Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648

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Facts

  • Section 12 of the Migration Act 1958 (Cth) empowered the Minister for Immigration and Ethnic Affairs to order the deportation of a non-citizen who had been convicted in Australia of a criminal offence and sentenced to imprisonment for not less than one year.
  • Immigrants had a right of appeal to the Administrative Appeals Tribunal (AAT).
  • The Government had a policy that the Minister would not overturn a recommendation from the AAT unless it there were exceptional circumstances and strong evidence.
  • The Minister made a decision to deport Majed Haoucher. Haoucher appealed this to the AAT. The AAT recommended the deportation order be revoked. The Minister disregarded this recommendation without giving reason. Haoucher appealed.

Issue

  • Was Haoucher entitled to know the “exceptional circumstances” and “strong evidence”

Held

  • Deane, Toohey and McHugh held that Haoucher was entitled to know the matters which constituted “exceptional circumstances” and “strong evidence” so as to take his case out of the general policy that the Minister would not depart from recommendations of the Tribunal
  • By depriving Haoucher of this information and denying an opportunity to respond was depriving Haoucher of his right to procedural fairness.

Quote

A legitimate expectation of a benefit or privilege is not a right to that benefit or privilege. Consequently, the holder of a legitimate expectation knows or will be held to know that the expectation is liable to be defeated. Nevertheless, as cases like FAI Insurances Ltd v Winnekeshow, he or she is entitled to be informed of the matters which are relied on to defeat his or he expectation.”

(McHugh J at page 683)

Full Text

The full text is available here:  https://jade.io/summary/mnc/1990/HCA/22


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