AML15 v Minister for Immigration

[2016] FCCA 335

FEDERAL CIRCUIT COURT OF AUSTRALIA

AML15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 335

Catchwords:
MIGRATION – Judicial review – application for adjournment – assessment by Victoria Legal Aid.

Applicant: AML15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 794 of 2015

Judgment of: Judge Harland

Hearing date: 11 February 2016

Date of Last Submission: 11 February 2016

Delivered at: Melbourne

Delivered on: 11 February 2016

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondents: Ms Gory

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The applicant’s application for an adjournment is granted.

2. The applicant is to file and serve an amended application, affidavit and any written submissions by 4 July 2016.

3. The first respondent is to file and serve written submissions by 18 July 2016.

4. The matter be listed for final hearing before Judge Harland on 1 August 2016 at 11:30am.

5. The applicant is to pay the first respondent’s costs of today in the sum of $3,084.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 794 of 2015

AML15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review with respect to a protection visa.  The applicant filed his application for judicial review on 16 April 2015.  The grounds appear to argue a merits case rather than pointing out a jurisdictional error and also appear to seek to put more evidence before the Court which is not what occurs in a judicial review hearing.  That would be a matter if there was a rehearing on the merits. A judicial review is quite a different type of hearing and is limited to legal issues and examining the Tribunal’s decision to see whether or not the Tribunal has made a legal error which amounts to a jurisdictional error.

3. A Registrar of this Court made directions on 5 August 2015.  Those directions were the usual directions which provided a timetable for the filing of the amended material and submissions and also set the matter down for the final hearing before me today.  The applicant appears today with the assistance of an interpreter and seeks an adjournment.  A lawyer from Victoria Legal Aid (“VLA”) emailed the first respondent’s solicitor at 4:58 pm yesterday afternoon advising that the applicant would be seeking an adjournment. 

4. The email states that the applicant approached VLA in around October 2015 for assistance and representation.  It says that his request is still under consideration and that, given he is waiting on that response, the matter is not ready to proceed and he intends to seek an adjournment.  The solicitor from VLA then says that she would be in contact in due course once his application had been processed and approved.  It is unsatisfactory that VLA, having been aware that the matter was listed for hearing today, would make an approach at the last minute with respect to an adjournment of this hearing.

5. That meant, realistically, the appearance today could not be avoided. It has meant that today’s court time could not be used and it must be listed somewhere else, delaying another hearing.  The backlog of cases in this Court and the lack of resources is well known, and there are risk management outlines, the consequences for case management and for the administration of adjournments, and that it is not simply the impact of the adjournment on this case but on the Court’s workload generally. 

6. The solicitor from VLA also sent the applicant an email on his phone which indicated grounds that she thought could be raised on his behalf.  I stood the matter down to enable counsel for the Minister to consider those grounds.  Quite properly, counsel for the Minister, having considered those grounds, submitted that one out of the four of the grounds could be reasonably arguable on what could be said to be a low threshold, giving the applicant the benefit of the doubt, given that this is a protection claim and not another category of visa. 

7. The identified grounds include that there was an error in the decision at paragraph 129 with respect to the applicant’s claim with respect to Mohajirs, and that the issue there was him being imputed to have a political opinion because of his brother’s membership and that that had not been considered.  There is also a complaint that one of the findings is illogical and without evidence.  There is a further complaint that the Tribunal failed to ask a question about the claim, and finally, that there was a failure to consider the risk of harm the applicant would face if he returned, given his brother’s membership of the MQM. 

8. It is also apparent to me that the applicant has contributed to his position today by failing to approach VLA until October 2015.  He filed his application in April, and he has not given any indication that he did anything until well after the directions hearing when he was aware that the matter was set down for hearing today.  I am also mindful that VLA is another institution that operates with stretched resources and that there are many applications for assistance in migration matters that it has to assess. 

9. That does not change the fact that, bearing in mind the hearing date today was well-known for a long time, there should be some obligation to advise the opposing party early of a request to adjourn.  It may well have been that if the solicitors for the Minister had been given proper notice they could have taken instructions about it and costs would have been saved, as well as court time.  If they did not consent then the application could have been argued and at least there would have been proper notice.

10. It does concern me that this has been left to the last minute.  Weighing up the factors, and particularly given the fact that there could be an arguable case with respect to one claim, and given the fact that it is an application for a protection visa, I will exercise my discretion to grant the adjournment. 

11. The next issue is the issue of costs.  Counsel for the Minister seeks costs in the sum of $3,084 for costs thrown away.  She correctly pointed out that there may well be additional work that she and her instructor will have to carry out, depending on the amended application received. 

12. It seems to me that, assuming that there is an amended application that spells out different grounds, it will be necessary for further preparation work to be carried out to respond to those grounds.  And for the reasons I have indicated earlier, the costs of today could have been avoided if earlier action had been taken.  That is certainly through no fault of counsel for the Minister and her instructor.  It would be unreasonable to think that they could have dealt with the matter having received an email at 5:00pm yesterday without any particulars at all about what potential grounds were going to be pursued. 

13. It does make a difference that there are grounds that are now set out that indicate some sort of arguable case rather than there not being any indication of what an argument could be.  Based on those factors, I will grant an adjournment but will order that the applicant pay the first respondent’s costs in the sum of $3,084.  I asked the applicant if he wished to make submissions opposing that.  The applicant indicated that he would seek to pay the sum in instalments, and of course that will be a matter for the Minister’s legal advisors. 

14. I grant the adjournment.  I order that the applicant pay the costs of the first respondent for the costs thrown away of today in the sum of $3,084.  This matter will be listed for hearing at 11:30am on 1 August 2016.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  19 February 2016