Leota v Minister for Home Affairs
[2018] FCA 1073
•17 July 2018
FEDERAL COURT OF AUSTRALIA
Leota v Minister for Home Affairs [2018] FCA 1073
Appeal from: Application for extension of time: Leota v Minister for Immigration and Border Protection [2017] AATA 1365 File number: NSD 1269 of 2018 Judge: PERRAM J Date of judgment: 17 July 2018 Catchwords: MIGRATION – application for extension of time – where Applicant due for involuntary removal from Australia next day Legislation: Migration Act 1958 (Cth) ss 198, 501 Date of hearing: 17 July 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 7 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Ms E Cheesman of Clayton Utz ORDERS
NSD 1269 of 2018 BETWEEN: DAMIEN JEROME LEOTA
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
17 JULY 2018
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The Applicant pay the Respondent’s costs in the fixed amount of $500.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
There was filed with the Court today what on its face appears to be an application for an extension of time to file an originating application for a review of a migration decision out of time. The Applicant, Mr Leota, sought a review of the Tribunal’s decision to affirm the decision of a delegate of the Minister for Immigration and Border Protection to cancel his visa. The delegate’s decision was dated 18 January 2017. On 24 August 2017, the Administrative Appeals Tribunal dismissed the review application. The Applicant’s visa was cancelled on character grounds under s 501 of the Migration Act 1958 (Cth) (‘the Act’), he having served or being incarcerated in relation to two counts of robbery in company for a non-parole period of two years.
No difficulties with or challenges to the Tribunal’s decision have been foreshadowed by Mr Leota today. I do not say that critically. He is, obviously, not a lawyer and lacks an educated background, which might be expected to make it difficult for him to articulate such a claim. Nevertheless, I have read the Tribunal’s reasons. As with many s 501 cases, there are aspects of it which are troubling in some ways. In this case, the Applicant’s family is in Australia. It is proposed that he will be returned to the country of his origin, which is New Zealand. He left New Zealand when he was seven. He is now 28. However, that kind of circumstance in s 501 cases is not uncommon. The Applicant is due to be removed from Australia tomorrow.
The application he brought this afternoon is something in the way of a last-ditch effort to prevent that happening. Although he has not articulated any particular grounds, I have had regard to the decision of the Tribunal and I do not think that there are any obvious grounds of review in it. However, there were two matters which concerned me about his removal. The first was that the Applicant is unquestionably a person who suffers from schizophrenia. The second was that I had thought there was some risk that he might have tuberculosis.
The concern I raised this afternoon with Ms Cheesman, who appeared for the Minister, was that there appeared to be something perhaps socially irresponsible about deporting a person back to New Zealand who was schizophrenic without having made arrangements for their mental health care. I was also concerned about the possibility of placing on a civilian aircraft a person who possibly had tuberculosis.
At the resumed hearing, Ms Cheesman informed me that arrangements have been put in place with the New Zealand authorities to ensure that the Applicant would be in touch with the mental health authorities in New Zealand. Additionally, she informed me that he had sufficient medication to cover the foreseeable near future. She also submitted that when one read the medical report that it said that although tuberculosis could not be excluded, this was only because the Applicant had declined to undergo a chest X-ray and there was nothing to indicate that he did, in fact, have tuberculosis. I propose to accept those matters.
Had it appeared that those matters were not satisfactorily explained, a question might then have arisen as to whether, in terms of s 198 of the Act, it was reasonably practical to deport the Applicant. However, it is not necessary to pursue that line of concern any further in the circumstances which exist. In those circumstances, I dismiss the application for the extension of time and, to the extent necessary, I dismiss the proceedings.
I order the Applicant to pay the Respondent’s costs of the application which I assess at $500.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 18 July 2018
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