Moana v Minister for Immigration and Border Protection [2019] FCA 659

Moana v Minister for Immigration and Border Protection [2019] FCA 659

Because the applicant had been removed while his Federal Court application was pending and the material did not satisfy the Court that he had been given a full and reasonable opportunity to approach the correct Court to restrain removal, including clear and correct information and reasonable facilities, the Court was not prepared to dismiss the application. The Department had not properly complied with the earlier order to inquire into the applicant's whereabouts, so further orders were made requiring proper and full inquiries with New Zealand authorities and an affidavit identifying the steps taken.

Jurisdiction
Australia
Judgment Date
14 May 2019
Procedural Posture
Application for Extension of Time in Which to File an Application for Leave to Appeal From Orders of the Federal Circuit Court Dismissing an Application for Judicial Review of a Tribunal Decision Concerning Cancellation of a Class TY Subclass 444 Special Category Visa / Case Management After Applicant Was Involuntarily Removed From Australia Before Hearing; Further Orders Made to Locate and Contact the Applicant
Outcome
Application not dismissed; further interlocutory orders made to locate and contact the applicant and to require an affidavit of steps taken.
Legal Topics
['cancellation of Visa Under S 116(1)(e)(i) of the Migration Act 1958 (cth)' 'tribunal Jurisdiction and Approved Form for Review Application' 'extension of Time and Leave to Appeal' 'removal From Australia During Pending Federal Court Proceedings' 'reasonable Facilities for Taking Legal Proceedings Under S 256 of the Migration Act 1958 (cth)' 'potential Contempt and Access to the Court']
['migration Law' 'administrative Law' 'constitutional Law'] ['cancellation of Visa Under S 116(1)(e)(i) of the Migration Act 1958 (cth)' 'tribunal Jurisdiction and Approved Form for Review Application' 'extension of Time and Leave to Appeal' 'removal From Australia During Pending Federal Court Proceedings' 'reasonable Facilities for Taking Legal Proceedings Under S 256 of the Migration Act 1958 (cth)' 'potential Contempt and Access to the Court']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Extension of Time in Which to File an Application for Leave to Appeal From Orders of the Federal Circuit Court Dismissing an Application for Judicial Review of a Tribunal Decision Concerning Cancellation of a Class TY Subclass 444 Special Category Visa / Case Management After Applicant Was Involuntarily Removed From Australia Before Hearing; Further Orders Made to Locate and Contact the Applicant

Legal Issues

  1. 1 ['Whether the applicant should be treated as having had a full and reasonable opportunity to approach the Federal Court to restrain his removal before being involuntarily removed from Australia while his application was pending.' "Whether the Court should dismiss the application after the applicant's removal from Australia." "Whether the Department had properly complied with the Court's order to inquire with New Zealand authorities as to the applicant's whereabouts."]

Ratio Decidendi

Because the applicant had been removed while his Federal Court application was pending and the material did not satisfy the Court that he had been given a full and reasonable opportunity to approach the correct Court to restrain removal, including clear and correct information and reasonable facilities, the Court was not prepared to dismiss the application. The Department had not properly complied with the earlier order to inquire into the applicant's whereabouts, so further orders were made requiring proper and full inquiries with New Zealand authorities and an affidavit identifying the steps taken.

Court Disposition

Application not dismissed; further interlocutory orders made to locate and contact the applicant and to require an affidavit of steps taken.

Orders

  • ['The Minister, through departmental officers, undertake proper and full enquiries with the government of New Zealand and its agencies, whether Police or otherwise, so as to seek to locate the current whereabouts of the applicant and to contact him in order to inform him of the continuation of this proceeding.'...