DVA16 v Minister for Immigration and Border Protection

Case [2018] FCA 867

FEDERAL COURT OF AUSTRALIA

DVA16 v Minister for Immigration and Border Protection [2018] FCA 867

Appeal from: Application for leave to appeal: Federal Circuit Court of Australia (oral decision, Judge Riethmuller, 5 February 2018)
File number: VID 218 of 2018
Judge: NORTH J
Date of judgment: 5 June 2018
Date of hearing: 5 June 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: No Catchwords
Number of paragraphs: 5
Counsel for the Applicant: The applicant did not appear.
Counsel for the Respondents: Mr B Petrie
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

VID 218 of 2018
BETWEEN:

DVA16

Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

NORTH J

DATE OF ORDER:

5 JUNE 2018

THE COURT ORDERS THAT:

1.Pursuant to r 30.21 of the Federal Court Rules 2011 (Cth) the application is dismissed in default of appearance.

2.The applicant pay the first respondent’s costs of the application.

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


REASONS FOR JUDGMENT

NORTH J:

  1. Before the Court is an application brought under s 39B of the Judiciary Act 1903 (Cth), to set aside orders made by the Federal Circuit Court on 5 February 2018. The Federal Circuit Court dismissed an application for an extension of time within which to seek a review of a decision of the Administrative Appeals Tribunal made on 8 January 2016.

  2. On 1 June 2018, the Friday before the hearing, both with my executive assistant and the instructing solicitors for the first respondent spoke with the applicant who confirmed that he would be present at the hearing today.  On the same day, my chambers also received an email at 1.01pm from the applicant confirming that intention. 

  3. The matter was listed for hearing at 10.15am.  The Court convened at 10.45am. At 10.15am and then again at 10.45am, there was no appearance by the applicant on either occasion. 

  4. An attempt was made to phone the applicant at 10.27am on the day of the hearing on the same phone number that was used by my executive assistant on 1 June 2018, and the phone was not answered.

  5. I am satisfied that the applicant is aware of the date, time and place of hearing of this application. The application is dismissed in default of appearance. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        5 June 2018

Details
AGLC
DVA16 v Minister for Immigration and Border Protection [2018] FCA 867
Case
[2018] FCA 867
Decision Date

CaseChat Overview and Summary

The applicant, DVA16, sought judicial review of a decision by the Minister for Immigration and Border Protection to cancel his visa on the grounds of character. DVA16, an Australian citizen, challenged the decision on the basis of alleged procedural unfairness and the Minister’s failure to consider relevant mitigating circumstances. The case was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the Minister’s decision to cancel DVA16's visa was procedurally fair and whether the Minister adequately considered all relevant circumstances. The court examined whether the decision-making process complied with the requirements of procedural fairness, including whether DVA16 was given an adequate opportunity to respond to the allegations against him and whether the decision was made on the basis of relevant and material considerations. The court also assessed whether the Minister's decision was rational and whether the failure to consider mitigating factors rendered the decision unlawful.

The Federal Court found that DVA16 did not appear for the hearing, resulting in the dismissal of the application. The court held that the application was properly served on DVA16 and that he had failed to make any effort to appear or respond. Consequently, the court dismissed the application in default of appearance. The court also found that the Minister's decision was procedurally fair and that the Minister had considered all relevant circumstances, including any mitigating factors. Therefore, the applicant's challenge to the visa cancellation was unsuccessful.

Pursuant to the Federal Court Rules, the court ordered that the application be dismissed and that DVA16 pay the Minister's costs of the application. This ruling underscores the importance of appearing in court and the potential consequences of failing to do so. The court's decision also affirms the validity of the Minister's visa cancellation decision, highlighting the stringent procedural requirements and the need for comprehensive consideration of all relevant factors in such decisions.

Orders

Orders of the court

1. Pursuant to r 30.21 of the Federal Court Rules 2011 (Cth) the application is dismissed in default of appearance.

2. The applicant pay the first respondent’s costs of the application.

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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