Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 735

FEDERAL CIRCUIT COURT OF AUSTRALIA

Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 735

File number(s):	BRG 993 of 2019
Judgment of:	JUDGE EGAN
Date of judgment:	13 April 2021
Catchwords:	MIGRATION – Practice and Procedure – Failure by lawyers for the applicant to give advance notice to the lawyers for the first respondent of which parts of an audio file of the Tribunal hearing were to be relied upon in support of submissions that the Tribunal member was biased – procedural fairness to be afforded by applicant – matter adjourned for preparation of a table – costs reserved.
Number of paragraphs:	10
Date of last submission/s:	13 April 2021
Date of hearing:	13 April 2021
Place:	Brisbane
Counsel for the Applicant:	Ms Costello QC
Solicitor for the Applicant:	Dagama Pereira & Associates
Counsel for the First Respondent:	Mr Johnson
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

BRG 993 of 2019

BETWEEN:

WEIJIANG CHEN

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	13 APRIL 2021

IT IS ORDERED THAT:

1.The further hearing of the matter be adjourned to 9.45am on 27 May 2021.

2.The lawyers for the Applicant and the First Respondent are to prepare a table, to be forwarded to Judge’s Chambers by 4.00pm on 27 April 2021, which identifies:

(a)the parts of the audio file which will be submitted by the Applicant demonstrate bias on the part of the Tribunal;

(b)the corresponding parts of the transcript which will be submitted by the Applicant demonstrate bias on the part of the Tribunal;

(c)the nature of the Applicant’s complaints about the conduct of the Tribunal member by reference to the identified parts of the audio file and the transcript; and

(d)the First Respondent’s response to such identified complaints.

3.The First Respondent shall file and serve a further consolidated set of written submissions by 4.00pm on 4 May 2021.

4.The Applicant have leave, if so advised, to file and serve any consolidated set of submissions, including any response to the First Respondent’s consolidated set of submissions, by 4.00pm on 11 May 2021.

5.Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.

6.The costs of today’s hearing be reserved.

EX-TEMPORE REASONS FOR JUDGMENT

JUDGE EGAN:

1. This matter came before the Court today in circumstances where, on 31 March 2021, the Court had made orders for the filing and service of a Further Amended Application for Review, and the filing and service of consolidated sets of written submissions.  Also on that day, the Court made an order that each party have liberty to apply on the giving of two (2) days’ notice, each to the other.

2. The application before the Court involves a claim that the Tribunal member was biased, and that this Court ought to find that the Tribunal member might not have brought an open mind to the performance of its statutory task.

3. In support of the applicant’s claims, the applicant relied upon an affidavit of the applicant filed on 9 March 2020, which affidavit relevantly had annexed to it a transcript of the Administrative Appeals Tribunal (‘the Tribunal’) hearing.

4. At the commencement of the hearing before the Court today, Senior Counsel for the applicant advised the Court that an audio file of the Tribunal hearing had been forwarded to Judge’s chambers this morning, and that she intended to tender that audio file for the purpose of making submissions about that file. It was submitted that such file, being in an audio form, was different to the written transcript.

5. The audio file is clearly, and obviously, different from the transcript.  What has troubled the Court about the way in which it was submitted, on behalf of the applicant, that the hearing should proceed, was that in the written submissions filed on behalf of the applicant, particular parts of the transcript had been identified as the basis for submissions that those parts were representative of conduct on the part of the Tribunal member which were evidence of bias.  However, in respect of the audio file, no such identification has been provided, either to the Court, or to those representing the first respondent.

6. There has been more than a year since the filing of the affidavit annexing the transcript. The applicant has had more than sufficient time within which the applicant could have sought to file an affidavit which relevantly annexed the audio file of the hearing before such Tribunal, and which also identified those parts of the audio file which the applicant intended to rely upon.  The applicant has failed to do so.

7. This Court is not prepared to proceed with a hearing today in circumstances where the first respondent has not been given the opportunity to assess the audio evidence now marked as Exhibit 2 before the Court. Counsel for the First Respondent is unaware of the particular parts of such audio evidence which are asserted to be of significance by the applicant. 

8. It is one thing for the applicant, by Senior Counsel, to submit that the first respondent will not be disadvantaged because the first respondent’s Counsel has already listened to the audio file, but it is quite another thing for it to be expected that the first respondent’s Counsel will be readily able to respond, on his feet and on the run, to such submissions, when he does not know either what submissions are going to be made about the audio file, or as to what part of the audio file those submissions relate. It would be unfair to require him to do so.

9. In such circumstances, this Court is unprepared to entertain a hearing of the matter today.  I will ask the parties as to what orders they might consider appropriate for the filing of a schedule or table which would identify the parts of the audio file which will be the subject of submissions, and as to the broad content of such submissions in relation to such parts.

10. It is so ordered.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       14 April 2021