Johnstone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCA 337

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 Transcript

ABRAHAM J:

1. 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.

2. 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. 

3. The chronology of events thereafter is as follows. 

4. 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. 

5. 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. 

6. 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…