BBC18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 900
Federal Circuit and Family Court of Australia
(DIVISION 2)
BBC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 900
File number: MLG 551 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 28 October 2022 Catchwords: PRACTICE AND PROCEDURE – late adjournment request – where the applicant has possibility of being legally represented if matter is adjourned for four to six weeks – where an amended application has already been filed on behalf of the applicant – where the applicant would benefit from assistance of a legal representative – adjournment granted – hearing to be re-listed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190 and Division 6 of Part 6 in Chapter 4
Migration Act 1958 (Cth), s 476
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
GEQ18 v Minister for Home Affairs & Anor [2019] FCCA 3338
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 28 October 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr C Orchard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 551 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BBC18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
28 October 2022
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The applicant have leave to rely on the amended application filed in this Court on 24 October 2022.
4.The applicant file and serve written submissions in support of the amended application by 11 November 2022.
5.The first respondent file and serve written submissions in response to the amended application by 18 November 2022.
6.The matter be adjourned for a final hearing on a date to be fixed.
7.Costs be reserved.
8.Written reasons for the grant of the adjournment to be provided from chambers at a later date.
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 KENDALL:
Introduction
This matter was listed for a final hearing before this Court at 2.00pm (AEDT) / 11.00am (AWST) on 28 October 2022.
At the hearing, the applicant requested an adjournment on the basis that he had now retained legal representation. The legal representative for the first respondent (the “Minister”) opposed the request for an adjournment.
Having heard from the parties, the Court ultimately granted the requested adjournment.
The Court made the following orders:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The applicant have leave to rely on the amended application filed in this Court on 24 October 2022.
4.The applicant file and serve written submissions in support of the amended application by 11 November 2022.
5.The first respondent file and serve written submissions in response to the amended application by 18 November 2022.
6.The matter be adjourned for a final hearing on a date to be fixed.
7.Costs be reserved.
8.Written reasons for the grant of the adjournment to be provided from chambers at a later date.
These reasons are those referred to in order 8 above. They explain why the Court granted the requested adjournment.
Background
Before this Court is an application for judicial review filed in the Melbourne Registry of the Court on 5 March 2018 (the “application”). That application was accompanied by an affidavit which was affirmed and filed by the applicant on 5 March 2018. At the time of filing the application, the applicant was self-represented.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks review of a Confirmation Decision made by the Administrative Appeals Tribunal on 20 February 2018.
On 18 May 2022, a callover was held in the matter by Registrar Carney of this Court to discuss the timetable in place for the filing of material in the matter and to notify the parties that the matter would be allocated to a judge and listed for hearing as soon as possible (likely in October 2022). The applicant appeared at that callover by telephone.
On 10 July 2022, my chambers notified the parties that the matter had been listed for hearing on 1 November 2022 at 3.00pm (AEDT) / 12.00pm (AWST) and that the hearing would take place by video link.
On 28 September 2022, having been advised that 1 November 2022 was a public holiday in Melbourne, my chambers contacted the parties to notify them that the matter would be re-listed to 28 October 2022 at 2.00pm (AEDT) / 11.00am (AWST).
On 21 October 2022 at 6.09pm (AEDT), the Court’s Melbourne Registry received email correspondence from Ms Hannah Dickinson (“Ms Dickinson”) from the Asylum Seeker Resource Centre (“ASRC”) attaching an amended application for filing on behalf of the applicant.
The email from Ms Dickinson stated:
Please find attached an amended application for filing on behalf of the Applicant, copied, in this proceeding.
We have provided limited assistance to the Applicant to prepare this document, but do not represent him on an ongoing basis given the timeframes we understand are involved.
I would be grateful if a sealed copy of the amended application could be provided to me for the purposes of service on the Respondents.
My chambers contacted the Minister’s legal representatives to enquire whether the Minister objected to the filing of the amended application, noting that it had been filed outside of the time allowed by the programming orders made in the matter. That correspondence provided as follows:
I refer to the above matter which is currently listed for a hearing at 2.00pm (AEDT) / 11.00am (AWST) on 28 October 2022.
Chambers has been advised that the attached amended application has been provided to the Court for filing by the Asylum Seeker Resource Centre (the “ASRC”). The document has not yet been accepted as it has been filed outside of the time allowed by the programming orders in this matter.
Chambers has also received the attached email from the applicant with a number of documents attached. It is not clear whether the Minister has received a copy of the email or its attachments or if the applicant will continue to rely on those documents given the involvement of the ASRC.
His Honour Judge Kendall is inclined to accept the document for filing given that the applicant appears now to have the assistance of a solicitor. His Honour enquires whether the Minister objects to the filing of an amended application. Further, if the amended application is accepted, His Honour queries whether the Minister will have sufficient time to respond to the amended application prior to the hearing on Friday. If it would assist the Minister to have additional time to respond, His Honour notes that the Court does have some capacity to have the matter heard at the end of November 2022.
Noting that the matter is listed for final hearing on 28 October 2022, I would appreciate if the Minister could please provide a response to chambers by 12pm tomorrow.
On 25 October 2022, Mr Christopher Orchard (“Mr Orchard”) replied on behalf of the Minister and advised as follows:
We are instructed to consent to the filing of the amended application and the Minister will provide supplementary submissions in response to the amended application on Thursday, if that is acceptable to the court. We require no change to the hearing date, subject to consideration of any further material that may be filed by the applicant.
Further written submissions were filed on behalf of the Minister on 26 October 2022.
On 27 October 2022 at 8.46am (AWST), my chambers received an email from Ms Dickinson which provided:
The ASRC understands this matter is listed for hearing tomorrow, Friday 28 October 2022. In that timeframe, we are unable to undertake to act for the Applicant.
Mr Rumiyu instructs that he intends to request an adjournment of his hearing. If the court were minded to adjourn the matter for 4 weeks, we would be in a position to formally represent the Applicant. This timetable would allow 2 weeks for the provision of written submissions by the Applicant and 1 week for any further submissions by the Minister. We do not anticipate that significant further materials would be filed or that the substance of the grounds would alter. Any further materials would likely be limited to material held by the Tribunal not currently available.
We do not propose to significantly disturb the hearing date, noting this matter has been pending for some time, and we appreciate that consideration will be relevant to the court. We note previous court correspondence to the parties that his Honour may have some capacity to have the matter heard at the end of November 2022.
The Minister opposes this request.
We apologise for any inconvenience caused.
That same day (on 27 October 2022), my chambers acknowledged receipt of that correspondence and notified the parties that the adjournment request would be discussed with the parties at the commencement of the hearing on 28 October 2022.
That same day (that being 27 October 2022) an affidavit was affirmed by Mr Adam Cunynghame and filed on behalf of the Minister (the “Cunynghame affidavit”). The affidavit stated:
1.I am a solicitor employed by Sparke Helmore, the solicitors for the first respondent. I have perused the files relating to the applicant held by Sparke Helmore and make this affidavit based on the information contained in those files, as well as from my own knowledge, unless otherwise stated.
2.On 5 March 2018, about four and a half years ago, the applicant filed the originating application. He was self-represented and raised grounds which mentioned his claims for the visa and, at best with respect to identifying jurisdictional error in the second respondent’s decision, asserted the second respondent’s decision was unfair and subject to error.
3.On 6 February 2019, the parties appeared at a directions hearing before Registrar Burns. The applicant appeared with the assistance of a Malaysian interpreter and Victoria Legal Aid. Procedural orders were made.
4.Nothing substantive in the matter appears to have happened for over three years until 18 May 2022 when the parties appeared at a callover before Registrar Carney. The applicant appeared by telephone. The procedure and timing for materials was discussed and the Court indicated the application would be listed for hearing in October 2022.
5.On 10 July 2022, the Court emailed the parties and advised the matter would be heard on 1 November 2022 by videolink. The applicant didn’t respond.
Annexed hereto and marked ACX-1 is a true copy of the Court’s email dated 10 July 2022.
6.On 28 September 2022, the Court emailed the parties and advised the matter would be heard on 28 October 2022 noting that 1 November 2022 was the Melbourne Cup public holiday. The applicant didn’t respond.
Annexed hereto and marked ACX-2 is a true copy of the Court’s email dated 28 September 2022.
7.By the Court’s orders dated 6 February 2019, the applicant was required to file and serve, inter alia, an amended application and written submissions by 30 September 2022. Nothing was filed or served.
8.On 13 October 2022, the Asylum Seeker Resource Centre (ASRC) sent to Sparke Helmore lawyers an email and requested a copy of the court book noting an upcoming hearing. At no point in time has the ASRC filed a notice of acting for the applicant. The ASRC provided an authority to act for the applicant signed and dated by the applicant on 13 October 2022. Sparke Helmore lawyers provided the court book on the same day.
Annexed hereto and marked ACX-3 is a true copy of this correspondence by email.
9.In compliance with 6 February 2019 orders the Minister filed and served written submissions on 14 October 2022.
10.On 21 October 2022, the ASRC sent to Sparke Helmore lawyers an amended application. It was accepted for filing on 24 October 2022.
11.On 26 October 2022, the Minister filed further written submissions in response to the amended application.
12.Later on 26 October 2022, the ASRC sent to Sparke Helmore lawyers an email anticipating a request for an adjournment by the applicant this matter. On 27 October 2022, I sent an email to the ASRC indicating that the Minister opposed an adjournment request
Annexed hereto and marked ACX-4 is a true copy of this correspondence by email.
13.Based on my review of the correspondence between Sparke Helmore lawyers and the ASRC, I am not aware of any explanation for the applicant’s failure to comply with the Court’s orders nor explanation for the delay in seeking an adjournment of the hearing until two days before the hearing.
No further materials were filed by or on behalf of the applicant and the ASRC was not “on the record” as acting for the applicant when the matter was called.
Hearing
At the hearing (on 28 October 2022), the applicant appeared by video link and was assisted by an interpreter in the Malay language. Mr Orchard appeared on behalf of the Minister.
The Court confirmed receipt of the email from Ms Dickinson dated 27 October 2022 in which she foreshadowed that the applicant would be seeking an adjournment. That correspondence was tendered and referenced as Exhibit 1.
The Court asked the applicant whether he was seeking for the matter to be adjourned. The applicant confirmed (through the interpreter) that he needed an adjournment.
Mr Orchard advised the Court that the Minister opposed the adjournment request and relied on the Cunynghame affidavit in that regard (which was taken as read and in evidence).
Mr Orchard stressed that the Court was required to have regard to s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) when considering the Minister’s “case management concerns”.
Mr Orchard then outlined the Minister’s submissions in relation to the adjournment request as follows:
(a)Ms Dickinson explained in her email correspondence that the applicant’s argument would not deviate substantively from the present case, so, even if an advocate were available for the applicant, the case would not change (thought the Minister conceded that the applicant may, of course, benefit from having a representative);
(b)the Minister has done everything it can to progress the matter, including filing two sets of written submissions and not opposing the filing of an amended application;
(c)an adjournment would not be a good use of judicial resources and would not be a good disposal of the Court’s resources;
(d)an adjournment would not result in the resolution of the matter in a timely manner; and
(e)the proceeding would be justly determined today given the amended application and the written submissions filed by the Minister. In the Minister’s submission, the matter is not a complex one and should be resolved by the Court at the earliest opportunity.
The applicant did not respond.
Consideration
When considering an adjournment request, the Court needs to be satisfied that it is in the interests of the administration of justice for such an adjournment to be granted. If the Court is satisfied that an adjournment is necessary to ensure that there is a just resolution of the proceeding, then the Court may exercise its discretion to grant an adjournment.
When determining whether or not an adjournment should be granted the Court will assesses the following factors:
(a)the evidence in support of the adjournment request and the explanation for the adjournment;
(b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted such that there is a “just resolution” of the proceeding;
(c)any prejudice to the respondent that cannot be mitigated by costs; and
(d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources.
(See: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
While the judicial review application in this matter was filed by the applicant in March 2018, the matter has largely been sitting idle for much of that time. This delay is not through the fault of the applicant. Rather, despite the Court’s best efforts, it is as a result of a significant migration backlog in this Court (and in the Melbourne Registry in particular): AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 (citing Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726 and GEQ18 v Minister for Home Affairs & Anor [2019] FCCA 3338).
This Court would ordinarily be reluctant to grant an adjournment to allow an applicant to attempt to find a legal representative. In the circumstances of this case, however, it is appropriate to adjourn the matter for the following reasons:
(a)the applicant has now obtained legal representation;
(b)that solicitor has already prepared and filed an amended application on behalf of the applicant;
(c)there is correspondence before the Court from that solicitor indicating that, if the matter is adjourned for a period of four weeks, the solicitor could formally represent the applicant;
(d)the applicant (and, indeed, the Court) would greatly benefit from the assistance of a lawyer; and
(e)any prejudice to the Minister can be mitigated by costs (noting that the Court has reserved costs in this regard so that the issue can be dealt with at the conclusion of the proceeding).
On the basis of the above, the Court made orders granting the applicant leave to rely on the amended application filed on his behalf on 24 October 2022. The Court also made orders for the filing of further submissions by both the applicant and the Minister.
The matter was adjourned for a final hearing on a date to a date to be fixed. The parties were advised that the Court will endeavour to have the matter brought back as soon as possible (and likely by the end of November 2022).
I am satisfied that an adjournment for a period of four to six weeks will allow the Ms Dickinson and the legal team at ASRC sufficient time to prepare the matter for a final hearing. This will greatly assist the applicant and the Court and will not cause any prejudice to the Minister in his capacity as a model litigant.
Conclusion
In the circumstances, the Court made orders as outlined at [4] above.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 1 November 2022
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