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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- Case
- [2018] FCA 1712
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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