DOB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: STEWART J
• Judgment Date: 23 October 2019
• Neutral Citation: [2019] FCA 1748
• Date: 23 October 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

DOB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1748

File number:	NSD 1616 of 2019
Judge:	STEWART J
Date of judgment:	23 October 2019
Date of publication of reasons:	24 October 2019
Catchwords:	MIGRATION – Consent orders quashing Minister’s decision to cancel Applicant’s visa – Orders made – Reasons
Legislation:	Federal Court of Australia Act 1976 (Cth) s 20(1A)
Cases cited:	DOB18 v Ng in his capacity as a Registrar of the Federal Court of Australia [2019] FCA 1575 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Nguyen v Minister for Home Affairs [2019] FCAFC 128
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	A M Hochroth (Pro Bono)
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 1616 of 2019
BETWEEN:	DOB18 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	STEWART J
DATE OF ORDER:	23 OCTOBER 2019

THE COURT ORDERS THAT:

1. The application for an extension of time filed on 30 September 2019 be granted.

2. The filing fee for the substantive proceeding be dispensed with.

3. A writ of certiorari is issued quashing the decision of the respondent made on 15 February 2018 to cancel the applicant’s Class CD Subclass 851 Resolution of Status visa.

4. There be no order as to costs.

5. The case management hearing listed for 24 October 2019 at 9:30am is vacated.

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

REASONS FOR JUDGMENT

STEWART J:

1. I delivered a judgment in a matter that is related and preliminary to this matter on 25 September 2019 directing the Registrar to accept the applicant’s application for an extension of time, and supporting affidavit, for filing. The judgment is reported as DOB18 v Ng in his capacity as a Registrar of the Federal Court of Australia [2019] FCA 1575. I refer to that judgment for the necessary background and context.

2. This proceeding is now the applicant’s application for an extension of time and, if an extension is granted, for orders quashing the Minister’s decision to cancel his visa. In support of the substantive orders, the applicant relies on the judgments of the Full Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 and Nguyen v Minister for Home Affairs [2019] FCAFC 128.

3. Because the applicant is in immigration detention, and he had an application for special leave to appeal pending before the High Court which would have become redundant in the event that this proceeding was successful, the programming of the matter for hearing was given expedition. That included listing the matter for final hearing on 6 December 2019.

4. At a case management hearing on 10 October 2019, I was told that the Minister would raise an Anshun estoppel objection to the applicant being allowed to raise the Ibrahim/Nguyen point that he advances in this proceeding in support of the relief that he seeks on the basis that the point could and should have been raised in his earlier proceeding in which he sought the same relief. I was also told that the Minister was still considering whether he would contend that the Ibrahim and/or Nguyen decisions are wrong which might then raise a question whether this proceedings should be heard by a Full Court in its original jurisdiction pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth).

5. Earlier this week I was told that the Minister would not argue that the Ibrahim and/or Nguyen decisions are wrong. Thereafter I received correspondence from the parties seeking orders by consent which, amongst other things, would grant the applicant the extension of time that he seeks and quash the Minister’s decision.

6. I was satisfied that the orders that were sought by consent should be made, and I made them.

7. Insofar as quashing the Minister’s decision is concerned, I was satisfied principally for the reasons identified by me in my earlier judgment at [38]-[40]. Also, it is apparent that the Minister consents to the extension of time and no longer wishes to raise an Anshun objection. This means that those matters were no longer impediments to the substantive relief. For those reasons, I quashed the Minister’s decision.

8. I pay tribute to the parties’ for resolving the matter in this manner. I also acknowledge the pro bono representation of the applicant by Mr Hochroth of counsel. The interests of the...