AGR23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 927
•17 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AGR23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 927
File number: MLG 298 of 2023 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 17 October 2023 Catchwords: MIGRATION LAW – interlocutory application for expedited hearing – application opposed by Minister – Applicant not granted bridging visa and has not held a visa for seven (7) years – application made on grounds that Applicant faces hardship and potential homelessness as a result of his unregularised migration status – whether it is in the interests of the administration of justice to expedite hearing – consideration of factors in Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 – no grounds for expedition – interlocutory application dismissed – order for costs against the Applicant Legislation: Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) rr 1.04, 10.01(3)(r) and 10.03(a) Cases cited: Awan v Minister for Immigration [2002] FCA 594
BLD15 v Minister for Immigration and Border Protection [2017] FCA 72
Drummond v Canberra Institute of Technology [2022] FCA 1030
Frigger v Trenfeld (No 6) [2022] FCA 1233
Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090
Sydney Trains v Australian Rail, Tram and Bus Industry Union (No 2) [2022] FCA 1264
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submissions 9 October 2023 Date of hearing: 9 October 2023 Place: Melbourne Counsel for the Applicant: Ms Brumby Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr Solomon Bridge Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitting an appearance save as to costs ORDERS
MLG 298 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGR23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MUTLICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
17 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Applicant on 6 September 2023 (Application in a Proceeding) is dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application in a Proceeding, including the costs of the hearing on 9 October 2023, to be taxed in default of agreement.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
The Applicant is a citizen of Iran. The Applicant arrived in the Commonwealth of Australia (Australia) in April 2013 and is currently living in charitable share housing in Melbourne. The Applicant has an undetermined migration status in Australia. The Applicant was refused a protection visa in 2015 and last held a bridging visa in 2015.
Before the Court is an Application in a Proceeding lodged by the Applicant on 1 September 2023, and accepted for filing by the Court on 6 September 2023 (Interlocutory Application). The Interlocutory Application seeks an order that the matter be listed for final hearing on an expedited basis, but not before 20 November 2023. The First Respondent (Minister) opposes the Interlocutory Application. The Applicant is represented by Victorian Legal Aid (Applicant’s Lawyers) and the Minister is represented by Sparke Helmore (Minister’s Lawyers).
The hearing of the Interlocutory Application took place at the Court on 9 October 2023 (Interlocutory Hearing). At the conclusion of the Interlocutory Hearing judgment was reserved.[1] These are the Reasons for Judgment in relation to the Interlocutory Hearing.
[1] Orders made by Her Honour Judge C.E. Kirton KC on 9 October 2023, Order 1.
ISSUE TO BE DETERMINED
The issue to be determined is whether there are grounds to expedite the final hearing of the Application for judicial review, filed by the Applicant on 23 February 2023 (Substantive Application).
SYNOPSIS
I have determined that it is not in the interests of the administration of justice to expedite the final hearing of this matter. An order for expedition of the final hearing will not be granted and the matter will be heard in accordance with standard listing procedures of the Court.
BACKGROUND
The Applicant arrived in Australia as an unauthorised maritime arrival on 26 April 2013.[2] On 5 August 2013 the Applicant applied for a protection visa.[3]
[2]Applicant’s Outline of Submissions in Support of Expedition, filed 18 September 2023 (Applicant’s Submissions in Support of Expedition), [3]; Court Book, filed by the First Respondent (Minister), 13 July 2023 (CB), 42.
[3] CB 16-69.
By correspondence dated 15 January 2015 the Applicant was requested to attend a protection visa interview at the Department of Immigration and Border Protection (Department) on 12 February 2015.[4] The Applicant declined to attend the protection visa interview at the Department.[5]
[4] CB 70-74.
[5] CB 79.
On 5 May 2015 the Applicant’s application for a Temporary Protection (Class XD) (Subclass 785) visa was refused by a delegate of the Minister (Delegate’s Decision).[6] On 2 September 2022, over seven (7) years after the Delegate’s Decision, the Applicant sought merits review of the Delegate’s Decision by the Second Respondent, the Administrative Appeals Tribunal (Tribunal).[7]
[6] CB 75-95.
[7] CB 96-103.
On 11 June 2015 the Applicant’s last recorded visa, a bridging visa, lapsed.[8]
[8] Minister’s Submissions on Expedition, filed 22 September 2023, [1]; Affidavit of Adam Cunynghame, filed 22 September 2023 (Cunynghame Affidavit), [5] and Annexure ‘ACX2’.
On 25 January 2023, the Tribunal determined that it did not have jurisdiction to review the Delegate’s Decision, as the application for merits review was made out of time (Tribunal’s Decision).[9] The Tribunal determined that pursuant to s 494C of the Migration Act 1958 (Cth) (Migration Act), the Applicant was taken to have been notified of the Delegate’s Decision on 14 May 2015 and that the prescribed period to apply for review ended on 10 June 2015. As the application for merits review was not received by the Tribunal until 2 September 2022, the application to the Tribunal was not made in accordance with the relevant legislation and the Tribunal thereby did not have jurisdiction in the matter.[10]
[9] CB 122-124.
[10] CB 123, [6] and [7].
On 1 March 2023, the Applicant applied for a Bridging E (Class WE) visa (Bridging Visa) which was refused by a delegate of the Minister on 4 April 2023.[11] On 9 August 2023 the Applicant made a second application for the Bridging Visa, which was also refused by a delegate of the Minister on 5 September 2023.[12] Consequently, the Applicant continues residing in the community without a valid visa. At the time of the Interlocutory Hearing the Applicant had not sought review of the 5 September 2023 Bridging Visa refusal decision.[13]
[11] Applicant’s Submissions in Support of Expedition, [6]; Affidavit of Tessa McGregor Maybery, affirmed 1 September 2023 and filed 6 September 2023 (1 September 2023 Maybery Affidavit), [4] and Annexure “TMM-9”.
[12] Applicant’s Submissions in Support of Expedition, [9]; Affidavit of Tessa McGregor Maybery, filed 18 September 2023 (18 September 2023 Maybery Affidavit), [8] and Annexure “TMM-14”.
[13] 18 September 2023 Maybery Affidavit, [9]; Transcript P10:L4-12.
On 15 August 2023 the Applicant’s Lawyers sought consent from the Minister in writing to proposed consent orders in the form of the orders sought before the Court at the present.[14] Between 25 August 2023 and 16 September 2023, the parties exchanged correspondence, however no agreement was reached.
[14] 1 September 2023 Maybery Affidavit, [4] and Annexure “TMM-10”.
For the past five (5) years the Applicant has been a resident of the Baptcare Sanctuary program, which provides share housing, access to a foodbank, limited supermarket vouchers and myki credits to residents.[15] Probably on or about 31 January 2023, and by no later than 3 May 2023, the Applicant was notified in writing that his fixed-term tenancy with Baptcare Ltd would not be renewed beyond 14 November 2023.[16] Since this notification, the Applicant has unsuccessfully sought alternative accommodation.
[15] 1 September 2023 Maybery Affidavit, [4] and Annexure “TMM-8”.
[16] 18 September 2023 Maybery Affidavit, [4] and Annexure “TMM-11”.
PROCEEDINGS BEFORE THE COURT
On 23 February 2023 the Applicant filed the Substantive Application in this Court seeking judicial review of the Tribunal’s Decision. The Substantive Application was filed within time pursuant to s 477 of the Migration Act. Counsel for the Applicant explained that the Substantive Application advances that the letter notifying the Applicant of the Delegate’s Decision was defective and therefore the time period to apply for merits review by the Tribunal had not commenced.[17] The Applicant contends that the letter was not consistent with legislative requirements and did not allow the Applicant to calculate the dates relevant to filing for review of the Delegate’s Decision.
[17] Transcript P6:L41-P7:L4.
The grounds of the Substantive Application are articulated to be the following:
1. The decision of the Administrative Appeals Tribunal (Decision) was affected by jurisdictional error because the Tribunal erroneously denied the existence of its jurisdiction.
Particulars
a. The Applicant was not validly notified of the delegate’s decision to refuse the Applicant’s application for a protection visa in accordance with s. 66(2)(d)(ii) of the Migration Act 1958 (Cth) because:
i.Section 66(2)(d)(ii) required the notification to clearly state the time in which the application for review may be made: DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492 (DFQ17) at [58].
ii.The purported notification of the delegate’s decision (Notification) did not clearly state the relevant timeframe because:
1. The “Review Rights” section states that the timeframe within which an application must be made “commences on the day on which you are taken to have been notified of this decision”, but the Notification does not state how to calculate the day on which the Applicant is taken to have been notified of the decision, referring instead to when he is taken to have received the Notification (see “Receiving this Letter” section): cf Singh v Minister for Immigration and Border Protection FCAFC 31 (Singh) at [15];
2. The Notification having been sent by post, the calculation of time in which an application for review may be made required the Applicant to double-count the day on which the notification was taken to be received: see DFQ at [45];
3. Some of the information between the “Review Rights” section and the “Receiving this Letter” section of the Notification is referable to receiving the letter, but none of it is referable to the time in which an application for review is required to be made, resulting in the required information being conveyed in a piecemeal manner (DFQ at [62]) and a reader being required to assemble the information from disparate parts of the letter: BMY18v Minister for Home Affairs (2019) 271 FCR 517 at [39].
iii.The brochure enclosed with the Notification, entitled “Refugee Review Tribunal - The Review Process [R10]”, was not the brochure said to be included with the Notification in its footer and is itself unclear and contains incorrect information:
1.Under the heading “When must I apply for review?”, the brochure relevantly states that “the Tribunal must receive your application within 28 calendar days of the date you are taken to have been notified of the decision by the department”.
a. The timeframe being referable to when the Tribunal must receive the application, rather than when the application must be given to the Tribunal (see s. 412(1) of the Migration Act 1958 (Cth)), is incorrect: Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at [40]-[42]; Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 578 at [50];
b. The meaning of the word “within” is unclear in circumstances where cl. 4.31(2) of the Migration Regulations1993 (Cth) requires the day on which the Applicant was notified of the decision to be counted, but the words “within 28 calendar days of the date you are taken to be notified” suggests that the day is not to be counted: see Acts Interpretation Act 1901(Cth) s. 36(1).
b. The Applicant not having been validly notified of the delegate’s decision, the event from which the expiry of the review application period was to be calculated has not yet occurred (DFQ at [62]), Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Prata (2021) 284 FCR 62 at [47], [97].
c. On 25 January 2023, the Tribunal decided that it did not have jurisdiction in the Applicant’s review because the application for review had been made out of time.
d. For the foregoing reasons, the Tribunal erroneously decided that it did not have jurisdiction. The Decision was, therefore, affected by jurisdictional error.[18]
(As written)
[18] Application - Migration Act, filed 23 February 2023,’Grounds of Application’, 3-5.
The Minister filed a Response on 6 March 2023 seeking that the Substantive Application be dismissed (Response).
On 6 September 2023, over six (6) months after the Substantive Application was filed, the Interlocutory Application was filed. An Affidavit of Tessa McGregor Maybery, a solicitor employed by the Applicant’s Lawyers, affirmed on 1 September 2023 (1 September 2023 Maybery Affidavit), was also filed on 6 September 2023.
On 18 September 2023 the Applicant filed the Applicant’s Outline of Submissions in Support of Expedition (Applicant’s Submissions in Support of Expedition), together with a further Affidavit of Tessa McGregor Maybery, affirmed on 18 September 2023 (18 September 2023 Maybery Affidavit). The Applicant subsequently also filed a further affidavit of Tessa McGregor Maybery on 2 October 2023 (2 October 2023 Maybery Affidavit).
The 1 September 2023 Maybery Affidavit and the 18 September 2023 Maybery Affidavit provide information and background as to the Applicant’s circumstances and the reasons for the making of the Interlocutory Application. The 2 October 2023 Maybery Affidavit contains a freedom of information request concerning administrative detention of persons to enable the granting of bridging visas.
The Interlocutory Application is opposed by the Minister. On 22 September 2023, the Minister filed the Minister’s Submissions on Expedition (Minister’s Submissions on Expedition) and an Affidavit of Adam Cunynghame, affirmed on 22 September 2023 (Cunynghame Affidavit). In the Cunynghame Affidavit, Mr Cunynghame, a solicitor employed by the Minister’s Lawyers, deposed at [7] that:
[7][…] the applicant’s case is in the process of being referred to the Minister for consideration of the granting of a visa under s 195A of the Migration Act 1958, and, if the Minister is inclined to intervene, the applicant would need to be administratively detained to enliven the s 195A intervention power. The timeline as to when this may occur was not provided. While I am aware that the applicant’s case is being progressed in this regard, I am not aware of any particular timelines for possible consideration of intervention.
The parties filed a joint list of authorities on 3 October 2023 (Joint List of Authorities).
The Interlocutory Hearing took place before me on 9 October 2023 and was heard in person. Both the Applicant and the Minister were represented by Counsel. I have heard and considered the submissions made at the Interlocutory Hearing by Counsel for the Applicant and Counsel for the Minister.
EVIDENCE AND SUBMISSIONS
At the commencement of the Interlocutory Hearing, the parties raised the matter of the filing out of time of: the 18 September 2023 Maybery Affidavit; the 2 October 2023 Maybery Affidavit; and the Cunynghame Affidavit. These affidavits required leave of the Court to be filed. Neither party objected to the filing and acceptance by the Court of these affidavits. However, Counsel for the Minister submitted that the Court should give little weight to the 2 October 2023 Maybery Affidavit on the basis that it lacked relevance to the matters the subject of the Interlocutory Hearing.[19]
[19] Transcript P4:L7-P5:L16.
The Applicant relied upon the following documents:
(a)The Substantive Application;
(b)The Interlocutory Application;
(c)The 1 September 2023 Maybery Affidavit;
(d)The 18 September 2023 Maybery Affidavit;
(e)The 2 October 2023 Maybery Affidavit;
(f)The Joint List of Authorities; and
(g)The Applicant’s Submissions in Support of Expedition.
The Minister relied upon:
(a)The Cunynghame Affidavit;
(b)The Joint List of Authorities; and
(c)The Minister’s Submissions on Expedition.
The Court also has before it a Court Book filed by the Minister on 13 July 2023 numbering 128 paginated pages.
At the Interlocutory Hearing, a Letter from Ms Maybery at the Applicant’s Lawyers addressed to Mr Cunynghame at the Minister’s Lawyers, dated 8 June 2023 was admitted as the Minister’s Exhibit 1 (Exhibit R1). Exhibit R1 detailed the Applicant’s Lawyers opinion as to the relevance of Sandor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 434 (Sandor) in relation to the determination of the Substantive Application.
Applicant’s Submissions
The Applicant’s Submissions in Support of Expedition contend that an order for an early hearing date for the Substantive Application is warranted in this matter, pursuant to the principles espoused by the Federal Court in Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 (Hird), on the basis that the Applicant will suffer significant hardship, including potential homelessness, from November 2023. Counsel for the Applicant submitted that the ‘unintended consequences’ of the Migration Act and Migration Regulations 1994 (Cth) are that the Applicant is currently ineligible for any visa or bridging visa, which warrants the expedition of the hearing of the Substantive Application.[20] Counsel for the Applicant noted that the Applicant was part of a larger cohort of persons with an unregularised visa status because of the legislative framework.[21]
[20] Transcript P7:L12-17.
[21] Transcript P7:L12-25.
Counsel for the Applicant submitted that the Applicant’s inability to work, inability to access government benefits, reliance on community-based services and homelessness from November 2023, weigh in favour of an expedited hearing of the Substantive Application. Counsel for the Applicant referred to Annexure “TMM-8” of the 1 September 2023 Maybery Affidavit and explained that the Applicant, through charitable organisation caseworkers, had engaged in efforts to obtain documents and to alleviate the hardship experienced by the Applicant. Counsel submitted that she was instructed that the Applicant had sought legal advice on various occasions, which resulted in delay during the seven (7) year period between the Delegate’s Decision and the Applicant seeking merits review at the Tribunal.[22] Counsel for the Applicant noted that there was no delay in relation to seeking judicial review of the Tribunal’s Decision.
[22] Transcript P17:L3-20.
Counsel for the Applicant likened the expedition of hearings when applicants are in detention to this matter, as the nature of the rights at stake are the same. Counsel for the Applicant submitted that any kind of hardship outweighs any considerations regarding the efficiency and management of this matter as argued by the Minister.[23] The 18 September 2023 Maybery Affidavit outlines the matters relevant to the Applicant’s circumstances that bear on the Interlocutory Application.
[23] Transcript P12:L3-12.
Counsel for the Applicant refuted the Minister’s contention that the Substantive Application should not be heard before the determination of the matter ‘Minister for Immigration, Citizenship and Multicultural Affairs v Singh (WAD176/2023)’, which is listed before the Full Court of the Federal Court on 17 November 2023 (Singh Appeal). The Singh Appeal concerns the correctness of Sandor.[24] Counsel for the Applicant submitted that there is a need to hear the Substantive Application at the earliest possible time and that expedition of the final hearing would not be futile.[25] Counsel for the Applicant submitted that the Singh Appeal would only deal with one (1) basis upon which the Applicant claims that the Minister failed to comply with s 66(2)(d)(ii) of the Migration Act. Therefore, the Singh Appeal would not determine a point that could be decisive for the Substantive Application, unless the Court dismissed the other grounds of the claim.
[24] Cunynghame Affidavit, [3] and Annexure “ACX-1”.
[25] Transcript P12-13.
Minister’s Submissions
The Minister opposes the Interlocutory Application on the ground that the hardship relied on by the Applicant would not directly be addressed if the final hearing of this matter was expedited to a time shortly after 20 November 2023. The Minister also submitted that this matter should not be expedited as it would be in the interests of justice for the Substantive Application to be heard following judgment in the Singh Appeal. The Minister submitted that the Singh Appeal will address a key issue for determination in the Substantive Application. The Minister submitted that it is not: in accordance with authoritative case law; in the interests of litigants; an efficient use of the Court’s resources or good public administration to hear the Substantive Application before the judgment in the Singh Appeal.
The Minister questioned the utility of expediting the hearing and contended that the hardship of the Applicant would not be alleviated by the expedition of the hearing. Counsel for the Minister submitted that the risk referred to by the Applicant had already crystallised and noted that the Applicant had been living in Australia without a valid visa since 2015. Counsel for the Minister described the alleviation of hardship advanced by the Applicant as ‘elusive’ or more apparent than real and that expedition of the final hearing would make a marginal difference. Counsel based his submissions on the Singh Appeal, and the potential need to remit the matter to the Tribunal or return to the Court to re-determine the matter after the final hearing for a further final hearing.[26] The Minister submitted that there are a number of factors that would mean that if the final hearing was expedited the Applicant would nevertheless be unlikely to be granted a protection visa for many months, including that the Court may reserve its judgment, the matter would have to be re-heard before the Tribunal and re-determined by the Minister.
[26] Transcript P26:L17-41.
Counsel for the Minister submitted that the strongest ground in the Substantive Application was the “Sandor Ground” and argued that the Singh Appeal would be determinative in this matter.[27] Counsel relied on Exhibit R1 in support of this submission. Counsel for the Minister contended that the expedition of a hearing in these circumstances would not be consistent with the principle in BLD15 v Minister for Immigration and Border Protection [2017] FCA 72 (BLD15), that adjournments are appropriate in circumstances where there is a pending authoritative declaration of what the relevant law is. Counsel for the Minister explained that it is distinguished in BLD15 that foreshadowed changes to the law do not justify adjournment of a hearing, whereas in circumstances where there are foreshadowed declarations of the law it is appropriate for the Court to wait.[28] Therefore, Counsel for the Minister submitted that the Singh Appeal was a foreshadowed declaration of law, which weighed in favour of not granting an expedition of the hearing in this matter and in favour of hearing this matter after the Singh Appeal is determined.
[27] Transcript P22:L30-34.
[28] Transcript P24:L3-13.
Counsel for the Minister noted that the Applicant had not filed for review of the 5 September 2023 Bridging Visa refusal determination. Although Counsel for the Minister noted that the time period for such an application had not yet expired, Counsel submitted that the Applicant was a long time away from any resolution of the Substantive Application.[29]
[29] Transcript P24:L38-45.
APPLICABLE LEGAL PRINCIPLES – EXPEDITED HEARINGS
This Court is empowered to make orders related to the hearing date of matters at the first court date pursuant to rr 10.01(3)(r) and 10.03(a) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (Rules). The Court has a broad discretion to order the expedition of a hearing. In determining whether the Court should exercise its discretion to make such orders, the Court is guided by the judgment of Kenny J in Hird.
In Hird Kenny J said at [18] to [22]:
18.There is no dispute as to the relevant principles governing an application for expedition. The Court has a broad discretion. An order for expedition will not, however, be granted unless the Court is satisfied that it is in the interests of justice to make an order for an expedited hearing.
19.The factors falling for consideration in the exercise of the Court’s discretion will depend, at least in part, on the particular case. Such factors may include whether, if the hearing did not take place at the earliest convenient time or prior to a particular date, the appellant would suffer some significant practical disadvantage, or a party would suffer some irreparable loss or especially significant hardship, such as the loss of livelihood, business or home. Other factors include a serious detriment to good public administration or to the interests of others not party to the appeal. Hence, an appeal from a judgment on judicial review challenging the lawfulness of the conduct of public bodies or officials, especially where that conduct has implications for others or for the proper administration of the law, may well attract an order for an expedited hearing: see Elders Rural Finance Ltd v Smith(1995) 38 NSWLR 395 (“Elders”) at 400 to 402.
20.Other factors relevant to the Court’s exercise of discretion relate to the parties’ own conduct. Thus, the Court may consider whether the applicant for an expedited hearing order has proceeded with due speed prior to the date of the expedition application. The fact that a respondent does not oppose an application for expedition is also relevant.
21.The Court will also bear in mind the interests of other litigants in other cases and balance the likely consequences of refusing an order for expedition against any adverse effect on the parties to other appeals if the order is made: see, for example, British American Tobacco Australia Limited v Secretary, Department of Health and Ageing[2011] FCA 718 at [7] (North J). […]
22.Plainly enough, however, the above-mentioned considerations are not the only considerations relevant to the Court’s exercise of discretion. Other factors will be relevant, depending on the nature and circumstances of the case. See, for example, Elders at 400–402 and Li v Chief of Army[2012] FCA 808 at [9] (Griffiths J). Further, the weight to be given to any particular consideration will also vary depending on the circumstances of the individual case.
(Emphasis added)
As referred to in the Applicant’s Submissions in Support of Expedition at [11], the above passage in Hird has been subsequently cited with approval, for example: Ford, in the matter of Zong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1373 at [13]; Drummond v Canberra Institute of Technology [2022] FCA 1030 at [18]; and Frigger v Trentfield (No 6) [2022] FCA 1233 at [31]-[32]. Further, in Sydney Trains v Australian Rail, Tram and Bus Industry Union(No 2) [2022] FCA 1264 at [10], Raper J said:
10.The principles concerning the Court’s discretion to grant an order expediting a proceeding were recently summarised in Ford, In the matter of Zhong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1373. At [13], O’Bryan J made the following observations:
The Court has broad discretion to order expedition of a proceeding. The relevant factors depend on the particular case, but they include whether a party would suffer some significant practical disadvantage, or irreparable loss, if the proceeding were not expedited: Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 at [18]-[19] per Kenny J […]
Hird provides that an application for expedition ought only to be granted where the Court is satisfied that expedition is in the interests of justice, taking into account considerations such as the following:
(a)Whether the appellant would suffer some significant practical disadvantage, or a party would suffer some irreparable loss or especially significant hardship, such as the loss of livelihood, business or home;
(b)Serious detriment to good public administration;
(c)The conduct of the parties;
(d)The interests of other litigants in other cases;
(e)The interests of others not party to the appeals;
(f)Whether the respondent opposes an application for expedition;
(g)The interests of litigants in other cases; and
(h)The likely consequences of refusing an order for expedition.
Whether the Applicant is in detention, witness availability, the health of a party or witness and the availability of Counsel are also factors in determining the priority of cases: Awan v Minister for Immigration [2002] FCA 594 at [42] and BLD15 v Minister for Immigration and Border Protection [2017] FCA 72 at [8].
Judges regularly determine the priority of hearing dates for matters in their docket. The relevant factors depend on the particular case. Rule 1.04 of the Rules provides that the overarching purpose of the Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The Court must facilitate the just determination of all proceedings before the Court, which includes efficient management of the Court’s caseload and disposal of all proceedings in a timely manner. The Court has a broad discretion to order expedition of a proceeding, which includes taking into account various factors along with having regard to the overarching purpose of the Court: Frigger v Trenfeld (No 6) [2022] FCA 1233, at [31]. In accordance with Hird, an order for an expedited hearing will not be made unless the Court is satisfied that it is in the interests of justice, having balanced the considerations referred to above.
CONSIDERATION
Whether the Applicant should be administratively detained for the purposes of obtaining a Bridging Visa is not a matter for the Court.[30] I appreciate that the Applicant and Minister have engaged in discussions seeking to resolve the issues related to the Interlocutory Application.
[30] Transcript P11.
Whether the Substantive Application is established is a matter for the final hearing. The determinative issues in the Substantive Application are only relevant insofar as they relate to arguments advanced about whether the matter should be heard before or after the Singh Appeal.
In terms of determining whether it is in the interests of justice to expedite the hearing in this matter, I have taken into account the factors in Hird and the legal principles relevant to the hearing of matters referred to above, as well as the circumstances of the Applicant.
The Applicant contends that hardship exists and these circumstances warrant expedition of a hearing on the basis of his irregular migration status. The hardship experienced by this individual applicant is only one factor to be considered. Whilst I appreciate that the circumstances of the Applicant are difficult, the hardship is not exacerbated or caused by the hearing of this matter proceeding according to the Court’s standard procedures for listing. The hardship of the Applicant extends from his unregularised migration status, which has existed since 2015, not the waiting period to have the Substantive Application heard and determined in this Court. The Applicant has lived in Australia for seven (7) years without a visa. The Substantive Application was filed nine (9) months ago and the Interlocutory Application before me was filed one (1) month ago. The Applicant filed the Interlocutory Application in response to being refused the Bridging Visa for the second time and the Applicant being notified that his charitable housing lease would expire on 14 November 2023. The Applicant has known that the charitable housing lease would expire on 14 November 2023 since 3 May 2023 and probably 31 January 2023.
The expedition of hearings in migration matters has most frequently been ordered in the interests of justice when cases involve an Applicant in detention or the potential for an Applicant to be removed from Australia. Whilst I can understand to an extent Counsel for the Applicant drawing an analogy to the rights withheld and at stake in relation to applicants who are in detention or who face deportation, to the Applicant in this case, these are not circumstances where the Court has the power to or should exercise its discretion to intervene. Unlike detention and deportation situations, a temporary intervention, such as an injunction, until a final hearing can be held and substantive issues determined, would not prevent or alleviate the harm to or hardship experienced by the Applicant. Notably, whilst the Applicant’s migrantion status is a result of his circumstances and the legislative framework, unlike matters involving detention and deportation, the Minister is not directly and actively involved in causing hardship to the Applicant.
It cannot be said that if the hearing does not take place at the earliest convenient time, the Applicant would suffer some significant practical disadvantage or a party would suffer some irreparable loss or significant hardship. The consequences of the Applicant’s inability to obtain a Bridging Visa in the last seven (7) years and the expiry of his fixed-term lease would not be alleviated given the various potential consequential outcomes if a final hearing were to be expedited. As submitted by the Minister, the expedition of the final hearing does not guarantee that the hardship of the Applicant would be alleviated and expedition may make a marginal difference to the Applicant’s circumstances. I accept the Minister’s submissions that the expedition may in fact result in inefficiencies in the hearing of this matter and may result in more proceedings before this Court and/or before the Tribunal. The Applicant’s migration status and personal circumstances will be undetermined for an indefinite period and it is not the role of the Court to predict whether or not the Applicant will be granted a visa in the future. In accordance with BLD15 and authoritative law concerning the appropriateness of waiting for declarations of law, the implications of Sandor and the Singh Appeal on the Substantive Application weigh against expediting the hearing of the Substantive Application.
The Court must also have regard to the management of its caseload and the principles regarding the disposal of proceedings. The expedition of one (1) matter results in other cases being delayed to accommodate the progression of another matter. Counsel for the Applicant submitted that the impact to the Court’s caseload would be minimal as the hearing of this matter would require only half a day. This submission ignores the time required by the Court to prepare for the hearing and then to prepare and deliver Reasons for Judgment. Further, as noted by Counsel for the Applicant, the Applicant is one of a cohort of individuals experiencing an unregularised migration status. The decision to expedite this matter would have an impact on the substantial migration caseload in this Court and perhaps lead to a large number of applicants seeking the expedition of the hearing of their matters on the basis of hardship. This factor weighs against the expedition of the hearing.
For the reasons above, I do not accept the Applicant’s submission that the hardship of the Applicant from the expiry of the lease in November 2023 will outweigh the potential inefficiencies in determining and finalising this matter. The matter should be heard in accordance with the normal processes of this Court.
CONCLUSION
I have balanced the hardship experienced by the Applicant against the utility and implications of expediting the hearing of the Substantive Application in the circumstances.
In the present circumstances, I am not satisfied that it is in the interests of justice to expedite the final hearing date in this matter. Therefore I am not prepared to make the orders sought in the Interlocutory Application.
The Interlocutory Application is therefore dismissed. The final hearing of the Substantive Application will be on a date to be determined according to the normal process of the Court.
COSTS
In the event that the Interlocutory Application was dismissed Counsel for the Minister sought the Minister’s costs up to and including the Interlocutory Hearing. Counsel for the Applicant sought an order that costs be reserved if the Interlocutory Application was dismissed.
I determine that costs should follow the event and not be reserved. In arriving at this determination I note that in Exhibit R1 the Applicant’s Lawyers threatened to tender Exhibit R1 on any application for costs for the hearing of the Substantive Application and also threatened a possible indemnity costs application. I also have had regard to [23] in the Applicant’s Submissions in Support of Expedition wherein an order for costs is sought against the Minister in relation to the Interlocutory Application.
I determine that the Applicant should pay the Minister’s costs of and incidental to the Interlocutory Application, including the costs of the Interlocutory Hearing, to be taxed in default of agreement.
Orders will be made accordingly.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 17 October 2023
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