AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 368

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368

File number(s):	MLG 244 of 2019
Judgment of:	JUDGE GIVEN
Date of judgment:	13 December 2021
Catchwords:	MIGRATION – Decision of the Administrative Appeals Tribunal not to grant the applicant a protection visa – applicant subsequently offshore – first respondent sought summary dismissal – adjournment request – application lacking reasonable prospect of success because the applicant is offshore with no right of return – application dismissed.
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) Federal Circuit Court of Australia Act 1999 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth)
Cases cited:	BHO17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 2257 Bolea v Minister for Immigration & Multicultural Affairs [2001] FCA 1129 DTY18 v Minister for Home Affairs & Anor [2020] FCCA 3140 Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 Lacherdis v Huynh [2021] FedCFamC2G 143 Shrestha v Migration Review Tribunal (2015) 229 FCR 301 Spencer v Commonwealth of Australia (2010) 241 CLR 118 SZAOE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 100 SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317 Tchoylak v Minister for Immigration & Multicultural Affairs [2001] FCA 872
Division:	Division 2 General Federal Law
Number of paragraphs:	42
Date of hearing:	13 December 2021
The Applicant:	Appeared in person, via MS Teams
Solicitor for the Respondents:	Mr Cummings of Sparke Helmore, via MS Teams

ORDERS

MLG 244 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AJB19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	13 DECEMBER 2021

INTERLOCUTORY ORDERS:

1.The application to show cause, filed on 31 January 2019 is dismissed pursuant to r.13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

2.The applicant pay the first respondent’s costs and disbursements of and incidental to these proceedings fixed in the amount of $3,930.

3.Pursuant to r.17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above not be entered until the date of publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r.35.13 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.

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).

EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)

JUDGE GIVEN:

1. On 31 January 2019, the applicant filed an application to show cause, seeking review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of the delegate of the Minister (delegate) not to grant the applicant a protection (Class XA) visa (protection visa).

   Background

2. On 2 August 2014, the applicant, a citizen of Pakistan, arrived in Australia on a visitor visa (Court Book (CB) 158).

3. On 3 September 2014, the applicant applied for a protection visa (CB 1-73).

4. On 24 August 2016, the delegate refused to grant the visa (CB 129-140).

5. On 8 September 2016, the applicant applied to the Tribunal for review of the delegate’s decision (CB 141-147).

6. On 25 October 2018, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Urdu language (CB 169).

7. On 16 January 2019, the Tribunal affirmed the decision of the delegate (CB 177-191).

   Application to this Court and first respondent’s summary dismissal application

8. It appears from an Affidavit of Madlin Rose Richardson, affirmed 23 September 2021 (Richardson Affidavit) and filed in these proceedings, that the applicant departed Australia with no right of return on 11 February 2020.  That Affidavit was read before me this morning. 

9. Despite the applicant’s departure from Australia, as the first court date in this matter approached, which was to be dealt with in chambers due to the COVID-19 pandemic, the Minister’s solicitors entered into consent orders with the applicant timetabling the further conduct of the matter.  On 4 February 2021, a Registrar of this Court made those orders by consent.  According to the Richardson Affidavit, on or about 27 August 2021, the Minister’s solicitors received instructions and corroborating documentation to indicate that the applicant was offshore and had been since February 2020.  Subsequently, the Richardson Affidavit was filed on 27 September 2021 deposing to these facts and annexing the relevant material.  I infer that this was in anticipation of the next court date, which was when the matter came before the Court for directions on 14 October 2021, and I am informed this morning by the solicitor for the Minister that that telephone callover was on the basis that the applicant was offshore.

10. On that occasion, an application was made in Court to dismiss the proceedings on the basis that the proceedings were futile given that the applicant was offshore.  The Minister sought summary dismissal on the basis that there was no reasonable prospect of success in the proceedings, and the applicant, who appeared by telephone, opposed that course, and the matter was adjourned until it could be heard by a judge.  On 26 October 2021, the matter was brought into my docket and listed for hearing before me today with consequential orders for the filing of submissions by the Minister and the applicant.  The listing notice with those orders was sent to the parties by email on the same date.  In due course, the Minister filed written submissions as directed, but the applicant did not.

11. I am satisfied, however, that the applicant received the listing notice and the directions because, on 3 November 2021, he responded to the Court’s email, but without copying the Minister’s solicitor.  The applicant wrote to say that he did not know what was going on, that he was overseas, that he considered the fact that the matter was listed to be unfair to him and requested an adjournment for at least two years or until the border was reopened.  The Registry responded to that correspondence to further explain the listing, that the applicant would be able to participate using the Microsoft Teams platform, and that he was encouraged to attend.  The Minister’s solicitor was copied to the Court’s reply. 

12. On 7 December 2021, the applicant responded to the Court and copied the Minister’s solicitor.  The applicant said that he would be unable to find a stable internet connection and did not have access to “a reasonable computer”.  The applicant asked the Court and the Minister’s solicitor to adjourn the hearing for at least one year.  The Minister’s solicitor responded to this email opposing any adjournment and explaining to the applicant that he was able to participate in the hearing by telephone, just as he had done for the 14 October 2021 directions hearing.  Subsequent to that correspondence, and consequent on the Minister’s opposition to the adjournment request, the Court wrote to the parties to indicate that the matter remained listed but that the applicant was welcome to renew his request for an adjournment at the commencement of the hearing, should he choose to.

13. As it transpires, the applicant did renew the adjournment request, but he did so towards the end of the hearing, once the Minister’s solicitor had already made substantive submissions on the dismissal application, and also towards the end of his own oral submissions.  The applicant had made submissions to me to the effect that he had a lawyer and that she had assured him that she would “fight this”, so he wanted the Court to give him the opportunity to apply for a new visa and the opportunity to return to Australia so that his lawyer could fight this particular application for him.  The Minister again opposed this adjournment application and submitted that it was immaterial whether or not the applicant had a lawyer or that he should be given a further opportunity to obtain one so that he could be represented on the next occasion, given that the futility issue – to which I will return later – would still stand at that time.

14. The Minister’s solicitor submitted that there was no evidence that there was a lawyer on the record or any steps taken by the applicant to obtain one.  The Minister also noted that the application for an adjournment was being made 45 minutes into the interlocutory hearing.  In addition, the Minister claimed to be prejudiced by any adjournment on the basis that taxpayer funds had already been spent preparing for today’s hearing.  In relation to this last point, I do not accept that this is a sufficient basis upon which the adjournment should be refused, particularly against a background whereby the Minister’s solicitors continued to prepare the matter for hearing, including by the filing of a Court Book (which is itself a lengthy document and involves an amount of time to prepare) in circumstances where the applicant had already been offshore for some months, and apparently the first respondent’s Department had not informed the Minister’s solicitors that this was the case.

15. In those circumstances, where the Minister’s ground for summary dismissal hinges upon the fact that the applicant is offshore, it seems to me that this application could have been brought much earlier which would have obviated the need for the expenditure of public funds in the taking of those steps.  It may be that, in the future, where matters have a very long lead time to their first court date, an applicant’s offshore status should be checked prior to preparation of the matter for a first Court date directions hearing. 

16. However, the other matters raised by the Minister in opposition to the adjournment request have merit.  Despite the applicant’s assertions that he is legally represented and has been for some time, there is no record on the Court’s file of him ever having had a solicitor, and this is notwithstanding the fact that he then later in submissions told me that since the time he lodged his application, he has been assisted by an asylum seeker organisation in Footscray and a lawyer.

17. If the applicant was suggesting that he needed to be given a further opportunity so that he could then engage with these services and that they would represent him in these proceedings, I note that the proceedings have been on foot since 31 January 2019, when the applicant was onshore, and no particular steps towards the preparation of the matter have been taken from that date.  Nor have any steps been taken since the applicant entered into consent orders earlier this year for the preparation of the matter.  Most specifically, the applicant has taken no steps in relation to preparation of documents or submissions for today’s event, which he has known about since 14 October 2021, which was the date upon which the Minister first made an application verbally to the Court to have his application dismissed.

18. One would think that the prospect of the dismissal of his proceedings would focus the applicant’s mind on the preparation for today, and aside from making adjournment requests by email to the Court, the applicant has taken no other steps to substantively prepare to persuade the Court today that his matter should not be dismissed.  I am not satisfied that, if the matter were to adjourn for even a short time, the applicant will take any further steps that will assist him in the preparation for resisting the Minister’s summary dismissal application, and the Minister’s substantive point is correct, which is that even if the applicant were to be legally represented today or on any other future occasion dealing either with summary dismissal or a substantive hearing of his application, the futility point that is put against the applicant would remain extant.  For these reasons, I refused the (late) adjournment application, bearing in mind the applicant was told to make any such application at the commencement of the hearing.  Accordingly, the hearing continued.

19. The application made by the Minister is pursuant to rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).  I note for the purposes of this matter that the new rules are not materially different to the antecedents under the Federal Circuit Court Rules 2001 (Cth): see Lacherdis & Huynh [2021] FedCFamC2G 143 per Judge Cameron at [7]. The same can be said of s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act) in relation to its predecessor section, s 17A of the Federal Circuit Court of Australia Act 1999 (Cth). 

20. The first respondent seeks the dismissal on the basis that the application does not have a reasonable prospect of success because the applicant is offshore with no right of return, which means that he would no longer be capable of satisfying the criteria for the grant of the protection visa, even if there were a jurisdictional error present (which is not conceded) and if the matter were to remitted to the Tribunal for redetermination. 

21. Before turning to the substantive assessment of whether or not the matter should be summarily dismissed, it is important to have regard to the procedures which have been afforded to the applicant since the commencement of his proceedings, because it is well established that even though the summary dismissal mechanism is an essential tool in the management of high-volume cases, the existence and utilisation of it does not obviate the need to afford procedural fairness to applicants, especially where they are unrepresented such as the applicant in this case before me is today: Shrestha v Migration Review Tribunal (2015) 229 FCR 301 at [53] and J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 at [6].

22. In this matter, before proceeding to consider whether the matter does have a reasonable prospect of success, I have taken the following into account, having regard to the principles set out in Spencer v Commonwealth of Australia (2010) 241 CLR 118, Shrestha (supra) and SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317.

23. The summary dismissal application was made by the first respondent and is not of the court’s own motion.  The first respondent, as the moving party on the application, bears the onus of persuading the Court that the application has not reasonable prospect of success: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [127].

24. The applicant has been aware of the instant application from the time that it was made on 14 October 2021.

25. The applicant has had the court book in this matter since March of this year, and it is before me also.

26. The applicant consented to a timetable by which he could file an amended application, and did not do so.  While I note that the orders for this were self-executing by reference to a hearing date, this matter has now been listed for a form of hearing since 26 October 2021. 

27. Despite that, the applicant has not sought to amend his application, nor file any evidence seeking to resist the summary dismissal.  The applicant has also not filed written submissions.

28. The applicant appeared before me today with the assistance of an Urdu interpreter and was given the opportunity to make submissions as to why the proceeding ought remain on foot and why the proceeding should not be summarily dismissed for not having a reasonable prospect of success.  I note that this is different than requiring the applicant to identify jurisdictional error at a first court date. 

29. While I note the matters raised by the applicant in his emails to the Court relating to his being offshore, in various lockdown circumstances and having unreliable or unpredictable access to technology, those circumstances have confronted many applicants throughout the COVID-19 pandemic.  The applicant has managed on previous applications to appear by telephone, and today appeared using the Microsoft Teams platform, by which I mean I can see the applicant as well as hear him.  We have had no difficulty communicating, and there has been no technological issue.  The applicant’s internet connection throughout the hearing appears to have been perfect. 

30. As noted earlier, the Minister seeks an order that the application be dismissed pursuant to either s 143 of the Court’s Act or r 13.13(a) of the Court’s Rules:

    143  Summary judgment

    (1)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a) the first party is prosecuting the proceeding or that part of the proceeding; and

    (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

    (2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a) the first party is defending the proceeding or that part of the proceeding; and

    (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

    (3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

    (a) hopeless; or

    (b) bound to fail;

    for it to have no reasonable prospect of success.

    (4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.

    (5)This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975.

    Note: For the power of the Federal Circuit and Family Court of Australia (Division 2) to give summary judgment if the Court is exercising jurisdiction under the Family Law Act 1975, see section 45A of that Act.

    13.13  Disposal by summary dismissal

    The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

    (a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

    (b)the proceeding or claim for relief is frivolous or vexatious; or

    (c)the proceeding or claim for relief is an abuse of the process of the Court.

31. Section 143 of the Court’s Act mirrors s 31 of the Federal Court of Australia Act 1976 (Cth).  In relation to the use in those sections of the word “reasonable”, it is an important word, and as has been noted, the sections have been described in Spencer at [53] as departing:

    radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.  Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail.

1. It is clear from the language of s 143 that in order to have no reasonable prospect of success, a proceeding need not be either hopeless or bound to fail, which was a matter I explained to the applicant at the outset of the hearing.

2. The Court is not determining whether or not the decision of the Tribunal is affected by jurisdictional error.  Rather, in determining whether the matter has a reasonable prospect of success, the Court is concerned with whether the case raises a real or genuine dispute as to any material fact that might reasonably be resolved in the applicant’s favour after drawing all reasonable inferences in favour of him, on the basis that the applicant is non-moving party: Jefferson Ford Pty Ltd at [132], Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [4] to [6] per Finkelstein J and J & A Vaughan Super Pty Ltd at [6] per Pagone J.

3. The grounds of application for review are:

   1.The decision of the Tribunal:

   a.is affected by jurisdictional error; and

   b.denied the applicant procedural fairness.

   2.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

4. The Affidavit in support of the originating application did not depose to anything substantive,  and was not read.  The Richardson Affidavit provides evidence which demonstrates that the applicant departed Australia on 4 February 2020.  Annexure MRR-1 to the Richardson Affidavit also evidences that, by reason of that departure, the applicant’s bridging visa ceased.  The Richardson Affidavit deposes to the fact that the applicant therefore, not holding a visa which permits him re-entry to Australia, is offshore with no right of return.  In addition, the applicant confirmed to me today that he is overseas and in a remote part of Pakistan.  I am satisfied that the applicant is offshore, and I am further satisfied that he has no right of return at present.

5. The visa for which the applicant applied and that is the subject of the review that is before this Court is a subclass 866 protection visa, the criteria for which are set out in schedule 2 to the Migration Regulations 1994 (Cth).  Specifically, clause 866.4 provides:

   866.4 Circumstances applicable to grant

   866.411 The applicant must be in Australia.

6. The Minister says that in circumstances where the applicant is no longer present in Australia, with no right of return, he is not capable of satisfying the criteria for the grant of a protection visa, and I accept that submission.  Accordingly, even if I were to consider the decision of the Tribunal was affected by a jurisdictional error at a final hearing, which this is not, the Minister says that remittal would be futile because the applicant is no longer capable of satisfying the criteria for the grant of a protection visa such that the Tribunal would be bound to affirm the decision of the delegate in any event: SZAOE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 100 (citing Tchoylak v Minister for Immigration & Multicultural Affairs [2001] FCA 872 and Bolea v Minister for Immigration & Multicultural Affairs [2001] FCA 1129).

7. The substantive grounds in the application for review do not raise any arguable case, even at an impressionistic level, and a review of the Tribunal’s decision equally does not reveal any jurisdictional error, at least on its face.  The Minister’s solicitor submitted that, having undertaken a review of the decision himself, no jurisdictional error had been discerned such that there is not even an arguable jurisdictional error that could be said to give context or substance to the grounds that are raised in the application to this Court.  As a consequence of that, the Minister says that the application has no reasonable prospect of success and should be summarily dismissed, as this Court has consistently done: BHO17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 2257 and DTY18 v Minister for Home Affairs & Anor [2020] FCCA 3140.

8. The submissions made by the applicant seeking to resist the summary dismissal all pertained to his desire for an adjournment and the suggestion by him that he wished to have an opportunity to apply for a different visa.  In my view, those submissions, while understandable, do not inform any of the matters that I am required to determine today in relation to the summary dismissal application.  I agree with the Minister that the grounds do not have a reasonable prospect of success.  There is no other apparent dispute between the parties that arises from the application, or from the material before me which would benefit from the matter proceeding to a hearing as to whether or not the decision is affected by a jurisdictional error, in particular because I agree with the decision for the Minister that, even if such an error were present, it would be futile to remit the matter to the Tribunal. 

   Conclusion

9. For the foregoing reasons, I am satisfied that the application made 31 January 2019 lacks a sufficient reasonable prospect of success and should be dismissed pursuant to r 13.13(a) of the Rules, informed as it is by s 143 of the Act. I will make an additional order which stays the entry of today’s orders for the purpose of any application for leave to appeal which, as I explained to the applicant prior to commencing delivery of these ex tempore reasons, will have the effect that time does not run until the applicant can be provided with a copy of my written reasons for judgment. Accordingly, the application to show cause filed on 31 January 2019 is dismissed pursuant to r 13.13(a) of the Rules.

10. Consequent upon my dismissal of the applicant’s application to show cause, the Minister seeks an order for costs fixed in the amount of $3,930, which is the Court scale amount for an interlocutory hearing.  When asked to address the Court in relation to whether or not costs should be paid, and if so, in what amount, the applicant said that he knew he had already lost his matter, but that he was not in a position to pay the amount sought.  The applicant also made submissions again seeking an adjournment to a later date so that he could apply for a different kind of visa.  The Minister has been successful in the application to summarily dismiss the application to show cause.  I am satisfied that costs should follow the event, notwithstanding my earlier comments regarding the fact that perhaps that application ought to have been made earlier, which arguably may have resulted in the applicant being liable for less costs under the Court’s scale.

11. However, having regard to the earlier reasons I gave, in particular the fact that the applicant did have the benefit of having the Court before him and before the Court for today’s hearing, I am satisfied that not only should costs follow the event but that the appropriate scale amount is $3,930, even taking into account the applicant’s submission that he is not in a position to pay that amount.  Accordingly, the additional orders that I will make is that the applicant pay the first respondent’s costs and disbursements of and incidental to these proceedings fixed in the amount of $3,930.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Dated:       27 January 2022