BAY16 v Minister for Immigration
[2018] FCCA 2662
•28 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAY16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2662 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for adjournment of proceedings pending outcome of appeals in CQZ15 v Minister for Immigration and Border Protection and BEG15 v Minister for Immigration and Border Protection in the High Court of Australia – application granted. |
| Legislation: Migration Act 1958 (Cth) Federal Circuit Court of Australia Act 1999 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: BEG15 v Minister for Immigration and Border Protection & Anor [2018] HCATrans 80 Singh v Minister for Immigration & Anor [2016] FCCA 3232 |
| Applicant: | BAY16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 922 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 28 June 2018 |
| Date of Last Submission: | 28 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 28 June 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr Solomon-Bridge |
| Solicitors for the applicant: | Victoria Legal Aid |
| Counsel for the respondents: | Mr Goodwin |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The applicant have leave to amend this application to include grounds as described in the affidavit of Joel Christopher Townsend made
22 June 2018.
The hearing listed on 28 June 2018 be adjourned to a date to be fixed pending the outcome of appeals in CQZ15 v Minister for Immigration and Border Protection and BEG15 v Minister for Immigration and Border Protection in the High Court of Australia (“the appeals”).
The applicant is to notify the court of the outcome of the appeals.
Costs be reserved.
AND THE COURT NOTES THAT:
The exhibit “ALB-2” to the affidavit of Ashlee Briffa filed 14 June 2018 will not be made available on the court file until the outcome of the appeals are determined.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 922 of 2016
| BAY16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from the Transcript)
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.
This is an application in a case filed by the applicant in respect of these proceedings in which the applicant seeks, firstly, leave to amend to his application to include grounds as set out in the affidavit of
Joel Christopher Townsend filed 22 June 2018 and an adjournment of the hearing in this matter listed for today to a date to be fixed pending the outcome of appeals in CQZ15 v The Minister for Immigration and Border Protection & Anor [2018] HCATrans 79 (“CQZ15”), and BEG15 v The Minister for Immigration and Border Protection & Anor [2018] HCATrans 80 (“BEG15”) in the High Court of Australia.
It appears from the submissions of the parties that the first respondent (“the Minister”) does not object to the first of those two orders, but in relation to the application for an adjournment, before I turn to the reasons, it is appropriate to say something about the procedural background to this matter.
At a directions hearing before this court on 28 September 2016, orders were made by consent that the proceedings be listed before
his Honour Judge Wilson on a date to be fixed and pursuant to those orders, the matter was then listed for hearing before
his Honour Judge Wilson on 25 October 2018. That matter was then administratively relisted to a hearing before me today.
The Minister has filed submissions pursuant to the consent orders in which it relies upon the cases of BEG15 and CQZ15.
It is common ground that on 10 May 2018, special leave was granted by the High Court in appeals in both BEG15 and CQZ15. In his affidavit, the applicant has stated that both appeals in those matters together with another related matter of SZTMA v The Minister for Immigration and Border Protection & Anor [2014] FCCA 504 are to be heard together on 10 September 2018 and he has annexed to his affidavit correspondence from the High Court to that effect.
In this context, the applicant sought the Minister’s consent to adjourn these proceedings pending the outcome of the High Court proceedings; that consent was not forthcoming and therefore the application for an adjournment was agitated before me today.
In support of the application, counsel for the applicant made reference to the current proceedings in the High Court and noted that the disposition of those proceedings is likely to have a determinative effect in respect of the application before this court. The applicant’s counsel referred the court to BLD15 v The Minister for Immigration & Anor [2015] FCCA 3467 (“BLD15”) in which a similar application for an adjournment was sought, in that case by the Minister pending an appeal to the High Court from a decision of the Federal Court in Singh v Minister for Immigration & Anor [2016] FCCA 3232 (“Singh”).
In that case, the applicant opposed the Minister’s application for an adjournment on various grounds including that the application for an adjournment was analogous to an adjournment being sought to await proposed legislative changes and referred to various cases in which an adjournment in those circumstances had been refused.
In BLD15, the appellant opposed the Minister’s application and said that he had also been waiting for some time for his appeal to be dealt with and that he wished to have it dealt with on the basis of the law as pronounced by the Federal Court of Australia as being law at that time.
In considering the argument that the application for an adjournment in that case was analogous to a range of authorities in which adjournments had been refused because of proposed legislative changes, Katzmann J concluded that the application before her was not analogous to those cases, and at paragraph 10 of her decision she said:
Cases in which an adjournment is sought to enable a proposition established in decided case to be tested on appeal have been treated differently.[1]
[1] BLD15 v Minister for Immigration & Anor [2015] FCCA 3467 at [10].
That is understandable. Unlike a legislative change, a decision on appeal does not usually change the law. It merely determines or clarifies its meaning. Furthermore, the uncertainty attending a foreshadowed legislative change is lacking on an appeal, especially in an appeal to the highest court.
Similarly, in BLD15 it was argued on behalf of the appellant that the requirements of the Federal Court of Australia in that case required the court to act in a way that best promotes the overarching purpose of the Federal Circuit Court of Australia Act 1999 (Cth); namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
In response to that submission, Katzmann J did not accept that that obligation required her to refuse the adjournment sought and at paragraph 17 of her decision she relevantly stated:
It seems to me that it would not be an efficient use of the judicial and administrative resources of the Court to proceed to hear and determine the appeal knowing that there is an appeal or an application for special leave to appeal pending in the High Court the outcome of which could determine once and for all points that could be decisive in this case.[2]
[2] BLD15 v The Minister for Immigration & Anor [2015] FCCA 3467 at [17].
It was submitted on behalf of the applicant in this case in support of the adjournment application, that BLD15 is a complete response to the Minister’s opposition to an adjournment. Indeed, it was submitted that the application being ventilated today is an even less speculative one than that before the court in BLD15 in the sense that in BLD15, special leave had not yet been granted whereas in this case, not only has special leave already been granted by the High Court, but a date has been set for the hearing. In those circumstances it was submitted on behalf of the applicant that it would be an exercise in futility to proceed to hear submissions in this case today.
It was also submitted on behalf of the applicant that if an adjournment was not granted, then the applicant would argue his case today and in effect argue the same points which would be ventilated before the
High Court and also would be seeking to distinguish the current Full Court decisions from the facts in this case.
In response, counsel for the Minister reiterated the Minister’s opposition to the adjournment application and in relation to the issues facing this court in terms of determining whether to exercise its discretion to grant an adjournment, the Minister made the following points:
a)First of all, in relation to BLD15, the Minister submitted that at the time of that case, there had only been one Full Court of the Federal Court decision relating to the certificate issues whereas now there are more Full Court decisions and therefore the law regarding certificate issues is much more settled.
b)
Secondly, the Minister referred to paragraph 22 of Katzmann Js decision in BLD15 where she noted that given the substantial number of matters pending in the court which may be affected by the Minister’s application in Singh, that she expected that the Minister would bring these matters to the attention of the
High Court and seek expedition of the hearing of the special leave application, and if granted, of the appeal itself. By comparison it was put on behalf of the Minister that there was no evidence before the court today of a similar expeditious approach, although it was conceded by the Minister that in this case a date had actually been set and special leave had been granted.
c)It was also submitted on behalf of the Minister that the application filed in these proceedings was filed more than two years ago and has therefore been in this court for a great length of time.
d)Fourthly, the issue associated with the certificates was raised by the Minister as a model litigant and an affidavit in respect of those matters was provided to the applicant in May and therefore the applicant was aware of the material and in a position to make submissions in light of the case law as it currently stands today.
e)Fifthly, that to the extent that it was put on behalf of the applicant that a decision by the High Court to grant special leave on the papers is somehow indicative of the possible strength or otherwise of the appeal, that should be a submission that ought to be rejected by this court.
f)Six, it was put on behalf of the Minister that there have been a number of cases in this court that have proceeded to determine certificate issues notwithstanding special leave had been granted to the High Court and after that special leave had been granted, and to that extent the Minister referred me to three such decisions. In each of those cases it appears that the Minister quite properly as a model litigant raised the special leave application with the trial judge but notwithstanding that, the judge in each case proceeded to determine the issue.
g)The Minister, through his counsel, quite rightly conceded that in each of those cases, no application for an adjournment was made, or considered by the judge, and I also note that in each of those cases the applicants were representing themselves. It was further put on behalf of the Minister that in relation to the efficient use of court resources, that if matters which are listed in this court are constantly delayed awaiting appeals in higher courts that would add to the weight of what is clearly a very busy court list.
h)Finally, it was put on behalf of the Minister as an alternative position that if the court were concerned about the potential impact of any decision it was called upon to make in this matter by reason of the proceedings in the High Court, that an alternative would be for the hearing to proceed today and for the court to reserve its decision until after the High Court’s reasons were handed down. It was also said that this may well avoid the need for a further hearing.
In reply, counsel for the applicant noted that each of the three cases handed up by the counsel for the Minister in support of his submission were in respect of applicants who were unrepresented, and also, that in none of those cases was the court referred to the decision in BLD15.
In response to the suggestion by the Minister’s counsel that the court should be swayed by a greater settled law arising from the existence of numerous Full Court decisions and that this distinguished the situation that confronted the court in BLD15, it was submitted that the
High Court decision in the current application will affect all of those decisions and consequently all of the Full Court decisions are subject to he same level of uncertainty. Finally, in response to the issue of the efficient use of resources of the court, it was submitted on behalf of the applicant that the fact is that this is a busy court and it would be an inefficient use of its time to hear an application today which may well be rendered futile in light of the High Court’s decision.
Finally, in response to the alternative proposition put on behalf of the Minister that another option would be to allow the hearing to proceed today but to reserve the court’s reasons until after the High Court’s decision, it was submitted that that would not be an effective approach in these circumstances.
Turning then to my reasons, having considered the submissions put on behalf of both the applicant and the Minister, I am not persuaded by Minister’s argument that an adjournment ought to be refused in this case. I do accept his submissions that one cannot draw any inference of the strength or otherwise of either party’s case from the manner in which special leave was granted, however, what is clear is that once the High Court has heard and determined the application before it, it is likely to have a significant impact on the arguments being advanced in this court in this application.
I am therefore satisfied that in all of the circumstances it is appropriate to grant an adjournment in the terms sought by the applicant in this case and for the reasons set out by Katzmann J in BLD15. An application for an adjournment pending a determination by the
High Court is appropriate in these circumstances as it will allow greater clarity on the issues which remain live in these proceedings.
Similarly, I am not persuaded that it is an efficient use of the court’s resources to hear and determine an application today which may well be rendered otiose as a result of the High Court’s decision. In coming to this conclusion, I have also had regard to the fact that at a practical level, this matter, whilst having been in the court list for some two years, was initially listed for a hearing in late October 2018 and I am also influenced by the fact that unlike BLD15 in which special leave had not yet been obtained, in this case special leave was granted in May 2018 and the High Court’s directions were issued requiring the parties to file their material according to a timetable and the matter has now been listed for hearing on 10 September 2018.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 28 June 2018
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