CDM22 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1018
•6 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CDM22 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1018
File number(s): BRG 264 of 2022 Judgment of: JUDGE EGAN Date of judgment: 6 August 2025 Catchwords: MIGRATION LAW – Where the ground of review was meaningless and wholly lacking in particularity – where the applicant was in default of an order made by a Registrar at the time of the hearing – where an adjournment had already been granted allowing the applicant to seek legal representation – where after a delay of some four months before the matter was next listed for hearing, the applicant had failed to obtain legal representation at the time of the hearing – where the interests of the due administration of justice did not require the Court to act as the applicant’s advocate in the proceeding – no jurisdictional error established – application dismissed. Cases cited: BUP24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 785
DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240
Hamod v New South Wales [2011] NSWCA 375
SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 30 June 2025 Date of hearing: 30 June 2025 Place: Brisbane Counsel for the Applicant: The applicant, on their own behalf Solicitor for the Respondent: Ms Helsdon, Sparke Helmore ORDERS
BRG 264 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CDM22
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
6 AUGUST 2025
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship.”
2.The name of the Second Respondent be amended to “Administrative Review Tribunal.”
3.The Originating Application for Review filed on 25 June 2022 be dismissed.
4.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $8,371.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 11 August 2012.
On 29 November 2012, the applicant applied for a Class XA (Subclass 866) Protection Visa.
On 8 March 2018, a delegate of the Minister refused to grant the visa. The applicant then sought review of the decision of the delegate.
On 17 February 2022, the applicant appeared before the then Administrative Appeals Tribunal (the Tribunal) to give evidence and present arguments. The applicant was assisted by an interpreter.
On 24 May 2022, the Tribunal affirmed the decision of the delegate.
At [20] of the reasons of the Tribunal, it was recorded as follows:
20. The delegate summarised the applicant's claims as follows.
(a) The applicant claimed to be Tamil.
(b) Between March 2010 and March 2012, he worked for a distributor of Coca-Cola products in the district of Kilinochchi.
(c) He worked with two people, Segar and Nimal, who were suspected of Liberation Tigers of Tamil Eelam (LTTE) involvement. He claims that these two people went missing and that he was worried that he would go missing next. Therefore, he left Sri Lanka for his own safety. The applicant claims that one of these people disappeared in February 2012 and the other in March 2012.
(d) He was interrogated on two occasions by officers from the Criminal Investigation Department (CID) in February or March 2012 about his two colleagues' disappearance and whether he knew their whereabouts. He claims that he told the CID he did not know where his colleagues were, and they took his phone number and released him.
(e) After his release, he told his parents about the interrogation. His parents told him they were frightened that he might come to harm if he remained in Kilinochchi. The applicant then resigned from his job and moved back to Point Pedro, Jaffna.
(f) The applicant feared that his colleagues must have had links to the LTTE and feared that he was being imputed with links himself because of his association to his colleagues. He claimed that there was no other explanation for his colleagues' disappearances than their involvement with the LTTE.
(g) In July 2012, the applicant was abducted by a number of drunk Sri Lahkan police officers while standing outside his home in Point Pedro. He was held in detention at the Point Pedro police station. He claimed that he was held in a dark jail cell, beaten all night and then released the following morning. The officers spoke Sinhalese, which meant that he was unable to understand what they said to him.
(h) The same thing happened to him several weeks later. On both occasions, the Sri Lankan police officers were drunk and yelled things at him in Sinhalese.
(i)He fears the abductions were related to the CID interrogations he underwent in Kilinochchi and he considered the abductions must have been retribution for his decision to move back to Jaffna without notifying the CID.
(j) After his second arbitrary detention, he made the decision to leave Sri Lanka, because there was no guarantee this treatment of him would stop and he feared he might be made to disappear the next time.
(k) His uncle disappeared in 2000. He is presumed dead.
(l) His aunt (mother's sister) was shot and killed in 2007 because of her Tamil race.
(m) If he returned to Sri Lanka, the police would find him and harm or kill him because of his race, and the incidents described above and his family. He feared he would be harmed by the Sri Lankan authorities because he left Sri Lanka illegally and would be returning as a failed asylum seeker.
(n) The CID interrogated him twice about his colleagues and his two abductions and detention in Jaffna demonstrated that he was also suspected of having links with the LTTE.
(o) The deaths of his uncle and aunt would contribute to the authorities reaching the conclusion that he was associated with the LTTE.
(p) The Sri Lankan authorities had come looking for him at his family home in Point Pedro, Jaffna on two occasions since he had been in Australia. This happened once in 2016 and once in 2017. On the second occasion, his father was taken away by the authorities and interrogated about his whereabouts and threatened. His father experienced a fatal heart attack the following day due to the stress and fear he suffered during the interrogation.
On 25 June 2022, the applicant filed an Originating Application for Review of the decision of the delegate.
The matter was first listed for hearing before the Court on 24 February 2025. At that time, the applicant applied for an adjournment on the ground that he had been unable to secure legal representation. The Court granted the applicant an indulgence and adjourned the hearing of the matter to 30 June 2025. On the morning of the hearing date, the applicant sought a further adjournment for the same reasons as in February 2025.
The Court refused the application for the adjournment on the ground that the applicant had had ample time to secure legal representation since February 2025. Separate reasons for judgment in rejecting the application for an adjournment were provided in that regard.
Ground of Review
The one ground of the review was as follows:
1.That the Administrative Appeals Tribunal erred in law in making its decision in my case.
At the time of the hearing before the Court, no particulars of the ground of review had been provided to assist the Court in determining whether there were any arguable grounds of review. When asked why he had sought review of the decision of the Tribunal, the applicant replied: “They hurried and rushed it through” and “I am scared to go back to my country”. There was no evidence put before either the Tribunal or this Court which justified either of such submissions
In circumstances such as the present, the Court must weigh up several factors when considering whether to grant another adjournment (the second) to possibly enable an unrepresented litigant to present an arguable case to the Court. Those factors include the waste of Court time associated with the granting of an adjournment application; the interests of procedural fairness being afforded to the applicant; the rights of other deserving litigants whose matters would necessarily be delayed by the granting of an adjournment to the applicant whose matter would be listed in their stead; the extent to which the first respondent’s costs have been thrown away or wasted as a result of the applicant’s non-compliance with Court orders; and the degree to which an applicant seeking an adjournment has complied with his obligations owed to the Court.
In the present matter, the Court finds that the applicant, based upon his later conduct, would most likely have failed to comply with Order 5.1 of the orders of Registrar Carney made on 21 September 2022, namely an order which required the applicant to file and serve written submissions at least 28 days before the hearing of the application for review.
In fact, the applicant failed to comply with Order 4 of the orders of Registrar Cummings made on 11 September 2024, which order required the applicant to file and serve written submissions at least 28 days before the hearing of the application for review.
Further, after this Court granted the first adjournment application on 24 February 2025, the applicant failed to do that which constituted the basis for his then adjournment application – namely to obtain legal representation.
It is clear to the Court that valuable court time has been lost, and unnecessary expense incurred, because of the applicant’s lack of diligence in the prosecution of his claim. It is also clear that the applicant has caused other deserving litigants to have their own matters delayed by such lack of diligence.
Lest it be suggested that the Court was cutting and pasting from an earlier judgment, and in the interests of saving the Court’s time and resources, the Court makes no apology for citing and referring to a recent judgment of this Court involving an analogous factual situation concerning an unparticularised Originating Application for Review. In BUP24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 785 at [9] – [19] the Court held as follows:
9. The Grounds of Review in the Originating Application for Review were as follows:
1. Meets the legal definition of a refugee as outlined in international law and domestic immigration statutes. This involves demonstrating a well-founded fear of persecution based on race, religion, nationality.
2. Risk of harm I would face while returning to country.
3. Also, I feel that there is misapplication of the law, failure to consider relevant legal precedents, or errors in interpreting the eligibility criteria for protection visas.
10. As to the late filing of the Originating Application for Review, the Court is nonetheless required to consider the Grounds of Review and assess whether any application for extension of time ought to be granted in the interests of the due administration of justice.
11. First, the grounds of review are so lacking in particularity as to be meaningless. On 16 September 2024 and 20 December 2024, orders were made by Registrars of this Court allowing the applicant to file any amended application for review. The applicant failed to take the opportunity given to him to do so. In such circumstances, it was not for the Court to act as an advocate on behalf of the applicant in the prosecution of his application for review.
12. In the case of Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] inclusive, Beazley JA (with whom Giles and Whealy JJA agreed) said as follows:
[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:
"A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'."
[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.
[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
"But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant."
[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
"A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6."
[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”
13. In DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, Flick J, sitting on appeal, was there dealing with a contention that a Federal Circuit Court Judge had, in that matter, failed to ensure that the hearing was fair, and that the appellant (applicant) did not “suffer a disadvantage from exercising his or her right to be self-represented”. It was further contended that the primary judge “failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court”. The contention was that it was a requirement imposed upon the primary judge to “explain in plain terms to unrepresented litigants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process” and that it is “not enough to merely say that they must demonstrate jurisdictional error”.
14. In DEZ16 at [37] Flick J noted the undesirability of a judge imposing himself upon the proceedings, as an advisor or advocate for an unrepresented party, when His Honour said:
[37] Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party “why the Tribunal’s decision was not made lawfully”. The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected.
15. In WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35], Gilmour J held as follows:
[35] … an un-particularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
16. In SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389, when considering an unparticularised ground of review, Farrel J, at [22] of his reasons, said as follows:
[22]The second ground of appeal should be rejected. It is well established that the fact that an appeal ground is put with a high degree of generality and lack of specificity or any real particulars is itself a sufficient basis for dismissing that ground: see WZAVW at [35] followed in BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13] (Bromwich J); CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] (Perry J); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20] and [24] (Reeves J); ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] (Derrington J); DIF17 v Minister for Immigration and Border Protection [2019] FCA 1055 at [29] (Abraham J); and GSQ18 v Minister for Home Affairs [2019] FCA 2057 at [14] (Lee J).
17. The Court is not prepared to undertake a hypothetical review of unparticularised and meaningless grounds of review. It is contrary to public policy for any Court to be put in the position where it is required to frame reasons for judgment based upon its own apprehension of what the applicant’s claims might be. That is particularly so in circumstances where an applicant who did not require the assistance of an interpreter at the time of the hearing before the Court had twice previously failed to take up the opportunity of amending the grounds of review.
18. The grounds of review are without merit.
19. The applicant has failed to establish jurisdictional error on the part of the Tribunal and the application for review ought to be dismissed on such bases. And it is so ordered.
This Court has relied upon Supreme Court and Federal Court judgments, as referred to above, which appropriately recognized the weighing up of the competing factors involved in a matter such as the present.
The Court does not demur from what it held in BUP24 in respect of the facts of this matter.
The Court finds that it ought not to proceed to adjudicate in this matter, in the interests of the due administration of justice, where it would necessarily be required to act as the mouthpiece and advocate for the applicant. It would be contrary to public policy for it to do so.
The applicant has failed to establish jurisdictional error on the part of the second respondent.
The Ground of Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Date: 6 August 2025
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