BNX19 v Minister for Immigration

[2020] FCCA 413

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNX19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 413

Catchwords:
MIGRATION – Judicial review – practitioner ceasing to act for applicant – compliance with rules but late withdrawal necessitating adjournment in busy court – responsibility of practitioners to act in timely way.

Legislation:

Migration Act 1958 (Cth), s.473GB

Cases cited:

BVD17v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 34

Applicant: BNX19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 140 of 2019

Judgment of: Judge Young

Hearing date: 14 February 2020

Date of Last Submission: 14 February 2020

Delivered at: Darwin

Delivered on: 14 February 2020

REPRESENTATION

The Applicant: In person (by videolink)

Counsel for the First Respondent: Mr O’Leary (by video link)

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The matter be adjourned to 5 June 2020 at 2.15pm (NT time).

2. Any amended application or other material to be relied upon by the applicant is to be filed and served no later than 28 days before the 5 June 2020.

3. The applicant is to file and serve any written submissions no later than 10 days before 5 June 2020. 

4. The respondent to file and serve any written submissions no later than five days before 5 June 2020. 

5. Costs thrown away on the adjournment be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 140 of 2019

BNX19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority.  The application was filed on 12 April 2019 and directions were made by Registrar Parkyn on 6 June 2019. The usual directions for the filing of material and so on were made and, in addition, that any amended application be filed and served within a set period. This addressed the obvious deficiencies in the grounds in the original application as filed by the applicant - grounds which, in their unamended present form, could not succeed in all probability. 

3. I was informed around 11 September 2019 that the Minister had received an approach from Mr Moya of Cifuentes Lawyers who had accepted pro bono instructions from JusticeNet which is, I understand, a pro bono clearing house intended to assist people, in this case, with their applications for judicial review of migration decisions.  I was told on about that date that the Minister had agreed to an adjournment of the application on the basis that counsel had been retained on, I assume, a pro bono basis but counsel was not available on the day set for hearing, which was 17 September 2019. That was confirmed by Mr Moya today.  

4. The Minister, or those who advise the Minister, very properly consented to an adjournment in those circumstances.  I consider that was the response of a model litigant in matters such as this, particularly where counsel is acting pro bono and there is no indication that the applicant would be able to afford to retain counsel otherwise.  That was the proper thing to do in the circumstances.

5. However, when the matter was adjourned to the day before yesterday, that is, 12 February, the applicant sought a further adjournment, he said, to obtain another lawyer because Mr Moya had, on 31 January, filed a notice of withdrawal.  The applicant said to me in evidence that he only became aware of Mr Moya’s intention to cease acting a week, or maybe two, before.  He told me that he had not been able to obtain a lawyer in the time available.  That was not challenged by the Minister and I accept that that is likely to be the case. 

6. However, I was somewhat perplexed by the course of events. Having been told that counsel would be available on 12 February neither counsel nor solicitor appeared. I requested that Mr Moya come to court today to explain me to what had happened. Mr Moya made himself available at short notice and has come along to explain the background to the matter. He has explained it very clearly and I accept completely what he has told me. He said that counsel, Mr Barnes, had agreed to accept the pro bono brief around about the time that Mr Moya spoke to the Minister, that is, in September last year. Mr Moya said, in substance, that it was thought at that time that a ground of review, one that was not included in the original application but one that might have been included in an amended ground of review, had some prospects of success. It related to the use of the section 473GB certificates which was – if I can put it this way – a hot area of jurisprudence around that time. Mr Moya explained to me that his involvement, his pro bono involvement, was always conditional upon counsel being willing to appear in the matter. He said that he was prepared to instruct counsel but he was not comfortable with doing anything other than that.

7. He said that after the decision in BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 34 in October 2019 counsel reconsidered the matter. Mr Moya did not tell me this but I read between the lines that counsel decided that the matter did not have sufficient merit to accept a pro bono brief. Leaving aside the tension between those concepts, I accept that counsel who accept pro bono briefs very often do so on the basis that they think there is some merit or some potentially successful argument in the matter and that is why they take it on. That is perfectly reasonable and it is within the best traditions of the bar. There is no criticism of anyone involved.

8. However, BVD17v Minister for Immigration and Border Protection was handed down in October 2019 and the decision to cease acting appears to have been made in January 2020, shortly before the hearing.  I infer from the course of events that a very late assessment was made about the merits of the matter and a very late decision was made by counsel to withdraw.  That is all well and good but when that happens it is difficult for this court, which is a high volume court, to make time available at short notice to hear adjourned matters. This matter will have to be adjourned to June. 

9. The delay from the first hearing set for 17 September 2019 to eventual hearing, assuming it goes ahead in June 2020, will be at least nine months, which I consider to be completely unacceptable because the delay was, in retrospect, entirely unnecessary. While I consider that JusticeNet and those who appear or act pro bono are performing an admirable service, it appears to me that those performing that service also need to take into account the nature of the business in this court, the pressure of work and the need to make decisions, which would otherwise cause adjournments, in a timely way. 

10. I do not consider that, on the face of it, the decisions I have talked about have been made in a timely way. I would encourage JusticeNet to bear some of these factors in mind and simply remember that late decisions of this kind are difficult for all.  Most of all, they are difficult for an applicant, who is keyed up to come to court and then hears his case is adjourned.  He is keyed up to come to court and hears, very late in the piece that he is not to be represented.  That is a very stressful experience and, in this case, one that was unnecessary.  I need not repeat my remarks about the pressure of work in this court. 

11. Now, there is another issue that has been raised by Mr O’Leary, counsel for the Minister.  It is apparent that the interpreter is acquainted with the applicant and the Minister objects to this interpreter interpreting.  I am not sure that I understand the basis of the objection.  I can understand that interpreters should be independent.  The interpreter told me that she was acquainted was the applicant’s children or had known them some years ago.  I gather from her that it is not a current friendship.  I am not persuaded that necessarily the relationship as described to me merits a prohibition on this interpreter interpreting.  However, there is another matter.  I did hear some sworn evidence from the applicant in relation to the application for an adjournment, with another interpreter, the day before yesterday but I am not aware that the applicant is intending to give any more sworn evidence.

12. I do not consider that there is a proper basis at this stage, on the basis of the business before the court today, which does not involve any evidence from the applicant, for the objection.  However, having regard to everything that has occurred, primarily the very late advice to the applicant that he is not to be represented, I consider that the matter ought to be adjourned to permit the applicant to obtain legal advice, if that is what he can do.  If he can, well and good.  If he cannot, well, so be it but I do not propose to proceed with the hearing today.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  26 February 2020