BKV15 v Minister for Immigration and Border Protection
[2017] FCA 1030
•22 August 2017
FEDERAL COURT OF AUSTRALIA
BKV15 v Minister for Immigration and Border Protection [2017] FCA 1030
Appeal from: Application for extension of time: BKV15 v Minister for Immigration & Anor [2017] FCCA 358 File number: VID 253 of 2017 Judge: NORTH J Date of judgment: 22 August 2017 Legislation: Migration Act 1958 (Cth) s 425 Date of hearing: 22 August 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 22 Counsel for the Applicant: Mr A McBeth Solicitor for the Applicant: Wimal & Associates Counsel for the Respondents: Mr B Gauntlett Solicitor for the Respondents: Clayton Utz ORDERS
VID 253 of 2017 BETWEEN: BKV15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
22 AUGUST 2017
THE COURT ORDERS THAT:
1.The application for an extension of time within which to appeal is refused.
2.The applicant is to pay the first respondent's costs of the application, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
Before the Court is an application for extension of time within which to appeal from orders made by the Federal Circuit Court. On 14 February 2017, the Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal. On 18 June 2015, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a Protection (Class XA) visa.
The application for extension of time was filed on 15 March 2017, that is to say, approximately seven days late.
The factors generally relevant to whether the Court will grant an extension of time within which to appeal are any explanation for the delay, any prejudice to the opposing party, and the prospects of success of the proposed appeal. The first respondent opposes the extension of time on the ground that the proposed appeal lacks sufficient prospects of success.
The grounds of the proposed appeal are:
Ground 1: The Tribunal’s refusal to adjourn the hearing constituted a failure to provide a fair hearing as required by s 425 of the Migration Act.
Ground 2: The Tribunal’s refusal to adjourn the hearing was an unreasonable exercise of its discretion.
These grounds were not advanced in the Federal Circuit Court where the applicant appeared in person. The applicant therefore applies for leave to rely on them on the proposed appeal.
The applicant is a citizen of Sri Lanka. He claimed a fear of persecution on the ground that he is a Tamil and had associations with the LTTE.
On 20 May 2015, the Tribunal held a hearing at which the applicant gave evidence and presented his argument. The Tribunal found that the applicant had fabricated his claims of involvement with the LTTE.
The applicant had earlier applied for the Tribunal hearing to be adjourned. The circumstances concerning the adjournment of the application by the Tribunal were referred to by the Tribunal as follows:
4.On 13 May 2015 the applicant (by his agent) sought a postponement of the hearing as the migration [sic] was no longer continuing to act for him. However the tribunal declined the request as the applicant (by his agent) had been informed of the hearing on 7 April 2015 and had responded to the hearing invitation on 22 April saying he would attend. The tribunal considered the applicant had ample opportunity to have changed or engaged a new agent if he wanted to prior to responding to the hearing invitation. On 19 May the tribunal was informed a new agent had been appointed and they sought an adjournment. This was refused given the late change but the agent was informed that time would be given for making post hearing submissions if necessary. At hearing the tribunal agreed to the new agent's request for two weeks to provide written submissions. After [the] hearing a further extension of time to provide submissions was given and the new agent provided submissions on 10 June 2016, which the tribunal has considered.
The findings recorded in that paragraph reflected a request made by the then legal representatives of the applicant in a letter to the Tribunal dated 12 May 2015 which stated:
We refer to the [applicant’s] application for review and his scheduled hearing before the Refugee Review Tribunal (RRT) on 20 May 2015.
We are no longer representing this client and have requested that the Department of Immigration and Border Protection refer his matter to another IAAAS provider so that he continues to receive representation before the RRT.
In light of the circumstances we would request that the Tribunal member consider postponing his hearing until [the applicant] has been able to instruct another IAAAS provider.
The Tribunal’s finding also reflected the reply from the Tribunal dated 13 May 2015 which included the following:
On 7 April 2015 we sent a letter inviting you to attend a hearing at the Tribunal on 20 May 2015 to give evidence and present arguments relating to the issues arising in your case.
On 13 May 2015 the Tribunal received a request that the hearing be postponed. The Presiding Member has considered the request carefully but has decided not to postpone the hearing.
The hearing invitation was sent on 7 April 2015 and a response that you were attending with the representative was received on 22 April 2015. Given that you have been aware of the hearing date and responded to it positively and the hearing is on next week, the request to postpone is refused.
Then in an email sent at 6.22 pm on 18 May 2015, the applicant’s newly-appointed solicitor, Ms Coffey, wrote to the Tribunal as follows:
We refer to the above matter and advise that we have been instructed to act for the applicant on even date. We attached an appointment of representative form for your attention.
We note that the applicant’s matter has been listed for 20 May 2015 at 9.30am. Given we have only been instructed to act and are in the process of obtaining a copy of the applicant’s file, we kindly request the hearing be adjourned for at least one week to ensure we can adequately prepare for same. We kindly request you confirm he [sic] the Tribunal is agreeable to this request as a matter of urgency.
The Tribunal’s response is recorded in a file note dated at 1.52 pm on 19 May 2015, which reads as follows:
As the presiding Member was on leave, I spoke to the Senior member regarding the Rep’s request to postpone tomorrow’s hearing. He said that he would make the decision that the hearing would proceed as scheduled and the new Rep could request from the presiding member additional time to provide further documents or evidence to the Tribunal.
I rang the Rep to advise that the hearing would proceed and that I would advise her in writing this afternoon. She said she understood.
The conversation there recorded was confirmed by a letter dated 19 May 2015.
On 20 May 2015, the Tribunal convened the hearing. The applicant’s solicitor represented him at that hearing by being present by phone. During the course of the hearing, the Tribunal member adjourned the hearing but allowed the telephone link to remain for the purpose of the applicant discussing with his solicitor any issues which he wished. After the hearing resumed, the Tribunal member asked the solicitor for the applicant whether she wished to make any submissions. That exchange with the Tribunal and the solicitor for the applicant is recorded in the following passage:
MS GRAU: Look, I just might talk to your representative in terms of anything further and then I'll come back to you just towards the end of the hearing. Ms Coffey, did you want to make any submissions?
MS COFFEY: Look, I don't know if you received my (indistinct) yesterday but we've only just been instructed to act in this matter yesterday so I haven't been able to obtain a full copy of the file yet. So I was hoping maybe if you'd give us some extra time in order to prepare written submissions.
MS GRAU: I'll give you a week?
MS COFFEY: Could we have two weeks? Just given the logistics of obtaining a full file (indistinct).
MS GRAU: Which file are you trying to get?
MS COFFEY: I don't know if you received our letter yesterday - - -
MS GRAU: Yes.
MS COFFEY: We were asked to represent in this matter yesterday, we don't even have a full copy of the client's file at this point in time and yesterday when I contacted the Tribunal to seen [sic] an adjournment on that basis, we were advised you were away but the senior member indicated the (indistinct) would be some time to (indistinct) given the situation.
MS GRAU: Okay. Have you had a chance to ask for the file from - - -
MS COFFEY: Yes, we have, we had to obtain the written consent from the client (indistinct) to obtain the file, we're just waiting for some recordings to come through in the mail.
MS GRAU: As long as there's a way we can facilitate it at this end just in terms of copies of what the Tribunal has got.
MS COFFEY: Yes, yes, we should receive it shortly.
MS GRAU: Okay, all right. So that would leave us, where are, the 20th to say 3 June, yes?
MS COFFEY: Yes, that's correct.
MS GRAU: So what we've just said is because your representatives have just taken over the file, you've got two weeks to provide any further written submissions that they want to provide on your behalf. Now is there anything else you wanted to say before we finished the hearing?
On 10 June 2015, Ms Coffey filed a comprehensive 50 page submission in support of the applicant’s case.
The applicant argued that the failure to adjourn in response to the requests on 12 and 19 May 2015 deprived the applicant of a meaningful hearing as required by section 425 and was legally unreasonable. In his written submissions, the applicant argued as follows:
28.Similarly, scheduling a hearing on a date when the Tribunal was aware that the appellant had only just engaged new legal representatives, and that the new representatives had not yet received the file or had an opportunity to engage with the case, resulted in a serious diminution of the appellant’s ability to “give evidence and present arguments relating to the issues arising” in his case, in the manner required by s 425.
…
30. The difference between the manner in which the hearing was conducted – without the appellant’s representative being across the material, having taken detailed instructions from the appellant, having had an opportunity to prepare for the hearing and explain to the Tribunal the reasons for the apparent contradictions – and the way it would have been conducted if a short adjournment had been granted to enable such preparation, amounts to a practical injustice to the appellant.
…
32. It is apparent from the transcript of the Tribunal hearing that the Tribunal had concerns about inconsistencies in the appellant’s evidence at different stages of the process from the outset of the hearing. The Tribunal Member was clearly not persuaded by the appellant’s attempts during the hearing to explain the changes in his story. By the end of the Tribunal hearing, not having had the assistance of his legal representative to explain the scenario to the Tribunal, the damage to the appellant’s credibility had been done. In the mind of the Tribunal, the well had been poisoned in relation to the appellant’s credibility in the manner described by the High Court in Applicant S20.
33. As the practical impediment to the appellant’s ability to give evidence and present arguments under s 425 had already occurred by the time the hearing concluded, the opportunity for his representative to present written submissions after the hearing did not cure that unfairness or retrospectively alter the nature of the hearing provided to render it compliant with s 425.
[Footnotes omitted.]
In respect of the unreasonableness argument, the applicant’s written submissions included the following:
41. The adjournment sought – of approximately one week – was proportionate and a reasonable amount of time for the incoming representative to seek proper instructions and to prepare for the hearing. The Tribunal was aware of the circumstances of the change in representation and the fact that the incoming representative had not even received the file when the request was made (nor, as it turned out, had the file been received by the time of the Tribunal hearing).
The oral submissions made at the hearing of the application essentially followed the contentions made in the written submissions. Particular emphasis was placed by Mr McBeth, who appeared as counsel for the applicant, on the serious consequences which potentially flowed to the applicant from a refusal of the adjournment.
The Tribunal was faced with an application for an adjournment 24 hours before the hearing was to occur. The application lacked detail about any disadvantage the applicant would experience if the hearing proceeded on the following day. For instance, the email from Ms Coffey did not say if she had been able to meet with the applicant or what steps, apart from seeking the applicant’s file, she had taken. She did not explain whether she was able to use 19 May to prepare the case.
Absent any particularisation of the disadvantage to the applicant, the Tribunal was entitled to think that the applicant’s interests would be preserved by allowing Ms Coffey time to make submissions after the hearing. That provided practical procedural fairness to the applicant in the circumstances as they were presented to the Tribunal. The Tribunal also allowed the applicant and Ms Coffey to confer halfway through the hearing. At the end of the adjournment for that purpose, Ms Coffey did not raise any problem arising from the issues which had been canvassed during the hearing to that point. Ms Coffey did not raise any issue about the reasonableness of the hearing or the quality of the process in the very lengthy submissions which she filed after the event.
On the material provided to the Tribunal in support of the adjournment, the refusals on 13 and 19 May 2015 to adjourn the hearing did not lack an intelligible justification. Nor did they deprive the applicant of an opportunity to give evidence or present arguments in accordance with the requirements of s 425 of the Migration Act 1958 (Cth).
The challenge to the decisions to refuse the adjournment are bound to fail on any appeal. Consequently, the application for an extension of time within which to appeal is refused.
I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 30 August 2017
0
0
1