellation of applicant's visa for failure to pass character test under s 501(6) of Migration Act 1958 (Cth) – Decision maker informed applicant that it would seek information from third party but then did not do so – Whether applicant denied procedural fairness – Legitimate expectation.

Words and phrases – "legitimate expectation".

Constitution, s 75(v).

Judiciary Act 1903 (Cth), s 32.

Migration Act 1958 (Cth), ss 499, 501(2), (5), (6), (7).

1. GLEESON CJ. The applicant, who was born in 1970 in the Republic of Vietnam, arrived in Australia as a refugee at the age of 13. He was granted a Transitional (Permanent) visa. He later committed a number of criminal offences, the most serious of which was trafficking in heroin, for which he was sentenced to imprisonment for eight years. 2. Section 501(2) of the Migration Act 1958 (Cth), in its form at the relevant time, empowered the respondent Minister to cancel a person's visa if the Minister reasonably suspected that the person did not pass the character test and the person did not satisfy the Minister that the person passed the character test. The character test was formulated in s 501(6). The applicant could not pass the test by reason of his criminal history. On 23 January 2001, the respondent made a decision to cancel the applicant's visa. As a result, the applicant became liable to deportation. 3. The applicant seeks orders of certiorari and prohibition to quash the decision to cancel his visa and to prevent the respondent from taking steps to deport him. The proceedings were commenced in this Court because the applicant was out of time to proceed in the Federal Court. The jurisdiction invoked is that conferred by s 75(v) of the Constitution and s 32 of the Judiciary Act 1903 (Cth). The grounds upon which the orders are sought are as follows: