McVey v Minister for Immigration - [2012] FMCA 924

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McVEY v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 924

MIGRATION – Five year resident return visa cancelled – cancellation upheld on review by Administrative Appeals Tribunal – character test – serious criminal record – whether injunction to prevent deportation within jurisdiction.

COURTS AND JURISDICTION – Federal Magistrates Court – cancellation of five year resident return visa upheld on review by Administrative Appeals Tribunal – application for injunction to prevent deportation – whether Court has jurisdiction.

PRACTICE AND PROCEDURE – Extension of time in which to file application – factors.

Administrative Appeals Tribunal Act 1975 (Cth), s.43(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Magistrates Act 1999 (Cth), s.39
Migration Act 1958 (Cth), ss.476, 476A, 477, 500, 501
Migration Litigation Reform Bill 2005 (Cth), Explanatory Memorandum

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Huynh v Minister for Immigration & Anor [2011] FMCA 404
Lindsay v Director of Professional Services Review & Ors [2011] FCA 262
McVey v Minister for Immigration & Citizenship [2012] AATA 5
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Powell & Anor v Administrative Appeals Tribunal & Anor Unreported, Federal Court of Australia, WAG 96 of 1998, French J, 20 November 1988
Zentai v Honourable Brendon O’Connor & Ors (No. 3) (2010) 187 FCR 495; [2010] FCA 691

E. Campbell and M. Groves “Time Limitations on Applications for Judicial Review” (2004) 32 Fed L Rev 29

Applicant:

PATRICK MCVEY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 233 of 2012

Judgment of:

Lucev FM

Hearing date:

4 October 2012

Date of Last Submission:

4 October 2012

Delivered at:

Perth

Delivered on:

4 October 2012

REPRESENTATION

For the Applicant:

Mr P McVey in person (by telephone from Perth Immigration Detention Centre)

Counsel for the First Respondent:

Mr P Macliver

Solicitors for the First Respondent:

Australian Government Solicitor

For the Second Respondent:

No appearance

ORDERS

The Application for extension of time in which to file the Application, be dismissed.
The Application be dismissed.
The Applicant pay the First Respondent costs in the sum of $3239.00 within 7 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 233 of 2012

PATRICK MCVEY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

The applicant Patrick McVey is a citizen of the United Kingdom. Apart from a short holiday in Bali, he has lived in Australia since he was seven years old. He is now 50 years old. He is not an Australian citizen, but a citizen of the United Kingdom. Mr McVey has an extensive criminal history. There are 133 offences commencing in April 1976 and continuing until April 2011. In that history, custodial sentences have been imposed for various offences since 1987 as follows:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read McVey v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FMCA 924
Decision Date: 4 October 2012

CaseChat Overview and Summary

McVey, a resident of Australia under a five-year visa, had his visa cancelled by the Minister for Immigration, a decision which was upheld by the Administrative Appeals Tribunal. McVey sought an injunction to prevent his deportation on the basis of his serious criminal record. The case was heard in the Federal Magistrates Court, where the primary issue was whether the court had jurisdiction to grant such an injunction.

The court examined whether it had the authority to grant an injunction in the circumstances presented. This required consideration of the scope of the court's powers under the Migration Act 1958 (Cth). McVey argued that the character test was applied incorrectly and that the tribunal failed to take into account his circumstances. However, the court found that the tribunal's decision was within its jurisdiction and did not contain jurisdictional error. Furthermore, the court held that an injunction to prevent deportation was not within its jurisdiction.

In reaching its decision, the court also considered an application for an extension of time to file the application. The court found that the delay was unreasonable and that the applicant had not provided a sufficient reason for the delay. Consequently, the application for an extension of time was dismissed. The court also dismissed the application for an injunction and ordered McVey to pay costs to the Minister for Immigration.

The orders of the court were that the application for an extension of time to file the application be dismissed, the application for an injunction be dismissed, and McVey pay costs in the sum of $3239.00 within 7 days.

Orders

Orders of the court

The Application for extension of time in which to file the Application, be dismissed.

The Application be dismissed.

The Applicant pay the First Respondent costs in the sum of $3239.00 within 7 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.