FEDERAL COURT OF AUSTRALIA
Lind v Minister for Home Affairs [2019] FCA 2210
File number: VID 1366 of 2019 Judge: ANASTASSIOU J Date of judgment: 18 December 2019 Catchwords: PRACTICE AND PROCEDURE – urgent injunction application to preserve jurisdiction of court – interim injunction to substantive hearing granted – further injunction refused
MIGRATION – application for extension of time in which to seek judicial review of decision of Minister cancelling visa under s 501(3) of the Migration Act 1958 (Cth) – Minister allegedly acted unreasonably in choosing to exercise power under s 501(3) vis-à-vis other powers available – Minister allegedly acted unreasonably in determining removal in the national interest – absence of sufficient prospects of success to grant leave – application dismissed
Legislation: Migration Act 1958 (Cth) s 501(3) Cases cited: In Re Denaby and Cadeby Main Colleries Ltd & Ors (1927) 43 TLR 322
Date of hearing: 18 December 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondent: Mr A. Cunynghame of Sparke Helmore Lawyers ORDERS
VID 1366 of 2019 BETWEEN: DIUSHON LANCE NIGELE LIND
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
ANASTASSIOU J
DATE OF ORDER:
18 DECEMBER 2019
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs fixed in the sum of $1,500.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore – revised from transcript)ANASTASSIOU J:
The applicant seeks leave to extend time in which to seek judicial review of a decision of the Minister for Home Affairs, the Honourable Peter Dutton MP, to cancel his visa. The Minister cancelled the applicant’s visa exercising his powers under ss 501(3)(b) of the Migration Act 1958 (Cth).
The applicant was born in New Zealand on 18 March 1995. He has resided in Australia since he was 17 years of age, having arrived in Australia on 25 May 2012. He was the holder of a Class TY Subclass 444 Special Category (Temporary) visa.
On 6 September 2019 the applicant was convicted of four offences concerning an assault, possession of a controlled weapon, and threats to kill. He was sentenced to 13 months’ imprisonment. As a result he is deemed not to pass the ‘character test’ by operation of ss 501(6)(a) and 501(7)(d) of the Act.
On 24 October 2019, the Minister decided to cancel the visa under ss 501(3) of the Act as he considered it in the national interest to do so. On 1 November 2019 a notice of the Minister’s decision, including written reasons dated 24 October 2019 and supporting relevant information, was served upon the applicant. The relevant information included inter alia an intelligence…
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- Case
- [2019] FCA 2210
- Decision Date
CaseChat Overview and Summary
The court had to decide whether to grant an urgent injunction to preserve its jurisdiction over the matter, and if Lind had sufficient prospects of success to warrant leave to seek judicial review. The court also needed to assess whether Lind's arguments were sufficiently compelling to justify an extension of time to seek judicial review.
The court found that Lind had not demonstrated sufficient prospects of success to warrant leave to seek judicial review, and therefore dismissed the application. The court held that Lind had not shown that the Minister acted unreasonably in choosing to exercise the power under section 501(3), or in determining that removal was in the national interest. The court also found that Lind had not demonstrated that the Minister's decision was Wednesbury unreasonable, as the Minister had considered all relevant factors and had acted within the scope of the power. The court noted that Lind's arguments were speculative and did not provide a sufficient basis for the grant of leave.
The court ordered that the application be dismissed, and that Lind pay the respondent’s costs in the sum of $1,500. The costs order was made under Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs fixed in the sum of $1,500.
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
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Ratio Decidendi
Legal Principle Established
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