Utu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCA 322

FEDERAL COURT OF AUSTRALIA

Utu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 322

Appeal from:

Utu v Minister for Home Affairs & Anor [2019] FCCA 2245

File number(s):

VID 958 of 2019

Judge(s):

WHEELAHAN J

Date of judgment:

18 February 2020

Date of publication of reasons:

11 March 2020

Catchwords:

MIGRATION – appeal from decision of Federal Circuit Court dismissing application for review of a decision of the Administrative Appeals Tribunal – non-appearance by the appellant at the hearing of the appeal – appeal dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth)

Legislation:

Migration Act 1958 (Cth) s 116(1)(e)(i)

Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)

Date of hearing:

18 February 2020

Date of last submissions:

11 February 2020

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

3

Solicitor for the appellant:

The appellant did not appear

Solicitor for the first respondent:

Australian Government Solicitor

ORDERS

VID 958 of 2019

BETWEEN:

MCCANN LIVINGSTON UTU

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	WHEELAHAN J
DATE OF ORDER:	18 FEBRUARY 2020

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.The appeal be dismissed.

3.The appellant pay the costs of the first respondent fixed in the sum of $2,500.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1. On 1 October 2018, a delegate of the Minister cancelled the appellant’s class TY subclass 444 visa, pursuant to s 116(1)(e)(i) of the Migration Act 1958 (Cth) on the ground that the delegate was satisfied that the presence of the appellant in Australia is, or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The foundation for the decision was that the appellant had been convicted of a number of criminal offences, and that there were further charges pending. The appellant sought merits review of the delegate’s decision, and on 20 November 2018, the Administrative Appeals Tribunal affirmed the decision. The appellant then sought judicial review of the Tribunal’s decision, and on 16 August 2019, the Federal Circuit Court dismissed the application for judicial review.

2. The appellant now appeals the decision of the Federal Circuit Court to this Court. He has filed a notice of appeal containing four grounds of appeal, together with sub-grounds and particulars. However, the appellant has not filed a written outline of submissions as he was ordered to do by the Court on 25 September 2019. When the appeal was called on for hearing today, there was no appearance for the appellant. The Minister applied for an order that the appeal be dismissed pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), on the ground that the appellant was absent when the appeal was called on for hearing. Having regard to the absence of the appellant and his failure to file submissions in support of the appeal, I am persuaded to make the order sought.

3. Therefore, the orders of the Court will be as follows:

   (1)The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

   (2)The appeal be dismissed.

   (3)The appellant pay the costs of the first respondent fixed in the sum of $2,500.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.

Associate:       

Dated:       11 March 2020