Haapu v Minister for Immigration and Border Protection
[2016] FCA 623
•5 April 2016
FEDERAL COURT OF AUSTRALIA
Haapu v Minister for Immigration and Border Protection [2016] FCA 623
File number(s): WAD 731 of 2015 Judge(s): SIOPIS J Date of judgment: 5 April 2016 Catchwords: MIGRATION – applicant’s visa cancelled under s 501(3) of the Migration Act 1958 (Cth) on the grounds that he was a member of an outlaw motorcycle gang – applicant commenced an application challenging the cancellation decision – applicant voluntarily removed from Australia under s 198(1) of the Migration Act – applicant did not appear at the hearing of his application for review of the cancellation decision – Court aware of a constitutional challenge by another party in another proceeding of the statutory basis for the cancellation decision – whether the application for review should be dismissed under r 30.21 of the Federal Court Rules 2011. Legislation: Migration Act 1958 (Cth) ss 198(1), 501(3)
Judiciary Act 1903 (Cth) s 78B
Federal Court Rules 2011 r 30.21
Date of hearing: 5 April 2016 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: The Applicant did not appear. Counsel for the Respondent: Mr P Macliver Solicitor for the Respondent: Australian Government Solicitor ORDERS
WAD 731 of 2015 BETWEEN: NGATI KANOHI TE EKE (KO) HAAPU
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
5 APRIL 2016
THE COURT ORDERS THAT:
1.This hearing is adjourned to 10.15 am on 18 May 2016 to be heard together with WAD 732/2015 Mehaka Lee Te Puia v Minister for Immigration and Border Protection.
2.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
This is an oral application by the respondent, the Minister for Immigration and Border Protection (the Minister) to dismiss an originating application filed on 4 December 2015 by the applicant, Mr Ngati Haapu, a New Zealand citizen.
On 27 October 2015, Mr Haapu’s subclass 444 temporary visa was cancelled by the Minister under s 501(3) of the Migration Act 1958 (Cth) on the grounds that the Minister reasonably suspected that Mr Haapu was a member of a group, referred to by the Minister, as an outlaw motorcycle gang, and that gang had been or was involved in criminal conduct. On 1 November 2015, consequent upon the cancellation of his visa, Mr Haapu was placed in detention at Casuarina prison in Western Australia.
Mr Haapu’s originating application seeks an order to set aside the Minister’s visa cancellation decision. At the time that Mr Haapu filed the application in this Court, he was represented by a firm of solicitors.
On 4 February 2016, consent orders were made which required Mr Haapu and the Minister to file documents and the originating application matter was set down for hearing today.
However, on 21 March 2016, Mr Haapu’s solicitors filed a notice of termination of lawyers’ retainer, noting that their representation of Mr Haapu ceased on 18 March 2016, and they provided an address for service for Mr Haapu which was at a private address in Western Australia.
On 20 March 2016, consequent on his request to be removed from Australia, Mr Haapu was released from detention and he departed Australia for New Zealand.
Mr Peter Corbould, a solicitor acting for the Minister, deposed that, on 23 March 2016, he wrote to Mr Haapu at his address for service in Western Australia advising Mr Haapu that he had failed to comply with the consent orders of 4 February 2016 by failing to file his amended application and further affidavits by 18 March 2016 and his outline of submissions by 22 March 2016. The letter went on to state that, if Mr Haapu intended to continue his originating application, he should file and serve the documents as soon as possible.
Mr Haapu did not respond to Mr Corbould’s letter, nor did he file and serve the documents referred to in the consent orders.
On 29 March 2016, Mr Corbould sent a second letter addressed to Mr Haapu at the same address for service in Western Australia, serving the documents which the Minister was required to file and serve under the consent orders.
Then on 30 March 2016, Mr Corbould sent a third letter to Mr Haapu at the Western Australian address, stating that Mr Haapu’s originating application was listed for hearing on 5 April 2016, and that, if there was no appearance by Mr Haapu, the Minister would seek orders that the originating application be dismissed and that Mr Haapu pay the costs of the proceeding.
When the matter was called on for hearing today, there was no appearance by Mr Haapu.
It is clear that the Court has power to dismiss an originating application where the orders of the Court have not been complied with and, also, in particular, where a party does not appear at the hearing of the application (r 30.21 of the Federal Court Rules 2011).
However, there is an unusual aspect of this particular case which affects the question as to whether the Court should exercise that power.
This arises from the fact that Mr Haapu’s originating application was originally listed to be heard today together with an originating application, WAD 732/2015, Mehaka Lee Te Puia v Minister for Immigration and Border Protection (Puia), brought by another New Zealand citizen whose visa was also cancelled under s 501(3) of the Migration Act on the grounds that the Minister reasonably suspected that Mr Puia was a member of a group, referred to by the Minister, as an outlaw motorcycle gang, and that gang had been or was involved in criminal conduct.
However, the Puia application was adjourned for hearing at a date to be fixed after Mr Puia filed a notice under s 78B of the Judiciary Act 1903 (Cth) which challenges the constitutional validity of the statutory regime pursuant to which the Minister acted in cancelling Mr Puia’s visa. The Court, therefore, has notice of a constitutional argument which can also apply to Mr Haapu’s application, and which, if accepted, may well lead to his application succeeding. There was no suggestion that the constitutional argument was devoid of merit. I am, therefore, not persuaded that Mr Haapu’s application is devoid of merit and should, therefore, be dismissed on the grounds that he has not appeared at today’s hearing.
The Minister also argued that, in deciding whether to exercise the power to dismiss the application, I should have regard to the fact that Mr Haapu voluntarily chose to leave Australia and, in effect, to abandon his application. However, I have some difficulty with the state of the evidence on the question of Mr Haapu’s expectation in this regard. The Minister relied on the affidavit of Mr Peter Isliker, dated 29 March 2016, who is an officer in the Department of Immigration and Border Protection (the department).
There is annexed to Mr Isliker’s affidavit two documents comprising the same form which was completed by Mr Haapu on two different dates but in different terms. The form is headed: “Request for Removal from Australia”. The first sentence on the form is a printed statement in the following terms: “I am an unlawful non-citizen and I request that the Department of Immigration and Border Protection remove me from Australia in accordance with s 198(1) of the Migration Act 1958.”
The first document was a form completed by Mr Haapu on 10 March 2016, in which Mr Haapu states that he understands that his unfinished application for revocation of the visa cancellation decision will continue to be considered after his removal from Australia. The form also records Mr Haapu’s acknowledgment that in respect of his “unfinalised” application for revocation of the visa cancellation decision, it was Mr Haapu’s responsibility to provide the department with valid contact details to enable the Minister to notify him of the outcome of the Court’s decision. There is then a handwritten note at the bottom of that which says: “Client will engage with lawyer to continue legal action in his absence.”
The second document is the same form, but it was completed eight days later. However, in this form, the same sections in the form dealing with Mr Haapu’s outstanding application, which he completed in the manner referred to above, are now described as being “non‑applicable”. Mr Isliker does not explain how these identical forms came to be completed by Mr Haapu in such different terms within a relatively short period of time.
Those circumstances indicate, at least, that, at a time shortly before his departure from Australia, it was Mr Haapu’s expectation that his application would be considered, even in his absence. This is another reason for being cautious about exercising the power to dismiss his application for non-appearance in Court before the determination of the Puia application.
I, also, do not accept the contention that, in having regard to the fact that that Mr Haapu voluntarily chose to leave Australia, his position was to be equated with any other person on a temporary visa who elects to leave Australia and return to his or her home country. In my view, there is a relevant distinction in the element of “voluntariness” between a person who leaves Australia as an “unlawful non-citizen” following the cancellation of his or her visa, and a visa holder who otherwise voluntarily leaves Australia without his or her visa being cancelled.
There is another reason why I am apprehensive about dismissing Mr Haapu’s application on the basis of his non-appearance, whilst the Puia application is pending. This is because, if his application was to be dismissed today and the Puia application which raises the constitutional point was to succeed, then Mr Haapu would presumably be in a position to bring a new application to set aside the visa cancellation decision. However, in that circumstance, a considerable period of time would have elapsed, and there is a risk that Mr Haapu’s new application may be opposed on the basis that it was time barred. I observe that the department has taken a time limitation point against Mr Haapu in his attempt to extend time to make representations to the department in relation to the cancellation of his visa.
In those circumstances, I will not dismiss Mr Haapu’s application and I will adjourn his application to be heard at the same time as the Puia application.
I certify that the preceding twenty‑three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 31 May 2016
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