Makaea v Minister for Immigration and Border Protection

[2015] FCA 1161

FEDERAL COURT OF AUSTRALIA

Makaea v Minister for Immigration and Border Protection [2015] FCA 1161

Citation:	Makaea v Minister for Immigration and Border Protection [2015] FCA 1161
Parties:	JOEL ROYSTON MAKAEA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION
File number:	WAD 603 of 2015
Judge:	GILMOUR J
Date of judgment:	20 October 2015
Catchwords:	MIGRATION – application for an extension of time – review of the respondent’s decision to cancel visa under s 501 of the Migration Act 1958 (Cth) – whether there is an acceptable explanation for the delay – whether any prejudice would be suffered by the respondent – application allowed.
Cases cited:	Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Date of hearing:	20 October 2015
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	Mr J Forsaith
Solicitor for the Applicant:	Nicholas W J Rolfe & Associates
Counsel for the Respondent:	Mr P J Corbould
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 603 of 2015

BETWEEN:	JOEL ROYSTON MAKAEA Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	20 OCTOBER 2015
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The time within which the applicant may lodge an application for review of the respondent’s decision be extended to 4.00 pm (WST) on 21 October 2015.

2.The respondent be enjoined from removing the applicant from Australia pending the review of the respondent’s decision including any appeal from the determination at first instance.

3.The costs of the interlocutory application be reserved to the trial judge.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 603 of 2015

BETWEEN:	JOEL ROYSTON MAKAEA Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	GILMOUR J
DATE:	20 OCTOBER 2015
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application for orders to extend the time within which the applicant be able to apply for review of the decision of the respondent (the Minister) cancelling the applicant’s visa.  An order is also sought to enjoin the Minister from removing the applicant from Australia pending the determination of the substantive proceeding. 

2. The application is supported by an affidavit of Kate Nicole Freshwater, affirmed on 16 October 2015, who is a solicitor acting on behalf of the applicant.  I also have detailed written submissions filed on behalf of the applicant, and a draft originating application.

3. I am satisfied that the factors generally recognised as applicable in such cases, as set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, have been satisfactorily addressed. There is an acceptable explanation for the delay. There is no prejudice to the Minister. Conversely, there would be extraordinary prejudice to the applicant were he to be refused an extension of time. The delay was not in any event lengthy. The time by which the applicant should have filed his application for review was 6 October 2015, some two weeks ago. However there are, and have been, difficulties in communication between the applicant and his solicitors, and between the solicitors and personnel within the Department of Immigration and Border Protection.

4. I am satisfied that grounds exist for extending the time until 4.00 pm (WST) on 21 October 2015.  I am also persuaded that an injunction should be granted against the Minister to enjoin him from removing the applicant from Australia pending the determination of the review of his decision, including any appeal.  I appreciate the difficulty which the solicitors acting for the Minister had in obtaining instructions concerning the issue of injunctive relief given the short notice for responding to this application.  It is certainly no reflection upon them, or indeed the Minister or anyone within his Department, that I make the order to enjoin the Minister from removing the applicant from this country.

5. I do so only because the lines of communication within the Minister’s Department are, at least to me, presently unclear.  By that, I mean that the person giving instructions to those acting for the Minister this morning does not seem to me to be the person who has the responsibility for the removal of the applicant from Australia.  Further, I have concerns, which I expressed to counsel for the Minister, that, quite innocently, but out of ignorance of what the Court has been told on behalf of the Minister, the applicant may be at risk of being removed from this country.

6. All that counsel acting for the Minister was prepared to say was that there was no intention to remove the applicant from Australia pending the determination of these proceedings.  However, he had no instructions to give an undertaking on behalf of the Minister not to do so because there was insufficient time for him to obtain those instructions from the Minister.  Accordingly, I am not confident that what I have been told binds the Minister not to remove the applicant pending the resolution of the substantive proceedings.  I am, for these reasons, prepared to grant the injunctive relief sought.

7. I will make the following orders:

   1.The time within which the applicant may lodge an application for review of the respondent’s decision be extended to 4.00 pm (WST) on 21 October 2015.

   2.The respondent be enjoined from removing the applicant from Australia pending the review of the respondent’s decision including any appeal from the determination at first instance.

   3.The costs of the interlocutory application be reserved to the trial judge.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: 

Dated:        29 October 2015