AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 10
Federal Circuit and Family Court of Australia
(DIVISION 2)
AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10
File number(s): MLG 1266 of 2015 Judgment of: JUDGE GIVEN Date of judgment: 25 February 2022 Catchwords: MIGRATION - application in a case seeking reinstatement application of judicial review application – delay in seeking reinstatement – adjournment request in similar terms to another unrelated matter – solicitor not on record when adjournment request made – inadequate explanation for delay and proposed grounds of review not reasonably arguable – application in a case dismissed. Legislation: Migration Act 1958 (Cth), ss 36(2), 486E, 486F, 486I
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.06, 4.06, 17.05(2)(a)
Federal Circuit Court Rules2001 (Cth), r 13.03C(1)(c)
Federal Court Rules 2011 (Cth), r 2.16
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
ARN17 v Minister for Immigration and Border Protection [2018] FCA 974
AVC19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752
BEN17 v Minister for Immigration and Border Protection [2019] FCA 1232
CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344
Commonwealth of Australia & Anor; Ex Parte Marks (2000) 177 ALR 491
CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Tran v Minister for Immigration and Border Protection [2014] FCA 533
WZAUU v Minister for Immigration & Anor [2019] FCCA 2214
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of hearing: 1 December 2021 Place: Sydney Counsel for the Applicant Mr G Foster Solicitor for the Applicant Sentil Solicitor Solicitor for the Respondents Clayton Utz ORDERS
MLG 1266 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AYF15
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
25 February 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application in a proceeding filed on 24 September 2021 is dismissed.
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
JUDGE GIVEN:
By an application in a proceeding filed on 24 September 2021 (reinstatement application) the applicant seeks to set aside orders made by Judge Jarrett (as his Honour then was) on 12 December 2016, dismissing with costs an application to show cause filed on 4 June 2015.
That dismissal was pursuant to r 13.03C(1)(c) of the then Federal Circuit Court Rules2001 (Cth) consequent upon the applicant failing to attend a directions hearing which had been scheduled following the transfer of the applicant’s case to the Brisbane Registry of the Court upon his having moved to Queensland.
The first respondent opposes the applicant’s current reinstatement application, and also seeks orders that the application in a proceeding be dismissed with costs.
Relevant principles
The Court's power to set aside the orders made on 12 December 2016 is (now) contained in r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) which relevantly provides that:
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party;
Whether or not to accede to the reinstatement application is a discretionary power which requires me to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50].
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (which was cited with approval by the Full Court in FBS18), Ryan J considered the principles relating to an application for reinstatement of a matter dismissed in the absence of a party. His Honour found at [7] that where reinstatement is sought, a discretion falls to be exercised by the Court requires consideration of certain factors which his Honour listed as:
(a)first, whether there is a reasonable excuse for the party’s absence;
(b)secondly, the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and
(c)thirdly, whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level: see MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475. While those decisions dealt with the discretion to extend time, which carries with it a clear prescribed time period in which to commence proceedings, there appears to me to be no material difference to using this standard of assessment in the exercise of the Court’s discretion as to whether to reinstate under r 17.05 of the Rules: see AVC19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752 at [3] to [5] per Davies J.
The matters referred to in the preceding paragraph are not a definitive list, but are consistently considered in the exercise of the Court’s broad discretion to reinstate (see CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J), noting the caution expressed by the Federal Court in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32] where McKerracher J said:
…that whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05...
In the instant case, each the three considerations outlined in MZYEZ do in fact arise for consideration against the lengthy background to this case and the circumstances which led to the dismissal of the application for non-appearance. An additional factor arises on the facts of this case, namely delay. While not a mandatory consideration in every matter (see AHN17 at [33]) the delay in seeking reinstatement does arise as a relevant factor to be weighed in the exercise of my discretion in this particular case.
Background
The applicant is a 31 year old citizen of Sri Lanka who arrived on Christmas Island on 16 August 2021 as an unauthorised maritime arrival. On 16 January 2013 the applicant applied for a Protection (Class XA) visa. On 27 September 2013 a delegate of the Minister (delegate) refused to grant the applicant’s Protection visa. The applicant applied to the (then) Refugee Review Tribunal (Tribunal) for review of the delegate’s decision on 25 October 2013 and on 19 February 2015 the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of a Tamil interpreter. On 12 May 2015 the Tribunal notified the applicant of its decision made the previous day, affirming the decision of the delegate not to grant the visa.
Claims relevant to the proposed substantive grounds of review
The applicant claimed that when he was 16 years old, his maternal uncle who lived a nearby village told the applicant that he was:
(a)a member of the Liberation Tigers of Tamil Eelam (LTTE); but also
(b)belonged to a pro-government Tamil group called Tamil Eelam Liberation Organisation (TELO). The uncle’s membership of this group was a subterfuge for the purpose of obtaining information which would be useful to the LTTE about attacks or detention of LTTE members.
The applicant claimed that his uncle asked him to assist with his work for the LTTE but that this was not disclosed to his family. The applicant claimed that the uncle had approached him because of their close relationship and that he in turn agreed to assist because he thought this would help Tamil people. The applicant claimed to keep this work secret from his family, which was at odds with later claims that emerged throughout the Tribunal hearing that his own mother and brother assisted him in these trips by pretending that the person they were accompanying was a member of their family. After exploring this evidence at length, the Tribunal records expressing to the applicant its difficulty in accepting this evidence so that he might comment upon it (at [14]).
Similarly, the applicant gave a shifting account of his own involvement with the LTTE and his desire to join the group himself in mid-2006. Despite his earlier evidence about assisting his uncle in pro-LTTE activities, the applicant said he ultimately did not join because his parents did not want him to. When asked how this sat with his evidence about his trips to Colombo, on some of which his mother was said to have accompanied him, the applicant said they asked no questions about that. The applicant also said that he did not tell his uncle about his plans to join the LTTE. The Tribunal also told the applicant that it had difficulty accepting this evidence, and explained why, again so that he might address it (at [19]).
Next, the applicant claimed that in late 2007 the Sri Lankan army discovered his intention from mid-2006 to join the LTTE and as a result he was held, questioned, threatened and beaten on several occasions and so, to be safe, he sought refuge at his uncle’s house despite the fact his uncle was a member of the LTTE. The Tribunal explored this evidence with the applicant and also expressed its doubts in relation to aspects of it.
The applicant claimed that his uncle went missing at some point in 2008 and was not heard from again. From that time, the applicant said he had not done any more work for the LTTE. The army continued to send notices to the applicant’s family requiring that he come for questioning and this continued until the time the applicant left Sri Lanka. The applicant claimed to have eventually told his family about his work for the LTTE (in connection with his uncle) in early 2012, after the Criminal Investigation Department (CID) abducted him and held him for three days during which he was maltreated. The Tribunal explored with him the fact that this was the catalyst for him revealing to his family his LTTE involvement, and not the earlier incident with the army which was more proximate to his detention by the army. The applicant gave mixed evidence about the reactions of his parents to these events and the Tribunal questioned him about these also and again put to him its doubts (at [25] to [27]).
From [28] of its decision onwards, the Tribunal made specific findings about the inconsistences and incongruities in the applicant’s evidence before reaching its ultimate findings on credibility from [43] onwards. The Tribunal concluded that the applicant was not a witness of truth and that the account of evidence upon which his protection claims were based was false (at [43]).
The Tribunal went on to consider country information regarding matters which intersected with the applicant’s substantive claims (ie LTTE involvement) and also in relation to returned failed asylum seekers. The Tribunal was ultimately not satisfied that the applicant was someone to whom Australia owed protection obligations pursuant to ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
Application to this Court
At the hearing of the reinstatement application an Affidavit made by the applicant on 21 September 2021 (Applicant’s Affidavit) was read for him, without objection. The first respondent read an Affidavit of Caitlin Jane St Claire McConnel (McConnel Affidavit) sworn 12 December 2016, also without objection. The following background is sourced from the objectively verifiable matters from those Affidavits (as referenced), together with information on the Court’s file.
The applicant filed an application to show cause seeking judicial review of at decision of the Tribunal in the Melbourne Registry of this Court in June 2015. On its face of that application shows the applicant as being self-represented and a particular gmail address was given for the applicant (gmail address). During the hearing before me, Counsel for the applicant confirmed that the gmail address had been the only email address used by the applicant throughout the life of the proceedings.
On 14 October 2015 the applicant appeared before a Registrar of the Court for directions and orders were made, by consent, for the future conduct of the matter.
On 5 November 2015 the applicant filed a Notice of Address for Service with the Court which indicated that he now resided at an address in New South Wales. On 25 July 2016 the applicant filed a further Notice of Address for Service with the Court which indicated that he now resided at an address in Queensland.
In or about mid-August 2016 the solicitors for the Minister wrote to the Court attaching consent orders which they had prepared and which were signed by them and by the applicant, seeking to transfer the proceedings to the Brisbane Registry by reason of the applicant having relocated to Queensland. Those orders were made in chambers by Judge Wilson (as he was then) on 22 August 2016.
On 30 August 2016 a new Notice of Address for Service was filed for the first respondent, to reflect that that the solicitor on the record was now a partner of their firm’s Brisbane office, following the transfer. On the same date, Ms McConnel of Clayton Utz returned a telephone call from the applicant during which they had a conversation. Ms McConnel’s file note forms annexure CJM-1 to the McConnel Affidavit. During that conversation it was apparent the applicant thought that Clayton Utz were his solicitors and Ms McConnel explained that they were not, but rather that they acted for the Minister, and she told him that he would receive a letter from her firm later that day which would provide him with the details of possible firms he could contact.
As Ms McConnel had indicated to the applicant would occur, later on 30 August 2016 the solicitors for the first respondent wrote to him serving their new Notice of Address for Service, under cover of a letter (see annexure CJM-2 to the McConnel Affidavit) which, inter alia, stated:
The Application for an Order of Review which you filed with the Federal Circuit Court indicates that you are not legally represented. If this is the case them you may wish to contact the following organisations who can assist you by providing advice, acting for you or referring you to a qualified legal practitioner.
After telling the applicant that: “Immigration law is complex and specialised. If you propose to contact one of the organisations listed…you should do so as soon as possible” the letter then listed the contact details for five such organisations and specifically recommended the first-named, noting that it was a firm who had commenced a pro bono legal assistance program for migration applicants in conjunction with the Queensland Bar Association and Federal Circuit Court, an information sheet from which was also enclosed to assist the applicant.
I wish to note here that providing the applicant with contact details of free legal services, and the clarity of this particular letter from the Minister’s solicitors, was excellent, and to the extent that not all the firms who provide external legal services to the Minister send something similar to applicants, they should.
On 6 December 2016 Ms McConnel wrote to the Court’s Registry by email, copying the applicant’s gmail address and requesting that the matter be listed for a case management hearing now that it had been transferred to Brisbane (see Annexure CJM-3 to the McConnel Affidavit). Later that day an officer in the Registry telephoned Ms McConnel to inform her that the matter had been listed for directions at 9.30am on 12 December 2016 and that the parties would be sent listing letters by email (see Annexure CJM-5 to the McConnel Affidavit). The listing letters appear to have been sent separately to the parties, however, ultimately having confirmed with the Registry that the letters were sent, the Court was also satisfied that the applicant had been notified of the listing.
On 12 December 2016, when the matter came before Judge Jarrett for directions, there being no appearance by the applicant, the proceedings were dismissed. The McConnel Affidavit annexed a file note of Ms McConnel’s visit to the Registry upon the matter being dismissed to verify that the listing letter was dispatched to the applicant (see Annexure CJM-7 to the McConnel Affidavit). The Court file indicates that the Registry had duly sent the listing notice to the docket Judge to verify that it had been send to the applicant (including by email to his gmail address). Clearly Judge Jarrett was satisfied that the applicant was on notice by reference to the listing letter. I have reviewed the listing letter on the Court file and am also satisfied that it was sent to the applicant’s correct addresses.
It will be observed that the McConnel Affidavit was deposed on the same date that the dismissal took place, and it was filed on that date also.
The Court file records that on 17 January 2017 the applicant filed another Notice of Address for Service in these proceedings (the document itself was signed and dated 8 January 2017).
The applicant consulted his present solicitor in late August 2021. The reinstatement application, Applicant’s Affidavit and the draft Amended Application which is annexed thereto were all prepared by that solicitor, and filed on 24 September 2021.
Adjournment request and associated issue
On 25 October 2021 this matter was brought into my docket and a Registrar of the Court made orders for the preparation of the hearing of the reinstatement application which was listed for hearing before me on 18 November 2021 with consequential orders for the filing of written submissions for the applicant and the Minister fourteen and seven days before the hearing, respectively. This listing notice and orders were sent to the parties (including the applicant at his gmail address) on the afternoon of 25 October 2021.
On the evening of 26 October 2021 an email was sent to the Court by the applicant, the body of which said “Please see attached urgent request for relisting of my Court hearing.” Attached to that email was a photograph of a typed letter to which the applicant had applied his signature. The letter stated (errors and emphasis in original):
Dear Registrar,
Re: File No: MLG1266/2015-AYF15
I wish to be represent by a lawyer during the hearing of the Application a case time at 10.15am on 18 November 2021.
I have approached the lawyer in Sydney who has already assisted me in my case and who is familiar with it. He contacted his Counsel who is also familiar with me case, and who would be briefed to appear. Unfortunately, he is appearing in a criminal trial commencing 1 November 2021, expected to run 2+ weeks.
Accordingly the barrister would not be available to appear for me.
My request is for the Court to relist my matter in December 2021.
I enclose Unavailable dates for the solicitor and Counsel in December: 9, 13 and 23-31.
The Minister’s position in respect of this request was to neither consent nor oppose it.
On 4 November 2021 the above-mentioned adjournment request was brought to the attention of my chambers and I requested that the Registry respond as follows:
The Court has considered the applicant’s correspondence of 26 October 2021 which requests an adjournment of the hearing of his interlocutory application, presently is listed at 10.15am on 18 November 2021 until December, on the basis that an (unnamed Counsel) is unavailable for “2+ weeks” from 1 November 2021. The first respondent neither consents to, nor opposes, the adjournment. Notwithstanding that the above calculation of dates does not fully account for why the matter could not proceed on 18 November 2021, and that no appearance has been filed by any solicitor for the applicant despite the assertion one has been retained, the Court is prepared to adjourn the matter for a brief period.
Accordingly, the matter will be relisted for hearing at 10.15am on 1 December 2021, and orders 2 and 3 made by Registrar Carney on 26 October 2021 remain extant.
It just so happened that an application in a proceeding seeking reinstatement filed in another matter (SYG1177/2021 (BQS17)) had also been docketed to me and was also coincidentally listed it for hearing on 18 November 2021. On 9 November 2021 the Court received an email from applicant BQS17 which also attached a photograph of a letter in relevantly identical terms to those set out in the preceding paragraph. The only material difference was that as statement that Counsel “is appearing in a criminal trial commenced [sic] on 8 November 2021, which could run to 2+ weeks.” Additionally, the unavailable dates had been updated to include 1 December 2021 (namely the newly assigned date for the adjourned hearing of the instant reinstatement application).
On 18 November 2021 a Notice of Address for Service was filed appointing the applicant’s current solicitor.
At the hearing before me Counsel for the applicant acknowledged that the adjournment request letters in each matter (BQS17 and the current matter) were authored by his instructing solicitor. When I asked Counsel for the applicant why neither he nor his instructor was named in the document he indicated there was “no particular reason”.
I made it very clear to Counsel for the applicant that in future in matters in which he and/or his solicitor is involved the Court expects there to be full candour in relation to adjournment requests, and that the Court should not receive a “ghost written” adjournment request again.
In addition, during the course of submissions it emerged as part of needing to provide a more fulsome explanation for the activities of the applicant between 26 August 2021 and the filing of the reinstatement application, that not only had the applicant consulted his now solicitor in August 2021, but that solicitor had prepared the Applicant’s Affidavit, the reinstatement application and the draft Amended Application. None of those documents bore any indication of the solicitor’s involvement in the document or the proceeding.
Counsel for the applicant submitted that the reason for that was that his instructor was not on the Court’s record at the time and/or had not yet been retained to appear at hearing. In my view, this is not relevant to the completion of that part of the form.
Rule 1.06 of the Rules relevantly provides:
(1) It is intended that the practice and procedure of the Court in general federal law proceedings be governed principally by these Rules.
(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rulesor the Federal Court (Criminal Proceedings) Rules 2016 in whole or in part and modified or dispensed with, as necessary.
(3) Without limiting subrule (2), the provisions of the Federal Court Rules set out in Schedule 1, apply, with necessary changes, to general federal law proceedings.
…
In the context of this issue, r 1.06(2) has work to do insofar as it is necessary to have regard to, and apply, r 2.16 of the Federal Court Rules 2011 (Cth) (FCA Rules). That rule provides:
2.16 Details at foot of each document
(1) A document filed in a proceeding must contain the following information under a horizontal line at the foot of the front page of the document:
(a) the name and role of the party on whose behalf the document is filed;
(b) the name of the person or lawyer responsible for preparation of the document;
(c) if the party is represented by a lawyer—the telephone number, fax number and email address of the lawyer;
(d) if the party is not represented by a lawyer—the telephone number, fax number and email address, if any, of the party;
(e) the address for service of the party.
(2) In this rule:
role of the party means the capacity in which the party is participating in the proceeding.
It is appropriate to complement the Rules with r 2.16 of the FCA Rules because the footer of this Court’s form (as at the time the reinstatement application was filed) contained such a section. Following the merger of the Court structures which resulted in the creation of the Federal Circuit and Family Court of Australia on 1 September 2021, the forms have changed such that while the first-page footer is not present, all relevant forms still provide (usually near the signature block at the end) a section where parties are to specify by whom the document is prepared. For example, the relevant part of the form prescribed for an application under r 4.06 of the Rules contains the following:
I would treat as r 2.16 of the FCA Rules as applying in this Court with a now necessary amendment to the chapeau by the omission of the words “under a horizontal line at the foot of the front page of the document”. While it is true that r 2.04(2) of the Rules makes provision for substantial, and not strict, compliance with forms, in my view one area where strict compliance with forms is required is the “prepared by” component prescribed by r 2.16(1)(b) of the FCA Rules, a fortiori when the author is a lawyer.
First, there are the professional obligations of solicitors (and barristers). The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 relevantly provide that a solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. Among the duties of a solicitor is frankness in court. In ARN17 v Minister for Immigration and Border Protection [2018] FCA 974 at [43], Charlesworth J noted the following in relation to an application before the Court whereby the footer stated that the document had been prepared by the applicant personally:
…The documents contain assertions on their face that they were prepared by the applicant personally and yet clearly they were not. The assertions are apt to mislead the Court as to the identity of the person who has drawn the documents and thus as to the status of the applicant as a truly self-represented litigant.
I accept that unlike in ARN17 which made an express statement that the documents were prepared by the applicant, in the present case the documents are simply silent as to their provenance and they do not go so far as to falsely state that the applicant prepared them. However, in my view the omission of any detail as to the author of the documents, when there is no solicitor on the record and the applicant has been unrepresented throughout he proceedings is significant and is still apt to give the impression that they were prepared by the applicant himself. If that omission is an omission on the part of a solicitor, it becomes more significant.
In CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495 (to which the Minister drew my attention in the course of oral submissions at hearing) her Honour Justice Charlesworth again addressed the importance of r 2.16(b) (among a host of other matters which do not arise in this case), from which the following can be distilled:
(a)there should be no doubt as to the obligations of a lawyer, briefed in whatever capacity, to disclose his or her identify as the person responsible for the preparation of a document which is subsequently filed in a proceeding: CPJ17 at [56];
(b)the Court has an interest in knowing the identity of any person (lawyer or not) who has encouraged the commencement or continuation of proceedings including by the formulation and drafting of arguments in documents filed in Court (with specific reference to ss 486E and 486F of the Act): CPJ17 at [58];
(c)rule 2.16 contemplates that a lawyer responsible for the preparation of a document may not be the same person who is engaged to represent that party in the proceeding: CPJ17 at [79];
(d)the disclosure of the identity of the author of the document does not inform the Court as to whether that person is engaged to represent the person in the proceedings in any capacity: CPJ17 at [91];
(e)the obligation in r 2.16 is in absolute terms: CPJ17 at [97]; and
(f)where a document is prepared by a lawyer (including by the formulation of grounds of appeal), that lawyer’s name must be identified in the document irrespective of the capacity in which they are engaged: CPJ17 at [100]; see also BEN17 v Minister for Immigration and Border Protection [2019] FCA 1232 per Derrington J at [42].
The clarity with which these expectations have been expressed in the Federal Court should be heeded by parties and practitioners in this Court. The disclosure of the identity of a document’s author does not create some obligation on them to represent an applicant and so this is not a valid explanation for such an omission.
I would add to this, given the discussion in CPJ17 of ss 486E and 486F of the Act, that while those sections are cast in terms of not encouraging a person to commence or continue litigation which does not have a reasonable prospects of success, the certification which is required pursuant to s 486I is expressed differently. Section 486I(1) of the Act provides that (emphasis added):
A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.
The specificity of this section arguably has the effect that a lawyer need only certify the prospects of proceedings if they are the person who is filing the document for a party and, even then, only if the document has the effect of commencing proceedings (ie not for an amended application). Accordingly, if a lawyer is retained for the limited purpose of drafting an originating process, or even just the grounds within it, the effect of s 486I may mean that they are excused from certifying its prospects. This gap is presumably unintended and may be something the Minister may wish to seek to rectify by amendment of the Act.
However, even if the above interpretation regarding s 486I is correct (which it is not something I need resolve in these proceedings), as the Rules and case law makes clear, a lawyer is not excused from completing the form to disclose their involvement in the authoring of a document.
Counsel for the applicant told me that these omissions and adjournment requests made without full disclosure/attribution would not occur on his part or that of his solicitor in the future.
I will add for completeness that the omission from the reinstatement application, the Applicant’s Affidavit and the proposed Amended Application of his lawyer’s involvement in their preparation, nor the anonymisation of the adjournment request have weighed as factors in my consideration of the applicant’s reinstatement application.
Explanation for absence which led to the dismissal
From the Applicant’s Affidavit, the following explanation is provided for his absence from the hearing on 12 December 2016.
The applicant says that after he received his decision from the Tribunal he: “contacted and saw Legal Aid in Melbourne to prepare my Federal Circuit Court Application for review of my RRT decision. The application was prepared and filed within time.”
It is unclear whether from a combination of these two statements the applicant seeks to suggest that Legal Aid did in fact prepare that document. Certainly, there is no notation to record that they did, but I accept that the grounds do make reference to consulting with Legal Aid, as follows:
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
2. The applicant is currently seeking a legal merits assessment from Victoria Legal
Aid.
The applicant says that having moved to Brisbane from Melbourne, he contacted Legal Aid in Melbourne and requested that:
Legal Aid Melbourne to arrange for my case to be transferred to Brisbane registry. Legal Aid Melbourne advised me that Legal Aid has an office in Brisbane and that a lawyer would appear at the hearing listed on 12 December 2016. I was given a phone number of Legal Aid Brisbane office, but I do not have it now. I was told Brisbane Legal Aid would contact me about the outcome of my 12 December 16 hearing.
At the hearing before me, Counsel for the applicant accepted that there was no independent evidence to verify that the applicant had ever had any involvement with Legal Aid and also accepted that no solicitor had ever engaged with the Minister’s solicitors on behalf of the applicant.
Counsel for the applicant said that as far as the applicant was concerned he understood that there would be “people” from the Brisbane office of Legal Aid attending before Judge Jarrett in December 2016. He said the fact that Brisbane Legal Aid did not file a Notice of Address for Service to indicate they represented the applicant would suggest (to persons who understand such things) that Legal Aid were not going to appear, but that the applicant did not have sufficient knowledge of processes to understand the significance of this.
Counsel for the applicant said that this is why he would use the term “confusion” in relation to the applicant’s level of comprehension, because the applicant did not understand that there was in fact no one on the record for him and that, in those circumstances, he himself needed to attend. Counsel for the applicant said he was unable to explain why, if the applicant thought he was being represented, he continued to file Notices of Address for Service updating his contact details throughout (and beyond) the life of the proceedings.
In relation to the explanation for non-attendance, I am prepared to accept the applicant may have experienced some confusion regarding the Court’s process, even against a background in which he attended his First Court Date, executed consent orders for the transfer of his proceedings and on four occasions filed new Notices of Address for Service with the Court.
In addition, the telephone conversation the applicant had with Ms McConnel on 30 August 2016 following the transfer of his proceedings to Brisbane records the application misapprehending that the Minister’s solicitors were in fact going to be representing him. So it is possible that the applicant did hold some belief that perhaps there were lawyers who might act for him at some stage. I note again that the Minister’s solicitors provided the applicant with a list of free legal service providers in Brisbane, with emphasis placed on one particular pro bono service.
However, even if there was some general confusion or the applicant had hopes of retaining a lawyer, this is not the reason for his non-attendance on his own evidence. Rather, the applicant makes a very specific claim as part of his explanation for his failure to appear before Judge Jarrett: namely that he believed Legal Aid was attending in his place. In that regard certain aspects of his explanation are implausible.
Firstly, there is no independent evidence before me to indicate that any Legal Aid organisation in Australia (or any other solicitor) has assisted the applicant at any stage of these proceedings until his current solicitor filed a Notice of Appearance on 18 November 2021.
Next, what can be verified from independent and contemporaneous sources is that the chronology of the transfer of these proceedings from Melbourne to Brisbane, and the subsequent listing of that matter for case management, is at odds with the applicant’s version of events, namely:
(a)contrary to the explanation at [6] of the Applicant’s Affidavit that he contacted Melbourne Legal Aid to ask them to arrange for a transfer of the proceedings, what is ascertainable from the McConnel Affidavit and the Court file is that this request was instigated by the Minister’s solicitors, with consent orders which the applicant had signed himself;
(b)the applicant’s gmail address was copied with the consent orders were sent to the Court. Yet he makes no mention of this process in which he was clearly involved, in his Affidavit;
(c)next, the listing of the matter was also at the instigation some three months after the transfer of the matter to the Brisbane Registry, by a telephone call from Ms McConnel to the Registry on 6 December 2016 (see Annexure CJM-3 to the McConnel Affidavit). This accords with the chronology of the listing notices sent on 6 December 2016. Accordingly, there were only six days between the date of the listing notice and the direction hearing fixture; and
(d)the Applicant’s Affidavit states that by the time he allegedly rang Melbourne Legal Aid to request a transfer of his case to the Brisbane Registry he already knew the date of the directions hearing because he says a lawyer would appear for him on that specific date. This is at odds with the applicant requesting that Legal Aid facilitate the transfer (which had in fact taken place months before and in which he had been involved) given that if he knew the date of the case management hearing, this conversation would have to have taken place on or after 6 December 2016.
Overall, I prefer the evidence of Ms McConnel in relation to the chronology of events leading up to the applicant’s non-attendance at the hearing. Aside from being consistent with corroborating documentation, it was also a more contemporaneous account of the events.
The applicant’s version of events, aside from being uncorroborated were not documented until September 2021, almost five years since the dismissal of the proceedings took place. In this regard it is perhaps not surprising that the applicant may not have recalled details such as that he participated in the transfer of the proceedings to Brisbane. Similarly the applicant has offered no explanation for why he filed a further Notice of Change of Address for Service in mid-January 2017 as part of his explanations for the steps he took after finding out his proceedings were dismissed.
I asked the applicant’s Counsel during the course of the hearing whether his instructor had made any enquiries of either Melbourne or Brisbane Legal Aid to verify the applicant’s involvement with them. I was informed no such enquiries took place. The Minister’s solicitor submitted that the applicant had not provided any evidence, even a single email, to demonstrate that he had contact with Legal Aid. I note again in this context the admission that the applicant has had the same gmail address throughout the life of these proceedings.
Overall, I am not persuaded there is a reasonable excuse for the applicant’s non-attendance at the case management hearing on 12 December 2016. This weighs against the reinstatement.
Delay in seeking reinstatement
The applicant’s written submissions were silent on the issue of delay so I asked his Counsel to address this at hearing. Counsel for the applicant took me to parts of the Applicant’s Affidavit to show that from early January 2017 until July 2018 the applicant says he sought a variety of advice regarding:
(a)an “appeal to the Court”, which was apparently prepared by a lawyer and sent to the Court but the applicant was then told by the lawyer that the appeal was out of time;
(b)registering with the International Organization for Migration (IOM) in July 2018 with a view to obtaining a Bridging Visa E, but the IOM advised they could not help him;
(c)in January 2021 the applicant met with a solicitor (who he named) who made a Bridging Visa application for him, which was refused on 28 January 2021 by which notification the applicant was advised that he could seek review of that refusal by the Tribunal;
(d)the applicant says: “I did not take any step to appeal to the AAT from 28 January 2021 to 26 August 2021 because I did not know what I should do”;
(e)on 26 August 2021 he met his current solicitor.
Between July 2018 and January 2021, the applicant’s Counsel accepts that there were “large periods when [the applicant] did nothing” and that the applicant also did not take steps during the period January 2021 to August 2021. The Minister’s solicitor appeared to accept that the one month effluxion between consulting his solicitor in August 2021 and the filing of the reinstatement application in September 2021, was reasonable.
However, the Minister otherwise says the delay is “extraordinary” and that there is authority for the proposition (in the context of applications for extensions of time) that even where a case has underlying merit, extraordinary delay can be the determining factor in refusing to exercise the discretion: see Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] per Wigney J.
In fairness to the applicant and given the submission for the Minister which I have recorded at [71] above, I have calculated the delay as being between the date of dismissal (12 December 2016) and the date upon which he saw his current solicitor (26 August 2021), the result of which was the filing of the reinstatement application about a month later. That period is four years, eight months, 14 days. It is, objectively a long period of time, also having regard to the fact that by the time the matter was dismissed it had already been on foot for 18 months.
The Minister submits that the longer the delay, the more persuasive the explanation for it needs to be: see Tran (supra) at [38] per Wigney J, and also places reliance on decision of McHugh J in Commonwealth of Australia & Anor; Ex Parte Marks (2000) 177 ALR 491 at [16] to [17] where his Honour said:
16. Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935 “[t]he rules of court must prima facie be obeyed”. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
17. An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant’s search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.
The Minister acknowledges that a distinction might be able to be made from an extension of time application which carries with it a failure on the part of a party to complete an act with a specific time stricture, whereas a reinstatement application is not time limited. As I raised with Counsel for the applicant in the course of submissions, the counter-argument to this might in fact be that an extension of time is sought in circumstances where an applicant seeks the indulgence of being let in to bring an application for the first time, whereas the threshold for what constitutes a reasonable delay might arguably be said to be higher for a reinstatement which is (subject to the reason given for non-appearance) more akin to an abandonment of proceedings. However, as I have noted above at [6(c)] the authorities tend towards treating these discretions as involving the same considerations and standard, and so I have treated them accordingly.
In any event, the comments of the Court in Re Commonwealth: Ex Parte Marks are highly apposite to the present case, not only in relation to the length of the delay but also the applicant’s explanation for it.
Counsel for the applicant rejected the characterisation that the applicant might have been seen as ‘shopping around’ for favourable legal advice, but accepted that the applicant did receive a succession of negative legal opinions. However it be described, either as searching for positive legal advice, or continuously being met with negative legal advice as to prospects, the fact remains the applicant pursued other options including assistance from the IOM to remain in Australia and well as a fresh application for a bridging visa.
These were not attempts, it would seem, to seek legal assistance with the reinstatement of these proceedings. Rather they appear to be attempts by the applicant to regularise his migration status in different ways. There was also a period of a least two years during which, by his Counsel’s own admission, the applicant did nothing.
Overall, I am not persuaded that there is a reasonable explanation for the considerable delay in pursuing this reinstatement application. The applicant was not only diligent and proficient in engaging with the Court until the time of the dismissal of his application, but he was also given the contact details of five free, local legal service providers. I note that in recounting the various avenues of advice and assistance he is said to have pursued from January 2017 until now, the applicant has not mentioned engaging with any of the organisations for which the Minister’s solicitors provided contact details.
Overall, I am of the view that the applicant’s delay in seeking reinstatement also weighs against the discretion to reinstate being granted.
Prejudice
In written submissions, the applicant said that it was unknown whether the Minister was claiming prejudice. This was not particularly addressed further at hearing for the applicant.
The Minister, citing Re Commonwealth: Ex Parte Marks (supra) at [15] per McHugh J does not claim any personal prejudice to the matter being reinstated, but puts the specific prejudice as being to the public interest that attends the importance of the finality of administrative decisions.
This very reasonable position on the part of the Minister does not mean that there is no prejudice. The Minister would have been entitled after such a lengthy period of time since the proceedings were dismissed in December 2016 to consider the matter was finally concluded and that he had a vested right to retain that decision: see WZAUU v Minister for Immigration & Anor [2019] FCCA 2214 at [43] to [44] per Judge Lucev.
In my view after such a considerable delay in the making of the reinstatement application, there is prejudice to the Minister and this also weighs against reinstatement.
Merits of the substantive grounds of review
I accept that there is authority for the proposition that irrespective of whether a case has merit, the length of delay balanced with the persuasiveness or otherwise of the explanation for it can carry the day and warrant an exercise of discretion to outright refuse relief. Even if I was wrong about the lack of merit in the instant case, I am satisfied that the absence of a persuasive explanation for non-attendance, the significant period of delay and the explanation given for it would warrant that the discretion be exercised against reinstatement. However, I have considered the merit of the proposed grounds.
Counsel for the applicant confirmed that the applicant abandons the grounds in the originating application (set out at [56] above) and I am instead asked to consider the merit of only the grounds in the proposed Amended Application which is annexed to the Applicants Affidavit, on the basis that if I were to grant the relief sought in the reinstatement application, I would presumably also then grant leave to the applicant to rely on the Amended Application.
As noted previously, in assessing whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, the grounds should be assessed at an impressionistic level.
The proposed grounds of review are as follows:
1. The AAT found the Applicant is not a witness of truth and the accounts of events on which his protection claims are based were false. [43]
2. In so finding, the AAT found various claims were either incongruous [28], unconvincing [29], [30]; highly unlikely [29]; highly improbable [31]; improbable [32]; or not, credible [33]. However, these conclusions were unreasonable in the context of the Applicant's claims which were all rational and reasonable.
3. In so finding, the AAT further reviewed the Applicant's claims and:
a. Rejected responses when the Applicant's responses were rational and reasonable [34]; [35]
b. Asserted inconsistent evidence at [38] and [39], when the inconsistency was explained by the Applicant which the AAT unreasonably rejected;
c. Asserted omissions at [40], when the omission was explained by the Applicant which the AAT unreasonably rejected;
4. As a result of the above the AAT disbelieved most of the claims [44]-[45], such conclusion being unreasonable, the AAT thereby committing jurisdictional error.
While expressed as four paragraphs, the ground is actually a single ground by which the applicant alleges that the Tribunal’s assessment of his credibility was unreasonable and that it in turn infected its conclusions such that the whole of its conclusions were unreasonable (applicant’s written submissions at [19]).
At hearing, Counsel for the applicant addressed this ground by saying that the Tribunal used:
Words such as “unconvincing”, “highly improbable”…“highly improbable”…“does not believe”…“improbable”… “sceptical”…“not credible”…“highly incongruous” is used twice…“Unconvincing and highly unlikely”.
So all of these epithets are used, but …the Tribunal doesn’t attempt to actually explain why those epithets are appropriate. It’s just as if the Tribunal read it all and without attempting to justify the negative findings that it made just simply rattled them off, used different words to convey the same sense, but did not attempt in any way to use some form of intellectual engagement in order to justify those findings, and that’s the problem that we have with this decision.
The Minister submits that the bar for unreasonableness is a high one, and that significant caution must be exercised when illogicality is alleged in a decision of the Tribunal to ensure that the Court does not embark on an impermissible review of the merits. The Minister contends that the ground of review does nothing more, even at a high level, than to simply invite the Court to engage in merits review (Minister’s submissions at [31]).
In oral submissions the Minister’s solicitor said that the reasons should not be scrutinised minutely and finely with an eye keenly attuned to the perception of error. This principle from Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 is so frequently cited in this jurisdiction as to become trite, but that should not cause it to be overlooked.
In the instant case, the applicant takes aim specifically at the finding of the Tribunal at [43] of its reasons. It should be noted that this paragraph is the first paragraph under a notable heading:
Conclusions on credibility
43. At the beginning of the hearing the Tribunal put the applicant on notice that although the delegate may have accepted certain aspects of his evidence as credible, it was nevertheless the task of the Tribunal to satisfy itself as to whether or not he was telling the truth. Considered cumulatively, the concerns the Tribunal holds about the applicants credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.
The remainder of the ground particularises the aspects of the Tribunal’s findings which are said to given rise to the legal unreasonableness.
The first thing to be observed is that the applicant criticises various findings (and more specifically the use of various words) which described deficiencies that the Tribunal perceived in the applicant’s claims, accounts and evidence. The earliest of these is said to be the Tribunal’s use at [29] of the description “highly unlikely”.
As I pointed out to the applicant’s Counsel at hearing, these assertions ignore the preceding 21 paragraphs of the Tribunal’s decision where it sets out – in detail – the evidence given by the applicant and its interactions with him in exploring same.
A full reading of the Tribunal’s decision, in particular up to the point at which it made its concluded findings on credibility at [43], reveals a very considered assessment of all of the applicant’s claims and an acute intellectual engagement with them.
As will be observed from the summary at [13] to [21] from the commencement of its findings at [7] of its reasons for decision, the Tribunal sets out in detail the evidence before it and its discussions with the applicant during the course of the Tribunal hearing. The general tenor of the proposed grounds of review, more fully understood through the oral submissions made for the applicant at the hearing of the reinstatement application, is that the Tribunal’s use of the descriptors referred to was in some way hyperbolic to the point of being unreasonable when contrasted with the “applicant’s claims which were all rational and reasonable”.
I disagree with all aspects of this characterisation. To the extent that the Tribunal used a variety of adjectives to describe its incredulity at the applicant’s claims and evidence, this is, without a specific error alleged, unremarkable. Further, as against a full and contextual reading of the Tribunal’s very detailed decision, the findings that the Tribunal made in relation to the claims themselves and its conclusions on credibility were in fact open to it on the material before it – in particular the shifting and often implausible versions of events given by the applicant at hearing.
The assertion that the conclusions were unreasonable when contrasted with the applicant’s claims which are said as a matter of fact in the proposed grounds to be “all rational and reasonable” does seek to engage the Court in merits review. The assessment of the applicant’s claims was exclusively a matter for the Tribunal. A subjective and absolute assertion within the grounds of review to the contrary, does nothing to alter this.
Contrary to what was submitted for the applicant at hearing that the Tribunal “just rattled off” these descriptors for the applicant’s evidence, this is not borne out on a fair reading of the Tribunal’s reasons. The fact that the proposed grounds of review have compiled a list of the adjectives gives a false impression that the Tribunal gratuitously used them, indiscriminately and/or altogether at one part of the decision. It did no such thing.
Further, the suggestion that because the Tribunal used such words to describe its disbelief somehow reveals a failure to intellectually engage with the applicant’s claims and evidence such that the decision is affected by legal unreasonableness is also not supported by a fair reading of the decision as a whole. As the Minister submits, an assertion of unreasonableness and irrationality poses a high bar of satisfaction, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ. The Minister also submits, and I accept, that Tribunal's findings were logical and open to it on the evidence before it and therefore the decision is not illogical or unreasonable.
In all of those circumstances I am not satisfied that even taken at an impressionistic level the proposed grounds of review do anything other than seek to engage the Court in an attempt at reviewing the merits of the applicant’s claims which he asserts to be true, but which the Tribunal was entitled on the material before it to find were otherwise.
Conclusion
Accordingly, it follows that having taking into account all the relevant factors, I am not persuaded that the interests of the administration of justice call for the reinstatement of the application and I order that the reinstatement application filed on 24 September 2021 is dismissed.
I will hear the parties on costs.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 25 February 2022
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