BJN16 v Minister for Immigration - [2017] FCCA 511

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJN16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 511

Catchwords:
MIGRATION – Vacation of hearing pending application for special leave to appeal (and any appeal) in proceeding between other parties.

Legislation:

Migration Act 1958 (Cth), ss.359A, 375A, 438
Federal Circuit Court of Australia Act 1999 (Cth), ss.3(2), 13(2), 13(3), 14, 15, 42

Cases cited:

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161
Reinhart v Welker [2012] NSWCA 1
Groves v Commissioner of Taxation [2011] FCA 222
Klein v Domus Pty Ltd (1963) 109 CLR 458
Ho v Grigor (2006) 151 FCR 236
Singh v Minister for Immigration & Anor [2016] FCCA 2464
MZAFZ v Minister for Immigration & Anor (2016) FCR 1
BLD15 v Minister for Immigration and Border Protection [2017] FCA 72
SZUOL v Minister for Immigration and Border Protection [2017] FCA 179

Applicant:

BJN16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1183 of 2016

Judgment of:

Judge A Kelly

Hearing date:

17 March 2017 - In Chambers

Date of Last Submission:

9 March 2017

Delivered at:

Melbourne

Delivered on:

22 March 2017

REPRESENTATION

Solicitors for the Applicant:

Victoria Legal Aid

Solicitors for the First Respondent:

Clayton Utz

ORDERS

Order 2 made on 11 July 2016 fixing this proceeding for final hearing on 28 April 2017 be vacated.
The first respondent pay the applicant’s costs, if any, thrown away by reason of the vacating of the date of the final hearing on 28 April 2017, such costs to be taxed failing agreement.
The proceeding be listed for directions on 2 June 2017 at 9.30am.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1183 OF 2016

BJN16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This matter is listed for final hearing on 28 April 2017. An application has been made by the first respondent (“Minister”) that the hearing be adjourned pending the hearing and determination by the High Court of Australia of an application for special leave to appeal (and any subsequent appeal) from a decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 (“Singh”). It appears that many cases in this court may be affected by the result in Singh: see below at [36].
I have concluded that the application should be granted in this case and that the proceeding should not be heard or determined pending the application for special leave to appeal, and any appeal, by the High Court in Singh.

Background

The background events below are drawn from the Court Book (“CB”). I have assumed the correctness of those matters without deciding upon any of them. They are provided as a narrative in order that the present application may be seen…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 511
Decision Date: 22 March 2017

CaseChat Overview and Summary

This matter came before Judge A Kelly of the Federal Circuit Court of Australia. The applicant sought to quash a decision of the Administrative Appeals Tribunal (AAT) made on 4 May 2016, which affirmed a delegate of the Minister for Immigration's refusal of the applicant's protection visa application. The dispute arose from the Minister's delegates' decision to issue a notice under s.438(4) of the *Migration Act 1958* (Cth), asserting that certain information within the applicant's file, belonging to a third party (a family member), should not be disclosed to the applicant or their representative due to privacy concerns and the potential for harm to that family member.

The primary legal issue before the court was whether the AAT had erred in affirming the delegate's decision, particularly in light of the s.438 notice issued by the Minister. The applicant contended that the AAT had made a mistake in its decision. The court was also implicitly required to consider the implications of the *Singh* decision, which had been delivered in December 2016, and the Minister's subsequent request for an adjournment of the hearing pending the outcome of an application for special leave to appeal from *Singh*.

The court's reasoning and the legal principles applied are not fully detailed in the provided text, as the case appears to be at a stage where procedural matters, such as the Minister's request for an adjournment, were being considered. The Minister sought to adjourn the hearing scheduled for 28 April 2017, arguing that the outcome of the *Singh* appeal might impact the present proceedings. The applicant, however, opposed this adjournment. The court was therefore tasked with determining whether to grant the adjournment, balancing the Minister's submission regarding the potential impact of *Singh* against the applicant's desire for the hearing to proceed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 28 January 2016 two delegates of the Minister variously:a)determined that the application for a Protection visa be refused (“decision”): CB 146 - 166;b)notified the applicant of the Decision: CB 141;c)wrote to the Administrative Appeals Tribunal (“AAT”) giving notice pursuant to s.438(4) (“s.438 notice”) of the Migration Act 1958 (Cth) (“Migration Act”): CB 167. By the s.438 notice, the AAT was told that s.438(1)(b) applied to certain information contained within five designated folios of a file that had been given to an officer of the Department of Immigration and Border Protection in confidence. The notice expressed the delegate’s view that such information should not be disclosed to the applicant or to the applicant's representative on the stated basis that: “There are documents belonging to a third party (applicant’s family member) who is not included in this visa application and whom the applicant fears harm from. The disclosure of these documents may breach the privacy of the third party.” The s.438 notice concluded with a statement that the AAT's use and disclosure of the information was subject to sub-ss.438(3) and 438(4) of the Migration Act. In February 2016 the applicant lodged with the AAT an application for a review of the decision. The applicant was represented at the hearing before the AAT by his solicitor and migration agent. On 4 May 2016 the AAT affirmed the delegate’s decision, notifying the applicant of that result the following day: CB 245 and 249. The AAT provided reasons for that decision: CB 289 - 306. On 6 July 2016 the applicant lodged an application in this court seeking to quash the decision of the AAT made on 4 May 2016: CB 281. The Minister filed a response to that application: CB 308. The stated grounds for the application were that the applicant believed the AAT “had made a mistake”, that he had applied to Victoria Legal Aid and was waiting upon a decision in relation to that application. At a directions hearing at the Federal Circuit Court of Australia held on 5 July 2016 the matter was listed for final hearing on 1 August 2016. However, that hearing date was vacated on 11 July 2016 and the application was re-listed for final hearing on 28 April 2017: CB 310 - 312. On 19 December 2016 judgment was delivered in Singh. On 25 January 2017 the Minister wrote to the applicant enclosing a copy of the s.438 notice. The Minister sought the applicant's consent to the adjournment of the hearing listed for 28 April 2017. The Minister sought this consent on the basis that the result of the application for special leave to appeal (and any subsequent appeal) from Singh may affect the application in this proceeding. On 13 February 2017 the applicant responded to the Minister’s request for an adjournment. He did not agree to the court hearing being adjourned and wanted the hearing to proceed on 28 April 2017. Having received the applicant’s response, the Minister’s lawyers wrote to the court on 21 February 2017 requesting an adjournment of the hearing pending the outcome of the Minister's application for special leave to appeal from Singh, and any subsequent appeal. The Minister's lawyers noted that the applicant was no longer in immigration detention and cited two examples of cases in which adjournments had recently been granted in similar circumstances.

Ratio Decidendi

Legal Principle Established

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