Heyward v Minister for Immigration and Citizenship [2009] FCA 1313

Heyward v Minister for Immigration and Citizenship [2009] FCA 1313

The Tribunal did not deny procedural fairness or commit jurisdictional error. The affidavits and annexures had some probative value and were not inadmissible merely because they included hearsay, opinion or unsworn material, since the Tribunal was not bound by the rules of evidence. Mr Heyward had ample disclosure of the material, objected to it, relied on submissions against it, was repeatedly told he could cross-examine the deponents, and was told the consequences of choosing not to do so. The Tribunal's assessment of the weight to give the material was within its function.

Jurisdiction
Australia
Judgment Date
28 October 2009
Procedural Posture
Application in the Federal Court Challenging an Administrative Appeals Tribunal Decision Affirming Cancellation of a Visa Under S 501 of the Migration Act 1958 (cth) / Judgment on Application; Application Dismissed
Outcome
The application was dismissed with costs payable to the first respondent.
Legal Topics
['visa Cancellation on Character Grounds' 'procedural Fairness' 'administrative Appeals Tribunal Procedure' 'cross Examination Before the Tribunal' 'admission of Affidavit, Hearsay and Opinion Material' 'jurisdictional Error']
['migration Law' 'administrative Law'] ['visa Cancellation on Character Grounds' 'procedural Fairness' 'administrative Appeals Tribunal Procedure' 'cross Examination Before the Tribunal' 'admission of Affidavit, Hearsay and Opinion Material' 'jurisdictional Error']

Case Brief

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Procedural Posture

Application in the Federal Court Challenging an Administrative Appeals Tribunal Decision Affirming Cancellation of a Visa Under S 501 of the Migration Act 1958 (cth) / Judgment on Application; Application Dismissed

Legal Issues

  1. 1 ['Whether the Administrative Appeals Tribunal denied procedural fairness by admitting affidavits and annexures tendered by the Minister.' 'Whether the Tribunal failed to ensure that Mr Heyward had a reasonable opportunity to present his case, including an opportunity to cross-examine the deponents of the affidavits.' 'Whether the Tribunal failed to ensure that Mr Heyward understood the consequences of not cross-examining the deponents.' 'Whether admitting material said to be opinion evidence, prejudicial, hearsay and not amenable to challenge constituted jurisdictional error.']

Ratio Decidendi

The Tribunal did not deny procedural fairness or commit jurisdictional error. The affidavits and annexures had some probative value and were not inadmissible merely because they included hearsay, opinion or unsworn material, since the Tribunal was not bound by the rules of evidence. Mr Heyward had ample disclosure of the material, objected to it, relied on submissions against it, was repeatedly told he could cross-examine the deponents, and was told the consequences of choosing not to do so. The Tribunal's assessment of the weight to give the material was within its function.

Court Disposition

The application was dismissed with costs payable to the first respondent.

Orders

  • ['The application be dismissed.' 'The applicant pay the costs of the first respondent.']