COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 145
•13 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 2
COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145
File number(s): MLG 1231 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 13 October 2021 Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Afghanistan – application for protection visa
PRACTICE AND PROCEDURE – Whether Afghanistan still exists as a country – where historical lengthy delays in listing matters filed in Melbourne Registry for hearing –– whether to adjourn proceedings – factors in relation to the grant of an adjournment
WORDS AND PHRASES – “must” – “undue” – “undue delay, expense or technicality” – “disputes”
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) rr 1.04, 1.07
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 8, 174, 190, 217
Migration Act 1958 (Cth) s 476
Cases cited: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
BHG16 v Minister for Immigration & Anor [2017] FCCA 2745
EBB17 v Minister for Immigration & Anor [2018] FCCA 48
EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10
Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020
John Holland Pty ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314
Sali v SPC Ltd & Anor (1993) 67 ALJR 841; (1993) 116 ALR 625
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 5 October 2021 Place: Perth Counsel for the Applicant: Ms K. Coffey Solicitor for the Applicant: AUM Lawyers Counsel for the First Respondent: Ms M. Richardson Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1231 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: COF17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
5 OCTOBER 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The matter be adjourned to a further directions at 10.15 am AWST / 1.15 pm AEDT on 6 December 2021.
3.Costs of today be reserved.
4.Short reasons for judgment in relation to Order 2 be published from Chambers at a later time.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 LUCEV
INTRODUCTION
This matter came before the Court for directions on 5 October 2021. Orders were made on that day, including orders that the matter be adjourned to a further directions hearing on 6 December 2021, and that short Reasons for Judgment in relation to the adjournment be published from Chambers at a later date. These are those Reasons for Judgment.
BACKGROUND PRIOR TO 5 OCTOBER 2021 DIRECTIONS HEARING
The applicant filed an application for judicial review in the Melbourne Registry of the Court on 13 June 2017 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application concerns a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down on 15 May 2017. The Authority Decision affirmed a decision of a delegate of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), not to grant the applicant a Temporary Protection (Subclass 785) visa (“Protection Visa”).
As indicated in [2] above, the Judicial Review Application was filed on 13 June 2017. The matter was then listed for a directions hearing on 24 January 2018, some seven months after filing. On 23 January 2018 consent orders were made by a Registrar of the Court vacating the 24 January 2018 directions hearing and ordering that the matter be listed for final hearing before Judge Riley on a date to be advised (“Registrar’s Orders”). There having been no such listing for final hearing by 28 September 2020, the lawyers for the applicant wrote to the Melbourne Registry of the Court indicating that pursuant to the Registrar’s Orders the matter was to be listed for final hearing, but that no further correspondence had been received from the Court, and that the applicant had asked his lawyers when the matter was likely to be listed. A Client Services Officer from the Melbourne Registry wrote back to the applicant’s lawyers the same day advising that:
(a)the Court “has not listed this matter for hearing as of writing” (which the applicant’s lawyers knew because that was the cause of their enquiry);
(b)the Court would provide a Notice of Listing once the matter was “set down accordingly” (which the applicant’s lawyers no doubt knew because that is the usual procedure); and
(c)“the Court does not provide estimates as to when matters will be set down for hearing” (and thus the applicant’s lawyers were no further advanced as a consequence of their enquiry).
On 9 March 2021 the applicant’s lawyers again forwarded to the Melbourne Registry of the Court an enquiry in the same terms as their 28 September 2020 enquiry. On the same day as the enquiry was made the applicant’s lawyers were advised by a member of the Court’s National Migration Team that:
(a)the enquiry had been noted and that “the Court will be in contact once the matter has been listed for Hearing”; and
(b)“the Registrar has advised that should the applicant seek an expedited hearing, you should seek that in writing, together with reasons”. One can only assume from this that the failure to allocate a hearing date to an applicant more than three years after the Judicial Review Application was filed is not a reason for expedition.
Nothing further occurred until early September 2021 when this matter was re-docketed to a Judge in the Perth Registry of the Court. On 6 September 2021 the matter was listed for a directions hearing on 5 October 2021 before the Court as presently constituted.
The above tale of delay is not an isolated case. As was observed Chief Judge
7At the directions hearing on 5 October 2021 the Court raised with the parties whether it was appropriate, given the above delay and the change of circumstances in the applicant’s “receiving country”, to adjourn the matter.
APPLICANT’S NATIONALITY AND CLAIMS
The applicant:
(a)was born in Afghanistan, and was accepted by the Authority (in 2017) to be a citizen of Afghanistan, but one who (prior to coming to Australia in 2012) had resided in Pakistan since he was 5 years old: Court Book (“CB”) 1, 38, 98 and 249 at [21]; and
(b)belongs to the Hazara ethnic group and is a Shia Muslim, both of which were accepted by the Authority: CB 33 and 250 at [27].
In his 2015 Protection Visa application the applicant claims to fear serious harm upon return to Afghanistan from insurgent groups, including the Taliban, on the basis of his:
(a)Hazara ethnicity;
(b)Muslim Shia faith;
(c)imputed political opinion; and
(d)membership of a particular social group, that being a returnee from the West and a failed asylum seeker: CB 99 and 245-246 at [8].
The Court observes that in EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10 at [35] and [40] per Judge Street the Court held that:
35. … The Court is satisfied that it is not reasonably open to question as a matter of common knowledge that since 16 August 2021, the Taliban has taken over Afghanistan. The Court is also satisfied that it is not reasonably open to question that the Taliban has declared the Islamic Emirate of Afghanistan. This means that the country and the receiving country, the subject of the review by the IAA, no longer exists. The receiving country is not the geographic area. The country, which is the subject of the findings by the IAA as the receiving country, included a governance and system of laws of Afghanistan that have ceased.
…
40.Given the finding that the country of Afghanistan, the subject of the findings by the IAA, no longer exists and focusing upon the reasoning of the IAA and the outcome that the applicant did not meet the protection criteria, that is clearly a decision to which no reasonable Tribunal could come to in circumstances where that country has ceased to exist. The outcome, given the cessation of the country and reviewing country of Afghanistan, the subject of the reasoning of the IAA, is accordingly so illogical and irrational and wanting in evident justification as to amount to legal unreasonableness in the exercise of the review power conferred under Part 7AA.
The Court is aware that the question of the status of Afghanistan as a country, and hence as a receiving country, is under consideration by other Judges of the Court.
SUBMISSIONS
The Court having raised the issue of an adjournment in the terms set out at [5] above:
(a)the applicant indicated that an approach had recently been made to the Minister for Ministerial intervention (seemingly subsequent to recent events in Afghanistan) and that in those circumstances the applicant did not oppose an adjournment; and
(b)the Minister indicated that any proposed adjournment was not objected to.
ADJOURNMENT – FACTORS
With the coming into operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) (“GFL Rules”) there have been changes to the legislative objects and practice and procedure requirements for the Court now prescribed by s 8(2) of the FCFCOA Act as the “Federal Circuit and Family Court of Australia (Division 2)”. Those changes alter the nature of the factors for consideration when deciding whether to adjourn proceedings, as compared to the factors formerly considered in general federal law matters by the then Federal Circuit Court of Australia: as to which see, for example, EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [14]-[20] per Judge Lucev and BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.
The FCFCOA Act provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
190 Overarching purpose of civil practice and procedure provisions
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2:The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
The FCFCOA Act provides that the practice and procedure of Division 2 of the Court is to be in accordance with, relevantly, the Rules of Court: FCFCOA Act, s 174(1)(a). The relevant Rules of Court are the Rules of Court made under Ch 4 of the FCFCOA Act (and specifically s 217 of the FCFCOA Act): FCFCOA Act, s 7(1), and are the GFL Rules, which provide:
(a)in r 1.04(1) that the overarching purpose of the GFL Rules is “as provided in section 190 of the … [FCFCOA Act], … to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”; and
(b)in r 1.04(2) that the parties “must” (in the chapeau to the sub-rule) “avoid undue delay, expense and technicality” (in para (a)).
As to the use of “must” in r 1.04(2) of the GFL Rules, it was recently observed in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020 at [24] per Judge Lucev that:
The chapeau to reg 5.19(2) of the Migration Regulations provides that “[t]he application must”. The use of “must” is indicative of an imperative command: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”), in this case, a positive command, expressing necessity in the sense of an obligation to fulfil the requirements set out in the paragraphs (a), (aa) and (b) to reg 5.19(2) of the Migration Regulations: Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444; CLR at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J; Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J.
Likewise in this case the use of “must” in the chapeau to r 1.04(2) of the GFL Rules imposes a mandatory requirement to fulfil the requirements in para (a) of that sub-rule, subject to any contrary legislative requirement and the Court’s power to dispense with compliance with the GFL Rules: GFL Rules, r 1.07(1).
The word “undue” carries with it both “a quantitative connotation – in the sense of going beyond what is warranted, or excessive – or a qualitative connotation – in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable”: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 at [58] per Jessup J. In r 1.04(2)(a) of the GFL Rules it would appear that “undue” is used primarily in the former sense, that is, that which gives rise to unwarranted or excessive delay, expense or technicality, although in relation to technicality it might be used in both senses in an appropriate case.
It follows from the above that the factors for consideration in relation to whether to grant an adjournment are whether an adjournment might:
(a)facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and
(b)avoid undue delay, expense and technicality.
It might be perceived as unfortunate from a case management perspective to further delay the listing of this matter for final hearing in circumstances where there has already been a significant delay within the Melbourne Registry in listing the matter for hearing as discussed at [3]-[4] above. That delay must, however, be balanced against a number of other factors including:
(a)that an adjournment might facilitate a resolution of the matter by way of Ministerial intervention resulting in the grant of the Protection Visa. The Court notes that it would appear from the oral submissions of the applicant that steps towards that end have already been undertaken by the applicant following recent events in Afghanistan. The Court is of the view that it would be inefficient for the Court to hear and determine the present case if the recent change of circumstances in Afghanistan might render it unnecessary to do so. The Court notes, however, that the exercise of Ministerial discretion is entirely a matter for the Minister, and not something to be determined or influenced by the Court;
(b)if Ministerial intervention were to result in the grant of a Protection Visa to the applicant, that the “dispute” would still be resolved:
(i)according to law;
(ii)likely with less delay than if the matter were to be listed for final hearing in the first half of 2022, either now or even following a short approximately two-month adjournment to a further directions hearing; and
(iii)less expensively, more efficiently and with less technicality than would be the case if the matter were to be fully argued case in this Court with both the applicant and Minister legally represented;
(c)that a delay may facilitate further development of the law with respect to the question of whether Afghanistan is a country, for the purpose of being the receiving country, which might allow that issue to be resolved, or at least dealt with at final hearing more efficiently and with less expense to the parties; and
(d)that any delay would not be undue if the directions hearing were to be adjourned for about two months, either of itself in the present circumstances relating to Afghanistan and possible Ministerial intervention, or in the broader context of the Melbourne Registry delays already experienced: see [3]-[4] above.
In terms of the overarching purpose of the civil practice and procedure provisions in s 190 of the FCFCOA Act, the Court also notes that it relates to the “just resolution of disputes”. The use of the plural “disputes” as opposed to the singular “dispute” is important. That is because the use of the plural “disputes” allows the Court to give consideration to the possible impact of a proposed course of action on other matters pending before the Court, and not just the “dispute” the subject of the matter immediately before it for hearing. Thus the Court may have regard, as it traditionally would have: Sali v SPC Ltd & Anor (1993) 67 ALJR 841; (1993) 116 ALR 625; ALJR at 843-844 per Brennan, Deane and McHugh JJ and 849 per Toohey and Gaudron JJ; AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, to the possible effect on other litigants who might be denied a final hearing date if this matter were to be listed for final hearing now, and which final hearing might then have to be vacated if Ministerial intervention resulted in the grant of a Protection Visa. That is a particularly cogent consideration when regard is had to the number of migration judicial review applications in the Melbourne Registry not presently allocated to a Judge of the Court for hearing: see [4] above, many of which were filed upwards of four years ago.
Finally, the Court notes that there appears to be no, or at least very limited, prejudice to the Minister if the matter is adjourned, and indeed, the Minister did not object to any adjournment.
On the above bases, the Court is satisfied that a short adjournment of about two months now might provide sufficient time to facilitate the just resolution of this dispute according to law as quickly, inexpensively and efficiently as is possible in all the circumstances: FCFCOA Act, s 190(1).
CONCLUSION AND ORDERS
The Court concluded that the matter ought to be adjourned to a directions hearing on 6 December 2021, and made orders (on 5 October 2021) in the following terms:
(a)the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”;
(b)the matter be adjourned to a further directions at 10.15 am AWST / 1.15 pm AEDT on 6 December 2021;
(c)costs of today be reserved; and
(d)short Reasons for Judgment in relation to Order 2 be published from Chambers at a later time.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 13 October 2021
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