AKA19 v Minister for Home Affairs

[2019] FCCA 2991

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKA19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2991

Catchwords:
MIGRATION – Application for review lacking particulars – no early intervention by lawyers for the first respondent for the purpose of resolving the issue of particulars well before final hearing date  - application adjourned with orders for the applicant to fully particularise the grounds of review.

Cases cited:

DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Applicant: AKA19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 94 of 2019

Judgment of: Judge Egan

Hearing date: 16 October 2019

Date of Last Submission: 16 October 2019

Delivered at: Brisbane

Delivered on: 16 October 2019

REPRESENTATION

Applicant: In-person

Solicitors for the Respondent: Mr. D. Freeburn of Clayton Utz

ORDERS

1. The matter be adjourned for hearing to 9:30am on 20 February 2020.

2. The name of the first respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

3. The applicant is to file and serve an amended application for review on or before 6 November 2019, with such amended application to include detailed particulars of the ground or grounds of review sought by the applicant. 

4. The first respondent is to file and serve any further submissions by way of a consolidated set of submissions on which the first respondent intends to rely on or before 20 November 2019.

5. The applicant is to file and serve any submissions in reply on or before 27 November 2019.

6. The costs of and incidental to the adjournment be reserved.

7. Each party has liberty to apply on the giving of three (3) days' notice, each to the other.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 94 of 2019

AKA19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This matter came before the Court for hearing today.  The originating application for review has one ground, namely:

   (1) The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision. 

2. It is impossible for the Court in a busy list to deal with a large number of matters where commonly the grounds of application are unparticularised at the time that the matter is called for a final hearing. [1]  Those comments are made in the light of the decision of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 where it was said as follows at [9-11] inclusive of his Honour’s reasons:

   “[9] However, it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf.  In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground.  Also, the Court is greatly assisted in these cases by the Minister's discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.

   [10] Further, in these cases, a submission by counsel appearing for the Minister that a decision under appeal is not attended with any doubt, or sufficient doubt or error must reflect the independent judgment of counsel after considering all of the materials in performance of counsel's paramount duty to the Court.  It is not to be based upon the lack of particularisation of grounds by an appellant who is appearing in person.

   [11] Notwithstanding the form in which the written submissions were expressed, the matter proceeded on appeal by affording the appellant an opportunity to make oral submissions identifying matters of concern in relation to the approach by the Federal Circuit Court to the decision by the Immigration Assessment Authority reviewer.  The Minister submitted that there was no appellable error as the Federal Circuit Court judge had dealt with the matters raised by the appellant on his application for review (notwithstanding that they were expressed in general terms) and had done so correctly and nothing was raised orally to demonstrate jurisdictional error by the assessor.  For the following reasons, I uphold that submission.”

   [1]        DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor

   [2019] FCCA 2951

3. The effect of his Honour’s judgment is that if the question of particularisation of any grounds of an application for review has not been dealt with well prior to a hearing before this Court, then this Court will have to allow the applicant an opportunity, before the hearing and determination of the matter on the day listed for final hearing of the matter, to particularise his or her claims.  That is a difficult, time-consuming and clumsy way of having matters such as this dealt with by the Court.

4. The Court expects the lawyers for the first respondent in cases such as this to identify those matters where there is a lack of particularity, and then to appropriately make any application which they consider ought to be brought so as to resolve the question of lack of particulars well before the matter reaches the final hearing date.  Had this been done in this matter, the hearing in this matter would not have been required to be vacated and the matter adjourned. 

5. The Court appreciates that the result of this adjournment is that the first respondent will necessarily incur more costs as a result of the adjournment.  However, it is incumbent upon those advising the first respondent that they do so in such a way that the efficiency of Court process is maintained.  That has not been done in this case.

6. The matter is adjourned to 20 February 2020 for further hearing. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  23 October 2019