Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200
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Review of: |
Kamal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 959 |
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File number: |
VID 115 of 2022 |
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Judgment of: |
MORTIMER J |
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Date of judgment: |
10 March 2023 |
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Catchwords: |
MIGRATION – application for extension of time – application for judicial review of Administrative Appeals Tribunal decision affirming a decision not to revoke the cancellation of the applicant’s visa – application for habeas corpus – whether procedural unfairness demonstrated – application for extension of time granted – applications for judicial review and habeas corpus dismissed |
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Legislation: |
Acts Interpretation Act 1901 (Cth) ss 2, 33(1) Administrative Appeals Tribunal Act 1975 (Cth) s 39(1) Migration Act 1958 (Cth) ss 189, 198, 425, 500(6L), 501, 501(2), 501(3A), 501(7)(c), 501CA, 501G(1) |
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Cases cited: |
AIC16 v Minister for Immigration and Border Protection [2018] FCA 1178 AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1105 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 AWK22 v Commonwealth of Australia [2022] FCA 869 Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; 288 FCR 657 Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604 Daw v Minister for Immigration and Citizenship [2012] FCA 705 Goldie v Commonwealth of Australia [2002] FCA 433; 117 FCR 566 Guo v Commonwealth of Australia [2017] FCA 1355; 258 FCR 31 Hobson v Commonwealth of Australia [2022] FCA 418 Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; 225 FCR 482 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; 141 CLR 672 Love v Commonwealth of Australia [2020] HCA 3; 270 CLR 152 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 Pochi v Minister for Immigration and Ethnic Affairs [1982] HCA 60; 151 CLR 101 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14; 289 FCR 304 Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Ruddock v Taylor [2005] HCA 48; 222 CLR 612 Sullivan v Department of Transport (1978) 20 ALR 323 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 Thoms v Commonwealth of Australia [2022] HCA 20; 401 ALR 529 Varricchio v Wentzel [2016] SASC 86; 125 SASR 191 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6; 289 FCR 256 Young and Conway v Chief Executive Officer, Housing [2020] NTSC 59; 355 FLR 290 |
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Division: |
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Registry: |
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National Practice Area: |
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Number of paragraphs: |
133 |
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Date of last submission: |
21 November 2022 |
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Date of hearing: |
8 November 2022 |
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Counsel for the Applicant: |
Mr M Albert with Mr H Crosthwaite and Ms E R Tadros |
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Counsel for the First Respondent: |
Mr R Knowles KC with Mr A Solomon-Bridge |
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Solicitor for the First Respondent: |
Sparke Helmore Lawyers |
ORDERS
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VID 115 of 2022 |
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BETWEEN: |
IBRAHIM KAMAL Applicant
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AND: |
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
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order made by: |
MORTIMER J |
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DATE OF ORDER: |
10 March 2023 |
THE COURT ORDERS THAT:
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The first respondent’s name be amended on the Court’s file for this proceeding to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
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The application for a writ of habeas corpus be dismissed.
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The time in which the applicant may bring an application for judicial review be extended to 26 September 2022.
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The application for judicial review be dismissed.
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The applicant pay the respondent’s costs of the proceeding, to be fixed by way of a lump sum or, in default of agreement, by way of a single lump sum fixed by a Registrar.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
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This proceeding involved two separate applications: an application for a writ of habeas corpus, centring on the alleged invalidity of the cancellation decisions which deprived the applicant of his visa, and an application for judicial review of the decision of the Administrative Appeals Tribunal where the Tribunal upheld a delegate’s refusal to revoke the visa cancellation. The judicial review application requires the Court to grant an extension of time.
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For the reasons set out below both applications must be dismissed.
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There is no real dispute about the applicant’s background. He was born in Ethiopia on 10 June 1986. When the applicant was three years of age, his mother, his father, and his aunt, who I will call AM in these reasons, fled Ethiopia to a refugee camp in Kenya. He lived there until 1997.
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The applicant lost his mother in 1989, and last saw his father in 1991, subsequent to which he was cared for and raised by AM. In Kenya, AM met and married SJ. SJ left Kenya for New Zealand in 1994. Three years later, in 1997, AM, with the applicant, joined SJ in New Zealand as refugees. He obtained New Zealand citizenship, and remains a New Zealand citizen.
In 2000, AM...
