CBI15 v Minister for Immigration

[2018] FCCA 1462

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBI15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1462

Catchwords:
MIGRATION – Protection (class XA) visa – applicant sought merits review from the tribunal – applicant encountered difficulties with solicitors – applicant’s migration agent ceased acting at the eleventh hour – tribunal required post-hearing submissions with unseemly haste despite requests for extensions of time to provide submissions – tribunal on notice that applicant desired to make post-hearing submissions – tribunal failed to comply with s.425 of the Migration Act 1958 – application for judicial review allowed – constitutional writs issued.

Legislation:

Migration Act 1958, s.425

Cases cited:

Kaur v Minister for Immigration and Border Protection [2014] FCA 915

Minister for Immigration and Border Protection v Guder [2018] FCA 626

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

WZARH v Minister for Immigration and Border Protection (2014) 316 CLR 389
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2014) 139 FCR 344

Other materials:

P Finn, Fiduciary Obligations (Federation Press, 1997)

Applicant: CBI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2270 of 2015

Judgment of: His Honour Judge Wilson

Hearing date: 17 April 2018

Date of Last Submission: 17 April 2018

Delivered at: Melbourne

Delivered on: 8 June 2018

REPRESENTATION

Counsel for the Applicant: Ms G Costello

Solicitors for the Applicant: B E Lawyers

Counsel for the First Respondent: Mr T Goodwin

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. A writ in the nature of certiorari issue quashing the decision of the second respondent made on 18 September 2015 (in matter number 1311564).

2. A writ in the nature of prohibition issue restraining first respondent, by himself, his employees, officers, delegates or agents, from acting upon or giving effect to the decision made by the second respondent on 18 September 2015.

3. A writ in the nature of mandamus issue requiring the second respondent differently constituted to rehear and determine according to law the applicant’s application for review of the decision of the delegate of the first respondent.

4. The first respondent pay the applicant’s costs of this proceeding fixed in the amount of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2270 of 2015

CBI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The question in this case was whether the tribunal fell into jurisdictional error in not giving the applicant greater time than it did to provide post-hearing submissions, having regard to the way this case unfolded before the tribunal.

2. Originally, the applicant filed an application for judicial review in which the applicant relied on two unparticularised grounds of review.  They were –

   1.The decision of the Tribunal:

   (a)is affected by an error of law; and

   (b)denied the applicant procedural fairness.

   2.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

3. Having regard to the fact that the applicant’s grounds of review said nothing about the propositions of fact and law that underpinned the application for judicial review, the registrar quite properly fixed this case for hearing before me under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules.  That hearing was fixed before me on 17 April 2018.  A little under a week prior to 17 April 2018, the parties agreed that the applicant should have leave to file and serve an amended application exchanged on 11 April 2018 and that the proceeding would go forward as a final hearing on 17 April 2018, that is to say, on the date previously ordered for the show cause hearing.  With commendable cooperation the parties met tight timelines for procedural steps to be undertaken and the hearing in this case proceeded on 17 April 2018.

4. The applicant relied on a single ground of review in the amended application. In essence, the applicant said the tribunal breached s.425 of the Migration Act 1958 or (further and alternatively) acted legally unreasonably by not giving the applicant more time to provide post-hearing submissions.  The applicant put that contention in context by pointing out that the shortness of time in which the tribunal required the filing of post-hearing submissions was set against a backdrop where –

   a)the applicant’s representative ceased acting at the eleventh hour;

   b)the applicant did not speak English;

   c)the applicant’s background had been traumatic;

   d)the tribunal knew about previous difficulties the applicant had encountered with his solicitors; and

   e)the tribunal knew the applicant wanted to rely on post-hearing submissions.

5. The applicant said, in essence, that by reason of the unseemly haste in which he was forced to provide those submissions, he was not provided with a meaningful invitation to present arguments and there was no intelligible justification for the tribunal’s 18 September 2015 decision in view of the tribunal knowing that the representation he had used for the hearing ceased on 15 September 2015.  The minister countered by asserting that there was no practical injustice in circumstances where –

   a)the determinative issues in the case were the same as those before the delegate;

   b)the applicant had been provided with an opportunity to provide further submissions as well as an extension of time for those submissions; and

   c)at all relevant times the applicant had been represented.

6. The issue for me was whether the tribunal’s decision can stand.

Synopsis

1. For the reasons that follow, in my judgment the tribunal did in fact fall into jurisdictional error.  I order the issue of constitutional writs.

Some background history

1. The applicant was a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 28 June 2012.  On 13 November 2012 he applied for a protection visa.  To his visa application he attached a statutory declaration that he made on 8 November 2012.

2. The delegate refused the visa on 11 July 2013.

3. With the assistance of a migration agent, on 13 August 2013 the applicant applied for a merits review.  On 7 November 2013 the applicant’s migration agent, Fragomen (Australia) Pty Ltd, provided a 38 page submission on fact and law.  On 28 July 2015 the tribunal provided a written invitation to the applicant for him to attend, give evidence at and make submissions to the tribunal on 25 August 2015.  A Tamil interpreter was arranged for that hearing.  The applicant’s migration agent responded to the hearing invitation indicating that the applicant and a representative of the agent would attend.  The hearing commenced at 1:11pm and ended at 4:15pm that day.  The tribunal allowed the applicant until 4 September 2015 within which to supply any further information.  On 28 August 2015, Fragomen requested a copy of the audio recording of the tribunal hearing.  On 1 September 2015 the tribunal duly supplied a CD with the audio recording to Fragomen (and therefore to the applicant).

4. On 4 September 2015, being the date by which the tribunal required the applicant to provide further information, comments or responses, Fragomen wrote to the tribunal seeking a further seven days for the provision of that material.  On 8 September 2015 a tribunal officer, through an interpreter, informed the applicant in the Tamil language that the tribunal gave the applicant until 11 September 2015.  The tribunal file note of that telephone conversation recorded that the applicant said he understood the information conveyed to him, that he would inform Fragomen and that he thanked the tribunal officer.

5. On 15 September 2015 Fragomen wrote to the tribunal informing the tribunal that a conflict of interest had arisen with the consequence that Fragomen no longer represented the applicant.  The letter was signed by the same solicitor who had been involved with the tribunal on the applicant’s behalf since 28 July 2015 upon the applicant’s appointment of her.  She did not say anything about the conflict that led to her letter of 15 September 2015.  She described the conflict as a “conflict of interest”.  That was a peculiar description in view of the fact that she had seemingly unproblematically represented the applicant throughout the tribunal hearing and subsequent to it.  Precisely how a conflict of interest could have arisen called for explanation.  None was given.  The nature of the interest allegedly conflicted also called for an explanation.  None was given.  I found it difficult to see how a conflict of interest could have arisen at such an advanced stage of the litigation, at least in in the sense that the phrase “conflict of interest” is conventionally used in the context of fiduciaries.[1]

   [1] See for example P Finn, Fiduciary Obligations (Federation Press, 1997)

6. On 18 September 2015 the tribunal decided to affirm the delegate’s decision not to grant the applicant the protection visa he sought.

In this court

1. In the applicant’s amended application, the applicant relied on a single ground of review with nine alphabetical subparagraphs.  The ground and particulars subjoined to it were as follows –

   1.The Tribunal breached s 425 of the Act or further and alternatively the Tribunal acted legally unreasonably, by not giving the Applicant more time to provide post-hearing submissions in circumstances where:

   (a)the Applicant’s representatives ceased acting for him at the eleventh hour;

   (b)the Applicant did not speak English;

   (c)the Applicant’s background was traumatic – characterised by the murder of a number of his relatives and the rape and murder of his mother and it would be difficult for the applicant to have to explain the background of the matter to a new representative;

   (d)the requirement that any representative must be a migration agent limited access to available representative for Tribunal matters;

   (e)the Tribunal was on notice of the Applicant’s previous difficulties communicating with his solicitors;

   (f)the Tribunal was on notice that the Applicant wanted to put in post-hearing submissions;

   (g)the Tribunal had power under s 425 of the act to seek information;

   (h)the Tribunal was obliged under s 425 to give the applicant a meaningful invitation to appear before the Tribunal and give evidence and present arguments relating to the issues arising in relation to the decision under review; and

   (i)there is no in eligible justification for the Tribunal. making its decision on 18 September 2015 without giving the applicant more time to make post-hearing submissions after the applicant’s representative informed the Tribunal it had ceased acting on 15 September 2015.

2. Ms Costello of counsel for the applicant cast the case as one of legal unreasonableness.  She said it was legally unreasonable for the tribunal to have not given the applicant more time to provide post-hearing submissions.  The nine alphabetical paragraphs of the particulars subjoined to the applicant’s single ground of review represented, she said, the circumstances that indicated legal unreasonableness.  Relevantly paraphrased, chief among them were the following –

   a)the applicant did not speak English;

   b)Fragomen ceased acting for the applicant at the eleventh hour;

   c)the applicant’s background was traumatic;

   d)the tribunal was on notice that the applicant wanted to file and rely on post-hearing submissions;

   e)the tribunal was obliged under s.425 of the Migration Act 1958 to give the applicant a meaningful invitation to appear; and

   f)no intelligible justification existed for the tribunal making its decision on 18 September 2015 when Fragomen ceased representing the applicant only a few days earlier.

3. The minister advanced a collection of responses to the applicant’s contentions.  They may be catalogued in the following manner –

   a)contrary to the applicant’s submissions, the applicant was in fact given a meaningful opportunity to appear;

   b)the tribunal’s power to adjourn did not require the tribunal to await an opportunity for the applicant to improve his case but instead it required the tribunal to give the applicant a meaningful opportunity to give evidence and to present argument;

   c)the tribunal was under no duty to consider exercising the adjournment power;

   d)after three and a half weeks following the tribunal hearing and the applicant having filed no post-hearing submissions, the tribunal was entitled to say “enough is enough”, support for which emanated from the High Court’s decision in Minister for Immigration and Citizenship v Li;[2]

   e)the applicant did not, in terms, request an adjournment;

   f)the applicant had no right to legal representation by a legally qualified practitioner; and

   g)the applicant lost no opportunity to put material before the tribunal as the issues before the tribunal were the same as were the issues before the delegate.

   [2] (2013) 249 CLR 332 (at [82])

Consideration

1. In my view, the minister’s approach was unduly narrow, a point recently observed by Griffiths J in Minister for Immigration and Border Protection v Guder.[3]  That approach was reflective of a comparable approach adopted by Mortimer J in Kaur v Minister for Immigration and Border Protection.[4]  In my view it was not correct for the minister to gainsay whatever might have been the subject of post hearing submissions from the applicant.  It was equally erroneous for the minister to contend that dispositive issues had been determined by the delegate.  In this judicial review application, I was not concerned with the activities of the delegate, a matter made plain by the decision in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs.[5]

   [3] [2018] FCA 626

   [4] [2014] FCA 915

   [5] (2014) 139 FCR 344

2. As Griffiths J held in Guder,[6] it was the tribunal’s task to identify the issues that arose in relation to the issues under review, guided not only by the delegate’s reasons but also taking into account the express terms of the criteria for the grant of the relevant visa.

   [6] (at [41])

3. It seemed to me that by the tribunal deciding this case without allowing the applicant to file post-hearing submissions, the tribunal deprived the applicant of the possibility of a successful outcome.  To use the observations of the court in WZARH v Minister for Immigration and Border Protection[7] the practical injustice in such case lies in the denial of an opportunity in which fairness ought to have been given.  Naturally, it was not possible to predict what the applicant intended to say in any post-hearing submissions.  Equally, it was impossible to say that everything that he could have said had already been said leaving him nothing more to say.  But the tribunal snatched from him any prospect of his saying that which he might have said and in the process denied him the possibility of a successful outcome.

   [7] (2014) 316 CLR 389

4. In my view, Ms Costello was correct in contending that the tribunal fell into jurisdictional error.

Conclusion

1. I agree with Ms Costello’s contentions that constitutional writs must issue and that the minister must pay the applicant’s costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Associate: 

Date:   8 June 2018