ANW18 v Minister for Home Affairs

[2020] FCCA 2471

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANW18 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 2471

Catchwords:
MIGRATION – Application for adjournment – where the applicant claims he was not served with his legal representative’s notice to withdraw – where satisfied the intention of notice to withdraw was sent by email to the applicant – not in the interests of the administration of justice to provide a further adjournment – application refused.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

SZFDE v Minister for Immigration & Citizenship [2007] 232 CLR 189; [2007]

HCA 35

Minister for Home Affairs v DUA16 [2019] FCAFC 221

Applicant: ANW18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 52 of 2018

Judgment of: Judge Young

Hearing date:

3 May 2019, 24 October 2019 & 26 August

2020

Date of Last Submission: 26 August 2020

Delivered at: Darwin

Delivered on: 26 August 2020

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr N. Wood

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

THE COURT ORDERS THAT:  

1. The applicant’s application for adjournment is refused.

2. The matter is adjourned part-heard to 9 September 2020 at 10:15am (ACST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. ADG 52 of 2018

ANW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

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 the adjourned hearing of an application for judicial review of a decision of the Immigration Assessment Authority to refuse a protection visa to the applicant.  The application was filed on 6 February 2018.  At that point, the application said simply that the decision was unfair.

3. On 23 March 2018, an order was made by Registrar Parkyn for machinery orders and for a directions hearing.  A directions hearing appears to have been held on 22 June 2018 and the matter was listed for hearing on 19 February 2019, some eight months later.  On 6 February, that is some 13 days before the scheduled hearing, a notice of address for service was filed on behalf of the applicant by the solicitors, Camatta Lempens, an Adelaide firm.

4. On 7 February 2019 the applicant’s solicitors sought an adjournment of the hearing and there was correspondence between the applicant’s solicitors and the lawyers representing the Minister, Sparke Helmore.  The Minister took in my view an accommodating approach and agreed to an adjournment, particularly as I recall one of the grounds put forward by the applicant was that the preferred counsel was not available on that day, so there was an agreement between the parties which was subsequently approved by the court, adjourning the matter for hearing to 3 May 2019.  That order was made on 14 February 2019 by the court. 

5. There was also leave given to file and serve an amended application on that date, and to file and serve further materials.  The substance of the amendment that was made pursuant to that order was an allegation that the Secretary failed to provide material to the applicant in relation to the alleged knowledge of the Secretary about the misconduct of the applicant’s then migration agent, Mr Raygan. 

6. Though Mr Raygan was not identified in the amended application, if I recall, it is certainly my recollection that he was mentioned at some point, and I think it is common ground that Mr Raygan was indeed deregistered as a migration agent once it was established that he had provided template applications on a number of occasions for a number of applicants and that constituted fraud on the applicants.

7. On 3 May 2019 when the matter came on for hearing there was an application to file a further amended application.  The application that was foreshadowed on that occasion was an allegation that the conduct of the migration agent, Mr Raygan, was a fraud on the applicant which stultified the deliberations of the Authority in a way described by the High Court in SZFDE v Minister for Immigration & Citizenship [2007] 232 CLR 189, the Full Court decision Minister for Home Affairs v DUA16 [2019] FCAFC 221, and of course, there have been a series of cases on this point since then.

8. So the allegation that was sought to be raised by the further amended application was an allegation in conformity with those decisions, as I say, that the decision was vitiated or stultified by the fraud of the migration agent by providing false or fraudulent information in the application.  The amendment was allowed, and the matter was adjourned part heard to 30 October 2019. 

9. On 24 June 2019 a further amended application, as foreshadowed, was filed by the applicant.  On 10 September 2019, there were orders for the filing of submissions.  On 9 October 2019, orders were sought by consent that the date for compliance with a subpoena taken out by the applicant and served on the Secretary be extended to 18 October.  Obviously, the parties were still contemplating that the matter would be ready for hearing on 30 October 2019.  On 23 October 2019 a further order was made extending the time for the applicant’s submissions to 24 October, and the respondent’s submissions to 29 October. 

10. On 24 October 2019 there was an interlocutory application before me where the respondent sought to have the applicant’s subpoena to the Secretary, or rather the Department perhaps, set aside on the grounds that it was oppressively wide.  It was argued, in effect, that documents being sought on the subpoena which were described loosely, as I understand it (I have not seen the subpoena), as material that ought to have given rise to a suspicion by the Secretary that the fraudulent migration agent had provided fraudulent materials or information in relation to this applicant, ought to be produced.

11. Ultimately, the subpoena was set aside as oppressive.  I had a discussion with counsel for the applicant and the Minister on that day and it was evident that the matter was not going to be ready to proceed on 30 October and the hearing was vacated on that occasion.  Though, when I look through the orders made, I do not see a formal order to that effect, but it is clear that the hearing was vacated and counsel were asked to confer about a date that would be suitable for counsel and the court.

12. I understand there was correspondence between the parties and there was an agreement that the matter would proceed today.  I do not know precisely when that agreement was ultimately made but I assume some months ago because the queue in this court for hearings of this kind is many months. 

13. On 24 July 2020 a notice of intention to withdraw was filed by the applicant’s solicitors, Camatta Lempens.  In his adjournment application today, the applicant said that he did not recall being served with that notice of intention to withdraw.  I caused Mr Nettlefold, of Camatta Lempens, to be telephoned as he was a signatory to that notice and he gave evidence and was cross-examined by the applicant.  The effect of his evidence is that on 24 July 2020 a notice of intention to withdraw was sent to the applicant.  It was sent by email to an email address that appears on the notice and it was also posted to the applicant’s street address on the same date.

14. I am satisfied that the notice was emailed, and I am satisfied that there was no indication to Mr Nettlefold that the email was not delivered.  There was no bounce notice or anything of that kind.  I am also satisfied that the letter was delivered to that address.  The applicant, the applicant, says he has seen that letter, or he received the letter, and I am satisfied that it would have been delivered to him a few days after posting.

15. Mr Nettlefold gave evidence that there had been continuing discussions with the applicant about providing fees on account, and particularly fees on account of barrister’s fees to appear today.  Mr Nettlefold said that the file, or the matter, had been conducted by a Ms Rutherford previously, and Mr Nettlefold had taken over relatively recently when Ms Rutherford left for maternity leave.  I am satisfied that the applicant would have understood that he needed to provide fees for the firm if they were to continue to represent him.

16. I am satisfied that one of the reasons, at least, relating to the reason for the filing of the notice of intention to withdraw was that the applicant had not provided fees or sufficient fees on account.  The covering letter to the applicant sent on 24 July 2020 makes the matter clear.  It is said to the applicant:

    We are unable to act for you unless you put $5,500.00 into our trust account for the barrister immediately and continue to deposit regular amounts to cover our future costs.  If you want us to continue to act for you, you must pay the above amount before Friday, 31^st July 2020.

    If we do not receive adequate money for you we will file a notice to withdraw.  If this occurs you will be unrepresented at the hearing on 26 August 2020 unless you find another lawyer.

    Please contact us immediately if you will pay the above money requested before Friday, 31 July 2020.

17. It is not in question that the money was not paid by the deadline.  The applicant said, and Mr Nettlefold confirmed this was the case, that some time last week the applicant provided $5,500.  Mr Nettlefold said he told the applicant that he would speak to counsel.  Mr Nettlefold said that he approached a particular counsel to appear and counsel advised Mr Nettlefold that he was not prepared to appear for $5,500 and said that he would not be prepared to appear unless there was money in trust to cover his estimated fee of $11,000.

18. I think it is not in dispute that that was communicated to the applicant, probably on Monday or thereabouts, and the applicant was unable to provide additional money.  The applicant therefore finds himself unrepresented today.  The question is whether it is in the interests of the administration of justice to permit an adjournment.  I am satisfied it was clear to the applicant, from probably the time Camatta Lempens went on the record for him in February 2019, that he would need to provide money on account for legal fees, including counsel’s fees.  That is a period of 18 months approximately.

19. In my view the applicant’s position that he finds himself in, that is having been unable to provide money on account for his lawyers, is unfortunate.  There is no evidence before me that, should the matter be adjourned, he will be able to pay lawyers within any reasonable period, or that any lawyers are willing to represent him.  I took it from Mr Nettlefold’s evidence that Mr Nettlefold probably would have been willing to go back on the record had sufficient money been provided to retain counsel.  Mr Nettlefold made that, I think, reasonably clear.

20. So, ultimately, the question is this.  Where a matter in a very busy court has been in the court for two and a half years, there have been two amended applications, lawyers have been involved throughout and presumably paid, ought there be a further adjournment for an indefinite period, probably of some months, having regard to the pressure of business in this court, in order for the applicant to find more money?  He has told me nothing about his employment position, although he did say that due to the pandemic work has been scarce.

21. I think it is obvious enough that the applicant was unable to raise the money when he was asked to provide it.  I am not satisfied that in any near term the applicant is likely to be able to provide the money to pay lawyers and having regard to what I consider to be a very long time in which, really, he has known that he would need to pay lawyers, I am not satisfied that there is any real prospect of him being able to raise the money in any event. 

22. That is not the only ground of course.  The other fact is that this matter has been in this court for two and a half years.  There have been significant delays, all as far as I can see to be sheeted home to the applicant.  In my view, it is not in the interests of the administration of justice to provide a further adjournment. The application for adjournment is refused.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 3 September 2020