BTX17 v Minister for Immigration

[2020] FCCA 2304

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTX17 & ANOR v MINISTER FOR IMMIGRATION [2020] FCCA 2304

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether there would be any utility in granting an adjournment – whether adequate reasons given for inability to proceed with hearing – adjournment refused.

Legislation:

Migration Act 1958 (Cth), ss.91N, 91P, 476

First Applicant: BTX17

Second Applicant: BTY17

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 1250 of 2017

Judgment of: Judge Manousaridis

Hearing date: 16 March 2020

Date of Last Submission: 16 March 2020

Delivered at: Sydney

Delivered on: 16 March 2020

REPRESENTATION

Litigation guardian in person, on behalf of the first and second applicants, and assisted by Mr H Ford with the leave of the Court

Counsel for the Respondent: Mr J Kay Hoyle

Solicitors for the Respondent: Clayton Utz Lawyers

ORDERS

1. The applicants’ application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1250 of 2017

BTX17

First Applicant

BTY17

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

1. There was resumed for hearing before me today a part heard application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by a delegate of the respondent (Minister). The decision in relation to which remedies are sought is one to the effect that an application for a visa was an invalid one under s.91N and s.91P of the Act.

2. The matter came for hearing before me on 13 February 2020. The hearing did not finish on that day and the matter was adjourned part heard to today.  On the resumption of today’s hearing Mr Ford, whom I have given leave to speak on behalf of the applicants, applied for an adjournment. The purpose of the adjournment was to put on evidence about the law of Kenya and Zimbabwe so far as it relates to the citizenship of the applicants. The application for an adjournment was opposed by the Minister. 

3. When considering applications for an adjournment the overall question is what the interests of the administration of justice require; and in considering that question there are two broad matters to consider.  The first is why the adjournment is sought in the first place, and the second is the comparison of the respective prejudices to the party seeking the adjournment if an adjournment is not granted and the prejudice to the party opposing the adjournment if an adjournment is granted.

4. First, let me turn to the reason why an adjournment is required.  Mr Ford says that his clients’ position has been that the citizenship of the applicants is a matter which is within the province – and these are my words – of the administrative decision maker, not within the province of the Court, to decide.  In short, his view is that the question of citizenship is not a jurisdictional fact.  The Minister’s position, on the other hand, is that it is a jurisdictional fact and by that I mean it is a matter that is to be determined by the Court.

5. Mr Ford said that he did not understand this to be the position until today’s hearing.  I do not find that explanation to be an adequate one.  An affidavit was filed on behalf of the Minister on 28 May 2018 to which an expert report on foreign law was attached.  It ought to have been clear even by that stage that the Minister’s position was that the question of citizenship was a question to be determined by the Court; that is to say, it was a jurisdictional fact. But even if it was not made clear by the filing of that affidavit, it certainly was clear by the time the Minister filed his submissions on 6 February 2020.  In paragraph 21 of his written submissions the Minister submitted:

   The applicant asserts a range of alleged errors in the application.  As noted above, given the nature of the task of review by this Court an error by the Delegate is, for practical purposes, moot.  The Court determines the relevant facts for itself.

6. For those reasons this aspect weighs heavily against my determination of whether an adjournment should be granted. 

7. The next question is the prejudice to the applicants if an adjournment is not granted, and that requires me to look at the stated purpose of the adjournment. The stated purpose of the adjournment is to obtain evidence on foreign law.  The evidence about this matter is virtually non-existent and, the evidence given from the bar table by Mr Ford is certainly inadequate.  It went no higher, initially, beyond Mr Ford relating a telephone call with someone from the Zimbabwean Embassy in Canberra suggesting there has been a change in the citizenship law which may be of some advantage to the applicants.

8. Given that information it is impossible to say that there would be any utility in my granting an adjournment because whether the applicants will be able to obtain evidence which would contradict that on which the Minister will rely is entirely speculative, and for that reason alone I cannot conclude that there would be any prejudice or, at least, any tangible prejudice to the applicants if an adjournment were not granted.  The prejudice to the Minister, on the other hand, is at the very least costs thrown away. Although there’s no evidence about the applicants’ capacity to pay, and by this I mean the applicants acting through their litigation guardian, it is open for me to infer that the ability to pay is, at the very least, questionable given that, as I understand it, the applicants are not legally represented and the assistance they are obtaining from Mr Ford is one that Mr Ford is providing gratis. So if an adjournment is granted there will be costs thrown away and it is, at the very least, questionable whether the Minister will be compensated.

9. In the course of argument I suggested one possibility would be for the matter to proceed today but then give the applicants an opportunity – and I have in mind four weeks – where they can file an application to amend the application to include a declaration in relation to foreign law and to support that application with all the evidence on which the applicants intend to rely.

10. That suggestion has been made on the assumption which, I think, is a fair assumption, that the issue that the applicants would wish to agitate is a relatively restrictive one, that is to say, a question of what is the foreign law of Zimbabwe and Kenya in relation to citizenship as that law now applies to the applicants; and that, also, any evidence in support of such a proposed ground would itself be relatively limited, and by that I mean it would consist of an opinion by a lawyer appropriately qualified in Zimbabwean and in Kenyan law, first, to identify what the relevant source of that law is and to the extent there is any need to offer an opinion on what the written law is to provide an opinion of that law.

11. The Minister’s position after I adjourned for a few minutes to consider the application for an adjournment was that he does not oppose although, of course, does not consent, to my dealing with today’s application in that manner.  I propose to proceed in the manner in which I suggested and I do note this is an indulgence to the applicants which really is undeserved.  The applicants being minors is a matter which has induced me to give the indulgence which I propose to give.

12. So, to be clear, what I propose to do is for the case to run today in the manner that the parties intended the case to run, and then at the end of the hearing to give the applicants leave to file within four weeks an application in a case seeking an order for leave to amend, such application in a case to have attached to it or, otherwise, to refer to a proposed amended application; and also to file with it such evidence as the applications intend to rely. The application in a case will be set down for hearing at an appropriate time and that application in a case can be dealt with in the way which, in the light of any submissions I receive, I will consider to be appropriate. 

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

Associate: 

Date: 21 August 2020