Minister for Immigration & Multicultural Affairs v McDade [2001] FCA 457

Minister for Immigration & Multicultural Affairs v McDade [2001] FCA 457

The First Notice was not authorised by s 107 because it asserted non-compliance with ss 101, 103 and 104, which were not the applicable basis for the respondent's pre-1 September 1994 conduct, and did not identify action or conditions by which former s 20 applied or use the required concept of statements false or...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 April 2001
Procedural Posture
Appeal From Orders Granting Review of an Immigration Review Tribunal Decision Affirming Cancellation of a Transitional (permanent) Visa / Full Court Appeal
Outcome
Appeal allowed; leave granted to advance two further grounds of appeal; primary orders set aside and the respondent's application in proceeding W 51 of 1999 dismissed.
Legal Topics
['cancellation of Visa Under S 109 of the Migration Act 1958 (cth)' 'validity of Notices Under S 107 of the Migration Act 1958 (cth)' 'application of S 115(3) of the Migration Act 1958 (cth) to a Transitional (permanent) Visa' 'false or Misleading Statements in a Material Particular Under Former S 20 of the Migration Act 1958 (cth)' 'whether Minister Was Estopped From Contending That an Earlier Notice Was Invalid' 'tribunal Obligation to Set Out Findings and Reasons Under S 368 of the Migration Act 1958 (cth)']
['migration Law' 'administrative Law' 'estoppel'] ['cancellation of Visa Under S 109 of the Migration Act 1958 (cth)' 'validity of Notices Under S 107 of the Migration Act 1958 (cth)' 'application of S 115(3) of the Migration Act 1958 (cth) to a Transitional (permanent) Visa' 'false or Misleading Statements in a Material Particular Under Former S 20 of the Migration Act 1958 (cth)' 'whether Minister Was Estopped From Contending That an Earlier Notice Was Invalid' 'tribunal Obligation to Set Out Findings and Reasons Under S 368 of the Migration Act 1958 (cth)']

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Procedural Posture

Appeal From Orders Granting Review of an Immigration Review Tribunal Decision Affirming Cancellation of a Transitional (permanent) Visa / Full Court Appeal

Legal Issues

  1. 1 ['Whether the First Notice was a valid notice under s 107 of the Migration Act 1958 (Cth).' 'Whether the Minister had power to issue the Second Notice under s 107 based on substantially the same facts as the First Notice.' 'Whether the Minister was estopped from contending that the First Notice was invalid.' 'Whether the Tribunal erred in its interpretation or application of s 20 of the Migration Act 1958 (Cth) as in force before 1 September 1994.' 'Whether the Tribunal complied with s 368(1) of the Migration Act 1958 (Cth) in setting out findings on material questions of fact and referring to evidence or material.']

Ratio Decidendi

The First Notice was not authorised by s 107 because it asserted non-compliance with ss 101, 103 and 104, which were not the applicable basis for the respondent's pre-1 September 1994 conduct, and did not identify action or conditions by which former s 20 applied or use the required concept of statements false or misleading in a material particular. Because the First Notice was not a notice under s 107, s 112 did not prevent the Minister from issuing the Second Notice. The Second Notice, which referred to former s 20, was a valid exercise of the s 107 power and enlivened the cancellation power under s 109. The respondent's estoppel argument failed, and the Tribunal did not err in applying...

Court Disposition

Appeal allowed; leave granted to advance two further grounds of appeal; primary orders set aside and the respondent's application in proceeding W 51 of 1999 dismissed.

Orders

  • ['The appellant have leave to advance the two further grounds of appeal referred to in [24] of the reasons for judgment of the Court delivered today.' 'The appeal be allowed.' "Orders 2, 3, 4 and 5 made on 5 May 2000 in proceeding W 51 of 1999 in this Court be set aside and in lieu of those orders, the present...