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:
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- Case
- [2012] FMCA 924
- Decision Date
CaseChat Overview and Summary
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
1.
The Application for extension of time in which to file the Application, be dismissed.
2.
The Application be dismissed.
3.
The Applicant pay the First Respondent costs in the sum of $3239.00 within 7 days.
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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