AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 195
•22 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 2AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 195
File number(s): MLG 542 of 2015 Judgment of: JUDGE LUCEV Date of judgment: 22 October 2021 Catchwords: MIGRATION – judicial review – decision of the Refugee Review Tribunal – citizen of Sri Lanka – refusal of Protection (Class XA) visa
PRACTICE AND PROCEDURE – where historical lengthy delays in listing matters filed in Melbourne Registry for hearing – whether to adjourn proceedings
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 3.05
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit Court Rules 2001 (Cth) r 13.03B
Migration Act 1958 (Cth) ss 65, 476
Cases cited: AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1688
COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 22 October 2021 Date of hearing: 22 October 2021 Place: Perth The Applicant: Appeared in person (via telephone with the assistance of a Tamil interpreter) Counsel for the First Respondent: Mr C. Orchard (via telephone) Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 542 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) 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:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.Pursuant to rule 3.05(3) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth):
(a)an extension of time for compliance with Order 4 of orders of 15 July 2021 be granted to 2 November 2021; and
(b)an extension of time for compliance with Order 6 of orders of 15 July 2021 be granted to 9 November 2021.
2.
The matter be adjourned to a further and final hearing on 12 November 2021 at
12:30 pm AWST / 3:30 pm AEDT.
3.The Applicant pay the First Respondent costs of the adjournments on 15 July 2021 and 22 October 2021 in the sum of $1,000 by 22 November 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
On 18 March 2015 the applicant lodged in the Melbourne Registry of this Court an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) (“Judicial Review Application”). The Judicial Review Application seeks review of a 16 February 2015 decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse the applicant the grant of a Protection (Class XA) visa under s 65 of the Migration Act (“Protection Visa”).
The application was filed in the Melbourne Registry and orders were made on 24 June 2015 for dismissal for non-appearance by the applicant. Further orders were made on 6 November 2019 for the first orders to be set aside and for the applicant to file and serve submissions
28 days before hearing and for the Minister to file and serve submissions 14 days before hearing.
This matter was last before the Court on 15 July 2021, when the Court raised the question as to whether the matter ought to be adjourned for similar reasons to those in two cases, Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 and Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550, where, in those matters, an adjournment was granted due to the short notice 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.
On 15 July 2021 the applicant indicated he wanted an adjournment of the hearing, and having obtained instructions, the representative for the Minister indicated that the Minister did not oppose an adjournment. The Court, therefore, made orders on 15 July 2021, including for the adjournment of the matter and for the publication of Reasons for Judgment from Chambers at a later date. Relevantly, Orders 3 to 8 of those orders are as follows:
…
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.
It may be pertinent to observe that, on a factual level, the adjournment followed very short notice of the listing for hearing and the making of submissions after a substantial delay in listing the matter for hearing in the Melbourne Registry of the Court and the matter then being allocated to the Perth Registry for hearing in June of 2021.
Regarding the delays in the Melbourne Registry, the Court refers to AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1688 (“AFN15 (No 1)”) at [3] per Judge Lucev.
It is also appropriate to note that in the Reasons for Judgment in AFN15 (No 1) the Court specifically pointed out that the applicant had no right to legal representation, and in so doing, the Court acknowledged that there were certain difficulties for the applicant, including his not having English as a first language and his not, at that time, having had the advantage of any legal advice: AFN15 (No 1) at [12] per Judge Lucev. It was also noted that not having had a lawyer was a matter to be taken into account when exercising any relevant discretion, and the relevant authorities were cited: AFN15 (No 1) at [12] per Judge Lucev. Further, the Court observed that if a further adjournment were to be sought on the basis of medical grounds then medical reports would need to be filed, and again, the relevant authorities were cited: AFN15 (No 1) at [18] per Judge Lucev. In any event, the Court found merit in the adjournment request which was then made. The Court also notes that there was a Tamil interpreter present and interpreting at the hearing on 15 July 2021: 15 July 2021 Hearing Transcript, p. 2, and that the Court indicated that it would make an order for dismissal upon default by the applicant in compliance with Order 4 of the orders made on 15 July 2021 pursuant to r 13.03B(1)(c) of the then Federal Circuit Court Rules 2001 (Cth): AFN15 (No 1) at [15] per Judge Lucev.
The applicant has subsequently failed to comply with the terms of Order 4 of the 15 July 2021 orders, which required the filing of any amended application, a supplementary court book if any, and an outline of written submissions by 24 September 2021. There was an email exchange involving the parties and the Chambers of both Judge Kendall, the Court’s National Migration Law Judge, and the Chambers of the Judge presently presiding in these proceedings and the parties on 22 and 23 September 2021. The contents of those emails are as follows:
(a)on 22 September 2021 at 6:40 pm AWST the applicant emailed the Chambers of Judge Kendall, stating:
To whom this may concern,
I am seeking an extension of one month to lodge documents (date currently set as 24th September 2021) as currently due to the lockdown in Victoria, I am struggling to get legal and other assistance regarding this matter.
I do not speak English and after I received this I have had difficulty finding someone who could translate the order that was sent to me into Tamil.
…
(b)on 23 September 2021 at 10:52 am AWST the Chambers of the presiding Judge emailed the applicant and the Minister’s lawyers, stating:
Dear Parties
RE: MLG542/2015 - AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
I refer to the below email sent by the Applicant to the Chambers of Judge Kendall on 22 September 2021 at 6:40pm.
If the Applicant seeks to extend the time in which to lodge documents as per Order 4 of the Orders of Judge Lucev made on 15 July 2021, please confer with the representative for the First Respondent. If the parties are able to consent to an extension of time, please provide Chambers with a signed Minute of Proposed Consent Orders.
If the parties are unable to reach consent on this issue, the Applicant will need to file an Application in a Case with a supporting affidavit to seek the extension of time.
…
(c)on 23 September 2021 at 7:59 pm AWST the Minister’s lawyers emailed the Chambers of the presiding Judge and the applicant, stating:
Dear Associate
The applicant seeks an extension of one month to lodge his documents due to be filed tomorrow, 24 September 2021. The request for an extension is opposed for a number of reasons, also noting that the matter remains listed for hearing on 22 October 2021.
Notwithstanding, the Minister would be amenable to a revised timetable which would provide further time to the applicant whilst preserving the current hearing date. In this regard, we would agree to a timetable so that the applicant file his material by 8 October and the Minister by 15 October 2021. We will put consent orders to this effect to the applicant for consideration.
…
It suffices to observe that the Minister’s lawyers indicated that they would be amenable to a revised timetable to provide further time for the applicant to file his material by 8 October 2021 and with the Minister responding by 15 October 2021, those being dates in relation to Orders 4 and 6 in the orders made on 15 July 2021.
The opportunity extended by the Minister’s offer in the Minister’s email was not one which the applicant took up or indicated any agreement with and it certainly did not result in the applicant filing any further documents.
The applicant, when the matter was called today, made a request for an adjournment. He did so on the basis that he said that he had not been able to find a lawyer, seemingly on the basis of the Melbourne lockdowns relating to the COVID-19 pandemic. He pointed to the fact that he was unable to read English as part of the justification for a further adjournment. The applicant then indicated that he has found a lawyer within the last few days – a Mr Senthilnathan – whom he says is a Sydney-based lawyer.
The applicant, therefore, seeks an adjournment for a period of time to enable that lawyer to prepare his case.
The Minister opposes the adjournment and made the following observations and submissions:
(a)the applicant has failed to comply with the orders of 15 July 2021;
(b)the applicant has had since at least 2015 to obtain legal advice and he indicated in the Judicial Review Application filed in 2015 that he was seeking legal advice, however, it is only now, at the last minute, that he says he has obtained a lawyer to act for him;
(c)the time has come when the application ought to be heard in circumstances where the applicant is not necessarily entitled to legal representation; and
(d)the large caseload of this Court and the fact that this Court sitting in Perth is hearing Melbourne cases to assist with the backlog in Melbourne cases weighs against further adjournment.
The Minister does, however, concede that if the matter were to be further adjourned today, that there would be no specific prejudice to the Minister which could not be cured by an award of costs for both of the adjourned hearings in the sum of $1,000.
In considering whether to adjourn this hearing, the Court now has to have regard to the overarching purpose of the civil practice and procedure provisions inserted into the new Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and, in particular, s 190 of the FCFCOA Act. The Court refers to and adopts what it said in COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145 at [13] to [19] and [21] per Judge Lucev with respect to those civil practice and procedure provisions. Those sections are as follows:
13 With the coming into operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) (“GFL Rules”) there have been changes to the legislative objects and practice and procedure requirements for the Court now prescribed by s 8(2) of the FCFCOA Act as the “Federal Circuit and Family Court of Australia (Division 2)”. Those changes alter the nature of the factors for consideration when deciding whether to adjourn proceedings, as compared to the factors formerly considered in general federal law matters by the then Federal Circuit Court of Australia: as to which see, for example, EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [14]-[20] per Judge Lucev and BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.
14 The FCFCOA Act provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
190 Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
15 The FCFCOA Act provides that the practice and procedure of Division 2 of the Court is to be in accordance with, relevantly, the Rules of Court: FCFCOA Act, s 174(1)(a). The relevant Rules of Court are the Rules of Court made under Ch 4 of the FCFCOA Act (and specifically s 217 of the FCFCOA Act): FCFCOA Act, s 7(1), and are the GFL Rules, which provide:
(a) in r 1.04(1) that the overarching purpose of the GFL Rules is “as provided in section 190 of the … [FCFCOA Act], … to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”; and
(b) in r 1.04(2) that the parties “must” (in the chapeau to the sub-rule) “avoid undue delay, expense and technicality” (in para (a)).
16 As to the use of “must” in r 1.04(2) of the GFL Rules, it was recently observed in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020 at [24] per Judge Lucev that:
The chapeau to reg 5.19(2) of the Migration Regulations provides that “[t]he application must”. The use of “must” is indicative of an imperative command: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”), in this case, a positive command, expressing necessity in the sense of an obligation to fulfil the requirements set out in the paragraphs (a), (aa) and (b) to reg 5.19(2) of the Migration Regulations: Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444; CLR at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J; Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J.
17 Likewise in this case the use of “must” in the chapeau to r 1.04(2) of the GFL Rules imposes a mandatory requirement to fulfil the requirements in para (a) of that sub-rule, subject to any contrary legislative requirement and the Court’s power to dispense with compliance with the GFL Rules: GFL Rules, r 1.07(1).
18 The word “undue” carries with it both “a quantitative connotation – in the sense of going beyond what is warranted, or excessive – or a qualitative connotation – in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable”: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 at [58] per Jessup J. In r 1.04(2)(a) of the GFL Rules it would appear that “undue” is used primarily in the former sense, that is, that which gives rise to unwarranted or excessive delay, expense or technicality, although in relation to technicality it might be used in both senses in an appropriate case.
19It follows from the above that the factors for consideration in relation to whether to grant an adjournment are whether an adjournment might:
(a) facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and
(b) avoid undue delay, expense and technicality.
…
21In terms of the overarching purpose of the civil practice and procedure provisions in s 190 of the FCFCOA Act, the Court also notes that it relates to the “just resolution of disputes”. The use of the plural “disputes” as opposed to the singular “dispute” is important. That is because the use of the plural “disputes” allows the Court to give consideration to the possible impact of a proposed course of action on other matters pending before the Court, and not just the “dispute” the subject of the matter immediately before it for hearing. Thus the Court may have regard, as it traditionally would have: Sali v SPC Ltd & Anor (1993) 67 ALJR 841; (1993) 116 ALR 625; ALJR at 843-844 per Brennan, Deane and McHugh JJ and 849 per Toohey and Gaudron JJ; AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, to the possible effect on other litigants who might be denied a final hearing date if this matter were to be listed for final hearing now, and which final hearing might then have to be vacated if Ministerial intervention resulted in the grant of a Protection Visa. That is a particularly cogent consideration when regard is had to the number of migration judicial review applications in the Melbourne Registry not presently allocated to a Judge of the Court for hearing: see [4] above, many of which were filed upwards of four years ago.
Having regard to the above provisions, the Court must look to do what is necessary for a just resolution of the dispute before it. It would be unfortunate for there to be any further adjournment of these proceedings. The Court does note that the delay in these proceedings, at least until June 2021, was not the fault of the applicant: AFN15 (No 1) at [9] per Judge Lucev, but rather, the result of very lengthy historical delays in the listing of migration judicial review proceedings in the Melbourne Registry.
The grounds as they are presently framed do not, as the Minister quite properly argues, appear to give rise to any arguable case for prerogative relief.
The Court also observes that the orders on 15 July 2021 did give the applicant at least two months to prepare the documents necessary to comply with Order 4 and that those orders were read out in Court and interpreted, and that the applicant has no absolute right to legal representation in these proceedings.
The Court also notes that the applicant has had since 2015 to obtain legal advice and the Judicial Review Application did indicate that legal advice was being sought in 2015. Read together with, and considered together with, the Reasons for Judgment in AFN15 (No 1), and what was said to the applicant concerning his not complying with Order 4 of the orders of 15 July 2021: 15 July 2021 Hearing Transcript, p. 5, the matters that the Court has referred to make a powerful case for not adjourning today’s proceedings.
In determining a just resolution of this dispute those matters must, however, be balanced against other matters. The nature of the claim asserts a well-founded fear of persecution if the applicant is returned to Sri Lanka and the Court must have regard to the possibility of persecution if the applicant is returned to Sri Lanka without being afforded every reasonable opportunity to present his case concerning judicial review of the Tribunal Decision.
In relation to the COVID-19 lockdown, the Court can take judicial notice of the fact that it is notorious that there has been a very long lockdown in Melbourne and restrictions upon travel in and around both metropolitan Melbourne and regional Victoria. That, however, has not stopped migration judicial review matters from proceeding in this Court electronically and that has certainly not stopped parties, both represented and unrepresented, and the Minister’s lawyers, from appearing in this Court, and giving appropriate advice and preparing appropriate documents for their respective clients.
The Court, nevertheless, acknowledges that a person in the position of the applicant, one not necessarily familiar with the legal processes of the federal courts in Australia and one who does not have English as a first language or, arguably, at all, in the circumstances of a lockdown such as that which has occurred in Victoria, might experience not inconsiderable difficulties in obtaining any necessary advice. Significantly, the applicant now says that he has hired a Sydney-based lawyer – a Mr Senthilnathan – who is prepared to act for him. The Court notes that the Minister also acknowledges that there is minimal prejudice to the Minister in an adjournment such that cannot be cured by costs.
Having regard to all those factors and balancing them, including a consideration of the caseload of this Court, particularly in relation to the outstanding Melbourne cases, the Court does consider that a just resolution of this dispute can be accommodated by a short period of adjournment, and that to adjourn it for a short period would not be unjust. The Court notes it has the power to extend time fixed in any judgment, decree or order of this Court, even once that time has passed, pursuant to r 3.05(3) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The Court is, therefore, prepared to grant an adjournment for a short period of time. The Court will make an order that there be an adjournment to a further and final hearing of this matter.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 22 October 2021
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