BRGAB of 2007 v Minister for Immigration and Citizenship

[2007] FCA 1748

FEDERAL COURT OF AUSTRALIA

BRGAB of 2007 v Minister for Immigration & Citizenship [2007] FCA 1748

PRACTICE AND PROCEDURE – application for disqualification of Judge – no basis – application refused – application for adjournment – recent refusal of counsel to act – partial adjournment granted for written submissions – oral argument to proceed

Migration Act 1958 (Cth)

BRGAB of 2007 v MIAC [2007] FMCA 823 cited

BRGAB OF 2007 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

QUD 185 OF 2007

BENNETT J
7 NOVEMBER 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 185 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BRGAB OF 2007
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	7 NOVEMBER 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application for disqualification is refused.

2.The application for an adjournment is refused.

3.The appellant is to file and serve any written submissions on which she intends to rely by 4pm on 30 November 2007.

4.The respondent is to file and serve any written submissions in response to the appellant’s submissions by 4pm on 11 December 2007.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 185 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BRGAB OF 2007
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	7 NOVEMBER 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a decision of Federal Magistrate Jarrett  (BRGAB of 2007 v MIAC [2007] FMCA 823) in relation to the appellant’s application for a Protection (Class XA) Visa (‘a protection visa’). Jarrett FM dismissed the application. Subsequently, a Judge of this Court made an order under Order 80 rule 4(1) of the Federal Court Rules (‘the Order 80’) that the appellant be provided pro bono with legal advice as to her prospects of success in this appeal. The Order 80 stated that, if there were prospects of success, counsel could continue to act generally for the appellant; otherwise the assistance would end.

2. The matter was called on this morning and the appellant has made two applications.  The first is an application that I disqualify myself from hearing the matter.  The second is an application for adjournment. 

   DISQUALIFICATION

3. As to the application that I disqualify myself, the appellant raised four bases. 

   Conspiracy

4. The first basis raised by the appellant, from the bar table but without evidence,  was that the Department of Immigration and Multicultural and Indigenous Affairs and the Australian Federal Police are secretly conspiring against her.  The appellant also claims that the Federal Court of Australia is part of that conspiracy in relation to her matter.  She gave no details of the conspiracy or of its nature. 

5. The appellant alleges that every Judge and every person employed by the Federal Court is part of that conspiracy and, on that basis, says that I cannot hear her matter.  The appellant’s claim would seem to extend to every person who participates in the business of the Federal Court.  I note that no suggestion, basis or particulars have been given that I am in any different position to any other Judge of the Federal Court in this regard. 

6. The appellant does, however, persist in her appeal and wishes to have it heard.  She offers no suggestion as to how that would occur if no Judge is able to hear the matter.  The doctrine of necessity would seem to have some application. 

   Preclusion from sitting

7. The second basis raised by the appellant was that I sat as Duty Judge in relation to another application that she brought in this Court.  She says that, because I made directions as to the further conduct of that case which was then heard by another Judge, I am precluded from sitting in this matter.  No specific reference to the case was made, or details given of it. 

   Haneef case

8. The third basis raised by the appellant relates to the case of Haneef v Minister for Immigration and Citizenship [2007] FCA 1273. The appellant asserts that her case is very similar to that in Haneef, despite the fact that the matters are in relation to two different sections of the Migration Act 1958 (Cth) and two entirely different decisions under review. The appellant submits that because I am related to the Solicitor General of the Commonwealth, who argued the Haneef case for the Commonwealth, I am somehow precluded from sitting on her case. 

   Conspiracy of a Registrar

9. The fourth basis raised by the appellant is an allegation that a Federal Court Registrar, who is part of the conspiracy referred to above, arranged for what she described as a “baby barrister” to give her advice.  The fact that that barrister subsequently withdrew from the case, after giving the advice referred to in the Order 80, meant that the barrister was also part of a conspiracy by the Registrar to prevent the appellant from achieving justice.

10. It is not clear to me how, other than in respect of the general conspiracy asserted as the first basis, I am part of this latter conspiracy. 

    Conclusion on disqualification

11. It is not clear from the appellant’s arguments whether she is claiming disqualification on the ground of actual bias or of apprehension of bias.  Regardless, I have considered all of the matters put by the appellant in relation to her application that I disqualify myself, both individually and in combination. 

12. No proper basis has been made out as to why I should disqualify myself from further hearing the matter.  I decline to do so.  I note that the Minister does not have any objection to my continuing the case.  The application is therefore refused. 

    ADJOURNMENT

13. The second application made by the appellant this morning was for an adjournment. 

14. The appellant was directed to file and serve written submissions on or before 30 October 2007.  On 31 October 2007 the barrister advising the appellant under the Order 80 informed her of his advice and of the fact that he would not act further in her case.  The appellant says that she needs further time to prepare her submissions because of the late notification from the barrister.

15. I accept that, in the circumstances, it was reasonable for the appellant not to comply personally with the direction to file written submissions by 30 October 2007.  However, the appellant has had several days in which to prepare written submissions for the hearing today.  It is apparent that no action has been taken on her part to prepare written submissions.  Certainly, none were presented.

16. The appellant also relies on a certificate signed by a clinical psychologist, dated 25 July 2007.  The report states that she is:

    ‘…significantly impaired in her ability to cope with many of the tasks that were previously well within her capacity to deal with.  She has demonstrated a tendency to be relatively easily distracted as her ability to focus and concentrate on detailed tasks is limited at this time.’

17. The recommendation made is that consideration be given to her state and:

    ‘…wherever possible, to seek to reduce the pressure she is currently subject to.’

18. The medical certificate indicates that the problems that the appellant is experiencing are of a continuing nature.  I asked the appellant what she wanted and she sought an adjournment of three weeks.  When I asked her whether she would be able to make oral submissions on that future occasion, she said that she did not know.  She said that it was just a ‘matter of luck’ as to whether or not she would see herself as able to do so properly.

19. I note that the appellant appeared in person before Jarrett FM and that she prepared detailed written submissions in relation to that application.  The appellant drafted the current notice of appeal herself and as she points out, the grounds of that notice reflect the grounds of the application made before his Honour.

20. I also note that there would be a great difficulty on the part of the Court to reconvene in Brisbane in some weeks time, in order to hear the appellant make her oral submissions in person.  While video conferencing is possible on any adjourned date, in the circumstances of this particular appellant I believe that it would be of advantage to her and to the Court, to hear what she has to say in person.  She has exhibited some difficulty in presenting her argument orally and there is no reason to believe that this would be different in three weeks time.  However, from having seen her this morning I am of the view that if oral submissions can be given today, it would be to the appellant’s benefit. 

21. In the circumstances, the course that I propose to take is to proceed to hear what the appellant has to say today, bearing in mind that she is familiar with the detail of her appeal but to provide her with the additional opportunity to file written submissions upon which she wishes to rely.  I will also hear from counsel for the Minister today.  That will give the appellant the opportunity to hear the oral submissions for the Minister in addition to the detailed written submissions that were filed by the Minister and served on the appellant.  The appellant can incorporate any further matters in her written submissions. 

22. In response to my proposal, the appellant has stated categorically that she is not prepared and cannot make any oral submissions today.  She has also said that she is not prepared to sit in the Court to hear oral submissions made on behalf of the Minister.

23. I have offered to the appellant a possibility that the case be stood down until later in the day or, in the alternative, until tomorrow or, in the alternative, until Friday to enable the appellant to prepare oral submissions and to prepare herself to be able to hear the oral submissions on behalf of the Minister.  There would still be an adjournment for written submissions.  The Minister has consented to having the matter stood over during the course of this week at any time that is convenient to the parties and to the Court.

24. The appellant has declined to take any of these alternative courses and has stated that, if the matter is to proceed today or at all this week, she does not wish to be present either to make her oral submissions or to hear any oral submissions on behalf of the Minister.  She has said that in these circumstances it will be sufficient for her to have the transcript of the Minister’s additional oral submissions. 

25. In the circumstances there seems to be no good reason to adjourn the matter in so far as it requires oral submissions.  I should proceed today.

26. Accordingly, I do not intend to adjourn the proceedings and the application is refused.

27. The appellant has asked that the costs of today follow the event and that no specific costs orders be made.  The Minister consents to that course.  The Court will order the transcript and arrange for a copy to be forwarded to the appellant.

I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        20 November 2007

The Appellant was self represented
Counsel for the Respondents:	Ms A L Wheatley
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	7 November 2007
Date of Judgment:	7 November 2007