BIM17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 895
Federal Circuit and Family Court of Australia
(DIVISION 2)
BIM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 895
File number(s): SYG 949 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 13 October 2022 Catchwords: MIGRATION – excluded fast track review applicant – bogus document – jurisdictional error conceded by Minister – dispute as to appropriate relief – applicant departed Australia following hearing on final relief – whether granting of relief is futile
PRACTICE AND PROCEDURE – Commonwealth’s obligations to act as model litigant - whether application for dismissal for non-appearance appropriate when jurisdictional error conceded – whether applicant being offshore constitutes a relevant default under the Rules
Legislation: Judiciary Act1903 (Cth) s 55ZG
Migration Act 1958 (Cth) ss 5, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 6.01, 9.03, 13.04, 29.13
Federal Court Rules 2011 (Cth)
Legal Services Directions 2017 (Cth)
Cases cited: AHT15 v Minister for Immigration and Border Protection [2015] FCA 1215
FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 152
FYD Investments v Promptair Pty Ltd [2017] FCA 1097
Matson v Attorney-General (Cth) [2021] FCA 161
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Mersey Railway Company (1888) 37 Ch D 610
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 13 October 2022 Place: Sydney The Applicant: No appearance Counsel for the Respondent: Mr B Kaplan Solicitor for the Respondent: Sparke Helmore ORDERS
SYG 949 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIM17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
13 OCTOBER 2022
THE COURT ORDERS THAT:
1.The respondent be allowed apply to re-open the matter by an application made in Court on 13 October 2022 and returnable instanter.
2.Pursuant to r 1.07 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) the requirement in rr 4.01(4) and 4.06 to file an application in a proceeding in respect of the application referred to in Order 1, is dispensed with.
3.Order 2 made on 4 July 2022 is vacated.
4.Subject to the notation below, the application filed on 29 March 2017, as amended, is dismissed pursuant to r 13.06(1)(c) of the Rules.
5.The respondent must pay the applicant’s costs and disbursements of and incidental to the proceedings for the period of 29 March 2017, up to and including 6 May 2022, as agreed or taxed pursuant to the Federal Court Rules 2011 (Cth).
6.The applicant must pay the respondent’s costs and disbursements of and incidental to the proceedings from the period 12 May 2022, fixed in the sum of $8,500 (excluding GST).
7.The respondent must serve a sealed copy of this order on each of the following, by 5:00pm on 14 October 2022:
(a)the applicant at his Gmail address as provided in the Notice of Intention to Withdraw as Lawyer annexed to the Notice of Withdrawal of Lawyer filed by Legal Aid NSW on 26 September 2022; and
(b)Legal Aid NSW by email to [email protected].
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
Before me, is an application in a proceeding which, pursuant to a grant of leave was made orally in Court today in returnable instanter. The applicant commenced the instant proceedings on 29 March 2017 seeking judicial review of a decision of a delegate of the respondent made on 3 March 2017 refusing the grant to him of a Safe Haven Enterprise (Subclass 790) Visa, and that he was an excluded fast track review applicant. Relevantly, the delegate found that the applicant was an excluded fast track review applicant on the basis that he reasonably suspected that a letter, which had been submitted in support of the application (MP letter), was a bogus document within the meaning of s 5(1) of the Migration Act 1958 (Cth) (Act). Accordingly, the decision was not referred to the Immigration Assessment Authority (Authority) for review.
The delegate also purported to consider and determine the applicant’s protection claims against the backdrop of his findings that the MP letter was a bogus document and, therefore that the claims were not credible. When the proceedings were commenced, the applicant was unrepresented.
On 6 June 2017 a Notice of Address for Service was filed for the applicant, which had the effect of appointing Legal Aid New South Wales as his legal representative. On 11 July 2017 an amended application was filed for the applicant, pursuant to a grant of leave made by a Registrar of the Court on 18 May 2017. On 14 December 2020 the applicant’s representation by Legal Aid New South Wales ceased, but it appears to have been later reinstated on 11 December 2021.
In support of the application made in Court today, two Affidavits were read for the respondent, being those of Katherine Louise Evans made on each of 5 October 2022 (first Evans’ Affidavit) and 12 October 2022 (Second Evans’ Affidavit).
Since the inception of the proceeding it remained in the central migration docket up until 22 December 2021 when it was brought into my docket. On 20 January 2022, the parties were notified that the matter was listed before me for hearing on 31 May 2022. Subsequently, the solicitors for the respondent indicated that their client’s Counsel was unavailable on that date, and the matter was brought forward to a date which would suit him and the applicant’s representatives, being 13 May 2022. On 6 May 2022, being the date upon which the respondent’s written submissions were due to be filed with the Court in advance of that final hearing, the solicitors for the respondent wrote to the Court to advise that they had been instructed to concede the proceedings on a particular basis and had accordingly provided proposed consent orders to the applicant’s solicitor for consideration. In those circumstances, the respondent sought to be excused from complying with the Court’s orders for the filing of written submissions, which dispensation I granted.
On 11 May 2022 the applicant’s solicitors wrote to the Court to advise that, notwithstanding the email from the respondent’s solicitors five days prior, in the course of communications between the parties to finalise the respondent’s concession they had been unable to reach a consensus because the Minister’s concession was said to be “in limited terms”. The dispute between the parties was essentially as follows. The respondent conceded that the formulation by the delegate of the opinion that the applicant was an excluded fast track review applicant because, without reasonable explanation, he had provided a bogus document to the Department in support of his visa application, was affected by jurisdictional error. The parties were ad idem in that regard. The respondent conceded that the delegate could not reasonably have suspected that the MP letter was a document which had been obtained because of a false statement, whether made knowingly or not, in circumstances where the particular false or misleading statements were not identified in the statement of reasons.
However, the parties bifurcated as to what relief ought flow as a result of the respondent’s concession. The applicant contended that the decision should be quashed and remitted to the Minister for consideration, according to law.
The respondent said that in the particular circumstances of this case, upon his concession regarding the error, the Court did not have jurisdiction to review the delegate’s decision refusing the applicant’s visa application. That was because, as a consequence of the decision that the applicant was an excluded fast track review applicant being affected by jurisdictional error, it was properly to be regarded for the purposes of the Act pursuant to which it was purported to be made as no decision at all, and, as a result, void ab initio.
The Minister contended that the corollary of the excluded fast track review applicant decision being invalid was that there remained an unperformed duty on the part of the respondent to form an opinion as to whether or not the applicant was an excluded fast track review applicant. The Minister said that unless and until an opinion was formed (either by the Minister or his delegate) on remittal the applicant was an excluded fast track review applicant, the delegate’s decision was amenable to review by the Authority under Part 7AA of the Act, because it remained one that may be referred for review. As such, the respondent said that the decision would be a primary decision and beyond the ambit of this Court’s jurisdiction, for the purposes of s 476 of the Act. The respondent said that the decision of the Full Court of the Federal Court in FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 152, was a complete answer to the issue.
The parties sought to have the remaining issue ventilated before at a hearing held on 4 July 2022 at the conclusion of which, I made an order reserving judgment of the matter to a time to be notified to the parties. On 15 September 2022 the solicitors of the respondent wrote to the Court, with the applicant’s solicitors copied, to say that the applicant had departed Australia on 4 August 2022 and did not have a right of return. The Court was informed that the parties were conferring about the impact that the departure may have on the instant proceedings.
On 26 September 2022 the applicant’s solicitors filed a Notice of Withdrawal of Lawyer (withdrawal notice), by which they notified a particular Gmail address as being that of the applicant, for the purpose of service (Gmail address). The effect of this is that pursuant to rr 6.01(6) and 9.03(5) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the applicant’s Gmail address became his address for service.
By reference to correspondence annexed to the first Evans’ Affidavit, it is apparent that on 28 September 2022 the solicitors for the respondent wrote to the Court to say that upon service by the applicant’s former solicitor of the withdrawal notice, they had been further informed that Legal Aid had been unable to contact the applicant. The applicant’s Gmail address was included as a recipient to that email. The Court was informed that the respondent’s solicitors would attempt to contact the applicant and may revert to seek a directions listing if those attempts were unsuccessful. In all of the circumstances at that juncture, I considered it appropriate to relist the matter of my own motion.
Accordingly, the parties were informed (including to the applicant at his Gmail address), that the matter was listed for directions before me via the Microsoft Teams platform because the applicant appeared to be offshore, at 10:15am on 13 October 2022. On 12 October 2022 the parties were sent the Microsoft Teams link by my Associate, again including to the applicant at his Gmail address. The Court arranged for an interpreter in the Tamil language to be present in the hearing forum because the applicant was unrepresented.
I have read the first Evans’ Affidavit and from its content and annexures, I am satisfied that the applicant did in fact depart Australia on 4 August 2022, and that his bridging visa ceased on the occasion of that departure. There is no evidence before me to indicate that the applicant has any right of return to Australia and I accept the submissions of the respondent that he does not. At the commencement of today’s hearing at 10:15am, the applicant was not present in the hearing forum. The respondent has been represented today by Counsel. I had the matter called outside the Courtroom, out of an abundance of caution in the event that the applicant had arranged for a representative to attend, but there was no appearance as at 10:17am. The time is now 11:30am and there has still been no appearance by or for the applicant in the Microsoft Teams forum, or at Court.
I am satisfied that the applicant has been made aware of today’s hearing on a number of occasions, both from the respondent’s solicitors and by the Court as recently as yesterday, and has, for whatever reason, chosen not to attend. That is in circumstances where correspondence, annexed to the first Evans’ Affidavit, indicates that the applicant was made aware that should he fail to attend today’s directions listing that the matter may be sought to be dismissed by the respondent, with costs. By an email sent to the Court on 5 October 2022, which I received as Exhibit “1R”, the Respondent’s solicitors presaged their intention to make an oral application today for the following:
(a)to re-open these proceedings;
(b)to seek an order under r 1.07 of the Rules to dispense with the requirements in rr 4.01(4) and 4.06 to file an application in a proceeding;
(c)that if the application to be re-opened was allowed, a consequential order that the proceeding be dismissed for “want of utility”; and
(d)costs.
I made orders earlier today in relation to the relief sought in [15(b)] above. I am content to hear the respondent’s application orally returnable instanter, and to dispense with the need for the respondent to file an application in a proceeding. Such an application attracts a filing fee, the cost of which is ultimately borne by the public and given the limited scope of the relief sought today and with a view to minimising unnecessary costs in this matter, I am prepared to allow the application to be made today. It was, in any event, clearly set out in the email which forms Exhibit “1R” and, accordingly, the Court and the applicant have had written notice of the relief that would be sought, at least since 5 October 2022.
The principles in relation to the Court’s discretion to re-open a case are well settled and have been succinctly summarised by several decisions of the Federal Court of Australia, including FYD Investments v Promptair Pty Ltd [2017] FCA 1097 per White J at [30] to [33], and Matson v Attorney-General (Cth) [2021] FCA 161 at [178] to [181], to the latter of which my attention was drawn by Counsel for the respondent. Those principles turn primarily on the interests of the administration of justice. Factors which might bear on that consideration include following:
(a)the public interest (and the interests of the particular parties) in litigation being conducted efficiently and expeditiously;
(b)the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing;
(c)the significance of the proposed new evidence and submissions in the context of the hearing;
(d)the explanation for the evidence not having been led at the trial;
(e)the likely prejudice to the opposing party if the application is allowed;
(f)the potential detriment to the applying party if the application is refused; and
(g)any delay by an applicant in seeking leave to re-open.
Where there is relevant and fresh evidence to which is necessary to have regard, factors include the significance of the new proposed evidence, why it was not led at trial and questions of prejudice.
In the present case I am satisfied that the evidence in question, namely that the applicant has departed Australia, is relevant to the final determination of the matter. In all the circumstances of this case, it is not only warranted but necessary to re-open, consequent upon the discovery of the applicant’s offshore status. That is because even if the Minister’s application were to be refused today and the Court proceeded to determine the matter on a final basis, then based upon the arguments which were made before me on 4 July 2022, the applicant’s offshore status is relevant to whether, and in what form, relief would be granted. Having regard to the interests of the administration of justice and the overarching purpose of this Court’s civil practice and procedure, I am satisfied that the matter should be re-opened.
Thereafter, the respondent seeks to have the proceedings dismissed. This is said, as I have adverted to above, to be for “want of utility”, in pursuit of which the respondent relies on the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [29] per Gleeson CJ, Gummow, Callinan, Heydon and Grennan JJ. The respondent says that there is no need to proceed to judgment because, even accepting that all facts and questions had been resolved in the applicant’s favour, granting relief in the form of Constitutional writs would be futile.
In terms how to proceed to summary judgment in such circumstances without determining the substantive question for which a hearing has already occurred, it is necessary to have regard to the mechanisms available under the Rules. Rule 13.04 prescribes the relevant bases for a default by a party. In particular, r 13.04(1) deals with defaults by an applicant, and is as follows:
When a party is in default
(1) For the purposes of rule 13.05, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
Where an applicant is in default, the powers of the Court are set out in r 13.05 and include at r 13.05(1) the power to dismiss.
However, the fact that the applicant is offshore and that there may be substantive futility to proceed to remit the matter does not, in and of itself, constitute a default pursuant to any of the relevant defaults prescribed in r 13.04 of the Rules, albeit arguably it might result in a failure to prosecute the proceeding with due diligence.
Where a party is absent from a hearing, the Court has a discretion as to how to proceed, which includes dismissal of an application: see r 13.06 of the Rules. In this sense, the ultimate question which might go to the exercise of the discretion as to whether to dismiss (consequent upon the non-attendance of the applicant), may be informed by whether or not it would be futile to proceed to judgment. The present application for dismissal is really brought about by the applicant’s non-appearance and, ultimately, a formal order was sought by Counsel for the respondent in that regard.
It should be noted that in the absence of futility and if the applicant were on shore it would rarely, if ever, be appropriate for the Minister to seek dismissal, for want of appearance, in circumstances where a jurisdictional error has been conceded. That is so, whether the concession has been communicated yet to the Court, or simply to the applicant as at the stage of their non-appearance at a Court event.
Pursuant to s 55ZG of the Judiciary Act1903 (Cth) and Schedule B to the Legal Services Directions 2017 (Cth), the respondent and his solicitors are required to conduct themselves in accordance with the Commonwealth’s obligation to act as a model litigant. One of those obligations is to refrain from relying on technical defences unless the Commonwealth (or agency’s) interests would be prejudiced by the failure to comply with a particular requirement.
In my view, while not the precise situation in this case, where a model litigant has conceded a jurisdictional error and communicated it to their opponent together with their intention to concede the proceedings, it would be improper to seek dismissal for want of appearance. In those circumstances and where the Court is satisfied that the applicant is aware of the hearing event and that other orders granting relief would be brought to their attention, then the proper course is likely to be to grant the final relief: AHT15 v Minister for Immigration and Border Protection [2015] FCA 1215 per Griffiths J. In proceedings in this Court brought pursuant to s 476 of the Act that would ordinarily mean the issuance of Constitutional writs and remittal. If the applicant then chose, for whatever reason, not to participate in the proceedings on remittal, the consequences of any non-attendance (at least in a Tribunal context) or otherwise their non-participation in the redetermination process, would ultimately befall them. However, non-attendance in this Court, in and of itself, should not preclude writs being issued.
In a situation such as the present case where the applicant is offshore, leaving aside the question of what relief ought to be granted, together with the jurisdictional questions which underpinned it, the relief was a substantial issue remaining in the review and I accept that there is no utility in the proceedings being determined in that regard, because irrespective of the answer and as the Minister says, even assuming that all of the relevant factors fell in favour of the applicant, the position contended for by him would also lack utility. I am satisfied that in the foregoing circumstances, the proceedings should be dismissed and I will so order, but I will do so with a notation as to the error which the respondent conceded.
Costs
The respondent seeks his costs on a party/party basis from the date of 12 May 2022. In support of that application the Second Evans’ Affidavit was read. At common law, the ordinary rule is that costs follow the event: see Oshlack v Richmond River Council (1998) 193 CLR 72 per McHugh J at [67]. Among the annexures to the first Evans’ Affidavit is, inter alia, annexure “KLE-2”, which is an email from the applicant’s immediate past solicitor serving the withdrawal notice. By annexure “KLE-2”, the applicants solicitors informed the solicitors for the respondent on 28 September 2022 that:
Although we are no longer representing the applicant we would be grateful if you could keep us updated on the outstanding issue of costs.
There is no evidence before me to indicate that the respondent’s solicitor informed the applicant’s former solicitors that costs would be sought today. However, in the circumstances of the present case I am satisfied this failure to notify has not had a material disadvantage to the applicant for the following reasons.
In the present matter, there are two relevant “events” for the purposes of the question of costs.
First, the applicant succeeded in establishing, including to the Minister’s satisfaction, the existence of a jurisdictional error. Second, the applicant has not always been legally represented in these proceedings but on the occasions that he has been, that representation has consistently been by Legal Aid New South Wales. It was those solicitors who were responsible for the filing of the amended application upon which this matter ultimately proceeded, and it was that amended application which was extant at the time the Minister conceded the jurisdictional error.
The applicant ought to have his costs up to 6 May 2022, being the date upon which the respondent conceded the error. I do not consider that because the applicant is not present today that he would be disentitled to costs up to that date. The respondent has certainly not sought those costs for himself. I considered it implicit within that that the respondent accepted that those costs ought fall to the applicant, and that position was confirmed to me today by his Counsel. Given that the applicant has been represented for a number of periods in these proceedings up to 6 May 2022, I am of the view that there are likely to be legal costs which have been incurred.
In the absence of there being any representative from Legal Aid New South Wales here to speak to the quantum of those costs, it is appropriate that those costs be ordered on the basis that they be paid in an amount agreed, or failing agreement, as taxed in accordance with the Federal Court Rules 2011 (Cth) (FCA Rules). I will so order.
The respondent seeks costs from 12 May 2022 up to, and including, the resolution of today’s application. The question is somewhat complex as to what “the event” is and who has succeeded. Absent a determination of the questions which were ventilated at the limited hearing before me on 4 July 2022, there is, in one sense, no clearly successful party.
Further, each of the parties had an interest in that question, by which I mean there was no particular matter which was frivolous or upon which either of the parties was being unreasonably intransigent. Having agreed that a jurisdictional error was extant, final resolution of the matter was not being held up by something trivial. The question of relief and jurisdiction was of importance to the applicant in the sense that its resolution affected him significantly in terms of the determination of his migration status and, in particular, the process which would follow these proceedings in that regard. It was equally important to the respondent, for policy and statutory interpretation reasons to have the question resolved, given that it may potentially affect a broader case load.
There is well-established authority for the proposition that where a Crown litigant’s position in litigation is taken in pursuance of the determination of the question of the operation of their own legislative scheme by clarification of the law, that there may be sufficient public interest in the outcome of the proceedings, such that the Court might decline to order costs against the unsuccessful party: see Re Mersey Railway Company (1888) 37 Ch D 610 and Oshlack (supra) at [95] per McHugh J in respect the High Court’s practice pertaining to grants of special leave to appeal being conditional upon the payment of costs.
Counsel for the respondent submits that the abandonment of these proceedings, which is evinced and affected by the applicant’s departure from Australia, is such that any question of public interest has been overtaken because the questions which arose for determination at the hearing on 4 July 2022 are now largely otiose. It was submitted to me that if the Court were to dismiss the matter because the grant of relief would be futile, that the Court should accept that, by the applicant’s departure, the Minister’s costs of litigating the matter ultimately did not resolve anything in the public interest. I accept that submission.
I accept in the present case, given that there has been no determination of matters in the public interest and consequent upon the applicant’s departure from Australia, a course he was already potentially contemplating on 4 July 2022 (by reference to his ultimate departure date), was a juncture at which he was taking up the time of the Court and of the respondent’s representatives. Accordingly, this is not case in which I would decline to have costs follow the event. Accordingly, I am satisfied that the applicant should pay some part of the Minister’s costs on 12 May 2022. In respect of the quantum of those costs, I raised a number of matters with Counsel for the Minister who sought a brief adjournment in order to enable him to obtain instructions in that regard.
By reference to r 29.13 of the Rules the Court may, in relation to a proceeding that is concluded, order an unsuccessful party to the proceeding to pay the costs of a successful party in accordance with Division 1 of Part 2 of Schedule 2 to the Rules. Part 2 of Schedule 2 to the Rules is often referred to as “the Court’s scale” in relation to migration proceedings. Having regard to the nature of the hearing which took place on 4 July 2022, while ultimately going to the question of final relief, it was, in its substance, scope and duration more akin to an interlocutory event. In those circumstances, if a standard unit equivalent migration matter can be completed for $7,853, I indicated to Counsel prior to the adjournment that I saw no reason why the his client’s costs were as high as they were (said to be in excess of $14,500 (excluding GST)), as deposed to in the second Evans’ Affidavit, only for work done since 12 May 2022.
I asked Counsel if the respondent wished to be heard against the proposition that the appropriate amount should be the scale amount for an interlocutory matter which, at present, is $3,930, pursuant to item 2(b) of Division 1 of Part 2 of Schedule 2 to the Rules. Following the adjournment, Counsel indicated that his instructions were to seek the respondent’s costs in that sum, together with the disbursement amount which represents Counsel’s fees, exclusive of GST, up to and including the determination of today’s matter.
I consider that position to be appropriate. As a result, the final amount that was sought by the Minister in respect of his costs is fixed in the sum of $8,500, exclusive of GST, and, in my view, that is an appropriate amount in all the circumstances of the instant case.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 28 October 2022
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