Hooton v Minister for Immigration and Border Protection [2017] FCA 1450

FEDERAL COURT OF AUSTRALIA

Hooton v Minister for Immigration and Border Protection [2017] FCA 1450 Appeal from: Application for leave to appeal and extension of time: Hooton v Minister for Immigration and Border Protection [2017] FCA 586

File number: WAD 283 of 2017

Judge: NORTH J

Date of judgment: 23 November 2017

Date of hearing: 23 November 2017

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 11

Counsel for the Applicant: Dr J L Cameron

Counsel for the Respondent: Mr P J Hannan

Solicitor for the Respondent: Australian Government Solicitor

ORDERS WAD 283 of 2017

BETWEEN: PAUL REX HOOTON Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: NORTH J DATE OF ORDER: 23 NOVEMBER 2017

THE COURT ORDERS THAT:

1. The notice of appeal filed on 19 June 2017, is struck out. 2. The notice of objection to competency filed on 29 June 2017, is struck out. 3. The applications for an extension of time and for leave to appeal filed on 2 August 2017, are dismissed. 4. No order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J: 1 On 29 May 2017, Barker J ordered: (1) Subject to the following orders, the application be dismissed; (2) The application be stood over until two weeks after the determination of Falzon v Minister for Immigration and Border Protection [2017] HCA Trans 84 (11 April 2017), No S31 of 2017; (3) The applicant pay the respondent's costs as agreed or assessed of the application so far as it concerns the non-constitutional grounds considered in this judgment; (4) Liberty to apply on 24 hours' notice. [the orders] 2 The application referred to in the orders is an application to review the decision of the respondent, the Minister for Immigration and Border Protection, not to revoke the decision of a delegate of the Minister to cancel the applicant's visa. 3 On 19 June 2017, the applicant filed a notice of appeal in respect of those orders. 4 On 29 June 2017, the Minister filed an objection to competency on the basis that the orders were interlocutory. In response to the objection to competency filed by the Minister, on 2 August 2017, the applicant filed an application for extension of time and for leave to appeal from the orders. 5 The challenge with which Barker J dealt was that the Minister failed to take into account a mandatory relevant consideration when refusing to revoke the cancellation of the applicant's visa. In reasons delivered on 29 May 2017, he explained why that ground should not succeed. 6 Paragraph 2 of the orders dealt with another potential challenge to the decision. The effect of paragraph 2 of the orders made on 29 May 2017, was to provide the applicant with an opportunity to await the judgment of the High Court in Falzon, in the event that it might affect his application. 7 The way in which the orders should be read is that paragraph 1 is, by the words "subject to the following orders", made subject to paragraph 2, which in effect adjourns the entire application for a specified time. The orders intended to leave the Falzon point open for further argument. 8 The way the orders should be read is that they did not affect an immediate dismissal of the application insofar as the reasons for judgment addressed the issue of the mandatory relevant consideration, but rather intended that the application in total be dealt with at a later date, following a judgment in relation to Falzon. When that issue was determined, the application insofar as it affected the matters dealt with by the reasons would then be dismissed. 9 On the basis of that reading of the orders, the applicant's rights to appeal will commence at the time when Barker J makes orders dealing with the Falzon point. At that time, the entirety of the application will be dealt with. It will be dealt with, in respect of the mandatory relevant consideration ground, in the way foreshadowed by Barker J's reasons for judgment. But, on this view of the orders, the applicant's right to appeal in relation to the matter dealt with by those reasons for judgment has not crystallised. 10 Consequently, the time has not arrived for the filing of a notice of appeal. As the immediate effect of the orders is simply to adjourn the proceeding, the conclusion reached in the reasons for judgment has no present effect and is, therefore, not an interlocutory judgment for which leave to appeal is required. Mr Hannan, counsel on behalf of the Minister, accepted that the applicant's rights to appeal on all issues are presently preserved and will crystallise upon the final disposition of the application on all issues in the future. 11 Consequently, the application for an extension of time and leave to appeal is dismissed. The currently-filed notice of appeal is premature and will be struck out, and as a result, the notice of objection to competency is no longer necessary and will also be struck out. It follows that, the procedural field is now clear. Should the applicant wish to appeal against any orders finally made by Barker J in the application, his rights to do so are preserved. If he is unsuccessful on the remaining ground of the application, he will need to file a notice of appeal in respect of all grounds, including the mandatory relevant consideration ground dealt with in the reasons of 29 May 2017. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.