Johnstone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 337
•1 April 2021
FEDERAL COURT OF AUSTRALIA
Johnstone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 337
Appeal from: Johnstone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 907 File number: NSD 575 of 2020 Judgment of: ABRAHAM J Date of judgment: 1 April 2021 Legislation: Federal Court of Australia Act 1976 (Cth) s 20(5)(d)
Federal Court Rules2011 (Cth) r 5.23
Migration Act 1958 (Cth) s 501(3A)
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 Date of hearing: 1 April 2021 Counsel for the Applicant: No appearance Counsel for the Respondents: Mr. G Johnson Solicitor for the Respondents: MinterEllison ORDERS
NSD 575 of 2020 BETWEEN: RODNEY JOHNSTONE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
1 APRIL 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs, to be agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Revised from TranscriptABRAHAM J:
The applicant is a 50 year old citizen of New Zealand, who first arrived in Australia in 1981. He lived permanently in Australia since October 2000. On 30 April 2006 the applicant was granted a Special Category (Temporary)(Class TY) visa. As a result of criminal offending and the applicant's incarceration, a delegate of the Minister cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth). On 28 March 2019, the applicant requested revocation of the visa cancellation. On 24 January 2020, a delegate of the Minister decided not to revoke the cancellation of the applicant's visa. The Administrative Appeals Tribunal affirmed the delegate's decision. This is an application for judicial review of the Tribunal's decision.
Although the applicant was initially represented in this Court, on 22 October 2020 his lawyers filed a notice of ceasing to act. The applicant has been unrepresented since that time.
The chronology of events thereafter is as follows.
On 2 December 2020 the applicant completed and signed an Australian Border Force document requesting his removal from Australia. I note the form contained eight questions or acknowledgements of the consequences of that removal. That included, inter alia, that if he had any outstanding legal proceedings, consideration of any outstanding claims may be dismissed, including by a court. The applicant circled "yes", acknowledging that proposition.
On 4 December 2020, this Court sent an email to the parties notifying them that this hearing was proposed to be listed for 1 April 2021 at 2.15 pm. No response was received from the applicant.
On 27 January 2021, this Court posted a letter to the applicant at the Villawood Detention Centre, which highlighted that he had not filed any written submissions, that the proposed hearing date was 1 April 2021 at 2.15 pm and requested that he confirm his email address or provide a new address.
On 4 February 2021 the applicant emailed the registry of this Court, informing them that the proposed hearing date was suitable. He also provided another email address.
On 8 February 2021 the applicant signed a document entitled A Notice of Intention to Remove from Australia.
On 17 February 2021 the applicant was removed from Australia.
This Court first became aware of that situation after he had been removed. This occurred when this Court contacted the detention centre to make arrangements for an AVL link for this hearing. The applicant had not notified the Court of his request for removal.
As a result, on 10 March 2021 this Court sent an email to the parties seeking information as to the circumstances of his removal. The email to the applicant at the address he had given to the Court bounced back.
The respondent has filed two affidavits in these proceedings detailing, inter alia, attempts by them to contact the applicant to ascertain his intentions in respect to these proceedings. The affidavits also detailed the circumstances of his removal. Suffice to say that there has been repeated attempts by the respondent, by email and telephone to the applicant's contact details, as held by the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs. The email attempts have been unsuccessful, some of which have not been able to be delivered. The telephone attempts have, similarly, been unsuccessful.
The matter was called on for hearing at 2.15 pm on 1 April 2021, including by video link by the use of Microsoft Teams, with an invitation to attend having been sent to the email address the applicant had previously provided. This would enable the applicant to appear from New Zealand, if he chose to do so. The invitation request was not accepted. Nor has the applicant contacted the Court since his removal.
The applicant has been removed voluntarily from Australia. The applicant, having been notified of the date, is aware of this hearing. I am satisfied he has had proper notice of this hearing date.
In those circumstances, the respondent applied for the proceedings to be dismissed, pursuant to s 20(5)(d) of the Federal Court of Australia Act 1976 (Cth) (which is to a similar effect as r 5.23 of the Federal Court Rules2011 (Cth)), on the basis that the applicant has failed to attend the hearing at the time it was listed to occur. It is appropriate to grant the application.
The proceedings are dismissed, with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham . Associate:
Dated: 09 April 2021
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