Haapu v Minister for Immigration and Border Protection (No 2)
[2017] FCA 1623
•30 November 2017
FEDERAL COURT OF AUSTRALIA
Haapu v Minister for Immigration and Border Protection (No 2) [2017] FCA 1623
File number(s): WAD 731 of 2015 Judge(s): SIOPIS J Date of judgment: 30 November 2017 Date of hearing: 30 November 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 16 Counsel for the Applicant: The Applicant did not appear. Counsel for the Respondent: Mr M Ritter SC 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:
30 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The applicant’s application for review filed on 11 December 2015 is dismissed.
2.The applicant is to pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
This is the hearing of an application by Mr Ngati Haapu, filed on 11 December 2015, for the review of the decision of the respondent (the Minister) to cancel Mr Haapu’s visa.
Mr Haapu is a citizen of New Zealand. 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 believed that Mr Haapu was a member of a group, referred to by the Minister as an outlaw motorcycle gang, and that the gang had been, or was, involved in criminal conduct. In cancelling the visa, the Minster had relied on confidential information from security or intelligence agencies referred to in s 503A of the Migration Act. Section 503A(2)(c) of the Migration Act provided that such information was protected from disclosure to the Court.
On 5 April 2016, the Minister applied for this application to be dismissed on the grounds that Mr Haapu, who had been in immigration detention, had voluntarily returned to New Zealand, and was not present at the hearing.
However, I was aware from another case in my docket, Te Puia v Minister for Immigration and Border Protection (Te Puia) that the constitutional validity of s 503A of the Migration Act was under challenge, and that the outcome of this constitutional challenge could affect the outcome of Mr Haapu’s application. Further, the evidence was inconclusive as to whether Mr Haapu had intended to abandon his proceeding in Australia by leaving Australia.
Accordingly, on 5 April 2016, I made orders that Mr Haapu’s application for the setting aside of the Minister’s cancellation decision be adjourned until the outcome of the constitutional challenge (Haapu v Minister for Immigration and Border Protection (2016) 238 FCR 460). Te Puia was subsequently removed from my docket into the High Court.
On 6 September 2017, the High Court delivered judgment in Te Puia, and another case heard at the same time, Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350 (Graham). The majority of the High Court found that s 503A(2)(c) of the Migration Act was invalid insofar as it purported to affect applications to the High Court exercising jurisdiction under s 75(v) of the Constitution and to the Federal Court exercising jurisdiction under s 476A(1)(c) and (2) of the Migration Act, to review a purported exercise of power by the Minister under, relevantly, s 501 of the Migration Act. The majority of the High Court went on to find that the Minster had fallen into jurisdictional error in misconstruing the effect of s 503A and quashed each of the two visa cancellation decisions of the Minister.
Following the High Court decision, this matter was then listed for mention on 2 October 2017. At that mention, I set the date for the hearing of this application. I also made directions that the Minister’s solicitors should take such steps as they could, in light of the fact that Mr Haapu was out of the jurisdiction, to bring the relisted date of the hearing to the attention of Mr Haapu.
When the matter was called for hearing today, Mr Haapu was not present.
The Minister applied for the application to be dismissed under r 30.21 of the Federal Court Rules 2011 (Cth). This rule provides that if a party is absent when a proceeding is called on for trial, the other party may apply to the Court for an order that, if the absent party is the applicant, that the application be dismissed.
In support of the application, the Minister read an affidavit of Mr Peter Corbould dated 27 November 2017 in which Mr Corbould, a senior solicitor from the Australian Government Solicitor, representing the Minister, deposes to the attempts which he made to bring to Mr Haapu’s attention the fact that this matter would be listed for hearing today.
I am satisfied that all reasonable efforts have been made by the Minister’s solicitors to bring to the attention of Mr Haapu the fact that his application for review would be heard today.
In light of the fact that Mr Haapu is absent today and has not advised the Court nor the Minster’s solicitors that he wishes to continue to prosecute his review application, it is, in my view, appropriate that the application be dismissed pursuant to r 30.21 of the Federal Court Rules.
As to the outcome of the constitutional challenge which was the basis upon which I adjourned the hearing of this application in April 2016, Mr Ritter SC has drawn my attention to the Migration Amendment (Validation of Decisions) Act 2017 (Cth) which received Royal Assent on 5 September 2017 and commenced the following day.
The validating legislation inserts s 503E in to the Migration Act, which provides as follows:
(1)If:
(a)section 503A is not a valid law of the Commonwealth (in whole or in part); and
(b)the Minister made a decision under section 501, 501A, 501B, 501BA, 501C or 501CA before the commencement of this section;
the decision is not invalid, and is taken never to have been invalid, merely because:
(c)the Minister:
(i)relied on; or
(ii)had regard to; or
(iii)failed to disclose in accordance with any applicable common law or statutory obligation;
information that was covered, or purportedly covered, by subsection 503A(1) or (2); or
(d)the Minister made the decision on the basis of an erroneous understanding of:
(i)section 503A; or
(ii)the protection that section 503A would provide against an obligation to disclose information.
(2)However, subsection (1) does not affect rights or liabilities arising between parties to proceedings in which:
(a)judgment is reserved by a court as at the commencement of this section; or
(b)judgment has been delivered by a court before the commencement of this section;
and the judgment sets aside, or declares invalid, a decision made by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA.
The status of Mr Haapu’s review application does not fall within the circumstances identified in s 503E(2) of the amended Migration Act. The consequence is that the arguments which prevailed before the High Court in Graham and Te Puia are not now available to Mr Haapu. The further consequence is that, insofar as there may have at one time been merit in Mr Haapu’s review application, as a consequence of this statutory intervention, that is no longer the case. This another reason for dismissing Mr Haapu’s application.
Accordingly, Mr Haapu’s application filed on 11 December 2015 is dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 11 January 2018
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