Khalil v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Khalil v Minister for Home Affairs [2018] FCA 1712

File number: WAD 122 of 2018
Judge: COLVIN J
Date of judgment: 12 November 2018
Catchwords: MIGRATION - application for judicial review of decision by Administrative Appeals Tribunal to affirm Minister's decision to refuse visa under s 501 of the Migration Act 1958 (Cth) - where at late notice lawyer representing applicant did not appear at Tribunal hearing - whether applicant was denied procedural fairness by not being afforded more time - consideration of significance of 84 day period under s 500(6L)(c) of the Act - whether applicant had been notified of refusal to grant visa in accordance with s 501G(1) - whether Tribunal was in error in failing to dismiss the application on procedural grounds - no failure to afford applicant procedural fairness - no jurisdictional error - application dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Migration Act 1958 (Cth) ss 66, 476A(2), 500, 501

Migration Regulations 1994 (Cth) reg 2.16

Cases cited:

AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30

Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Pomare v Minister for Immigration and Citizenship [2008] FCA 458

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Somba v Minister for Home Affairs (No 2) [2018] FCA 1537

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129

Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203

Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327

Date of hearing: 12 July 2018, 3 August 2018 & 29 October 2018
Date of last submissions:

2 November 2018 (Applicant)

9 November 2018 (Respondent)

Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 47
Counsel for the Applicant: Mr MGS Crowley (Pro Bono)
Solicitor for the Applicant: AUM Legal
Counsel for the First Respondent: Ms SJ Oliver
Solicitor for the First Respondent: Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

WAD 122 of 2018
BETWEEN:

MOHAMED YOUSSEF HELMI KHALIL

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

12 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent's costs of the application.

3.The costs of the application be assessed on a lump sum basis.

4.If the parties agree…

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Details
Case
[2018] FCA 1712
Decision Date

CaseChat Overview and Summary

In the case of Khalil v Minister for Home Affairs, the applicant, Khalil, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the Minister's decision to refuse his visa application under section 501 of the Migration Act 1958 (Cth). The AAT had upheld the Minister's decision, which was based on the applicant’s criminal history. Khalil’s lawyer did not appear at the AAT hearing due to a late notice, leading Khalil to argue that he was denied procedural fairness by not being granted more time. Additionally, Khalil argued that he had not been properly notified of the refusal to grant his visa under section 501G(1) of the Act, and that the AAT was in error in not dismissing the application on these procedural grounds.

The court examined the significance of the 84-day period under section 500(6L)(c) of the Act, which is relevant to the notice requirements. The court held that no procedural unfairness occurred as the applicant was given sufficient opportunity to present his case and that the notice provisions were satisfied. The court also noted that any error in the AAT's handling of the case did not reach the level of jurisdictional error, which is necessary for a successful judicial review application. Therefore, the court concluded that the AAT was not in error in not dismissing the application on procedural grounds.

Consequently, the court dismissed Khalil's application for judicial review. The court ordered that the applicant pay the first respondent's costs of the application and directed that the costs be assessed on a lump sum basis. If the parties could not agree on the lump sum figure, the matter would be referred to a Registrar for determination. The orders also included timelines for the filing and serving of affidavits and responses relating to the costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent's costs of the application.

3. The costs of the application be assessed on a lump sum basis.

4. If the parties agree on a lump sum figure in relation to costs, they are to file a joint minute of proposed orders on or before 26 November 2018.

5. In the absence of any joint proposed order:

(a) on or before 2 December 2018, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Courts Costs Practice Note (GPN-COSTS);

(b) on or before 14 December, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.

6. In the absence of any agreement having been reached on or before 26 November 2018, the matter of an appropriate lump sum figure for costs be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For reasons I have given, the Tribunal was not in error in failing to dismiss the application on procedural grounds principally because no such application was made by the Minister and otherwise the power would not have been exercised for a proper purpose.Conclusion For the reasons I have given the application should be dismissed with costs. I propose to adopt the same course as to lump sum assessment of those costs as was taken in AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 at [58]. Orders should be made for lump sum assessment of costs if they are not agreed.

Ratio Decidendi

Legal Principle Established

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