Lind v Minister for Home Affairs

[2020] FCAFC 96

FEDERAL COURT OF AUSTRALIA

Lind v Minister for Home Affairs [2020] FCAFC 96

Appeal from:

Application for leave to appeal:  Lind v Minister for Home Affairs [2019] FCA 2210

File number:

VID 5 of 2020

Judges:

BURLEY, WHEELAHAN AND SNADEN JJ

Date of judgment:

27 May 2020

Catchwords:

MIGRATION – application for leave to appeal from a decision of a single judge of the Federal Court of Australia – applicant was refused an extension of time to apply for judicial review of the respondent’s decision to cancel his visa pursuant to s 501(3) of the Migration Act 1958 (Cth) – failure to appear at the hearing – application for leave to appeal dismissed in default of appearance

Legislation:

Federal Court Rules 2011 (Cth) rr 35.32 and 35.33

Migration Act 1958 (Cth) ss 476A, 477A and 501

Cases cited:

Lind v Minister for Home Affairs [2019] FCA 2210

Date of hearing:

27 May 2020

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

10

Counsel for the Applicant:

The applicant did not appear

Counsel for the Respondent:

Mr N Wood

Solicitor for the Respondent:

Sparke Helmore Lawyers

ORDERS

VID 5 of 2020

BETWEEN:

DIUSHON LANCE NIGELE LIND

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGES:	BURLEY, WHEELAHAN AND SNADEN JJ
DATE OF ORDER:	27 MAY 2020

THE COURT ORDERS THAT:

1.The applicant’s application for leave to appeal dated 6 January 2020 be dismissed.

2.The respondent’s interlocutory application of 14 May 2020 be dismissed.

3.The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT
(Revised from transcript)

BURLEY J:

1. I agree with the reasons given by Snaden J and the orders that he proposes.

   WHEELAHAN J:

2. I concur.

   SNADEN J:

3. The applicant is a citizen of New Zealand. In September 2019, he was convicted in Australia of four offences and sentenced to 13 months’ imprisonment. At that time, he held a class TY subclass 444 Special Category (Temporary) visa. His convictions prompted the respondent to cancel his visa under s 501(3)(b) of the Migration Act 1958 (Cth) (hereafter, “the Act”).  That decision (the “Cancellation Decision”) was made on 24 October 2019 and was premised upon the applicant’s no longer passing the “character test” for which s 501(6) of the Act provides.

4. Section 476A(1) of the Act confers original jurisdiction upon this court to grant prerogative relief directed toward (amongst other things) decisions made by the respondent under s 501(3)(b). Section 477A(1) of the Act requires that applications for relief of that nature be made within 35 days of the decision in question.

5. The applicant did not apply for judicial review of the Cancellation Decision within the timeframe for which s 477A(1) provides. Instead and pursuant to s 477A(2) of the Act, he filed an application on 18 December 2019 for an extension of time within which to do so. That application was dismissed: Lind v Minister for Home Affairs [2019] FCA 2210 (Anastassiou J). It is in respect of that judgment that the applicant now seeks leave to appeal.

6. The application for leave to appeal was set down for a hearing to take place today:  Wednesday, 27 May 2020.  On 24 February 2020, directions were made that required, amongst other things, that the applicant file and serve a written outline of submissions by no later than ten business days prior to the hearing date.  He did not do so (and still has not done so).

7. On 31 March 2020, the respondent filed an affidavit affirmed by his solicitor, Mr Cunynghame, which deposed to the applicant’s:

   (1)having requested that he be removed from Australia pursuant to s 198(1) of the Act; and

   (2)having left Australia on 12 February 2020.

8. When the application for leave to appeal was called on for hearing today, there was no appearance for the applicant. In light of his non-appearance at the hearing, his failure to file and serve submissions as required, and his apparent absence from Australia, I consider it appropriate that an order be made dismissing the application in default of the applicant’s appearance pursuant to r 35.32 (or, alternatively, r 35.33(1)(a)) of the Federal Court Rules 2011 (Cth).

9. It is, then, not necessary that I should deal also with the separate interlocutory application that the respondent filed on 13 May 2020 (and that was accepted by the registry on 14 May 2020). By that application, the respondent sought orders to summarily dismiss the applicant’s application for leave to appeal on the basis that no appeal lies from an order declining to grant an extension of time under s 477A(2) of the Act. Section 476A(3) of the Act provides to that effect. Although I express nothing more than a preliminary view, it is not easy to see how the applicant’s appeal would have been competent had he been granted leave to prosecute it. In light of my ruling on the respondent’s default judgment application, I should prefer simply to dismiss the respondent’s interlocutory application of 14 May 2020.

10. I would order that:

    (1)the applicant’s application for leave to appeal dated 6 January 2020 be dismissed;

    (2)the respondent’s interlocutory application of 14 May 2020 be dismissed; and

    (3)the applicant pay the respondent’s costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Burley, Wheelahan and Snaden.

Associate:

Dated:       27 May 2020