AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 1322
•15 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
File number(s): PEG 17 of 2021 Judgment of: CHIEF JUDGE ALSTERGREN Date of judgment: 15 June 2021 Catchwords: PRACTICE AND PROCEDURE – Application in a case for transfer of matter from Perth to Melbourne Registry of the Court – factors to be considered – application in a case dismissed. Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s 3
Federal Circuit Court Rules 2001 (Cth), rr 1.03, 8.01
Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
BSY16 v Minister for Home Affairs [2019] FCA 140
GEQ18 v Minister for Home Affairs & Anor [2019] FCCA 3338
National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155
Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726
Timu v Minister for Immigration and Border Protection [2018] FCAFC 161
Number of paragraphs: 51 Date of hearing: 10 June 2021 Place: Melbourne Applicant: In person Counsel for the First Respondent: Mr Papalia The Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 17 of 2021 BETWEEN: AFP21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
CHIEF JUDGE ALSTERGREN
DATE OF ORDER:
15 JUNE 2021
THE COURT ORDERS THAT:
1.The hearing of this matter proceed by video-link pursuant to div.5 of pt.6 of the Federal Circuit Court of Australia Act 1999 (Cth).
2.The applicant’s application in a case filed 3 May 2021 be dismissed.
AND THE COURT NOTES THAT:
A.The matter is to remain listed before his Honour Judge Kendall on 17 September 2021 at 9:30am.
REASONS FOR JUDGMENT
CHIEF JUDGE ALSTERGREN
On 3 May 2021, the applicant filed an application in a case which stated under the heading ‘Orders sought’:
1. I am applying to the Federal Circuit Court to get my matter transferred to Victoria.
2. I am very much stressed feel depressed about handling this matter without a lawyer representing me. I want engage a lawyer to represent me at the trial.
3. I would be able to get some help from other organisations dealing with Asylum when I am in Melbourne. I am living by myself in Perth. I would be mentally prepared when I am with my friends in Victoria where I am able to get some moral assistance.
Clearly, these are not “orders”. What they are is a request for the applicant’s judicial review application filed 24 January 2021 to be transferred to the Melbourne registry of this Court.
For the reasons that follow, I dismiss the application in a case dated 3 May 2021. The matter is to remain listed in the Perth Registry of the Court.
BACKGROUND
The applicant is a citizen of Malaysia. He applied for a Protection visa on 16 December 2016. That visa was refused by a delegate of the first respondent (“Minister”) and that decision was subsequently affirmed by the Administrative Appeals Tribunal (“Tribunal”).
On 24 January 2021, the applicant applied to this Court for judicial review of the decision of the Tribunal. The Tribunal’s decision is dated 14 January 2021. I need not go into the detail of the judicial review application or the background surrounding the visa application for the purposes of this application.
On 25 February 2021, a Registrar of the Court made orders programming this matter to a final hearing on 17 September 2021. The matter is listed to his Honour Judge Kendall in the Perth Registry.
On 3 May 2021, the applicant filed the application in a case that I am now considering. An affidavit was filed in support sworn by the applicant on 29 April 2021. The affidavit repeats the “orders” sought in the application in a case.
I also have before me an outline of written submissions and an affidavit of Adam Francis Flynn affirmed 8 June 2021 which were filed on behalf of the Minister on 8 June 2021.
The hearing of the application in a case came before me on the afternoon of 10 June 2021. The matter proceeded by way of video-link from a courtroom in Melbourne where I presided and a courtroom in Perth from where the parties were appearing. The applicant did not have a lawyer representing him. He was assisted by a Malaysian interpreter.
LEGAL PRINCIPLES
In Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726 (“Singh”), his Honour Judge Kendall was considering an application for transfer to Melbourne in similar circumstances to the present matter. His Honour helpfully summarised the legal principles as follows:
17. Section 52 of the Federal Circuit Court of Australia Act 1999 (Cth) (the “Act”) states:
(2) The Federal Circuit Court of Australia or a Judge may, at any stage of a proceeding in the Federal Circuit Court of Australia, order that:
(a) the proceeding; or
(b) a part of the proceeding;
be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Federal Circuit Court of Australia or Judge imposes.
18. Rule 8.01 of the Rules states:
(1) A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2) In considering an application, the Court must have regard to:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.
19. In National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 164 (“Sentry”), the Full Court of the Federal Court, stated as follows in relation to an application to transfer proceedings from Victoria to New South Wales:
Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
20. The guidance provided in Sentry is additional to the matters that the Court is required to consider under r 8.01(2). That is, the factors in r 8.01(2) are mandatory and the Court must consider them in order to properly exercise its discretion to transfer, or not transfer, the proceedings.
At the hearing of this application in a case I ensured that I explained these matters to the applicant and invited him to comment. He was also asked more generally why he wanted the matter to be transferred to Melbourne. I also drew the Minister’s solicitor’s attention to these matters and asked for a response to these factors as well as to any additional matters that the applicant raised or the Minister considered appropriate. I will address what was submitted at the hearing as it is necessary below.
CONSIDERATION
Convenience to the Parties
The applicant currently resides in Western Australia and there is little evidence confirming that he will be living in Victoria at the time of the substantive hearing scheduled for 17 September 2021. The applicant has not provided any evidence of travel bookings or about his housing arrangements in Victoria (which would, arguably, confirm he will be living in Victoria in September 2021).
During the hearing the applicant stated that he was “waiting for this hearing to be finished, and then I’ll just get a ticket and I’ll just organise everything and then move to Melbourne straightaway within one week or two weeks. As soon as possible.”
Although it is unclear whether the applicant will actually be residing in Victoria at the time of the substantive hearing, I accept that his preference is for the matter to be heard in Melbourne. It appears that this will be convenient because he can have the support of friends who live in Victoria. It also appears that he believes that he has a better chance of engaging a lawyer, although there was no proof of that being the case.
The Minister’s solicitor with carriage of this matter is based in Perth. If the matter is transferred, it is likely that a new solicitor will take carriage of the matter. Given the early stage of the proceeding, I do not consider this alone will be “inconvenient”. It may be undesirable, but it would not prejudice or inconvenience preparation undertaken or to be undertaken.
Balancing the relevant convenience of the matter being transferred to Melbourne, I consider that this slightly weighs in the applicant’s favour.
Limiting of Expense and Cost of the Proceeding
As I have stated above, the applicant appears to want to travel to Melbourne for the hearing. He will have to incur the expenses and costs of doing so. Those costs and expenses are not matters which the Court will impose on him, but they are a necessary consequence of this application. Accordingly, the costs are ones which the applicant has accepted and agreed to incur as a result of his application. I place no weight on the costs the applicant imposes on himself.
No additional costs or expenses will be incurred by the Minister.
If it is the case that the applicant will be residing in Victoria at the time of the hearing, transferring the matter to Melbourne will not result in additional expense to either the applicant or the Minister. If the matter is not transferred to Melbourne, it is not the case that the applicant will have to incur costs for travel to Perth to appear. As the Minister rightly notes, the hearing can proceed by way of remote means. To the extent that the applicant takes issue with proceeding via either of these mediums, I reject those concerns. There is no evidence that the matter cannot adequately and fairly proceed by video or telephone. The hearing of this matter which proceeded by video-link before me without issue is a demonstration of that. I will address this issue further below.
If the applicant wishes to return to Perth for a “face-to-face” hearing, he can do so. However, that is a matter for him and any costs associated with doing so are not costs that the Court has imposed on the applicant.
Further, even if the matter was transferred to Melbourne there is no guarantee that the matter would be able to proceed face-to-face in any event. I note that due to the COVID-19 pandemic, for more than 12 months, the majority of matters in the Melbourne registry (and the rest of the Court) have been heard almost exclusively by Microsoft Teams.
I consider this to be a neutral factor.
Whether the matter has been listed for hearing
This matter has been listed for hearing. As I have noted, it is listed for hearing before Judge Kendall in the Perth Registry on 17 September 2021.
The applicant has not requested that his hearing date be vacated. However, the inevitable consequence of the matter being transferred to Melbourne is that the hearing date will need to be vacated.
It is a matter of common knowledge that the Melbourne Registry of this Court has a large backlog. This fact has been acknowledged in Singh and GEQ18 v Minister for Home Affairs & Anor [2019] FCCA 3338. If the matter was to be transferred to Melbourne the applicant’s hearing would be adjourned to an unknown date. It certainly would not be heard on the date it is listed to be heard before Judge Kendall. It would, most likely, be adjourned to 2022 at the earliest.
Having particular regard to the objects and aims of this Court (as stated in s 3 of the Federal Circuit Court of Australia Act 1999 (Cth) (“Act”) and r 1.03 of the Federal Circuit Court Rules 2001 (Cth) (“Rules”)) to avoid undue delay where possible, the fact that the applicant would forfeit a hearing date and his matter would be delayed weighs heavily against the matter being transferred. If, for example, there was a compelling reason for the transfer I may think differently but for reasons expressed below, there is not.
The matter being listed for hearing, and the fact that a transfer will delay the resolution of the matter, weighs heavily against a transfer.
Other Relevant Matters
The reason for the transfer request is a relevant matter. The applicant’s reason for the transfer is stated in the second and third “order” that he seeks in the application. It is twofold. First, he believes that he will be able to seek assistance from “Asylum organisations” in Melbourne who, inferably, can provide him with legal representation. Second, he will be mentally prepared if he has his friends who live in Victoria around him for support.
In regards to the applicant stating that he wishes to obtain legal representation and can seek assistance from “Asylum organisations” in Melbourne, the applicant has not indicated that he has attempted to seek any assistance from any organisations in Perth. This is in circumstances where the application has been on foot for nearly six months. During the hearing the Applicant advised that he had contacted the Asylum Seeker Resource Centre and stated that he was advised to wait for the outcome of his application in a case and once he has moved to Victoria to “come and see us […] from there we will get assistance to […] look into the matters and then do the necessary actions.” The applicant also advised the Court that the Asylum Seeker Resource Centre provided him with contact numbers for legal organisations. It was not clear whether he had sought advice from those legal organisations.
I am not satisfied that this is a valid reason for the matter to be transferred to the Melbourne registry. The applicant can still contact “Asylum organisations” and legal organisations in Melbourne without the matter having to be transferred. If he is successful in obtaining assistance, there is nothing to stop those organisations from representing him and appearing remotely via electronic means at the hearing before Judge Kendall, as is commonplace in matters before this Court currently.
Finally, there is no guarantee that the applicant will obtain legal representation or assistance from “Asylum organisations”: BSY16 v Minister for Home Affairs [2019] FCA 140. There is also no right of legal representation in migration proceedings: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099. Noting that the applicant has not indicated he has previously made inquiries about legal representation and bearing in mind my statements above that the applicant can make inquiries of “Asylum organisations” without the matter being transferred, I consider that given there are three months before the hearing before Judge Kendall, the applicant can obtain legal representation if he is able to do so and does not require the matter to be transferred to do so.
The applicant’s first reason for seeking a transfer, to obtain assistance from Melbourne based organisations, is not adequate and does not weigh in favour of a transfer.
In regards to the applicant’s second reason for requesting the transfer, that being so that he can have the moral assistance of his friends, this is not adequate in my view. First, the applicant’s friends could travel to Perth for the hearing date or be with him while he appears remotely from Melbourne (if he will in fact be residing there at the time of the substantive hearing). The applicant has not indicated that they could not do so. Second, a lack of moral assistance does not give me concerns that the applicant will be denied procedural fairness or unable to present his case. While moral support would be beneficial and undoubtedly ease the applicant’s nerves, it is not a requirement for a fair hearing.
I note that the applicant refers to feeling “depressed” at having to handle this matter without legal representation. I understand that the applicant may feel anxious and stressed at the thought of having to represent himself. However, just as a lack of legal representation is not a sufficient reason to grant an adjournment (Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19]), a lack of legal representation or moral support is not a sufficient reason to transfer a matter. This is particularly the case where, as I have explained above, there is no guarantee the applicant will obtain legal representation and there is no right to legal representation in this Court.
During the hearing the applicant also alluded to concerns with how his matter proceeded before the Tribunal. I note that at [4] to [6] of the Tribunal’s decision, the Tribunal outlines that an initial hearing was conducted by telephone, a second hearing was scheduled to be held by audio visual means, however, following difficulties with securing a clear connection, the Tribunal determined the hearing could not proceed and was adjourned to a third in-person hearing at the Perth registry.
In this respect, I am not satisfied that there is any evidence that a hearing before this Court cannot be conducted properly and fairly via remote means. There were no issues during the course of the interlocutory hearing before this Court and I am satisfied that the final hearing could proceed successfully in the same way or via Microsoft Teams, if required. The Court’s experience with the use of remote technologies such as Microsoft Teams during the COVID-19 pandemic has been positive.
I also note the following comments of his Honour Judge Kendall in Singh:
54.Any negative experience the applicant had at the Tribunal can be ameliorated before this Court in relation to this matter. For example, the Court can make arrangements for the applicant to appear from a court room in Melbourne. This will mean that a member of the Court staff will be present in Court (and with the applicant) to ensure that the connection is working. Court staff can attend to any issues in this regard and advise the Court immediately if any technical issue arise. The applicant will also not be disrupted (by children or otherwise).
55The Court can assure the applicant that if, during the hearing of his matter, it has any concerns whatsoever that the video-link is unsatisfactory, it will not hesitate to adjourning the hearing until such time as any concerns in this regard are addressed. However, at this stage, there is no reason to believe that any technological concerns cannot be addressed on the day.
I do not doubt that if those same circumstances arise in the final hearing of this matter, his Honour will do the same for this applicant.
Further, as I have noted above, even if I accept that the applicant will be living in Victoria, there is no guarantee that the matter would be able to proceed face-to-face in the Melbourne registry if it was transferred and the matter may be required to proceed by remote means in any event.
Finally, the applicant also raised issues concerning his employment during the hearing. The applicant stated that “I have got problems at my workplace as I have to take many days off and I have been reprimanded by my employer for me taking days off to attend cases […] and I was not paid during those days.” The applicant also stated that his employer never paid his annual leave. Insofar as the applicant has issues with his employer that is a matter he should raise with a union or legal organisation. These are not matters relevant to these proceedings.
The applicant also appeared to suggest that he hoped to move to Victoria to seek new employment. Although the applicant has not provided any evidence of future employment opportunities in Victoria, if it is his intention to gain employment there, the matter remaining in the Perth registry will not hinder this. As I have already stated, there is nothing to prevent the applicant from seeking to appear at the hearing on 17 September 2021 remotely if he is residing in Victoria on that date.
The applicant’s reasons for requesting the transfer are entirely inadequate. They do not compel me to disrupt the arrangements already in place for the hearing of the matter to proceed. Accordingly, the reasons for the transfer request do not assist the applicant in satisfying me that it is appropriate for this matter to be transferred.
There are no other relevant matters that I have identified or that the parties have advanced.
Should the matter be transferred?
I have weighed each of the matters that I am required to consider by virtue of r 8.01 of the Rules. While the convenience of the matter being transferred has some weight in the applicant’s favour, I consider that the possibility of the hearing date already provided being vacated, the potentially lengthy delay in the matter being listed in Melbourne and the inadequate reasons for the transfer strongly outweigh any transfer of this matter.
I have considered the remarks made in National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 and I further add that the matter can be fairly and suitably continued in Perth. The applicant is not prevented from obtaining legal representation (even legal representation from firms based in Melbourne) if the matter remains listed in Perth. There are three months for him to act. I consider this ample time for the applicant to obtain any representation if he is able without the need to jeopardise his hearing date in September.
The determination of the issue between the parties (i.e. whether there is jurisdictional error in the Tribunal’s decision) can be fairly and properly attained if the matter remains in Perth. Importantly, the matter can be resolved in a just, efficient and economic manner as required by the Court’s Act and Rules.
Here, the matter will be delayed and protracted if it is transferred. Even if the applicant is based in Victoria at the time of the hearing, the Court can ensure that the applicant is provided procedural fairness if the matter is heard via video. Further, no extra costs need be incurred by either party if the matter remains in Perth.
Accordingly, the most efficient administration of justice will be served by the matter remaining in the Perth Registry.
I refuse the transfer request.
CONCLUSION
The application in a case must be dismissed.
I further add that if the applicant is residing in Perth at the time of the hearing and he believes that he must have the moral support of his friends, he is not prevented from travelling to Melbourne for the hearing in September. He can request leave to appear via video-link. His friends can, therefore, physically be with him (if they cannot travel to Perth as an alternative). This is a matter for the applicant to decide. I merely note that it may allay his concerns about appearing on his own behalf and ensure that the hearing date in September remains.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Chief Judge Alstergren. Associate:
Dated: 15 June 2021
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