Amm21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 246
•9 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMM21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 246
File number(s): PEG 45 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 9 November 2021 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – citizen of Malaysia – alleged jurisdictional error
PRACTICE AND PROCEDURE – Adjournment – consideration of factors – where applicant obtaining legal representation – whether to adjourn proceedings
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 3.05
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Migration Act 1958 (Cth) ss 476, 477
Cases cited: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 195
Bunnag v Minister for Immigration (No 2) [2008] FMCA 430
COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 9 November 2021 Place: Perth The Applicant: Appeared in person Counsel for the First Respondent: Ms M. Scott Solicitor for the First Respondent: Australian Government Solicitor For the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 45 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMM21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
9 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to rule 3.05(3) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) an extension of time for compliance with Orders 3, 4, and 6 of orders of 4 April 2021 be granted to 24 December 2021.
2.The First Respondent may file:
(a) any amended response;
(b) any affidavits; and
(c) any further outline of written submissions;
by 27 January 2022.
3.
The matter be adjourned to a further and final hearing at 12.30pm AWST on
3 March 2022.
4.Costs of today be reserved.
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
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
The originating application in these proceedings was filed on 2 March 2021 and seeks an extension of time (“Extension of Time Application”) under s 477 of the Migration Act 1958 (Cth) (“Migration Act”) in which to file a proposed application for judicial review under s 476 of the Migration Act (“Proposed Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 4 November 2020. The Tribunal Decision affirms a decision of a delegate of the first respondent (“Delegate’s Decision” and “Delegate” respectively), of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).
When the matter was called today, the applicant appeared and sought an adjournment of proceedings on the basis that he seeks to retain or be represented by a lawyer. The adjournment application has seemingly been foreshadowed in email correspondence between the applicant, the Minister and the presiding Judge's Chambers. The Court notes that the grounds of review in the Proposed Judicial Review Application have been professionally drafted, and this was confirmed by the applicant today. It is also evident on the face of those grounds.
The grounds of the Proposed Judicial Review Application are as follows (without alteration):
1.The AAT erred when it drew adverse inferences against the Applicant as to credibility of the late-submitted documents and evidence pursuant to S 423A of the Migration Act [150]-[-152] and, having done so, then considered the matters subject to adverse inferences were capable of giving rise to 'credibility concerns' in other areas [160], which allowed the AAT not to accept other aspects of the applicant's case, when a correct application of S 423A does not permit adverse inferences as to credibility to be found in claims not the subject of the S 423 A claims but which are based upon the adverse inferences as to credibility pursuant to S 423A.
Particulars
i.S 423A of the Migration Act.
2. The AAT erred when it made findings against the Applicant including
a.It is implausible that the applicant's father would not have sought to protect those interests by reporting the incident to the police [160];
b.It would be unlikely creditors (including loan sharks) would renew their claims for payment given they have not sought to enforce the debt against the applicant's family's business or assets since he left Malaysia [163];
c.There is not a real chance the Applicant will face harm from his loan sharks [163];
d.It is implausible the Applicant would not seek assistance from the police [166];
e.It can be inferred that the Applicant and his family did not consider these threats to be sufficiently serious to warrant taking any action [168];
When the material before the Tribunal included evidence that
f.Predatory lending practices in Malaysia can be associated with violence and crime [167];
g.It is plausible that any remaining creditors may renew their claim for payment [163], [172];
h.Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and those borrowers and their family members have been shot at gunpoint and had fingers cut off [131];
i.Those in debt have been counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay the debt fast reduce risks and shame to their family [131];
j.DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and they also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters [134];
k.According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions on the country [140] and corruption can limit the effectiveness of police action against loan sharks [140];
l.Country information suggests that the Malaysian state recognises the threat that loan sharks represent [142],
Such that the findings were unreasonable, contrary to the weight of the evidence, and failed to place proper weight on relevant evidence in coming to the above findings.
3. The AAT erred when it made findings against the Applicant including:
a.The loan sharks have not sought to harm his family or to enforce the debt against them since he left Malaysia [169], [170], [172];
When the evidence before the Tribunal included:
a.threats were made to the sister against her brother (the Applicant) and the family [79];
b.a suggestion by an unknown person that the Applicant might face the same fate as a close family member who was killed in a car accident [79];
c.the Applicant's wife was threatened until 2014 by coming to the bank where she worked [81];
d.The Applicant thought they (loan sharks) 'might kill me' and will come after him as in Malaysia a lot of things happen and people borrow money and are shot and killed [82];
e.The Applicant's claims in the Delegate's decision record included claims that he was unable to repay the debt and they threatened to kill him and took his car, so he feared he may be harmed or killed by moneylenders [42];
f.The Applicant was worried about his son and family and said he thought they would hurt his family if he went to the police [77].
Accordingly the Tribunal ought not have found the loan sharks had any intention to harm the wife, son or other members of his family since the evidence merely referred to mere threats of harm without any evidence that such threats against the wife, son or other members of his family would ever materialise.
The Tribunal accordingly misunderstood the evidence and made irrational and unreasonable findings.
It suffices to observe in relation to the above grounds that the applicant has had some legal assistance at an earlier stage. The applicant requires an extension of time because the Proposed Judicial Review Application is 83 days out of time. In that regard, the Court notes that a Registrar, subsequent to the filing of the Extension of Time Application, made orders on 8 April 2021, which relevantly are as follows:
3.By 4.00 pm on 27 May 2021 the applicant shall file and serve any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.
4. By 4.00 pm on 27 May 2021 the applicant shall file and serve any affidavit containing any additional evidence upon which the applicant proposes to rely relevant only to the application for an extension of time and the grounds of review.
…
6. By 4.00 pm 28 days prior to the hearing date the applicant shall file and serve written submissions and a list of authorities in support of the application.
…
8.The application be listed for a final hearing (including hearing of the application for an extension of time) at 10.00 am on 9 November 2021 before a Judge in the Federal Circuit Court of Australia.
On 9 April 2021, a copy of the Registrar's Orders were forwarded to the parties by email, together with a Notice of Listing, reflecting the order made by the Registrar and listing the matter for hearing at 10.00 am AWST on 9 November 2021 before the Court as presently constituted.
The applicant did not file any amended application, affidavits or an outline of submission by the date specified in the Registrar's Order, or at all. The applicant had filed an affidavit affirmed 26 February 2021 in support of the Extension of Time Application in which he indicated as follows (without alteration):
4.I was not aware that I should file my Federal Circuit Court application within 35 days of the date of the AAT decision as I was not legally represented before the AAT.
5.When i first contacted a lawyer in Sydney on 31/12/2020 to obtain initial legal advice in respect of appeal, I became aware that i was out of time to file my Federal Circuit Court application.
6.On 22/1/2021 I instructed a lawyer to assist me with my Bridging Visa Application and my Federal Circuit Court Application.
7.I seek the Court's leave to grant an extension of time to file my Application and I rely on the facts in this Affidavit and on the grounds and Particulars in my Federal Circuit Court Application to extend the time to file my Application.
It suffices to observe that the applicant at that stage had some contact with lawyers, as it would appear from the grounds of the Proposed Judicial Review Application to which the Court has adverted earlier, and that assistance extended through January of 2021 and seemingly up until around the time of the filing of the Extension of Time Application in early March 2021. What happened thereafter in terms of the lawyer is not the subject of any evidence, although the applicant adverted in his submissions today to a lack of work rights as part of the reasons why a lawyer was not retained in a formal sense and on the record in these proceedings.
Between the time of the Registrar's order of 8 April 2021 and late October 2021 it appears that, for the applicant’s part, nothing further was done. In the meantime, the Minister had filed Court Books on 29 and 30 April 2021, a new Notice of Address for Service on 14 September 2021, and an Outline of Submissions and List of Authorities on 26 October 2021, the first and the last of things being in accordance with orders made by the Registrar on 8 April 2021.
It can be inferred from what the Court has been told by Counsel for the Minister today that the contact, which was evidently made by the applicant with the Minister’s lawyers in respect of an adjournment of today's proceedings on or about 27 October 2021, was probably as a consequence of the filing and service of the Outline of Submissions and List of Authorities on 26 October 2021.
As the Court has indicated, there has been correspondence between the Chambers of the presiding Judge, the applicant and the Minister. The thrust of that correspondence in the period since 27 October 2021 has been to indicate to the applicant that if an adjournment was sought he should seek the consent of the Minister to the adjournment, and if the adjournment was not consented to, that he should file an Application in a Case supported by an affidavit, or alternatively that he could, as he has done, make an oral application for adjournment today.
The Court formally notes that no Application in a Case or affidavit seeking the adjournment was filed by the applicant. The Court also notes that it has been told by Counsel for the Minister that in correspondence with the Minister, the Minister has indicated to the applicant that if he has a lawyer, that lawyer should come on the record. When that lawyer did not come on the record, the Minister indicated, as the Court was told today, that the adjournment continued to be opposed.
The principles with respect to an adjournment of proceedings have been outlined by this Court recently in AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 195 (“AFN15”). The Court, in considering whether to adjourn a hearing, must have regard to the overarching purpose of the civil practice and procedure provisions inserted into the new Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and, in particular, s 190 of the FCFCOA Act.
The Court has regard to and will adopt what it said in COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145 (“COF17”) at [13] to [19] and [21] per Judge Lucev:
13 With the coming into operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) (“GFL Rules”) there have been changes to the legislative objects and practice and procedure requirements for the Court now prescribed by s 8(2) of the FCFCOA Act as the “Federal Circuit and Family Court of Australia (Division 2)”. Those changes alter the nature of the factors for consideration when deciding whether to adjourn proceedings, as compared to the factors formerly considered in general federal law matters by the then Federal Circuit Court of Australia: as to which see, for example, EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [14]-[20] per Judge Lucev and BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.
14 The FCFCOA Act provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
190 Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
15 The FCFCOA Act provides that the practice and procedure of Division 2 of the Court is to be in accordance with, relevantly, the Rules of Court: FCFCOA Act, s 174(1)(a). The relevant Rules of Court are the Rules of Court made under Ch 4 of the FCFCOA Act (and specifically s 217 of the FCFCOA Act): FCFCOA Act, s 7(1), and are the GFL Rules, which provide:
(a) in r 1.04(1) that the overarching purpose of the GFL Rules is “as provided in section 190 of the … [FCFCOA Act], … to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”; and
(b) in r 1.04(2) that the parties “must” (in the chapeau to the sub-rule) “avoid undue delay, expense and technicality” (in para (a)).
16 As to the use of “must” in r 1.04(2) of the GFL Rules, it was recently observed in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020 at [24] per Judge Lucev that:
The chapeau to reg 5.19(2) of the Migration Regulations provides that “[t]he application must”. The use of “must” is indicative of an imperative command: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”), in this case, a positive command, expressing necessity in the sense of an obligation to fulfil the requirements set out in the paragraphs (a), (aa) and (b) to reg 5.19(2) of the Migration Regulations: Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444; CLR at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J; Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J.
17 Likewise in this case the use of “must” in the chapeau to r 1.04(2) of the GFL Rules imposes a mandatory requirement to fulfil the requirements in para (a) of that sub-rule, subject to any contrary legislative requirement and the Court’s power to dispense with compliance with the GFL Rules: GFL Rules, r 1.07(1).
18 The word “undue” carries with it both “a quantitative connotation – in the sense of going beyond what is warranted, or excessive – or a qualitative connotation – in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable”: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 at [58] per Jessup J. In r 1.04(2)(a) of the GFL Rules it would appear that “undue” is used primarily in the former sense, that is, that which gives rise to unwarranted or excessive delay, expense or technicality, although in relation to technicality it might be used in both senses in an appropriate case.
19 It follows from the above that the factors for consideration in relation to whether to grant an adjournment are whether an adjournment might:
(a) facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and
(b) avoid undue delay, expense and technicality.
…
21 In terms of the overarching purpose of the civil practice and procedure provisions in s 190 of the FCFCOA Act, the Court also notes that it relates to the “just resolution of disputes”. The use of the plural “disputes” as opposed to the singular “dispute” is important. That is because the use of the plural “disputes” allows the Court to give consideration to the possible impact of a proposed course of action on other matters pending before the Court, and not just the “dispute” the subject of the matter immediately before it for hearing. Thus the Court may have regard, as it traditionally would have: Sali v SPC Ltd & Anor (1993) 67 ALJR 841; (1993) 116 ALR 625; ALJR at 843-844 per Brennan, Deane and McHugh JJ and 849 per Toohey and Gaudron JJ; AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, to the possible effect on other litigants who might be denied a final hearing date if this matter were to be listed for final hearing now, and which final hearing might then have to be vacated if Ministerial intervention resulted in the grant of a Protection Visa. That is a particularly cogent consideration when regard is had to the number of migration judicial review applications in the Melbourne Registry not presently allocated to a Judge of the Court for hearing: see [4] above, many of which were filed upwards of four years ago.
Thus, the Court must look to do what is necessary to achieve a just resolution of this particular dispute, but in the context of the overarching civil practice and procedure provisions in the FCFCOA Act. The adjournment application, in this case, seeks to give the applicant time to retain lawyers and have those lawyers act for him in circumstances where there is some indication that they have available dates in December of this year and it has been indicated to the Court what those available dates are. The Court notes that it will not be able to accommodate those dates in December 2021 and, if there is to be an adjournment, it would be to a later time.
The grounds, as the Court has already indicated and as the applicant has asserted, were drafted with the assistance of lawyers and, on their face, the grounds of the Proposed Judicial Review Application might be arguable. That is not to say anything as to the likelihood of their ultimate success, noting that the Minister submits in the Minister's Outline of Submissions that all three grounds have no merit and should be dismissed.
The Court notes that since the time of the Registrar's orders having been made the applicant has had seven months to obtain further legal advice and representation. The Court also notes that there is no right to legal representation in migration proceedings in this Court: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev. The Court also notes that it is presently the case that the applicant does not have a lawyer, and that is a factor to be taken into account when exercising a discretion: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J. In that regard, there are also other factors that fall to be considered:
(a)that the applicant has not been formally legally represented throughout these proceedings, noting that the Proposed Judicial Review Grounds have been professionally prepared; and
(b)that it is not evident today from the applicant's, albeit limited, submissions at this hearing that he has any appreciation of the nature of the legal system or the relevant legal issues: ADN15 at [29] per Charlesworth J.
The Court also notes that the obtaining of legal assistance is likely to be of aid to the applicant in that he might have proper submissions prepared and filed, which could be of assistance to the Court in the management of the case. If the matter is to proceed to hearing, the usual case is that it would be beneficial to an applicant and the Court to have an applicant legally represented in protection visa judicial review proceedings. The other alternative, albeit unlikely on the face of the matter as it presently stands, is that the applicant might, upon advice and having regard to the Minister's submissions, for example, withdraw the Proposed Judicial Review Application if the legal advice was that there is not an arguable case. However, the Court does not suggest that that is the case, having regard to what it said earlier about the arguability and the likelihood of success or otherwise of the case.
The Court notes that it appears that the applicant has taken some steps to endeavour to obtain legal representation and was prepared to give the Court available dates for lawyers for December 2021. That is a matter which ought to be viewed positively from the applicant's standpoint, indicating that some steps have been taken. The Court also notes that, quite properly in the circumstances, Counsel for the Minister has indicated that contact was made by the Minister’s representative with the lawyers to whom the applicant has referred in correspondence and that the lawyer concerned indicated that that lawyer was not prepared to file a Notice of Address for Service in these proceedings, at this stage, because the lawyer was not available to appear today.
That appears to the Court to be quite a proper course for the lawyer to adopt in the circumstances and, as Counsel for the Minister quite properly conceded in response to a question from the Court, it is not an indication that the lawyer is not prepared to file a Notice of Address for Service for ongoing proceedings in this matter.
Delay, nevertheless, remains a factor for ultimate consideration in these proceedings, although the Court notes in that regard that it is an issue as to whether any delay might be an undue delay, and in that regard, observes what was said in COF17 at [18] per Judge Lucev. The Court can accommodate a relatively short adjournment of the proceedings of up to four months, which will allow the applicant the opportunity to secure the further legal advice and representation to which he has referred. The Court notes that this is not a case in which there have been prior delays that have to be taken into account and that this is the first application for an adjournment of proceedings in this Court on this matter.
Due to those factors, the question of delay in bringing the matter to hearing is not as significant an issue as it might have been in respect of other matters presently before judges in the Perth Registry of this Court where matters from the Melbourne and Sydney Registries are being heard, many of which have been waiting for years for a hearing: Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 per Judge Lucev; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550 per Judge Lucev; AFN15 at [3], [5], [16] and [23] per Judge Lucev
In determining a just resolution of this dispute those matters that the Court has just adverted to may be taken into account, as must other matters, in the balance. In that regard, the Court notes that the nature of the claim asserts a well-founded fear of persecution if the applicant is returned to Malaysia, and the Court must have regard to the possibility of persecution if the applicant is returned to Malaysia without being afforded a reasonable opportunity to present his case concerning judicial review of the Tribunal Decision.
A person in the position of the applicant, one not necessarily familiar with the legal processes of the Federal Courts in Australia might experience some difficulties in obtaining any necessary advice and legal representation, although it would appear that in this case, albeit quite late, the applicant has made enquiries in that regard and been able to secure some assistance or the offer of some assistance from lawyers, albeit not in accordance with the Court's timetable. But it is significant that the applicant now says that he has a lawyer prepared to act for him and in relation to whom there was an indication of availability for dates for an adjourned hearing given to the Court.
The Court also notes that Counsel for the Minister acknowledges that there is very minimal prejudice to the Minister in an adjournment, such that cannot be cured by costs. Although, as again, Counsel for the Minister rightly pointed out, this might be a matter in respect of which costs might increase if the applicant is represented and does file submissions that require the filing of further submissions or materials by the Minister. That, however, as the Court observed during the course of proceedings, is a matter in respect of which a costs order above the scale could be made: Bunnag v Minister for Immigration (No 2) [2008] FMCA 430 at [18(b)] per Lucev FM. Having regard to all of those factors and balancing them, including the issues of delay and consideration of the caseload of this Court, the Court does consider that a just resolution of this dispute can be accommodated by a short period of adjournment and that to adjourn for a short period would not be unjust. The Court notes that it has the power to extend time fixed in any judgment, decree or order of this Court, even once that time has passed, pursuant to r 3.05(3) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
The Court is, therefore, prepared to grant an adjournment for a short period of time, by which it means to early March 2022 in this particular case. The Court will make an order that there be an adjournment to a further and final hearing of this matter on a particular date in March 2022. The Court makes it clear that it expects the matter to proceed at the further and final hearing, irrespective of whether the applicant has secured legal advice or not, and irrespective of whether or not he has legal representation. There comes a point in time in all litigation where the matter must proceed and, in this litigation, the Court, as it has indicated, will afford the applicant an opportunity to secure his legal advice and legal representation for the adjourned hearing. However, if that legal advice and legal representation is not forthcoming and not appearing, then the applicant must proceed, in any event.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 November 2021
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