Case: Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298 ; (2003) 133 FCR 541
Outcome: referred to
The applicant submitted that the issues paper presented to the Minister to facilitate his decision-making, contained misleading statements which the applicant should have been given an opportunity to correct. The applicant submitted that failure to do so resulted in a breach of procedural fairness which can result in the decision being set aside: see Johnson v Williams [2000] FCA 3 , R v Kylsant (1932) 1 KB 442 and Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298 ; (2003) 133 FCR 541. The material errors of fact and law pleaded in the second further amended statement of claim included those relating to the statements that the applicant's citizenship was the "Federal Republic of Yugoslavia" and that he "would be entitled to apply for a new Yugoslav passport". 24 Secondly, the issues paper incorrectly stated that he had not made any claims that required assessment in relation to international obligations in circumstances where he had made the following claims. The applicant had claimed that in the event that his visa was cancelled and he was deported to the then current Federal Republic of Yugoslavia that he had no family ties or friends in that country, limited knowledge of the language and vocabulary and no financial support. He had also claimed that the deportation was likely to have a devastating effect on his then successful rehabilitation from drug addiction, perhaps causing his relationship with his de facto to end or causing him to commit suicide. He claimed that he would have extreme difficulties in finding employment and that he did not hold a current travel document to enter the then current Federal Republic of Yugoslavia. 25 The applicant submitted that these claims required assessment in relation to international obligations including those under the ICCPR and the CSSP and that to have proceeded based on the errors in the issues paper was not a course obviously open on the known material and the applicant could not reasonably have been expected to have been aware of it. 29 The last issue is whether the issues paper was misleading and enlivened the obligation to invite comment as discussed in Dagli . It was said to be misleading in two respects. Firstly that the applicant was a citizen of the Federal Republic of Yugoslavia and would appear to be entitled to apply for a new Yugoslavian passport. Secondly that the applicant had not made any claims that required assessment in relation to international obligations. For the reasons discussed in the preceding paragraph, the issues paper was not misleading in this second respect. That leads to a consideration of whether it was misleading in the first respect and, if so, should the applicant have been invited to comment. 30 The judgment of the Full Court in Dagli reinforced, in the context of decision-making under s 501 , the principle that a person is entitled to an opportunity to comment on adverse material provided to the decision-maker by others, and the failure to provide an opportunity constitutes a denial of procedural fairness. As illustrated by the recent Full Court judgment in VKAC , that adverse material can include assertions in an issues paper about the citizenship of the person whose visa is at risk of cancellation. However, as Mansfield and North JJ noted in VKAC (at [19]) the comment in the issues paper in the matter, that the appellant was a Burmese citizen, was adverse because it removed from consideration the position advanced by the appellant (a contention of substance based on probative material) that she was stateless and could not be returned to Burma. 31 The present case is different. At no point did the applicant contend that he was stateless or, additionally, that he could not be removed to Serbia or any contemporary manifestation of Yugoslavia. Thus the statement that he was a "Yugoslav citizen" and, later in the issues paper, that he would be "entitled to apply for a new Yugoslav passport" did not constitute adverse material as it did not impeach or have the potential to impeach the case he had advanced in opposition to the cancellation of his visa. 32 The application should be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 15 December 2006 Counsel for the Applicant: I Archibald Solicitor for the Applicant: Michaela Byers, Solicitor Counsel for the Respondents: S Lloyd with S Free Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 31 January 2006; 9 June 2006 (counsel for the Respondent on latter date only) Date of Judgment: 15 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1758.html