Houpapa v Minister for Immigration and Citizenship
[2012] FCA 208
•8 March 2012
FEDERAL COURT OF AUSTRALIA
Houpapa v Minister for Immigration and Citizenship [2012] FCA 208
Citation: Houpapa v Minister for Immigration and Citizenship [2012] FCA 208 Appeal from: Application for Extension of Time: Houpapa v Minister for Immigration and Citizenship [2011] AATA 917 Parties: ARAMU HOUPAPA v MINISTER FOR IMMIGRATION AND CITIZENSHIP File number: NSD 123 of 2012 Judge: FOSTER J Date of judgment: 8 March 2012 Legislation: Administrative Appeals Tribunal Act 1974 (Cth), s 44
Migration Act 1958 (Cth), s 500
Federal Court Rules 2011, r 5.22 and r 5.23Cases cited: Houpapa v Minister for Immigration and Citizenship [2011] AATA 917 related Date of hearing: 8 March 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 8 Solicitor for the Applicant: The Applicant did not appear Solicitor for the Respondent: Ms L Weston of Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 123 of 2012
BETWEEN: ARAMU HOUPAPA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
8 MARCH 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The email chain dated between 6 March 2012 and 8 March 2012 between the Client Service Manager, Villawood Immigration Detention Centre, and Minter Ellison, Lawyers, be marked as Exhibit A in the proceeding.
2.Pursuant to r 5.22 and r 5.23 of the Federal Court Rules 2011, the proceeding be dismissed.
3.The applicant pay the respondent’s costs of and incidental to the Application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 123 of 2012
BETWEEN: ARAMU HOUPAPA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
FOSTER J
DATE:
8 MARCH 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 25 January 2012, the applicant filed in this Court an Application for an Extension of Time within which to file a Notice of Appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) delivered on 20 December 2011 (Houpapa v Minister for Immigration and Citizenship [2011] AATA 917) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The decision in respect of which the applicant was seeking to appeal was a decision made under s 500 of the Migration Act 1958 (Cth) (the Migration Act). That decision, by reason of the operation of s 474 and s 483 of the Migration Act, is a decision from which the applicant is unable to appeal.
The matter first came before me on 15 February 2012. On that occasion, the applicant represented himself. I drew his attention to the fact that the proceeding as presently constituted was bound to fail but that I was prepared to treat his application as an application for judicial review of the decision made by the Tribunal. On that occasion, I endeavoured to explain to him as best as I could the difference between an appeal under s 44 of the AAT Act and an application for judicial review. I also directed that a copy of the transcript of the directions hearing held on 15 February 2012 be sent to the applicant at the Villawood Immigration Detention Centre in the hope that a qualified person would, in due course, explain in more detail to him the need for him to reformulate the way in which he was putting his case. As directed, that transcript was sent to the applicant at the Centre on 16 February 2012.
When the matter was before me on 15 February 2012, the applicant informed me that he was hoping to get legal advice to see if he had a case. He said that, if the lawyer from whom he hoped to get advice said that he did not have a case to fight, then he “probably won’t even fight it …”. I had the impression that the applicant was quite properly attempting to ascertain whether he had any prospect in the case which he was seeking to prosecute.
The matter was adjourned from 15 February 2012 until this morning in order to enable the applicant to consider his position and hopefully to obtain appropriate advice.
When the matter was called on this morning, the respondent Minister was represented but the applicant was not at Court. The matter was called outside but there was no appearance either by or on behalf of the applicant. The legal representative for the Minister made available to me an email chain dated between 6 March 2012 and 8 March 2012 in which communications to and from the Villawood Immigration Detention Centre were recorded. That email chain will become Exhibit A in the proceeding. Of importance for present purposes is a statement in the email from the Client Service Manager at Villawood to the following effect:
As per phone conversation, Client HOUPAPA has refused to attend his court hearing, stating to our Escorting Officers, that “he wishes to return home now, so there is no need to attend.”
The Minister has applied to have the proceeding dismissed.
The present application is an application for an extension of time made in the original jurisdiction of the Court. In my view, in any event, the substance of the matter which the applicant wished to raise was an application that the Tribunal’s decision be reviewed by way of judicial review which is also a matter that would have been dealt with in the original jurisdiction of the Court. As I mentioned at [1] above, the approach of seeking to agitate an appeal under s 44 of the AAT Act was bound to fail. In the circumstances, the applicant, having failed to attend this morning and also via the Client Service Manager at Villawood Immigration Detention Centre having indicated in effect that he wished to abandon the proceeding, I propose to dismiss the proceeding pursuant to r 5.22 and r 5.23 of the Federal Court Rules 2011.
There will be orders accordingly.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 9 March 2012
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