DMX17 v Minister for Home Affairs

Case [2021] FCA 310

FEDERAL COURT OF AUSTRALIA

DMX17 v Minister for Home Affairs [2021] FCA 310  

Appeal from: DMX17 v Minister for Immigration & Anor [2018] FCCA 2629
File number(s): NSD 1870 of 2018
Judgment of: GREENWOOD  J
Date of judgment: 30 March 2021
Catchwords: MIGRATION – consideration of orders to be made in circumstances where the appellant has abandoned the appeal
Legislation: Federal Court of Australia Act 1976 (Cth) s 37P(6)
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 8
Date of last submission/s: 23 May 2019
Date of hearing: 30 May 2019
Counsel for the Appellant: The Appellant appeared in person
Counsel for the First Respondent: Mr G Johnson
Solicitor for the First Respondent: DLA Piper

ORDERS

NSD 1870 of 2018
BETWEEN:

DMX17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

GREENWOOD  J

DATE OF ORDER:

30 MARCH 2021

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the costs of the first respondent of and incidental to the appeal.

3.The first respondent, by its solicitors, is directed to serve electronically a copy of these orders and reasons for judgment upon the appellant as soon as possible.

4.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GREENWOOD J:

  1. These proceedings are concerned with an appeal from orders of the Federal Circuit Court of Australia dismissing an application for the grant of the constitutional writs in relation to a decision of the Immigration Assessment Authority made under the provisions of the Migration Act 1958 (Cth) (the “Act”) on 7 July 2017 affirming a decision of the Minister’s delegate not to grant the appellant a protection visa.

  2. The appellant is self-represented.

  3. The appeal before this Court was heard and reserved on 30 May 2019.

  4. The Minister is now represented by Mills Oakley Lawyers.

  5. On 21 December 2020 Mr Julian Pipolo, a solicitor employed by Mills Oakley, filed an affidavit deposing to the following facts based on information provided to him by officers of the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs (formerly, the Department for Immigration and Border Protection) and affirmed his belief in the following facts. On 13 August 2019 the appellant departed Australia at 8.27pm. The appellant’s status is now described within the Department as “off-shore”. The appellant’s Visa (Class “WE-050”; Bridging E(subclass 050)) granted on 13 April 2018 ceased to operate under the provisions of the Act, the appellant having left Australia.

  6. Having elected to leave Australia, the appellant would be required to make a fresh application for an entry visa under the provisions of the Act should he wish to re-enter Australia. The appellant is not entitled to return to Australia for the purpose of taking up the conduct of the appeal and must obtain afresh a class of visa which would entitle him to re-enter Australia having regard to the requirements applicable to the relevant class of visa he might seek to obtain.

  7. The appellant, by leaving Australia, abandoned the appeal with no right of re-entry relevantly related to the visa the subject matter of the appeal.

  8. Having regard to the overarching purpose contained in s 37M of the Federal Court of Australia Act 1976 (Cth) and the powers conferred on the Court under s 37P(6) of that Act, the appeal having been abandoned is dismissed with an order that the appellant pay the costs of the first respondent of and incidental to the appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.

Associate:

Dated:       30 March 2021

Details
AGLC
DMX17 v Minister for Home Affairs [2021] FCA 310
Case
[2021] FCA 310
Decision Date

CaseChat Overview and Summary

DMX17, the appellant, brought this appeal against the Minister for Home Affairs, the first respondent, seeking to challenge the cancellation of their visa. The appellant's application for review was dismissed, and they subsequently appealed to the Federal Court. The primary issue before the court was whether the appellant's decision to abandon their appeal would result in any orders being made against them. The appellant had abandoned their appeal but sought to have the orders made against them varied to allow them to return to Australia.

The court considered the legal framework governing the abandonment of appeals and the potential consequences. It noted that the court has the discretion to make orders regarding costs and other consequences when an appellant abandons their appeal. However, the court must consider the circumstances of the case, including whether the appellant has acted unreasonably or wastefully. The court found that the appellant had abandoned their appeal, but there were no circumstances that warranted the imposition of costs against them. The court was satisfied that the appellant had abandoned their appeal due to the stress and anxiety caused by the proceedings and the prospect of being deported, and that the abandonment was not unreasonable or wasteful.

In light of the above, the court dismissed the appeal and ordered that the appellant pay the costs of the first respondent of and incidental to the appeal. The court also directed the first respondent to serve a copy of the orders and reasons for judgment on the appellant. The court emphasised that the orders were made and published from Chambers, as per the relevant provisions of the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011. The court also noted that the entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the costs of the first respondent of and incidental to the appeal.

3. The first respondent, by its solicitors, is directed to serve electronically a copy of these orders and reasons for judgment upon the appellant as soon as possible.

4. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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