Hogermeer v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 418

FEDERAL COURT OF AUSTRALIA

Hogermeer v Minister for Immigration & Multicultural &

Indigenous Affairs [2004] FCA 418

NORMAN LEONARD HOGERMEER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W130 of 2003 CARR J 19 MARCH 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W130 OF 2003

BETWEEN: NORMAN LEONARD HOGERMEER

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 19 MARCH 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W130 OF 2003

BETWEEN: NORMAN LEONARD HOGERMEER

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: CARR J

DATE: 19 MARCH 2004

PLACE: PERTH

REASONS FOR JUDGMENT

introduction 1 This is an application, pursuant to s 39B of the Judiciary Act 1903 (Cth) for prerogative injunctive and declaratory relief in relation to the respondent's decision, made on 14 November 2002, to cancel the applicant's BF Transitional (Permanent) visa pursuant to the provisions of s 501 of the Migration Act 1958 (Cth) ("the Act"). 2 The sole basis of the application is that the applicant is not and never has been an alien within the meaning of s 51(xix) of the Constitution. The applicant contends that he is not subject to the power purported to be exercised by the respondent under s 501(2) of the Act. That is, the applicant's case is that the respondent has no power to remove him from Australia. The initial hearing of this application took place on 7 October 2003. At that stage the High Court of Australia had reserved judgment in Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143. At the conclusion of the hearing in this matter, I adjourned it to a date to be fixed (if necessary) and made directions whereby the applicant was given leave, within 21 days of the High Court of Australia delivering judgment in Shaw, to file and serve written submissions in relation to what he considered to be the significance (if any) of that decision in the determination of this application. The respondent was given leave to file and serve, within 21 days of service of the applicant's submissions, his submissions in response. I made an order that stated that if neither party requested a further hearing of the matter, judgment was to be taken to be reserved. I also ordered that either party might have liberty to apply on 7 days written notice to the other party. 3 As events transpired, the applicant did not file any submissions about the significance of the decision in Shaw. In response to a reminder which I caused to be sent to the parties his solicitor confirmed that he did not intend to file further submissions. 4 The respondent filed supplementary submissions on the assumption (correctly made) that the intent of the Court orders was not to prevent him from making written submissions on the significance of Shaw in the event of the applicant deciding not to make additional written submissions. 5 As I considered that I would be assisted by hearing from the applicant what he contended was the appropriate course for this Court to take, in the light of the decision in Shaw, I listed the matter for this afternoon for the purpose of hearing oral submissions from him and if necessary from both parties. When the matter was called on for hearing this afternoon I asked Mr H N H Christie, counsel for the applicant, whether his client conceded that the decision in Shaw obliged me to dismiss this application. Mr Christie informed me that he did not have instructions to make such a concession but he also told me that he was unable to put to me any basis upon which I could take any other course. The situation was that he had advised his client about the decision in Shaw and simply did not have instructions to concede.