Arancibia v Minister For Immigration and Anor (No.2)

[2020] FCCA 3100

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARANCIBIA v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 3100

Catchwords:
PRACTICE AND PROCEDURE – Self-represented litigant appearing with the assistance of an interpreter – difficulties commonly experienced in such circumstances which necessitate adjournments – need on occasion for lawyers for the first respondent to be proactive in ascertaining the intentions of an applicant – adjournment of hearing with leave give to the applicant to further amend the amended application for review.

Applicant: KARY AURORA ALVAN ARANCIBIA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 945 of 2019

Judgment of: Judge Egan

Hearing date: 5 August 2020, 9 November 2020

Date of Last Submission: 9 November 2020

Delivered at: Brisbane

Delivered on: 9 November 2020

REPRESENTATION

Applicant: In person

Solicitor for the First Respondent: Ms Allen, Solicitor of Sparke Helmore

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The matter be adjourned for hearing to 9.45am on 3 February 2020 in the Federal Circuit Court of Australia sitting at Brisbane.

2. The Applicant is to file and serve a Further Amended Application, with such Further Amended Application to include detailed particulars of each ground or grounds of review sought to be relied upon by the Applicant at the hearing of the application for review, by 4.00pm on 23 November 2020.

3. The Applicant is to file and serve any affidavit containing any additional evidence upon which the Applicant proposes to rely relevant to the further amended grounds of review by 4.00pm on 23 November 2020.

4. The First Respondent shall file and serve any affidavit containing any additional evidence upon which the First Respondent proposes to rely relevant to the further amended grounds of review by 4.00pm on 7 December 2020.

5. The Applicant shall file and serve written submissions in support of the Further Amended Application for Review by 4.00pm on 21 December 2020.

6. The First Respondent shall file and serve a consolidated set of written submissions in respect of the First Respondent’s response to the Further Amended Application for Review by 4.00pm on 18 January 2020.

7. Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.

8. The costs of and incidental to today’s hearing be reserved.

IT IS NOTED THAT:

(A)The Applicant was put on notice that she should comply with the Orders of the Court so as to ensure that the lawyers for the First Respondent are given appropriate notice of the nature of the Applicant’s further amended grounds for review.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 945 of 2019

KARY AURORA ALVAN ARANCIBIA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was last before the Court on 5 August 2020. At that time, the applicant appeared in person assisted by an interpreter, and Ms Allen, solicitor, appeared on behalf of the first respondent.

2. During the course of the hearing on 5 August 2020, the applicant raised issues concerning the fairness of the hearing which was conducted before the Administrative Appeals Tribunal (“the Tribunal”). Those issues were additional to the grounds for review which had been set out in the Amended Application for Review filed by her on 7 May 2020.

3. As a result of the applicant having raised those additional concerns, but also recognising that the applicant would be unable to articulate any such concerns unless she was provided with a transcript of the Tribunal hearing, the Court ordered that the first respondent obtain a transcript of such Tribunal hearing. 

4. A copy of the transcript was obtained and provided to the applicant. That transcript was provided to the applicant on 25 August 2020. The applicant has today advised the court that she has a number of grounds – further grounds for review - arising out of her having read the transcript of the Tribunal hearing. She indicated through her interpreter that there was more than one such ground. 

5. This Court is mindful of the need for self-represented litigants who require interpreters to assist them in the conduct of proceedings, to be afforded a greater opportunity to present their case than most other litigants. Questions of fairness arise in that regard. Accordingly, the Court, in recognition of the position in which the applicant was placed, indicated that today’s hearing would be vacated and adjourned to a later date, namely to 3 February 2021.

6. In those circumstances, Ms Allen submitted to the Court that the costs of today’s hearing ought to be paid by the applicant, because she had been in possession of the relevant transcript since 25 August 2020. 

7. It is a fact of life in the migration division of this Court that not only the Court, but also those acting on behalf of the first respondent, are well aware of deficiencies in the responses made on the part of self-represented litigants who appear before the Court with the assistance of an interpreter. They are generally people who are not familiar with the Court procedures well-known to the lawyers for the first respondent. 

8. It was pointed out to Ms Allen that soon after 25 August 2020, an approach could have been made by the lawyers for the first respondent to the applicant, asking her, for example, whether, as a result of her having read the transcript of the Tribunal hearing, the applicant wished to raise any further ground of review. 

9. If such an approach had been made to the applicant, then either the applicant would have responded, indicating that she did have further grounds of review to be aired, or alternatively, the applicant might not have responded at all. In either case, the order made by the Court on 5 August 2020 gave to each party liberty to apply on the giving of two days’ notice, each to the other. 

10. The situation which arose subsequent to the delivery to the applicant of the transcript on 25 August 2020 was one where the liberty to apply provisions of the order of 5 August 2020 ought to have been the subject of recourse. In such circumstances, where the lawyers for the first respondent have not acted proactively to identify whether or not further grounds of review were going to be sought to be aired by the applicant, the first respondent cannot now complain that extra costs have been incurred today because the applicant has not particularised those added grounds of review. 

11. Accordingly, the application for costs made on behalf of the first respondent in respect of today’s hearing is rejected. The appropriate costs order is that the costs of and incidental to today’s hearing be reserved. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 16 November 2020