Holland v Minister for Immigration and Border Protection [2018] FCA 554

FEDERAL COURT OF AUSTRALIA

Holland v Minister for Immigration and Border Protection [2018] FCA 554 File number: WAD 430 of 2017

Judge: COLVIN J

Date of judgment: 18 April 2018

Legislation: Migration Act 1958 (Cth) Federal Court Rules 2011 (Cth)

Cases cited: Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 351 ALR 61 Mataia v Minister for Immigration and Border Protection [2018] FCA 401 Minus v Selth (No 2) [2017] FCA 1233

Date of hearing: 18 April 2018

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 16

Counsel for the Applicant: The Applicant did not appear

Counsel for the Respondent: Ms E L Tattersall

Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS WAD 430 of 2017

BETWEEN: MARK ANDREW HOLLAND Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: COLVIN J DATE OF ORDER: 18 APRIL 2018

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant to pay the respondent's costs, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J: 1 The Minister seeks an order that these proceedings be dismissed by reason of the default of Mr Holland in providing a current address for service and also for failure to comply with directions made by Gilmour J and failure to attend at the hearing today. When these proceedings were commenced, Mr Holland described his address for service as Yongah Hill Immigration Detention Centre. He also provided an email address. 2 On the available evidence, Mr Holland was removed from Australia to the United Kingdom on 15 November 2017 at his request. On that date he sent an email to solicitors acting for the Minister saying that he wished to proceed with the present application and 'will still be appearing in court'. However, on 27 November 2017, he sent a further email saying that he no longer wanted to proceed, stating, 'I can't find legal assistance and I don't know what I am doing so what's the point, save both our times if we were to cancel'. 3 Since then, Mr Holland has been invited to sign a notice of discontinuance. However, he has not done so. He has been advised by email to the address that he provided with his application and has used in the communications to which I have just referred that the matter would be listed for hearing today at which time the court would consider whether to formally dismiss the proceedings. 4 He has also been advised at the same email address of the written submissions upon which the Minister relies today. 5 I have today been provided with an affidavit which, amongst other things, annexes an email of 11 April 2018 from Mr Holland to the solicitors acting for the Minister. It says that he has made effort to lodge documents and, in his words, has tried endlessly to try again and has also lodged a change of address and he does not know what else he can do. He says he is unable to appear in person and says it is hard to get assistance and asks, 'How do I explain all this in court? How do I do a video link?'. 6 Contrary to the statements made in the email, the court has not received any change of address nor has it received any direct filing of any documents through the registry. Counsel for the Minister appearing before me today advises that no change of address has been communicated to solicitors acting for the Minister. 7 The Federal Court Rules 2011 (Cth) require a party to have an address for service which includes the address of a place within Australia at which a document in the proceedings may, during ordinary business hours, be left for the party and to which a document in the proceedings may be posted to the party: r 11.01(1). It is the obligation of Mr Holland to provide a valid address for service: see Minus v Selth (No 2) [2017] FCA 1233 at [30]. 8 On the available evidence, the address provided on Mr Holland's application is not a valid address for service. He is no longer at Yongah Hill Immigration Detention Centre and there is no suggestion that documents delivered to that place will be received by him. Further, the applicant has not made any inquiry of the court in order to facilitate his appearance here today. 9 The application seeks to review a decision by the Administrative Appeals Tribunal for alleged jurisdictional error. The decision by the Tribunal was made on 17 July 2017. It upheld a decision not to revoke the cancellation of his visa made by a delegate of the Minister under s 501CA(4) of the Migration Act 1958 (Cth). 10 In undertaking the review of a decision of a delegate of the Minister under s 501CA(4), the Tribunal must give effect to directions made under s 499(1) 'as an overt fetter on discretion': Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65]. One such direction is Direction No 65, dated 22 December 2014 (Direction 65). Direction 65 specifies certain primary considerations which are 'generally' to be given greater weight. It also indicates that an evaluation is required in each case as to the weight to be given to 'other considerations'. 11 The application claims that the Tribunal misdirected itself, in effect, by failing to give effect to Direction 65 in certain respects. 12 Whilst there is an obligation to give effect to Direction 65, it is not expressed in terms that require particular weighting of matters referred to in the direction. Rather, the primary considerations, as specified in the direction, are to be considered in all cases and 'generally' are to be given more weight than other considerations. Those primary considerations were considered by the Tribunal in this case. It is a matter for the Tribunal in any particular case, as part of its jurisdiction, to determine factual matters relating to those primary considerations. 13 To the extent that the ground complains that there was a failure to have regard to particular matters referred to in Direction 65, those matters are not themselves primary considerations to which the Tribunal must have regard: Mataia v Minister for Immigration and Border Protection [2018] FCA 401 at [42]. Therefore, those grounds do not raise claims of jurisdictional error. 14 The remaining ground raises a claim of the kind that the High Court recently rejected concerning the constitutionality of the process by which Mr Holland's visa was cancelled: Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 351 ALR 61. Therefore, there is no merit in that ground. 15 In those circumstances, there is a failure to comply with the rules, a failure to comply with the directions of Gilmour J and a failure to attend today. I accept the submission for the Minister that there is not only default in compliance with the rules, but the grounds in the application do not raise complaints of jurisdictional error and, therefore, the claim lacks merit. 16 The application should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.