Huni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1454
•21 October 2021
FEDERAL COURT OF AUSTRALIA
Huni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1454
Review of: Decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs File number: WAD 99 of 2021 Judgment of: LOGAN J Date of judgment: 21 October 2021 Catchwords: MIGRATION – application for judicial review of Minister’s decision not to revoke cancellation of visa – where applicant confirmed at hearing that he no longer wishes to pursue judicial review application – application dismissed
PRACTICE AND PROCEDURE – application for adjournment – where applicant wanted to obtain legal advice on proceedings – where applicant had already been referred for pro bono legal representation – where pro bono counsel withdrew in absence in advance of hearing – application dismissed
Legislation: Migration Act 1958 (Cth) s 501 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 14 Date of hearing: 21 October 2021 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms K Hooper Solicitor for the Respondent: MinterEllison ORDERS
WAD 99 of 2021 BETWEEN: LOUMAILE HUNI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
21 OCTOBER 2021
THE COURT ORDERS THAT:
1.The respondent file and serve within 14 days an affidavit addressing the following issues:
(a)why no application book was filed that allowed the case to be heard at the time appointed; and
(b)why the applicant was moved from his detention in Western Australia to Christmas Island and, to that regard, what consultation occurred between the Minister or his officers, and an officer of the Court.
2.The application be dismissed.
3.The dismissal of the application be without prejudice to any further action necessary to be taken after consideration of the affidavit to be filed in accordance with Order 1.
4.The applicant pay the respondent’s costs of and incidental to the application, to be fixed by a registrar if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
Mr Loumaile Huni (Mr Huni) is a citizen of the Kingdom of Tonga. He came to Australia as a child with his family to make his home here. Thereafter, he did not take up Australian citizenship. Also thereafter, he engaged in a succession of offending conduct the sentences of imprisonment for which included terms of imprisonment sufficient to ground the cancellation of his visa pursuant to s 501 of the Migration Act 1958 (Cth).
Thereafter, Mr Huni applied to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) for revocation of the cancellation of his visa. That question was considered by the Minister personally. On 13 April 2021, the Minister decided not to revoke the cancellation of Mr Huni’s visa for reasons which he furnished in writing to Mr Huni.
Mr Huni then applied to this Court for the judicial review of the Minister’s decision not to revoke the cancellation of his visa. At the time when Mr Huni filed his judicial review application, he was then held in immigration detention at the Yongah Hill Immigration Detention Centre in Western Australia. He is presently held in the Immigration Detention Centre on Christmas Island.
The proceedings, so far as his appearance is concerned, have been conducted by way of audio visual link to the detention centre at Christmas Island. What is not presently clear is the extent to which, if at all, there was any contact by or on behalf of the Minister with the Court prior to the transfer of Mr Huni from Immigration detention centre in Western Australia to Christmas Island. Potentially, at least, such transfers without notice to the Court where a detainee has invoked the judicial power of the Commonwealth may have a tendency to interfere with the administration of justice. For that reason, I have required the Minister by his solicitor to file an affidavit in relation to Mr Huni’s transfer. What further action, if any, ought to be taken either against the Minister or one or more of his officers is necessarily dependent on an understanding by the Court of the factual position.
The proceeding was listed for hearing by audio visual link at 11:30am Brisbane time. The proceeding was called on at that time. Unfortunately, it was unable to proceed at that time and that was because, for reasons that are not presently clear, the Minister had failed, so it seems, to file the requisite application book, although that book had been furnished to Mr Huni.
Once again, the position in relation to the absence of an application book needs investigation. This, too, is the subject of a direction in respect of the filing by the Minister by his solicitor of an affidavit. As it transpired, almost half an hour of court time was lost before it was possible for me to be equipped with, albeit in electronic form, a copy of the application book.
These particular matters aside, when, finally, it proved possible to proceed with the hearing, I took Mr Huni through each of the grounds of review, which are incorporated by reference in his originating application from an affidavit which he has made and filed.
Those grounds, as set out in the affidavit, are as follows:
3.The Second Respondent’s decision was unreasonable.
4.The Second Respondent did not properly apply s501CA and 501CA(4) of the Migration Act 1958.
5. The Second Respondent failed to take relevant consideration into account.
6.There was insufficient evidence or no evidence to support various findings made by the Second Respondent.
7.The Second Respondent failed to properly exercise its discretion under s501CA and s501CA(4) of the Migration Act 1958.
8. The Second Respondent’s decision involved an error of law.
9.The Second Respondent in making the decision did not comply with the rules of natural justice and/or the Applicant was denied procedural fairness.
I took up with Mr Huni each of the grounds as mentioned and indicated to him that, after the adjournment, particulars of each of those grounds should be addressed in the course of his submissions. By that stage, the time for the usual luncheon adjournment had been reached. Upon resuming an hour later, Mr Huni firstly made application for an adjournment. The reason for this was his settled view, having had the opportunity over the adjournment to reflect on his ability to answer with particularity or make submissions with particularity in respect of the grounds, of a need to have legal advice.
Endeavours had already been made to secure for Mr Huni the benefit of pro bono legal assistance. The upshot of those endeavours, though, was that it was not possible to secure pro bono representation today on the hearing of this application. Unfortunately, there is no other means by which a person in Mr Huni’s situation can be furnished by court order with legal assistance. It was quite obvious to me, upon hearing Mr Huni in the course of an exchange about the grounds of review as set out in his affidavit, that it would be advantageous for him, at least, to have the benefit of legal advice.
The difficulty is an endeavour in that regard has been made and it is just not possible to secure representation for that purpose. Accordingly, after hearing from the Minister, whose stance was neither to consent or oppose an adjournment, I reached the view that an adjournment should be refused.
Upon hearing that and reflecting, Mr Huni informed me that he wished just to get on with his life and did not wish further to pursue his judicial review application. I explained to Mr Huni that a consequence of dismissal of his judicial review application would be that there was no challenge to the Minister’s decision not to revoke cancellation of his visa and that the consequence in turn of that would be there was no impediment, in terms of an existing judicial proceeding, to his removal from Australia to his country of citizenship, the Kingdom of Tonga.
Mr Huni confirmed to me that he wished not to pursue his application.
The Minister indicated that he sought an order for costs. In the ordinary course of events, costs would follow the event of dismissal. There is no reason why that should not be so.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 19 November 2021
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