CVV17 v Minister for Immigration

[2019] FCCA 3006

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVV17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3006

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Immigration Assessment Authority affirming a decision of a Delegate of the Minister for Immigration to refuse to grant to him a Safe Haven Enterprise (Subclass 790) visa – applicant departed Australia while on a Bridging (Class WE) (Subclass 050) visa associated with this proceeding – on the evidence the applicant has no legal right to return to Australia because he has no extant visa at the present time and by leaving Australia he is to be taken as having abandoned the proceeding – the applicant’s application for judicial review is therefore moot and lacks any utility – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 82

Applicant: CVV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2018 of 2017

Judgment of: Judge Dowdy

Hearing date: 11 October 2019

Delivered at: Sydney

Delivered on: 11 October 2019

REPRESENTATION

No appearance by or on behalf of the Applicant.

Counsel for the First Respondent: Ms K. Pieri

Solicitors for the First Respondent: HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 27 June 2017 is dismissed because it is taken to have been abandoned and is moot.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $3,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2018 of 2017

CVV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. The Applicant is a male citizen of Sri Lanka of Tamil ethnicity, aged 30 years, having been born on 5 February 1989.

2. The Applicant applied for a Safe Haven Enterprise (Subclass 790) visa (Protection visa) on 3 December 2015, but a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), on 27 October 2016 refused to grant to him the Protection visa under either the Refugees Convention criterion or the complementary protection criterion. The Applicant then had his Protection visa application referred to the Immigration Assessment Authority (IAA) which, by decision of 29 May 2017, affirmed the Delegate’s decision not to grant the Protection visa to the Applicant. 

3. The Applicant applied for judicial review of the decision of the IAA in this Court on 27 June 2017. The first return date of the Application was 4 August 2017 when the Applicant appeared in person and procedural orders were made to get the matter ready for hearing. However, a final hearing date has not been appointed and was to be advised to the parties by administrative means when a date became available.

4. The evidence brought by the Minister before me today, which is by way of an affidavit of Ms Katherine Nicole Hooper, affirmed on 20 December 2017, which is read and marked Exhibit A, and the further affidavit of Ms Sophie Alexandra Helena Given, sworn on 11 October 2019, which is read and marked Exhibit B, establishes to my satisfaction that the Applicant left Australia on 13 December 2017 and that the Bridging (Class WE) (Subclass 050) visa which he held ended and ceased as at the time that he left Australia (presumably by force of s.82(8) of the Migration Act 1958 (Cth) (the Act)), being 13 December 2017.

5. In such circumstances the Applicant is not in Australia and his Application to this Court is moot, because he has on the evidence no legal right to return to Australia because he has no extant visa at the present time and by leaving Australia he is to be taken as having abandoned the proceeding.

6. Accordingly, in these circumstances the Minister seeks, on an entirely justifiable basis, that the Application be dismissed because the proceeding has been abandoned, the Applicant has no right to return to Australia, cannot satisfy the criteria found in s.36(2) of the Act offshore and the continuance of the proceeding lacks any utility and is moot.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  21 October 2019