Ayan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 337

Ayan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 337

The appeal and motion should be stood over because the pending High Court decisions in Te and Dang were likely to be directly relevant and potentially determinative of the appellant's proposed constitutional absorption argument; precluding the appellant from raising that issue at this stage risked serious injustice.

Jurisdiction
Australia
Judgment Date
05 November 2002
Procedural Posture
Appeal With Notice of Motion Seeking Leave to File an Amended Notice of Appeal and an Amended Application for an Order of Review / Full Court Hearing; Appeal and Motion Stood Over Pending High Court Judgments
Outcome
Appeal and motion stood over; costs reserved.
Legal Topics
['visa Cancellation' 'migration Act S 501' 'aliens Power' 'immigration Power' 'absorption Into the Australian Community' 'legitimate Expectation' 'leave to Amend Grounds of Appeal' 'adjournment Pending High Court Decisions']
['immigration Law' 'constitutional Law' 'administrative Law' 'civil Procedure'] ['visa Cancellation' 'migration Act S 501' 'aliens Power' 'immigration Power' 'absorption Into the Australian Community' 'legitimate Expectation' 'leave to Amend Grounds of Appeal' 'adjournment Pending High Court Decisions']

Case Brief

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Procedural Posture

Appeal With Notice of Motion Seeking Leave to File an Amended Notice of Appeal and an Amended Application for an Order of Review / Full Court Hearing; Appeal and Motion Stood Over Pending High Court Judgments

Legal Issues

  1. 1 ['Whether the appellant should be permitted to rely on amended grounds of appeal not raised before the primary Judge.' 'Whether s 501 of the Migration Act 1958 (Cth) validly applied to the appellant if he had been absorbed into the Australian community and was neither an immigrant nor an alien for constitutional purposes.' 'Whether the appellant had a legitimate expectation that the Minister would not decide the visa cancellation matter personally and that the appellant would receive full merits review in the Administrative Appeals Tribunal.' 'Whether the appeal and motion should be stood over until the High Court delivered judgment in Te and Dang.']

Ratio Decidendi

The appeal and motion should be stood over because the pending High Court decisions in Te and Dang were likely to be directly relevant and potentially determinative of the appellant's proposed constitutional absorption argument; precluding the appellant from raising that issue at this stage risked serious injustice.

Court Disposition

Appeal and motion stood over; costs reserved.

Orders

  • ['The appeal and the motion filed by the appellant on 31 October 2002 be stood over to a date and time to be advised.' 'The costs of the hearing on 5 November 2002 be reserved.']