AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1688
•23 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1688
File number(s): MLG 542 of 2015 Judgment of: JUDGE LUCEV Date of judgment: 23 July 2021 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – refusal of visa – Protection (class XA) (subclass 866) visa
PRACTICE AND PROCEDURE – Adjournment – where significant delays in listing and relisting – where short notice of relisting
Legislation: Federal Circuit Court of Australia Act 1999 (Cth) ss 3, 42
Federal Circuit Court Rules 2001 (Cth) rr 1.03, 13.03B(1), 13.03B(1)(c), 13.03C(1)(c)
Migration Act 1958 (Cth) s 476
Cases cited: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
BHG16 v Minister for Immigration and Border Protection [2017] FCCA 2745
CVA17 v Minister for Immigration and Border Protection [2017] FCCA 3208EBB17 v Minister for Immigration and Border Protection [2018] FCCA 48
Jarial Couriers Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1313
Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114Myers v Myers [1969] WAR 19
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68
Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234Zubair v Minister for Immigration & Anor [2017] FCCA 2905
Number of paragraphs: 19 Date of last submission/s: 15 July 2021 Date of hearing: 15 July 2021 Place: Perth The Applicant: Appeared in person via video link Counsel for the First Respondent: Mr C Orchard Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 542 of 2015 BETWEEN: AFN15
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
15 JULY 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent to be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The name of the Second Respondent to be changed to Administrative Appeals Tribunal
3.The matter be adjourned to a further hearing on 22 October 2021 at 12pm AWST/3pm AEDST.
4.The Applicant must file and serve:
(a)any amended application with proper particulars of the application;
(b)supplementary Court Book, if any; and
(c)an outline of written submissions,
by 24 September 2021.
5.If the Applicant fails to comply with Order 4 the originating application be dismissed pursuant to r 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
6.
The First Respondent may file and serve any further outline of submissions by
8 October 2021.
7.Costs of the adjournment application be reserved.
8.Reasons for Judgment in relation to the adjournment application be published from Chambers at a later date.
REASONS FOR JUDGMENT
JUDGE LUCEV
At the outset of the hearing of this matter on 15 July 2021 the Court raised the question as to whether the matter ought to be adjourned for similar reasons to those in Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 (“Rajmohan”) and Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550 (“Singh”) where matters were adjourned where short notice was given of listing for hearing and the making of submissions after very substantial delays in having those matters listed and re-listed for hearing in the Melbourne Registry of the Court.
The applicant said that he wanted an adjournment of the hearing, and, having obtained instructions, the lawyer for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) indicated that the Minister did not oppose an adjournment. The Court therefore made orders, including for the adjournment of the matter and for the publication of Reasons for Judgment from Chambers at a later date.
BACKGROUND
The relevant background is as follows:
(a)the Administrative Appeals Tribunal (“Tribunal”) handed down a decision (“Tribunal Decision”) on 16 February 2015 affirming a decision of a delegate of the Minister (then the Minister for Immigration and Border Protection), to refuse the applicant a Class XA Protection visa (“Protection Visa”);
(b)the applicant filed an application for judicial review (“Judicial Review Application”) in the Melbourne Registry of the Court on 18 March 2015 under s 476 of the Migration Act 1958 (Cth) (“Migration Act”);
(c)the Judicial Review Application contains the following two grounds of review:
1.The decision of the Tribunal:
(a)is affected by an error of law; and
(b)denied the applicant procedural fairness.
2.The Applicant is currently seeking a legal merits assessment from Victoria Legal Aid.
(c)more than three months after the Judicial Review Application was filed, at the first Court date on 24 June 2015, a Registrar of the Court in the Melbourne Registry made the following orders (“Registrar’s Orders”):
1.The application be dismissed for non-appearance of the applicant pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
2.The Applicant pay the Respondent’s costs in the sum of $1,367.00.
(d)on 2 August 2017, more than two years after the issuance of the Registrar’s Orders, the Full Court of the Federal Court handed down judgment in Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114; (2017) 255 FCR 590 (“BJC16”) at [63]-[64] per Kenny, Griffiths and Mortimer JJ, in which it was held that only the Court constituted by a Judge or the Chief Judge (and not a Registrar) had power under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) to dismiss an application at a first Court date for non-appearance by an applicant;
(f)on 6 November 2019 Judge Riethmuller made the following orders (“Court’s Orders”), which included an order setting aside the Registrar’s Orders:
1.The Orders of the Registrar dated 24 June 2015 be set aside.
2.By 4.00pm on 31 January 2020, the First Respondent shall file and serve one copy of a bundle of relevant documents (Court Book) in electronic form and one copy in paper form and for that purpose, the Court Book:
(a) Be in portable document format (pdf);
(b) be capable of being searchable for specified text;
(c) have an index and be paginated;
(d) have each entry in the index bookmarked; and
(e) be set so that when opened:
(i) it displays at 100% zoom; and
(ii) the bookmarks menu is displayed.
3.The Applicant file and serve the following 28 days before the final hearing date:
(a)any amended application with proper particulars of the grounds of the application;
(b)any affidavits;
(c)supplementary Court Book, if any; and
(d)written submissions.
4.The First Respondent file and serve written submissions and any affidavits
14 days before the final hearing date.5.Other than the Court Book of relevant documents, all evidence relied upon by the parties must be presented by way of affidavit.
6.Evidence of the contents of any sound recording be presented as a transcript verified by way of affidavit.
7.The matter be relisted for hearing on a date to be advised.
8.There be no Order as to costs.
(e)almost six weeks later, on 16 December 2019, the Court’s Orders were provided to the parties by email from the Chambers of Judge Riethmuller and the parties were advised that they would “be advised of a hearing date in due course”;
(f)on 16 June 2021, eighteen months after the Court Orders were provided to the parties, a notice of listing was emailed to the parties from the Chambers of the Court’s National Migration Law Judge, Judge Kendall, listing the matter for final hearing on 15 July 2021 (“Notice of Listing”) before the Court as presently constituted sitting in the Perth Registry with a video-link to the Melbourne Registry;
(g)on 13 July 2021 the Court advised the Minister’s lawyers that they would be permitted to appear by Microsoft Teams at the 15 July 2021 hearing;
(h)as indicated in [1] above, when the hearing of this matter commenced on 15 July 2021 the Court raised the question as to whether the matter ought to be adjourned for similar reasons to those given in Rajmohan and Singh where matters were adjourned where short notice was given of re-listing for hearing and the making of submissions after very substantial delays in having those matters listed and re-listed for hearing in the Melbourne Registry of the Court;
(i)the applicant, who appeared in person with the assistance of an interpreter, said he wanted an adjournment for a year to a year and a half, because he was “not that well mentally” and that “[w]hen I think about these things, I am very upset”: Transcript, p 3;
(j)the Minister sought and was granted a brief adjournment to review Rajmohan and Singh, and upon resumption (and in the meantime also having obtained further instructions) indicated that an adjournment was not opposed, and observed that:
(i)the applicant had indicated in his Judicial Review Application of five years ago that he was going to seek legal advice, and that he had not done so; and
(ii)orders in terms similar to those made in Rajmohan (and Singh) were not opposed, including a self-executing order that the Judicial Review Application be dismissed pursuant to r 13.03B(1)(c) of the FCC Rules if the applicant failed to comply with a further order for the filing of various documents by a fixed date; and
(k)the Court then made further orders (“Court’s Further Orders’) that:
1. The name of the First Respondent to be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2. The name of the Second Respondent to be changed to Administrative Appeals Tribunal
3. The matter be adjourned to a further hearing on 22 October 2021 at 12pm AWST/3pm AEDST.
4. The Applicant must file and serve:
(a) any amended application with proper particulars of the application;
(b) supplementary Court Book, if any; and
(c) an outline of written submissions by 24 September 2021.
5. If the Applicant fails to comply with Order 4 the originating application be dismissed pursuant to r 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
6. The First Respondent may file and serve any further outline of submissions by 8 October 2021.
7. Costs of the adjournment application be reserved.
8. Reasons for Judgment in relation to the adjournment application be published from Chambers at a later date.
ADJOURNMENT PRINCIPLES
The role and mode of operation of this Court, as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the FCC Rules, and as prescribed by the objects in ss 3 and 42 of the FCCA Act and the objects in r 1.03 of the FCC Rules, provide for the Court to operate in a manner:
(a)as informal as possible in the exercise of judicial power;
(b)which is not protracted in its proceedings;
(c)which resolves proceedings justly, efficiently and economically;
(d)which uses streamlined procedures; and
(e)that avoids undue delay, expense and technicality,
see CVA17 v Minister for Immigration and Border Protection [2017] FCCA 3208 at [12] per Judge Lucev, and the cases cited therein.
In considering an application for adjournment:
(a)the Court has broad discretion in relation to whether or not it adjourns a hearing: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev; and
(b)the Court’s paramount consideration must be the interests of justice. To this end, this Court has, in determining adjournment applications had regard to the following principles in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“AON Risk Services”) at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ:
(i)that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any relevant legislative purpose or object;
(ii)modern principles of case management;
(iii)the avoidance of undue delay; and
(iv)the wastage of public resources,
see EBB17 v Minister for Immigration and Border Protection [2018] FCCA 48 at
[14]-[20] per Judge Lucev; BHG16 v Minister for Immigration and Border Protection [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.CONSIDERATION
As the Chief Judge of this Court observed Chief Judge
7There have been considerable delays in bringing this matter to hearing.
due to non-appearance by the applicant. That might have been the end of the matter but for the judgment in BJC16 which found that the Registrar’s Orders were beyond the power of a Registrar to make. It then took more than two years for the Melbourne Registry to advise the parties of the effect of BJC16, and to list the matter for directions. Following the making of orders on 6 November 2019, including an order that the matter be “relisted” for hearing (although it had never been listed for a hearing proper at that stage), it was then more than nineteen months before the Notice of Listing was sent from the Chambers of Judge Kendall, the National Migration Law Judge, setting the matter down for hearing on 15 July 2021.
from the Chambers of Judge Kendall, the National Migration Law Judge, on 16 June 2021 listed the matter for final hearing, just 29 days later, on 15 July 2021
The Court considers it to be unfair that Mr Rajmohan has had to wait four years to have his Judicial Review Application heard, only to have it suddenly brought on, without the opportunity to be heard about the final hearing date, and with just 30 days’ notice.
The unfairness arising from the haste with which the matter has been relisted is compounded by the terms of the Notice of Relisting read with the Registrar’s Orders. The Notice of Relisting gives 30 days’ notice of the relisted hearing. Order 3 of the Registrar’s Orders requires any amended Judicial Review Application, with proper particulars of the grounds of the Judicial Review Application, any Supplementary Court Book, and written submissions to be filed 28 days before final hearing. The effect of the Notice of Relisting was to give Mr Rajmohan two days in which to comply with Order 3 of the Registrar’s Orders, and in the view of the Court, as presently constituted, that is fundamentally unfair, both of itself and when considered together with other matters referred to in these Reasons for Judgment: see, for example, [16] and [18] below.
12
The applicant did not expressly seek the adjournment to enable him to obtain legal advice, and there is, of course, no right to legal representation in migration proceedings in this Court: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev. It is nevertheless the case that the fact that an applicant does not have a lawyer is a factor that might be taken into account when exercising a discretion: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J. There are a number of relevant matters relating to the applicant’s
self-represented status and lack of a “right” to legal representation, including that:
(a)the applicant has not been legally represented and does not have English as a first language (he utilised a Tamil interpreter for the 15 July 2021 hearing), and it is not evident from his, admittedly very limited, submissions at that hearing that he has any appreciation of the nature of the legal system or the relevant legal issues: ADN15 at [29] per Charlesworth J; and
(b)the obtaining of legal advice, if he seeks and obtains it, is likely to be of assistance to the applicant, in that he might have proper submissions prepared and filed, which would be of assistance to the Court in the management of the case;
(c)further, if the matter is to proceed to hearing, the usual case is that it would be beneficial to an applicant and the Court for an applicant to be legally represented; and
(d)
alternatively, the applicant might, upon advice, withdraw the Judicial Review Application if, for example, the legal advice was that there is not an arguable case
(the Court does not suggest that that is the case).
For the reasons set out at [7]-[12] above, and otherwise in the particular circumstances of this case, the applicant’s request for an adjournment is not without merit.
Rule 13.03B(1) of the FCC Rules provides as follows:
13.03B Orders on default
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order;
or
(c) if the applicant does not take a step in the time mentioned in paragraph (b)-- the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
It is the case that as at the date of the 15 July 2021 hearing the applicant was technically in default of Order 3 of the Court’s Orders, and as the Minister submitted he had a significant period of time previously in which to undertake the necessary preparation for any hearing.
It is necessary for the Court to have regard to the objects summarised at [4], and the matters set out at [5], above, and in particular the need to avoid further delay in, and protraction of, these proceedings. The Court therefore proposes to make an order that the applicant must, by the date specified, comply with Order 4 of the Court’s Further Orders, and that if he does not do so, the Judicial Review Application is to be dismissed pursuant to r 13.03B(1)(c) of the FCC Rules, and that he must do so whether or not he has obtained legal advice or representation, and that if he does not do so by that date, the Judicial Review Application will be dismissed. Thus the Court’s Further Orders, together with this paragraph, and the clear direction given to the applicant at hearing about the effect of Order 4 of the Court’s Further Orders:
see Transcript, p 5, place the applicant on notice that non-compliance with Order 4 of the Court’s Further Orders will result in the Judicial Review Application being dismissed pursuant to r 13.03B(1)(c) of the FCC Rules.
A further delay in these proceedings might be said to be inconsistent with the underlying intent of the FCCA Act or FCC Rules. However, the paramount consideration remains that justice be able to be properly done between the parties, and to do that, it is necessary for a proper balance to be struck by way of judicial consideration of the issues: AON Risk Services at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 74 per Smithers J; Jarial Couriers Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1313 (“Jarial”) at [29] per Judge Lucev.
Fortunately, given the current state of the migration lists and the significant diminution in the migration and other caseloads in the Perth Registry of this Court over the last three and a half years (down from more than 700 applications in 2017 to slightly less than 400 applications in 2020, and 137 applications in the six months to 30 June 2021), any adjournment would only result in a short delay. Thus, the matter can be relisted for final hearing on 22 October 2021, a little over three months, which is not an inordinate delay and, in these particular circumstances, is a delay consonant with the interests of justice and not contrary to the objects set out in the FCCA Act and FCC Rules: Jarial at [29] per Judge Lucev.
The Court also notes that an adjournment to 22 October 2021(that is, of slightly more than three months) is shorter than the period of adjournment asked for by the applicant. To grant the applicant an adjournment of a year to a year and a half, on top of the existing delays
(which were not however the applicant’s fault) would not be consistent with the underlying intent of the objects of the FCCA Act or FCC Rules in relation to protraction and undue delay in proceedings. That said, if the applicant is afflicted by mental health issues which affect his capacity to carry on these proceedings, and he seeks to further adjourn the proceedings on that basis, it will be necessary for him to obtain an appropriate medical report or reports (and not just a bare medical certificate) and to file an application in a case seeking an adjournment, supported by affidavit, at an appropriate time. In that regard the Court notes what it said in Zubair v Minister for Immigration & Anor [2017] FCCA 2905 at [7] per Judge Lucev:
In relation to the medical certificate, there are judgments of the Federal Court and this Court that establish that a person alleging a medical condition and seeking to rely upon that medical condition for the grant of an indulgence, such as an adjournment, needs to provide sworn evidence to the Court concerning the medical condition: see NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]-[10] per Lindgren J (“NAKX”); Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffiths and Mortimer JJ; BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [35] per Perry J; Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No 2) [2017] FCCA 190 at [35] per Judge Lucev; and the authority handed up today by counsel for the Minister, Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] per Pagone J, citing liberally from NAKX. Those authorities also make the point that any medical certificate ought to say that the person, the subject of the medical certificate, is unfit and why they are unfit and, in particular, why they are unfit to attend any required Court attendance.
CONCLUSION
Having considered the interests of justice, and having weighed the various matters set out at [6]-[18] above, the Court, in the exercise of its broad discretion to grant or deny an adjournment, has determined that the matters particular to this case weigh in favour of granting an adjournment of the final hearing on 15 July 2021, for a short time. Accordingly,
the final hearing will be adjourned to 3.00pm AEDST / 12.00 noon AWST on 22 October 2021.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 23 July 2021
5
15
0