CPF15 and Ors v Minister for Immigration and Anor (No.3) - [2018] FCCA 1164

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPF15 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.3)

[2018] FCCA 1164

Catchwords:
PRACTICE AND PROCEDURE – Adjournment application – whether an adjournment is warranted in the interests of the administration of justice – application for an adjournment dismissed.

First Applicant:

CPF15

Second Applicant:

CPG15

Third Applicant:

CPH15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3293 of 2015

Judgment of:

Judge Street

Hearing date:

9 May 2018

Date of Last Submission:

9 May 2018

Delivered at:

Sydney

Delivered on:

9 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr J Young

Solicitors for the Applicant:

G&S Law

Counsel for the Respondents:

Ms N Laing

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application for an adjournment under ground 2 of the application in a case is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3293 of 2015

CPF15

First Applicant

CPG15

Second Applicant

CPH15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Court is hearing an application for an adjournment sought by order 2 of an application in a case supported by an affidavit filed on behalf of the applicants. The affidavit refers to an appeal from this Court to the Federal Court of Australia that was allowed. That appeal was heard on 23 November 2017. The last submissions were provided on 13 December 2017 and orders were made allowing the appeal on 16 March 2018.
The first applicant alleged that she has incurred costs in the sum of $18,000.00 and makes reference to her limited income which, taking into account the combined amount earned by her and her husband after tax and the school fees together with food and rent, does not identify any net saving that the first applicant and her husband are able to make on the face of the evidence before the Court. The first applicant alleges that she would need three to four months to resolve the costs dispute with the first respondent and save money to be able to have representation at the substantive hearing.
Given the outgoings that the first applicant has identified and limited income, there is no evidence to support the proposition that the first applicant would be able to save funds in that period of time to be able to meet future costs in respect of lawyers. The future costs are not identified in a quantified way and the matters referred to in respect of the hearing in the costs dispute relate to the past costs.
The first applicant refers to a desire to put on evidence in relation to the transcript of the proceedings once she has funds to have that evidence prepared.
The three grounds in the current application are as follows:
1. The Second Respondent took into account irrelevant considerations at paragraph 24 of the decision.
Particulars
a) The Second Respondent states that the Applicant " ... applied for the visa in an effort to secure her child's future and achieve a migration outcome for her family"
b) The Second Respondent took a negative inference from this. However all genuine Refugees and persons desperately needing protection from persecution and harm have the goal of securing the future of their children and achieving a migration outcome for their families.
2. The Second Respondent made jurisdictional error as it relied on an incorrect interpretation and application of the relevant law.
Particulars
a) The Second Respondent states at paragraph 25 that it is " ... not satisfied that the applicant has a well-founded fear of persecution in Nepal, now or in the reasonably foreseeable future, arising essentially and significantly for one or more of the five Convention reasons ... "
b) The requirement that the Second Respondent assess the Applicant under Section 36 (2)(a) under the definition of Refugee does not require an analysis of whether the harm is 'now or in the reasonably foreseeable future.
c) The Second Respondent has mixed the test for 36(2)(a) and 36 (2)(aa) by assessing whether the Applicant meets the Refugee Criteria 'now, or in the reasonably foreseeable future' .
3. The Second Respondent failed to consider relevant considerations while assessing whether the Applicant's meet the Complementary Criteria, namely the harm that will be faced by the Third Applicant child, who was born in Australia, if they were to return to Nepal.
None of those grounds identify any basis upon which it could be said that the transcript was relevant to the grounds currently identified. Further, it is apparent from the orders made on 11 February 2016 that the applicants were given an opportunity to file a transcript together with affidavit evidence on or before 17 March 2016.
I am not satisfied on the basis of the evidence in the first applicant’s affidavit that the applicant is likely to be able to obtain funds to meet future representation and/or to pay the cost of the transcript in circumstances where these proceedings were commenced on 3 December 2015 and no such step has been taken by the applicants to date. The identification of the desire to put on the transcript without any identified relevant ground to which it could go is of further concern.
The Court is entitled to take into account in the adjournment application the merits of the applicant’s substantive application. In that regard, the first ground identifies a proposition of taking into account irrelevant considerations being a reference by the Tribunal to the application for the visa being to secure the third applicant’s future. That was an observation made by the Tribunal in the course of its reasons in relation to the assessment of the first applicant’s credit. In respect of the motivation of the first applicant it is not immediately apparent why that would be an irrelevant consideration. The Court still has an open mind in relation to ground 1(a) but on its face it does not reflect a strong meritorious ground.
Ground 1(b) refers to a negative inference from this and that the applicants contend that they were genuine refugees. Ground 1(b) assumes that the Tribunal was not entitled to take into account the finding that is referred to in ground 1(a). That appears to be an argument facing some difficulty and again on the merits, whilst the Court has not got a closed mind in relation to ground 1, it does not identify a strong ground on the merits.
Turning to ground 2, 2(a) is an alleged error in relation to the application of the relevant law. A well‑founded fear of persecution requires the Tribunal to consider the reasonably foreseeable future. On the face of 2(a) it is also a particular in support of alleged error but does not reflect a strong ground of error. Whilst the Court remains open minded in relation to the determination of the matter on its merits, ground 2(a) cannot be said to be a strong ground.
Ground 2(b) flows from ground 2(a) and on one view 2(b) flows from 2(a) in which it is said that the Tribunal was not required to assess the reasonably foreseeable future in relation to the well‑founded fear of persecution. For reasons already given, that is an argument that faces difficulties and is not one that has substantive merit. Whilst the Court remains open minded in relation to the determination of the matter on its merits, grounds 2(a) and 2(b) do not identify a strong ground of jurisdictional error.
Ground 2(c) suggests that the Tribunal had mixed the tests in relation to refugee status and complementary protection. Both the assessment of the applicant’s well‑founded fear and the criteria for complementary protection requires the Tribunal to assess the reasonably foreseeable future. Again, whilst the Court remains open minded, ground 2(c) does not identify a ground on the merits that has a strong prospect of success.
Ground 3 asserts that there was a failure to consider the harm that may be faced by the third applicant child. The Tribunal’s reasons expressly refer to the claim in that regard and take the same into account. In those circumstances, ground 3 is a ground that is not on the merits a strong ground and whilst the Court maintains an open mind reasonably capable of persuasion as to the merits, ground 3 is not a strong ground of jurisdictional error.
Mr Young of counsel has indicated that the dispute in relation to legal costs is a dispute that should be taken into account in determining whether or not to grant an adjournment. In that regard, it appears that a payment has been made by the first respondent to the applicants’ solicitors reflecting part of the costs incurred in the hearing before the learned Flick J and the subject of his order 3. It is apparent that that payment has been accepted in partial satisfaction of the costs order on the correspondence that has been tendered before the Court. Mr Young says that further funds might be obtained and maintains that he is not in a position today to address the substantive merits of the application.
Mr Young suggests that the long history of the matter and the bringing forward of this matter for hearing were too quick and that an adjournment should be granted. The order fixing this matter for hearing was made almost a month after the decision of the learned Flick J. The fixing of the matter for hearing reflected almost a further month.
These proceedings were commenced on 3 December 2015 and the Court has summarised the history in relation to the orders of the Court which orders included an order for liberty to apply. The Court is not satisfied that the costs dispute of itself justifies an adjournment. Further those costs are past costs.
No quantification in respect of future costs have been provided and no reasonable basis upon which the first applicant could earn income to pay those future costs has been identified. Further, the first applicant has had ample time and opportunity to present other or different grounds in support of the desire to put on the transcript. Whilst it is the case, as Mr Young correctly identifies, that lawyers are not required to provide their services for free, the originating application was an application filed by the applicants.
There are certain standards under the Migration Act 1958 (Cth) that reflect the advancing of grounds by legal representatives. Legal representatives are not entitled to advance a ground that has no reasonable prospect of success. To do so engages a potential cost consequence. These proceedings were not commenced by lawyers. Whilst the applicants have had the benefit of legal representation in relation to the appeal, the absence of pro bono services in relation to the preparation of an alleged ground of error is not a matter that assists the applicant in justifying why an adjournment should be granted in respect of these proceedings having been fixed for hearing. I am not satisfied in the circumstances that the interests of the administration of justice warrant an adjournment of the proceedings.
The application for an adjournment is refused.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 May 2018