BMC15 v Minister for Immigration and Anor

[2017] FCCA 1990

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMC15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1990

Catchwords:
MIGRATION – Visas – protection visa application – citizen of Democratic Republic of the Congo – whether application precluded by dual nationality – whether applicant also a citizen of Canada – issue of jurisdictional fact.

PRACTICE AND PROCEDURE – Adjournment – factors for consideration – delay – case management – proximity of second listed hearing – interests of justice – national interest.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42

Federal Circuit Court Rules 2001 (Cth), r.1.03
Migration Act 1958 (Cth), ss.4, 91M, 91N, 91P, 91Q

Cases cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14

Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Myers v Myers [1969] WAR 19
MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
Sandeep v Minister for Immigration & Anor [2016] FCCA 3339
SZQYM v Minister for Immigration & Citizenship [2014] FCA 427; (2014) 220 FCR 505
SZWCA v Minister for Immigration & Anor [2015] FCCA 1249

Applicant: BMC15

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: PEG 345 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 17 August 2017

Date of Last Submission: 17 August 2017

Delivered at: Perth

Delivered on: 21 August 2017

REPRESENTATION

Counsel for the Applicant: Mr M Howard SC and Mr PA Walker

Solicitors for the Applicant: King & Wood Mallesons

Counsel for the Respondent: Mr P Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the respondent’s application to adjourn the hearing of the matter listed on 29 and 30 August 2017 be granted.

2. That the hearing dates on 29 and 30 August 2017 be vacated.

3. That the matter otherwise be adjourned to a directions hearing at 9.30am on 29 August 2017.

4. The parties are to confer as to further programming orders prior to the adjourned directions hearing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 345 of 2015

BMC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the respondent, the Minister for Immigration & Border Protection (“Minister”), for an adjournment of a hearing listed for two days on 29 and 30 August 2017 (“Adjournment Application”) in relation to an application concerning a decision by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister under the Migration Act 1958 (Cth) (“Migration Act”).

Delegate’s Decision

1. The applicant said he was a citizen of the Democratic Republic of Congo, but said that he had arrived in Australia on a Canadian passport under a different name, and which it appears that the applicant says that he destroyed after arriving in Australia as an imposter and that the passport was not his. The Delegate’s Decision noted a five country fingerprint match report from Canada indicating that the fingerprints matched those of a national of Canada, and the applicant was advised that his application was invalid because he was a dual national and ss.91N and 91P of the Migration Act applied. The Delegate’s Decision noted that the applicant said that his identity had been stolen and that he had not been granted Canadian citizenship but the Delegate’s Decision gave more weight to the biometric information and the integrity of the records of the Canadian authorities than to the statement of the applicant and decided that the applicant was therefore prevented by s.91P(2) of the Migration Act from making a valid application for a protection visa. The Delegate’s Decision went on to find that the applicant did not meet the guidelines for referral under s.91Q of the Migration Act for the Minister to make a decision notwithstanding that a person is barred from making an application by reason of s.91P of the Migration Act. The Delegate’s Decision is at Court Book (“CB”) 403-404.

The Court’s task

1. The Court’s task in determining the originating application is to determine whether the applicant, being a non-citizen for the purposes of the Migration Act, is a national of, or entitled to re-enter and reside in more than one country. That is a jurisdictional fact to be determined under s.91N of the Migration Act as a pre-condition to the operation of s.91P in relation to the validity of an application for a visa by the non-citizen: SZQYM v Minister for Immigration & Citizenship [2014] FCA 427; (2014) 220 FCR 505 at [46] per Farrell J; SZWCA v Minister for Immigration & Anor [2015] FCCA 1249 at [37] per Judge Smith, and it is the task of the Court in relation to the originating application to make a determination of whether the jurisdictional fact exists on the evidence presented to it: SZWCA a [37] per Judge Smith, citing Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135.

Background

1. The background to the Adjournment Application is as follows:

   a)the applicant, who is legally represented, filed the Originating Application on 23 July 2015, together with three affidavits in support;

   b)on 14 October 2015 a Registrar of the Court made the usual programming orders, and the matter was listed for hearing for three days on 18-20 July 2016;

   c)on 16 November 2015 the Minister filed a Court Book;

   d)consent orders were made on 18 February, 1 April and 28 April 2016 which extended time for compliance with the programming orders, and in particular had the effect of granting the applicant extended time in which to file further affidavits in support of his case;

   e)pursuant to a consent order on 5 July 2016 the Court vacated the hearing listed for 18-20 July 2016;

   f)on 7 July 2016 the Court listed the matter for hearing for two days on 29 and 30 August 2017;

   g)on 29 July 2016 a further three affidavits and an expert’s report were filed by the applicant;

   h)on 27 October and 16 December 2016 consent orders were filed extending time for compliance with programming orders, which had the effect of granting to the Minister additional time to file the Minister’s affidavits;

   i)on 30 January and 9 February 2017 four affidavits were filed by the Minister;

   j)on 23 June 2017 the applicant’s lawyers wrote to the Minister’s lawyers enclosing a schedule of objections to the Minister’s affidavits, and requesting a response by 7 July 2017;

   k)the lawyer with the conduct of the matter for the Minister says that he was not able to properly consider the schedule of objections by reason of other trial commitments and a period of leave;

   l)on 14 July 2017 the applicant filed a further affidavit, correcting various errors in his earlier affidavits;

   m)on 18 July 2017 the applicant’s lawyers sent correspondence to the Minister’s lawyers requesting consent to an extension of time in which to file submissions, which consent the Minister gave;

   n)on 24 July 2017 the Minister’s lawyers advised that one of the deponents to an affidavit filed by the Minister, Mr Epstein, would be on leave at the time the matter was listed to be heard;

   o)upon a review of the applicant’s schedule of objections it became apparent to the Minister that the applicant objected to the entirety of the affidavit evidence filed by the Minister, including documents annexed to the affidavits and documents included in the CB, and consequently on 27 July 2017 the Minister’s lawyers sent an email to the applicant’s lawyer, which was in the following terms:

   As discussed, we have now had an opportunity to review your objections to the affidavits filed by the Minister in these proceedings. We note that your objections, if upheld, would have the effect of removing the entirety of the affidavit evidence put forward by the Minister. We reserve our position as to the validity of your objections. Nevertheless, in our view, the Court is likely to be critical of the parties if the matter is left to argument without any attempt to resolve the objections and in this regard we note that many of your objections are capable of being remedied if additional documents or affidavits were filed.

   Of course, the above process would take some time, with potential enquiries being made of Canadian authorities. It seems unlikely that the material would be able to be gathered prior to the hearing listed for 29 August 2017. Even if it was, we anticipate that you would want the opportunity of considering whether you intended to file responsive affidavits.

   Furthermore, we were advised this week that one of our deponents, Sean Epstein, is unavailable for the hearing date and will, in fact, be at a remote location. Whilst you have not formally indicated that Mr Epstein would be required for cross-examination we assume this to be the case.

   In light of the above, it is our view that the hearing dates of 29-30 July [sic] are no longer viable. We ask that you take instructions on whether to [sic] would consent to the hearing being adjourned with replacement programming orders for the filing of additional affidavits and submissions.

   If you are not amenable to an adjournment, we will seek to have the matter listed for a directions hearing at which time we would seek to raise the above before his Honour.

   p)on 28 July 2017 the applicant filed his submissions for hearing;

   q)on 31 July 2017 the applicant’s lawyers wrote to the Minister’s lawyers:

   i)advising that the applicant did not consent to an adjournment;

   ii)advising that the applicant opposed the Minister filing any additional evidence; and

   iii)seeking the Minister’s consent to the late filing of the applicant’s submissions and consent to the applicant filing an additional affidavit on 17 July 2017; and

   r)on 2 August 2017 the Minister’s lawyers wrote to the Court requesting that the matter be listed for directions pursuant to order 10 of the orders made by the Registrar on 14 October 2015, and the matter was subsequently listed for a hearing of the Adjournment Application on 17 August 2017.

Consideration

Adjournment – factors for consideration

1. The role and mode of operation of this Court as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss.3 and 42 of the FCCA Act, and the objects in r.1.03 of the FCC Rules, provide for the Court to operate in a manner:

   a)as informal as possible in the exercise of judicial power;

   b)which is not protracted in its proceedings;

   c)which resolves proceedings justly, efficiently and economically;

   d)which uses streamlined procedures; and

   e)that avoids undue delay, expense and technicality.

   Sandeep v Minister for Immigration & Anor [2016] FCCA 3339 at [23] per Judge Lucev (and cases there cited).

2. The Court must also take into account the following principles when determining whether or not to grant leave to allow an adjournment:

   a)that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any relevant legislative purpose or object;

   b)modern principles of case management;

   c)the avoidance of undue delay; and

   d)the wastage of public resources.

   Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ (“Aon Risk Services”). Thus, any application for adjournment must be considered in the relevant statutory, factual and case management context.

3. The Court notes that whether or not an adjournment is granted is a discretionary matter for the Court, and it is a discretion under which the Court is entitled to take into account a broad range of circumstances: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev.

4. In relation to the substance of the Originating Application and the objects of the Migration Act the statutory provisions relevant to the Originating Application the Court must therefore consider s.4 of the Migration Act which provides as follows:

   (1)  The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

   (2)  To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

   (3)  To advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.

   (4)  To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

   (5)  To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.

5. Sections 91M, 91N and 91P of the Migration Act appear in a part of the Migration Act concerned with the arrival, presence and departure of persons from Australia and in a sub-division concerning non-citizens with access to protection from third countries, and those sections provide as follows:

   a)section 91M of the Migration Act provides that:

   This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.

   b)section 91N of the Migration Act provides that:

   (1)  This Subdivision applies to a non-citizen at a particular time if, at that time, the non-citizen is a national of 2 or more countries.

   (2)  This Subdivision also applies to a non-citizen at a particular time if, at that time:

   (a)  the non-citizen has a right to re-enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country (the available country ) apart from:

   (i)  Australia; or

   (ii)  a country of which the non-citizen is a national; or

   (iii)  if the non-citizen has no country of nationality--the country of which the non-citizen is an habitual resident; and

   (b)  the non-citizen has ever resided in the available country for a continuous period of at least 7 days or, if the regulations prescribe a longer continuous period, for at least that longer period; and

   (c)  a declaration by the Minister is in effect under subsection (3) in relation to the available country.

   (3)  The Minister may, after considering any advice received from the Office of the United Nations High Commissioner for Refugees:

   (a)  declare in writing that a specified country:

   (i)  provides access, for persons seeking protection, to effective procedures for assessing their need for protection; and

   (ii)  provides protection to persons to whom that country has protection obligations; and

   (iii)  meets relevant human rights standards for persons to whom that country has protection obligations; or

   (b)  in writing, revoke a declaration made under paragraph (a).

   (4)  A declaration made under paragraph (3)(a):

   (a)  takes effect when it is made by the Minister; and

   (b)  ceases to be in effect if and when it is revoked by the Minister under paragraph (3)(b).

   (5)  The Minister must cause a copy of a declaration, or of a revocation of a declaration, to be laid before each House of the Parliament within 2 sitting days of that House after the Minister makes the declaration or revokes the declaration.

   Determining nationality

   (6)  For the purposes of this section, the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

   (7)  Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

   c)section 91P of the Migration Act provides that:

   (1)  Despite any other provision of this Act but subject to section 91Q, if:

   (a)  this Subdivision applies to a non-citizen at a particular time; and

   (b)  at that time, the non-citizen applies, or purports to apply, for a visa; and

   (c)  the non-citizen is in the migration zone and has not been immigration cleared at that time;

   neither that application, nor any other application the non-citizen makes for a visa while he or she remains in the migration zone, is a valid application.

   (2)  Despite any other provision of this Act but subject to section 91Q, if:

   (a)  this Subdivision applies to a non-citizen at a particular time; and

   (b)  at that time, the non-citizen applies, or purports to apply, for a protection visa; and

   (c)  the non-citizen is in the migration zone and has been immigration cleared at that time;

neither that application, nor any other application made by the non-citizen for a protection visa while he or she remains in the migration zone, is a valid application.

1. Section 91Q of the Migration Act relates to a determination by the Minister that s.91P of the Migration Act does not apply to a non-citizen, and is not relevant for present purposes.

Application of factors to this case

1. The issue of delay arises in these proceedings. The proceedings have already been delayed by reason of the fact that there has been one adjournment, but it is to be observed that that adjournment from July 2016 to August 2017 was an adjournment made in circumstances where the applicant was not ready for the hearing in July 2016. Now it is the Minister who is not ready for hearing, in circumstances where the Minister’s  lack of readiness appears to arise from objections to the evidence filed by the Minister (within the relevant timeframe) which if sustained would have the effect of the Minister not having an evidentiary case to put forward to the Court at hearing in respect of the relevant jurisdictional fact, namely whether the applicant is or is not a Canadian citizen. In this regard, as explained to the parties at hearing, it will be possible for the Court to accommodate a two-day hearing in March or April of 2018, much earlier than the normal present listing of migration judicial review application in the Perth Registry which has blown out to September 2020. Effectively, the Originating Application could be heard within a time period which is less than the usual time period for migration judicial review applications presently being lodged in the Perth Registry, notwithstanding the existing delays. That said, a delay of almost three years between lodgement of the Originating Application and hearing is nevertheless lengthy. The delay is such that it would ordinarily weigh significantly against the granting of the Adjournment Application, but that significance may be lessened in this case by other considerations, including the interests of justice and the objects of the Migration Act.

2. Case management is a consideration in the circumstances of this case, but for reasons set out above, any delay caused by a granting of the Adjournment Application would not delay the final hearing of the Originating Application beyond a further seven to eight months. Furthermore, the Court notes that if the objections to the Minister’s evidence had not been made until the final hearing of the Originating Application it might be the case that an adjournment application might still have been made, and if granted at that time it would have been more disruptive in terms of case management. Thus, an adjournment now, if granted, may be less disruptive than proceeding to final hearing on 29 and 30 August 2017 and possibly having to adjourn the final hearing part heard.

1. The Court notes that although there was no obligation on the applicant to do so, the applicant has put the Minister on notice about the objections to the Minister’s evidence, which, if the objections are sustained, will have the effect that the Minister will not have an evidentiary case to put forward to the Court at hearing. Nevertheless, those objections were not notified until more than approximately four and a half months after the Minister’s final affidavit had been filed and slightly more than two months prior to the scheduled hearing. That delay is a relevant consideration because if  those objections been made earlier, the Minister might still have had sufficient time to meet them by seeking leave to file further evidence prior to the existing hearing dates. The Court notes that the applicant need not have put the Minister on notice about the objections, but having done so, it is legitimate to observe that had it been done earlier proper case management considerations might have been more easily facilitated.

2. The Court is obliged to resolve proceedings “justly”, and although this is but one of the factors set out in the in s.3 of the FCCA Act” it nevertheless ties in with what the High Court said in Aon Risk Services as being the paramount consideration, namely the doing of justice between the parties having regard to any relevant legislative purpose or object.

3. There appears to be little prejudice to the applicant if the Adjournment Application is granted. Unlike many applicants in migration proceedings in this Court, the applicant is, with respect, ably represented by Senior Counsel, Junior Counsel and a major regional law firm. Further, the applicant is not, again unlike many applicants in migration proceedings in this Court, in immigration detention, but is, and has been, living in the community. Further, there is no reason why the cost of any delay ought not to be, subject to hearing the parties, met by the Minister having an award of costs made against him. Finally, the length of the delay is not such, bearing in mind the delays which have already occurred and the usual length of delay in migration proceedings in the Perth Registry, as to outweigh what is otherwise a lack of prejudice to the applicant.

4. By contrast, the prejudice to the Minister if an adjournment is not granted is such that it may be, if the objections are sustained, fatal to the Minister’s case. Many of the objections to the evidence for the Minister relate to evidence which is said to be:

   a)hearsay;

   b)secondary evidence of records and documents given without the documents being identified or produced;

   c)a failure to actually produce evidence, particularly in relation to, fingerprint records; and

   d)inadmissible opinion evidence where the expertise of the witness is not established, or it is not apparent as to how that expertise relates to the relevant facts so as to produce the opinion propounded.

5. It suffices to observe that, given the nature of the evidence objected to, and the nature of the objections, there is likely to be primary evidence about which non-hearsay evidence could be given, including primary evidence on original documents and records including fingerprint records and the provenance of relevant records, and the expertise of persons giving evidence.

6. The Court also observes that because the case calls for a de novo consideration by the Court of the jurisdictional fact as to whether the applicant is or is not a Canadian citizen, the case is somewhat outside of the usual run of migration proceedings which require an applicant to establish jurisdictional error on the part of an administrative decision-maker, and do not ordinarily require the consideration of fresh evidence, or the strict application of relevant evidentiary rules. That might, to some extent explain, but not necessarily excuse, the Minister’s failure, if it be that, to submit a proper evidentiary case in relation to the Originating Application.

7. In the Court’s view the critical issue in this case is however whether or not it is in the interests of justice, and the interest of the administration of justice, for the Court to determine a jurisdictional fact, namely whether the applicant is or is not a citizen of Canada, on the basis of the evidence of the applicant alone, in circumstances where it is evident that there is other evidence available which might be of significant assistance to the Court in determining whether the applicant is or is not a citizen of Canada, or at least to put that issue into the realm of a serious evidentiary contest.

8. This is, as Senior Counsel for the applicant put, an adversarial contest, but it is also a contest about a jurisdictional fact in respect of which there appears to be significant other evidence available which, if before the Court, might (but not must) significantly assist the Court in its determination of the citizenship issue, and again might (but not must) result in an outcome contrary to that advocated for by the applicant, namely, that the applicant is not a Canadian citizen.

9. In determining the Adjournment Application the Court has had particular regard to the objects of the Migration Act including the regulation, in the national interest, of the coming into and presence in Australia of non-citizens, and that the Migration Act should be the only source of the right of non-citizens to so enter or remain, and that non-citizens not permitted by the Migration Act to remain in Australia are to be removed or deported: Migration Act, s.4. Those objects, when read together with ss.91M, 91N, 91P and 91Q, make it plain that there is an overriding legislative intent that non-citizens not be permitted to remain in Australia without a valid visa, and it must therefore be in the public interest that that not occur, and in some instances in the national interest that that not occur. Thus, it appears to the Court that the determination of the applicant’s citizenship on the basis of the Minister’s failure to pay proper attention to the nature of the evidence to be submitted to this Court on a de novo consideration of the applicant’s citizenship is not a particularly satisfactory basis upon which to determine such an issue, at least not without giving the Minister the opportunity to remedy what appears to be a relatively significant forensic failure.

10. Having regard to the paramount object of the Court to do justice between the parties, and having regard to the considerations which arise by reason of the objects of the Migration Act, the Court is not satisfied that it would be in the interests of justice, or the national interest, for the Originating Application to be heard in circumstances where the Minister has not put on all of the evidence which might reasonably be available that pertains to the jurisdictional fact which the Court is required to determine. In the Court’s view it is not in the interests of justice to determine this matter without the benefit of the best available evidence.

Conclusions and orders

1. There is no doubt that the applicant has a serious case to oppose the Adjournment Application, and that many of the factors for consideration do not favour an adjournment. Nevertheless, the interests of justice are a paramount consideration, and are sufficient in the Court’s view, in the exercise of the broad discretion that the Court has in determining the Adjournment Application, to weigh the matter in favour of a grant of the Adjournment Application.

2. In all of the above circumstances, the Court has concluded that the Adjournment Application ought to be granted, and the hearing dates on 29 and 30 August 2017 be vacated. The matter will otherwise be adjourned to a directions hearing at 9.30am on 29 August 2017, and the parties are to confer as to further programming orders.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  21 August 2017