Marshall v Minister for Immigration and Border Protection [2017] FCA 1211

FEDERAL COURT OF AUSTRALIA

Marshall v Minister for Immigration and Border Protection [2017] FCA 1211 File number(s): WAD 450 of 2017

Judge(s): SIOPIS J

Date of judgment: 4 October 2017

Catchwords: MIGRATION – an applicant in immigration detention applied for an extension of time in which to seek judicial review – the application did not disclose grounds of the intended originating application – the applicant was removed from Australia before the first case management hearing – the Minister for Immigration and Border Protection applied for the application to be dismissed under r 5.23 of the Federal Court Rules 2011 (Cth).

Legislation: Migration Act 1958 (Cth) s 501(3A) Federal Court Rules 2011 (Cth) rr 5.22, 5.23

Date of hearing: 4 October 2017

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 18

Counsel for the Applicant: The Applicant did not appear.

Counsel for the Respondent: Ms E Tattersall

Solicitor for the Respondent: Sparke Helmore

ORDERS WAD 450 of 2017

BETWEEN: ERROL ROBERT JOHN MARSHALL Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: SIOPIS J DATE OF ORDER: 4 OCTOBER 2017

THE COURT ORDERS THAT:

1. The applicant's application for an extension of time dated 12 September 2017 is dismissed. 2. The applicant is to pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J: 1 This is the first return date of an application dated and lodged 12 September 2017 and accepted for filing by the Court on 14 September 2017 by the applicant, Mr Errol Marshall, a New Zealand citizen. 2 The application form used by Mr Marshall is headed in printed script "Application for an extension of time." The rest of the application is in a pro forma form and the only additional element is a handwritten notation that says: "Leave for extension of time to make this application." 3 The application does not, therefore, identify the originating application which Mr Marshall intended to make should the extension of time be granted. 4 However, one could infer from Mr Marshall's affidavit of 25 July 2017, which is on the Court file, that he intended to seek judicial review of the decision made by the Minister for Immigration and Border Protection (the Minister) not to revoke the cancellation of his Special Category (Temporary) visa which had occurred by the operation of s 501(3A) of the Migration Act 1958 (Cth). 5 The material annexed to Mr Marshall's affidavit shows that Mr Marshall was convicted in the District Court of Western Australia in 2013 of a number of counts of indecent dealing with and sexual penetration of a child over 13 years and under 16 years and, also, of indecent dealing with a child under 13 years. 6 Mr Marshall was sentenced by District Court Judge McCann on 11 October 2013 to serve a term of four years and 10 months in prison and he was made eligible for parole. The earliest date for release on parole was designated as two years and 10 months from 30 August 2013. 7 The correspondence attached to the affidavit shows that Mr Marshall was notified by a letter dated 18 May 2016 from the Department of Immigration and Border Protection that his visa was cancelled under s 501(3A) of the Migration Act. It appears that Mr Marshall then made an application to the Minister for that cancellation to be revoked. As I have said, that application was unsuccessful and Mr Marshall was notified of the Minister's decision on 29 May 2017. At that time, Mr Marshall was in immigration detention. 8 As is evident from one of the documents handed up to the Court by counsel for the Minister, on 11 September 2017, Mr Marshall was served with a notice of intention to remove him from Australia. 9 As I have said, Mr Marshall sought to file this application on 12 September 2017 and it was accepted for filing on 14 September 2017. As I have also said, the application does not disclose any basis at all upon which Mr Marshall sought to challenge the decision of the Minister not to revoke the cancellation of his visa, nor does it claim any form of interlocutory relief. 10 Also before the Court is a letter dated 18 September 2017 from Sparke Helmore, the lawyers for the Minister, to Mr Marshall. That letter states: We act for the Department of Immigration and Border Protection ("the department"). We acknowledge that you lodged an application in the Federal Court on 12 September 2017 (WAD450/2017) ("your current application"). This matter is listed for a first Court date of 4 October 2017. The department notes that you are scheduled to be removed from Australia, today, 18 September 2017 at 7.35pm. Unless we are restrained from doing so by an interlocutory injunction or order made by the Federal Court or other court of competent jurisdiction, it is the department's intention to proceed with your removal on 18 September 2017. Further information can be obtained by contacting the Court. 11 I am advised by counsel for the Minister that no such interlocutory application was made by Mr Marshall and there is no such application on the Court file. Counsel for the Minister advised that, as a consequence, Mr Marshall was removed from Australia on 18 September 2017 in accordance with the notification in the letter. 12 Mr Marshall is not present today in Court. His absence is, of course, the consequence of him having been removed from Australia. Further, Mr Marshall has taken no steps to advise the Court that he wishes to proceed with the application from overseas. 13 In those circumstances, counsel for the Minister has applied for an order that the application be dismissed on the grounds set out in r 5.22 and r 5.23 of the Federal Court Rules 2011 (Cth). Those rules, relevantly, provide as follows: 5.22 A party is in default if the party fails to: (a) do an act required to be done, or to do an act in the time required, by these Rules; or (b) comply with an order of the Court; or (c) attend a hearing in the proceeding; or (d) prosecute or defend the proceeding with due diligence. 5.23 (1) If an applicant is in default, a respondent may apply to the Court for an order that: (a) a step in the proceeding be taken within a specified time; or (b) the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant: (i) immediately; or (ii) on conditions specified in the order. 14 In my view, it is appropriate that this proceeding be dismissed for the following reasons. 15 First, the proceeding, on its face, does not disclose any reasonable cause of action. The application does not disclose any grounds as to why it is alleged that the decision of the Minister not to revoke the cancellation of Mr Marshall's visa was in any sense unlawful. 16 Secondly, it is apparent that Mr Marshall was given an opportunity to apply for an interlocutory injunction, and, thereby, argue in favour of a sufficient cause of action to justify an injunction not to remove him from Australia; but Mr Marshall did not take that course of action. Further, Mr Marshall has not taken any steps to indicate to the Court that he intends to continue to prosecute this application. 17 The proceeding is, accordingly, dismissed. 18 The Minister's costs are to be paid by the applicant. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.