ABX15 v Minister for Immigration & Anor
[2015] FCCA 3003
•27 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABX15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3003 |
| Catchwords: PRACTICE AND PROCEDURE – Application for leave to rely on amended application – amended application sought to be filed on the morning of the hearing – failure to observe procedural orders – insufficient explanation for delay in filing documents – leave to amend refused. |
| Legislation: Constitution (Cth), s.116 Federal Circuit Court of Australia Act1999 (Cth), s.42 Federal Circuit Court Rules2001 (Cth), rr.1.03, 7.01 Judiciary Act 1903 (Cth), s.40 Migration Act 1958 (Cth), s.414 |
| Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 Sali v SPC Ltd (1993) 67 ALJR 841 |
| Applicant: | ABX15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 539 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 6 October 2015 |
| Date of Last Submission: | 6 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Williams |
| Solicitor for the Respondents: | Mr A. Markus, Australian Government Solicitor |
ORDERS
The applicant be refused leave to rely on the amended application filed on 6 October 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 539 of 2015
| ABX15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Iran who applied for a protection visa on the basis that he feared persecution and Iran for reason of his conversion to Christianity in Australia as well as the fact that his brother had converted to Christianity in Iran. A delegate of the Minister refused to grant the applicant a visa and he applied to the Refugee Review Tribunal for review of that decision. On 28 January 2015 the Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision.
At the hearing of the application on 6 October 2015, the applicant sought leave to rely on an amended application electronically filed with the Court’s registry on the morning of the hearing and, if successful, to adjourn the proceedings to allow him to make an application for the removal of the matter to the High Court under s.40 of the Judiciary Act 1903 (Cth). I refused the applicant leave to amend his application. As a consequence, his application for an adjournment also failed. These are the reasons for that decision.
Relevant law
The power of the Court to allow an amendment is found in r.7.01 of the Federal Circuit Court Rules2001 (Cth). The exercise of the discretion in that rule must take into account its statutory context. Of particular note are s.42 of the Federal Circuit Court of Australia Act1999 (Cth) and r.1.03 of the Rules. Section 42 provides:
In proceedings before it, the Federal Circuit Court of Australia must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
Rule 1.03 relevantly provides:
(1)The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2)In accordance with the objects of the Act, the Rules aim to help the Court:
·to operate as informally as possible
·to use streamlined processes
·to encourage the use of appropriate dispute resolution procedures.
(3)The Court will apply the Rules in accordance with their objects.
(4)To assist the Court, the parties must:
·avoid undue delay, expense and technicality
·consider options for primary dispute resolution as early as possible.
…
These provisions are similar to those in the Court Procedures Rules 2006 (ACT) considered by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon Risk”). The objects in them reflect principles of case management by the Court which is now an accepted aspect of the system of civil justice administered by courts in Australia: Aon Risk at 211 [92] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). Such case management reflects the view that the conduct of litigation is not merely a matter for the parties but it is also one for the Court and the need to avoid disruptions in the Court’s lists with the consequent inconvenience to the Court and prejudice to the interests of other litigants waiting to be heard: Sali v SPC Ltd (1993) 67 ALJR 841 at 849 (Toohey and Gaudron JJ).
In Aon Risk French CJ explained at 192 [30]:
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
The plurality stated, at 215 [102], that the exercise of the discretion will invariably require an explanation to be given where there is delay in applying for amendment.
With those matters in mind, it is necessary to turn to a chronology of the proceedings before dealing with the substance of the matter sought to be raised by the amendment.
Chronology
These proceedings were commenced by an application filed on 4 March 2015. It is an understatement to say that that document is prolix. It contains 7 grounds and 65 paragraphs. .
The matter was listed for a first Court date on 16 April 2015. On 14 April 2015, proposed short minutes of order, signed by both parties, were emailed to my associate by the first respondent’s solicitor. On that date I made the proposed orders in chambers including the following orders:
1.The Applicant must file and serve any amended application and any notices pursuant to s 78B of the Judiciary Act 1903 (Cth) by 16 May 2015.
…
5.The Applicant must file and serve his written submissions and list authorities 14 days before the hearing.
…
8.The matter be listed for a final hearing at 10:15am on 6 October 2015 …
…
10.Liberty be granted to the parties to apply to the Court for further directions on three clear days’ notice.
A number of matters appear from those orders: first, the applicant was already cognisant of the opportunity to amend his application; secondly, for a matter that could reasonably be expected to be dealt with in half a day, there was a delay of 6 months before the hearing; thirdly, this delay gives some indication that a large number of other matters that were then pending in the Court’s list; fourthly, it could reasonably be expected that, by October, many more matters would be awaiting hearing or even allocation of a hearing date; and fifthly, there was plenty of time allowed in the timetable for the proper preparation of the matter for hearing and any timely amendments to the timetable (if required).
Even though the applicant was legally represented, he did not file any amended application in accordance with those orders. He also failed to comply with the order to file and serve written submissions 14 days before the hearing (namely by 22 September 2015). The applicant did not seek to exercise the liberty to apply to have the matter relisted.
On 25 September 2015 my associate wrote to counsel for the applicant, inquiring as to the status of the applicant’s submissions and noting that the applicant’s submissions were due on 22 September 2015. No response was received from counsel.
The first respondent filed his written submissions and list authorities on 29 September 2015 in accordance with the Court’s directions. These submissions noted the fact that the applicant had not filed any submissions. This comment did not spur the applicant into action.
At 10:30pm on 5 October 2015, a public holiday in New South Wales where the matter was listed for hearing, counsel for the applicant sent an email to my associate with a copy to the solicitor acting for the first respondent. Attached to that email were the following:
a)a draft amended application;
b)draft written submissions;
c)a draft application for removal to the High Court; and
d)an unsigned affidavit of the applicant in support of the removal to the High Court.
On the morning of the hearing, 6 October 2015, two further emails were received by my associate from counsel for the applicant. The first, at 9:02am, referred to an application for removal to the High Court and the second, received at 9:26am, attached a signed application and affidavit for removal to the High Court. That application appeared to rely on grounds that were contained in the draft amended application previously sent to my chambers. It also appears that an amended application, in the form emailed to my associate the previous evening, was lodged electronically with the Court’s registry at 9:24am that morning and accepted for filing some four minutes later.
When the matter was called for hearing, counsel for the applicant applied for leave to rely on an amended application in the form that had been emailed to my associate the previous evening and for an adjournment in order for the applicant to pursue the application to remove the matter to the High Court. The latter was contingent on leave to amend being granted. He did not file an application in a case and did not file any affidavit explaining the delay in making the application. He explained from the bar table that he had had great difficulty communicating with the applicant and confirming instructions. He said that his client had no money for either a mobile phone or the internet and that he had moved house.
While I do not place any weight on the failure of the applicant to file an application in a case, I do not accept the assertions by counsel from the bar table as to the reasons for delay. The documents associated with the application for removal under s.40 of the Judiciary Act included an affidavit affirmed by the applicant. That affidavit made no mention of the delay in these proceedings. It was well within the applicant’s ability to put evidence before the Court to explain why he had failed to comply with the Court’s orders made in April 2015 and why it was only on the day of the hearing that he made the application to amend. I find in the circumstances that there were no good reasons for either.
For reasons which are set out below, the amendments sought would require adjournment of these proceedings and so would waste a day of hearing that could otherwise have been allocated to one of the hundreds of cases awaiting a hearing date in this Court.
In those circumstances, even if I accepted that the points sought to be raised by the amendment were either important or reasonably arguable (which I do not), I would refuse the application for leave to amend. I must use the power to allow an amendment in a way that enables the just, efficient and economical resolution of the proceedings and to avoid them being protracted. To exercise the power to allow an amendment in circumstances where there is no explanation given for a failure to comply with the Court’s directions and a very late application for amendment would, in my view, be an improper exercise of the power.
Amended application
The amended application contains three grounds. The first two involve the assertion that the second respondent violated the second and third limbs of s.116 of the Constitution by imposing religious observance on the applicant or by prohibiting his free exercise of religion. Those grounds are already contained in the original application as filed on 5 March 2015. As I understand it, the intention of repeating them in the amended application is simply to show the abandonment of the remaining six grounds in the original application. There is no need to amend an application in order to abandon grounds in it. For that reason there is no utility in amending the application to allow the first two grounds in the amended document.
The third ground is as follows:
The second respondent violated the applicant’s right to the free exercise of thought, conscience, religion or belief as enshrined in customary international law, which has been adopted or incorporated by the common law of Australia. Alternatively, it was not reasonably necessary nor [sic] proportionate to violate the applicant’s right to the free exercise of thought, conscience, religion or belief, in order to protect public safety, order, health, morals or the fundamental rights and freedoms of others.
This ground, like the other two grounds, is based upon the fact that the Tribunal asked the applicant a number of questions concerning his Christian belief and practice and its finding that he was not a genuine Christian. Counsel for the applicant explained that the finding that the applicant was not a Christian was a violation of his freedom of religion in a temporal and spiritual way (also described as a psychological way) because it was a denial of his belief. He also argued that it was a violation of his freedom of religion in a physical way because the applicant must, as a result of the Tribunal’s determination, go back to Iran where he cannot practice Christianity.
There are a large number of hurdles facing this argument. First, it seems to me, the applicant would have to prove to me that he was a Christian – otherwise the argument would be hypothetical. However, it is a corollary of his argument that it would be unconstitutional (or contrary to customary international law) for me to make an assessment of his Christianity because to do so might be to violate his freedom of religion. Thus, I would have to proceed on the assumption that the applicant was a Christian just, as counsel for the applicant submitted, as the Tribunal was obliged to do. This Court only has power to exercise judicial power and that does not allow it to answer hypothetical questions: R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; Luna Park Ltd v Commonwealth (1923) 32 CLR 596.
Secondly, the applicant would have to establish as a matter of law that there was a customary international law allowing the freedom of religion. Such a task might require, for example, proof of an extensive and uniform practice followed as a matter of legal obligation. In order to be able to undertake that task the applicant would need considerable time to prepare, file and serve evidence and the first respondent would, in turn, require time to meet that evidence. This would lead to further delay and protraction of the proceedings.
Thirdly, the ground appears wholly misconceived. The task of the Tribunal is no more and no less than to review the decision of the delegate of the Minister to refuse to grant the applicant a protection visa: Migration Act 1958 (Cth) s.414. That required the Tribunal to determine, on the evidence and other material before it, whether it was satisfied that the applicant met the criteria for the grant of that visa. Ordinarily, as was the case here, that meant that the Tribunal had to make findings of fact. The facts that had to be found by the Tribunal depended entirely upon the claims made by the applicant.
The applicant claimed that he was a person to whom Australia owed protection obligations because he had a well-founded fear of persecution in Iran by reason of his religion, namely Christianity. In order to satisfy the Tribunal of this claim the applicant put forward a number of matters including a statement by him as to what had happened to him in Iran, a reference as to his attendance at church in Australia, and evidence that he had been baptised in that church. He also gave oral evidence at a hearing conducted by the Tribunal. Part of his evidence at the hearing was given in response to questions asked of him by the Tribunal. Amongst those questions (and the ones relied upon by the applicant for present purposes) were whether the applicant’s Christian girlfriend in Iran went to church in Iran, what websites he had read about Christianity in Iran (in response to his claim that he had done Google searches about Christianity there), and what being a Christian meant to him.
None of this questioning violated the applicant’s freedom of religion.
After considering all of the evidence the Tribunal formed the view that the applicant had commenced participating and engaging in Christian activities in Australia for the sole purpose of supporting his claims for protection. It also found that the applicant had not become a genuine and committed adherent and practitioner of Christianity. Those findings did not violate the applicant’s freedom of religion. They were findings made in the course of the review conducted by the Tribunal in accordance with its obligations under the Migration Act. The findings were part of the reasons for which the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a visa.
While it is true that the applicant will be unable to lawfully stay in Australia without a visa, that is not to say that any consequence of that fact is caused directly by any of the Tribunal’s conduct. That would be akin to saying that having a head was the cause of decapitation simply because the possession of a head is an essential precondition to decapitation: see March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 523 (Deane J).
In light of that, even if it were accepted that the freedom of religion posited by the applicant were part of customary international law such that it had to be followed by the Commonwealth executive in making findings of fact in the course of the exercise of statutory duties, it would not have been violated in this case.
Conclusion
For those additional reasons I would refuse leave to amend. The application for leave to amend is therefore dismissed with costs.
I cannot leave this matter without some comment on counsel’s conduct in this matter. While I accept that difficulties can arise when counsel appear on a direct access basis for litigants, it is simply unacceptable to raise significant matters at the last minute without notice and without adequate explanation. It is one thing for unrepresented litigants to breach the Court’s timetable. No legal practitioner should do so. If circumstances are such that a breach is inevitable it is incumbent on the practitioner to advise his or her opponent of this in advance and, if no consent position can be reached, to bring the matter back to Court. If that is not possible, the practitioner should return the brief and let the Court and the other parties know that this has happened.
Further, it is unacceptable to send any correspondence, let alone large emails directly to a judge’s chambers without prior consent of the other parties or an invitation from or order of the Court allowing such communications. A judge’s chambers is not a registry. Communication in this manner carries the possibility of undermining confidence in the Court. That confidence can only be maintained by maintaining openness in dealings between the Court and practitioners. This is the purpose of a long established rule that is now found in r.54 of the Legal Profession Uniform Conduct (Barristers) Rules 2015. This practice appears to me to be a substitute for timely preparation of cases.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 27 November 2015
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