Huni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 404
•14 April 2022
FEDERAL COURT OF AUSTRALIA
Huni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 404
Appeal from: Application for extension of time: Huni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1454 File number: WAD 10 of 2022 Judgment of: JACKSON J Date of judgment: 14 April 2022 Catchwords: MIGRATION - application for extension of time to appeal - applicant no longer wishes to pursue application - application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) ss 501, 501CA
Federal Court Rules 2011 (Cth) rr 1.61, 35.13, 36.03
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: 14 April 2022 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms K Hooper Solicitor for the Respondent: Minter Ellison Lawyers ORDERS
WAD 10 of 2022 BETWEEN: LOUMAILE HUNI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.For the purposes of today's hearing, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), applicant and counsel for the respondent are permitted to deliver oral submissions by way of videolink.
2.Unless the court otherwise orders, and apart from the court's transcript provider, no person, including the parties and members of the public, who is observing the hearing of the proceeding by accessing any audio or video link may make any audio or video recording or photography of the hearing or any part of it.
3.Nothing in the preceding paragraph prevents any person, based on what he or she has seen or heard during the hearing:
(a)making his or her own notes of the proceeding; or
(b)publishing a fair report of the proceeding.
4.The application for an extension of time within which to appeal filed by the applicant on 6 January 2022 is treated as an application for an extension of time for the applicant to seek leave to appeal from the decision of the Court made in proceeding WAD 99 of 2021 on 21 October 2021.
5.The application for an extension of time is dismissed.
6.The applicant must pay the respondent's costs of the application on a lump sum basis.
7.On or before 4.00 pm AWST on 28 April 2022, the parties must file any agreed minute of proposed orders fixing a lump sum in relation to the respondent's costs.
8.In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the respondent's costs is referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(edited from the transcript)JACKSON J:
The application that commenced this proceeding, as originally filed with the Court, sought an extension of time to appeal from a judgment of a single justice of this Court. For reasons that will be explained shortly the application will, in fact, be treated as an application for an extension of time within which to seek leave to appeal.
The background is that the applicant, Mr Huni, is a citizen of the Kingdom of Tonga. He has lived in Australia since the age of seven, having arrived here in 1978. Most recently, he was living in Australia under what is called an Absorbed Person visa. However, on 17 February 2020, a delegate of the respondent (Minister) cancelled the visa under s 501(3A) of the Migration Act 1958 (Cth).
The delegate cancelled the visa on the basis that Mr Huni did not pass the character test because of a substantial criminal record, and because he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory. Mr Huni made representations to the Minister as to why the cancellation of the visa should be revoked, as he was entitled to do under s 501CA of the Migration Act. On 15 April 2021, the Department notified Mr Huni that the Minister, acting personally, had decided not to revoke the cancellation.
Mr Huni sought judicial review of that decision in this Court. The application for judicial review was heard by the primary judge on 21 October 2021. Mr Huni was not legally represented at that hearing. It transpired at the hearing that Mr Huni made a decision that he did not want to proceed with the application for judicial review. It is not necessary to describe in more detail the circumstances in which Mr Huni came to make that decision. As a result of Mr Huni making that decision and communicating that to the primary judge, and after the primary judge was careful to ensure that he understood Mr Huni correctly and that Mr Huni understood the consequences of his decision correctly, the primary judge made orders dismissing Mr Huni's application for judicial review, with costs.
Mr Huni lodged the present application in this Court on 6 January 2022. As I have said, it was framed as an application for an extension of time to appeal from the decision of the primary judge. The time to file any application for leave to appeal was 14 days from the date the orders were made, or in the case of an appeal as of right, 28 days: Federal Court Rules 2011 (Cth) r 35.13(a) and r 36.03(a)(i). Allowing for the suspension of time periods over the holiday season for which r 1.61(5) provides, Mr Huni needed an extension of 49 days (if he needed to seek leave to appeal) or 35 days (if he could appeal as of right).
I agree with the submissions of the Minister, however, that Mr Huni was not able to bring an appeal as of right because of the nature of the primary judge's judgment. It is clear from my review of the transcript (and again, I do not need to go into detail as to the reasons for this) that the primary judge's orders were made by consent. As a result, his Honour's judgment comes within the meaning of the term 'a judgment by consent' for the purposes of s 24(1D) of the Federal Court of Australia Act 1976 (Cth). It is clearly implicit from that subsection combined with s 24(1)(a) and s 24(1A) that, because the primary judge's judgment was a judgment by consent, Mr Huni needs leave to appeal from it. As a result, the time period under the Rules was 14 days. So Mr Huni was 49 days out of time to lodge an application for leave to appeal.
The only reason any of that matters for present circumstances is so that the final form of orders may correctly describe the nature of the application Mr Huni makes, so as to make it clear that the application is properly constituted in front of this Court, and that the Court has jurisdiction to make the orders that are proposed. The reason I say that it only matters for that purpose is because at the present hearing, Mr Huni, who, unfortunately, has not been able to secure legal representation, indicated that he understood that the present application for an extension of time was unlikely to succeed, and he did not wish to pursue it in this Court.
I note that it appears that Mr Huni considers that the only avenue remaining to him to stay in Australia may be to seek to overturn what I gather were pleas of guilty to certain serious offences. I mention that solely to record that it was clear to me from an interchange I had with Mr Huni at this hearing that he appreciates that the consequence of his decision not to proceed with the current application will be that he will not have any further avenue to pursue the overturning of the decision by the Minister not to revoke the cancellation of his Absorbed Person visa. Mr Huni has acknowledged in the course of the hearing that he does understand that and that he nevertheless does not wish to pursue the present application.
Counsel for the Minister indicated the Minister's assent to the dismissal of the present application on the basis of the intention Mr Huni has expressed, and that the Minister sought the costs of the application. Once again, Mr Huni understands that an order against him for the costs of the application is a likely consequence of the dismissal of the application, and has indicated that he agrees to an order of that kind.
In those circumstances, it is appropriate for me to make orders which will regularise the status of the application as an application for an extension of time within which to seek leave to appeal, and to make an order dismissing that application, and an order for costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate:
Dated: 19 April 2022
0
0
3