CQV22 v Minister for Immigration, Citizenship, and Multicultural Affairs
[2023] FedCFamC2G 598
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CQV22 v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FedCFamC2G 598
File number(s): BRG 316 of 2022 Judgment of: JUDGE EGAN Date of judgment: 7 July 2023 Catchwords: MIGRATION LAW – Application for protection visa – review of the decision of the Administrative Appeals Tribunal - where decision was made in the absence of the applicant who failed to appear before Tribunal to give evidence and make submissions – where grounds of review were un-particularised – where the Court was unable to carry out a proper hearing because of the lack of particularity in the grounds of review – where an adjournment was inappropriate – no jurisdictional error established in any event – application for review dismissed. Legislation: Migration Act 1958 (Cth) s. 65 Cases cited: ANA18 v Minister for Home Affairs [2018] FCA 1854.
BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
BYM16 v Minister for Immigration and Border Protection [2018] FCA 326.
CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132.
CNN15 v Minister for Immigration and Border Protection [2017] FCA 579.
DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240.
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784.
DUN16 and DUO16 v Minister for Immigration and Anor [2019] FCCA 259
FGG19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 159.
GSQ18 v Minister for Home Affairs [2019] FCA 2057 CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179.
Hamod v New South Wales [2011] NSWCA 375.
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 92.
MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
SZRKF v Minister for Immigration [2020] FCA 1389.
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 3 July 2023 Date of hearing: 3 July 2023 Place: Brisbane Applicant: Self-represented litigant Solicitor for the First Respondent: Minter Ellison Second Respondent: Submitting appearance save as to costs
Table of Corrections 1 September 2023 The date of Order has been changed from 6 July 2023 to 7 July 2023. 1 September 2023 Order 1 had been changed to properly reflect the filing date of the Originating Application for Review to being 26 July 2022. ORDERS
BRG 316 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CVQ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
7 JULY 2023
IT IS ORDERED THAT:
1.The Application for Review filed on 26 July
20232022 be dismissed.2.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,900.00
AND IT IS NOTED THAT:
A.These Orders have been amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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
INTRODUCTION
The applicant is an ethnic Chinese Malaysian who arrived at the Coolangatta Airport in Australia as the holder of a Visitor Visa on 19 April 2015.
The applicant applied for a Protection Visa on 10 January 2017, his having been an unlawful non-citizen from around mid-July 2015 until the time of his visa application – a period of some 18 months.
A delegate of the Minister refused to grant the applicant a protection visa under s. 65 of the Migration Act 1958 (Cth) (‘the Act) on 10 March 2017. After the Administrative Appeals Tribunal (‘the Tribunal’) found that it had no jurisdiction to review the delegate’s primary decision, an application for review of that refusal decision was granted by the then Federal Circuit Court of Australia, and remitted to the Tribunal for review according to law.
When the matter came before a differently constituted Tribunal, the relevant course of events concerning the Tribunal’s having re-affirmed the decision of the delegate on 22 June 2022 was as set out in [4] – [6] of its reasons as follows:
[4]The Tribunal (as presently constituted) initially scheduled a review hearing in Brisbane on 10 June 2022. However, at 6:15am on the morning of the hearing, the applicant wrote to the Tribunal to advise he had COVID like symptoms and asked for the hearing to be rescheduled. On that day, the Tribunal Registry staff made several attempts to call the mobile telephone of the applicant, however the Tribunal's number appears to have been blocked on it. For completeness, the Tribunal also notes that various other calls from the Registry staff to the applicant also appear to have been blocked by his mobile telephone, as have SMS hearing reminders.
[5]On 14 June 2022, the Tribunal invited the applicant to attend a rescheduled hearing by video means on 17 June 2022. This invitation noted that medical evidence would be required if a further postponement was sought due to reasons of illness. The Tribunal is satisfied that this invitation was properly despatched to the applicant's email address, noting no automated error message has been received and the applicant has used that email address in previous correspondence. On 17 June 2022, the applicant did not attend the scheduled review hearing by video link. Furthermore, the Tribunal Registry staff made several attempts to call the applicant that day, however his mobile telephone appears to have blocked those calls.
[6]On balance, the Tribunal is satisfied the applicant was notified of the rescheduled review hearing by its relevant correspondence and accordingly that he was invited to appear in accordance with the statutory requirements. Of note, the applicant has not furnished any medical evidence regarding his purported illness at the time of this decision, nor has he responded to the most recent correspondence of the Tribunal. In these circumstances, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal at the time of this decision.
On 26 July 2022, the applicant filed an Application for Review of the decision of the Tribunal as reconstituted.
On 14 October 2022, Registrar Carney made the following orders:
1.The matter be listed for final hearing on a date to be advised.
2.No later than two weeks from the date of these orders, the first respondent file one copy of a bundle of relevant documents (court book) in electronic form and for that purpose, the court book:
2.1 be in portable document format (pdf);
2.2 be capable of being searchable for specified text;
2.3 have an index and be paginated;
2.4 have each entry in the index bookmarked; and
2.5 be set so that when opened:
2.5.1 it displays at 100% zoom; and
2.5.2 the bookmarks menu is displayed.
3. No later than two weeks from the date of these orders, the first respondent serve:
3.1.one copy of the court book in electronic form, where the applicant has provided an email address for service; and
3.2. one copy of the court book in paper form.
4. If the Court requests that the first respondent file a copy of the court book in paper form, one such copy must be filed no earlier than eight weeks, and no later than six weeks, prior to the hearing.
5. The applicant file and serve the following at least 28 days before the hearing:
5.1. written submissions;
5.2.any amended application with proper particulars of the grounds of the application; and
5.3.any additional evidence on which the applicant seeks to rely.
6.The first respondent file and serve the following at least 14 days before the hearing:
6.1.written submissions; and
6.2.any additional evidence on which the first respondent seeks to rely.
7.Where the applicant is self-represented, the first respondent file and serve, at least 7 days before the hearing, an affidavit of service of:
7.1. the court book;
7.2. the first respondent’s written submissions; and
7.3. any additional evidence filed by the first respondent.
8.The parties have liberty to apply to vary these orders by email to [email protected].
On 4 April 2023, Registrar Carney made further orders as follows:
THE COURT ORERS THAT:
1.The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.
2.The application be listed for Final Hearing at 9:45 am on 3 July 2023 before Judge Egan.
THE COURT NOTES THAT:
3.The applicant confirmed he has received a paper copy of the Court Book.
The first respondent relevantly complied with orders made by the Registrar. The applicant did not comply in any respect.
At the time of the filing of the Application for Review, the applicant had filed an affidavit which annexed the decision record of the Tribunal. Otherwise, the applicant also deposed as follows:
(1)I experienced harm in Malaysia because of my race.
(2)I reported to police but they did not assist me.
(3)I feared to be harmed so I fled to Australia.
Grounds of Review
At the time of the hearing before the Court, the grounds of review relied upon by the applicant were as follows:
Tribunal did not properly and fairly consider my claims.
1.Tribunal considered irrelevant issues.
2.Tribunal referred to inaccurate information, which caused it to make wrong findings.
When the Applicant appeared before the Court at the hearing of his Application for Review, he was asked by the Court as to whether he would like to make any further submissions. Through an interpreter, he replied “No”.
In DQQ17 v Minister for Immigration and Border Protection[2018] FCA 784 (DQQ17), Colvin J at [8] – [10] inclusive held as follows:
[8] The consequences of a failure to particularise a ground will depend upon the circumstances. Where a legally represented party has been afforded an opportunity to remedy the failure to comply then it is to be expected that the ground would be dismissed for failure to comply with the Rules and without any consideration as to whether there may be underlying merit.
[9] However, it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister’s discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.
[10] Further, in these cases, a submission by counsel appearing for the Minister that a decision under appeal is not attended with any doubt, or sufficient doubt or error must reflect the independent judgment of counsel after considering all of the materials in performance of counsel’s paramount duty to the Court. It is not to be based upon the lack of particularisation of grounds by an appellant who is appearing in person.
(My emphasis.)
In Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] inclusive, Beazley JA (with whom Giles and Whealy JJ 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] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (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] FCA 85; (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.
Similar views as expressed by the Court of Appeal in Hamod have been expressed by Judges of the Federal Court when dealing with un-particularised grounds of appeal/review made by unrepresented litigants. [1]
[1] CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20] – [22] per Gilmour J; BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12] – [13] per Bromwich J; CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] per Perry J; ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] per Derrington J; DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240 at [37] per Flick J; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20] and [24] per Reeves J; GSQ18 v Minister for Home Affairs [2019] FCA 2057 at [14] per Lee J; CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179 [23] – [26] per Farrell J; SZRKF v Minister for Immigration [2020] FCA 1389 at [22] per Farrell J.
This court does not want to compromise the integrity of proceedings before it by being seen to act as the applicant’s advocate, and thereby blurring the lines between conducting a fair hearing and unduly being seen to favour one party over another. This Court has consistently adopted that approach. [2]
[2] DUN16 and DUO16 v Minister for Immigration and Anor [2019] FCCA 259 at [4] – [9]; Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 92; FGG19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 159.
In this matter, the applicant failed to abide by orders of a Court Registrar. The applicant indicated that he did not wish to make any submissions on his own behalf. The Court considered that there was no utility in adjourning the matter in the faint hope that the applicant would produce relevant written submissions, or otherwise file an amended application for review with duly particularised grounds of review. The Court was of the view that the applicant had been afforded the opportunity to properly put all relevant material in support of his application for review, but that he had failed to do so.
As to the Court’s view that any adjournment of the matter would have no utility, the Court adopts what was said in MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 at [10] – [12] inclusive per Logan J, which was as follows:
[10]Whether or not to adjourn the hearing of the appeal calls for the exercise of a discretion. It is not only the medical evidence, such as it is, which is relevant in that regard. The Full Court’s judgment in Luck at [43] – [46] offers a reminder of this in the references by the Full Court to wider considerations which attend the question of whether or not any adjournment should be granted. These are no new subjects but they are worth repeating.
[11]Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited[1993] HCA 47; (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a court is entitled to be conscious of:
... the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court, as well as the interests of the parties.
[12]Luck also offers a reminder in the reference at [44], [45] and [46] to Aon Risk Services Australia Ltd v Australian National University[2009] HCA 27; (2009) 239 CLR 175 that, quite apart from having to the consumption of public resources, a costs order is not necessarily palliative.
The applicant’s grounds of review were so lacking in particularity as to prevent the Court from conducting a proper hearing. The applicant failed to act in a reasonable manner in the presentation of his claims. An adjournment of the matter so as to enable the applicant to properly particularise his claims and file written submissions in support of such claims would most likely only result in valuable Court time being lost to the detriment of other compliant litigants.
The high-level of generality in the grounds of review was unacceptable, and for that reason alone, the application for review filed on behalf of the applicant is dismissed.
In any event, and alternatively, the Court’s review of the decision of the Tribunal did not disclose any obvious error in the way in which the Tribunal arrived at its decision. The Court closely considered the bases upon which the Tribunal had arrived at its decision. In doing so, the Court had regard to what was held by McKerracher J in COS16 v Minister for Immigration, Citizenshiup, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] where it was said:
[20]It is well-established that it is not the role of the Court to examine the reasons of the primary judge in detail in order to identify potential grounds of appeal: see, for example, BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J (at [10]). However, in the case of an unrepresented appellant, it is preferable for the Court to review the reasons under consideration and to determine whether there is any self-evident error as to the manner in which the Court or Tribunal has resolved the grounds of review previously advanced and which it would appear are sought to be re-agitated on appeal: see BGZ15 (at [11]). However, such an examination for an obvious error may fall well short of the Court parsing and analysing an administrative decision with a view to identifying a potential argument as to jurisdictional error. In the absence of self-evident error, there is no duty or function of the Court to articulate a question of law or to identify an error.
The Tribunal correctly identified the relevant criteria for protection and complimentary protection under ss. 36(2)(a) and 36(2)(aa) of the Act, and what relevantly constituted a refugee having a well-founded fear of persecution respectively under ss. 5H(1)(a) and 5J(1) of the Act at [8] – [16] of its reasons.
The Tribunal recorded the applicant’s claims for protection at [22] of its reasons as follows:
[22]The applicant's claims for protection may be summarised as follows. He was threatened, beaten and had a pistol put to his head by ethnic Malays who wanted him to depart Malaysia because he is an ethnic Chinese Malaysian. Ethnic Malays followed him when he tried to relocate and threatened him. The applicant contends these racist ethnic Malays want him and other Chinese Malays to depart the country. He also contends he made a Police report, however they were too lazy to assist him and would not do so anyway because most of them are ethnic Malays.
At [23] – [27] of its reasons, the Tribunal carefully considered the claims before it, as well as relevant DEFAT country information. Having done so, the Tribunal was not satisfied that there was any real chance of the applicant suffering serious or significant harm on the basis of his ethnicity should he be returned to Malaysia. The Tribunal further found that the applicant did not have a well-founded fear of persecution for any one of the reasons as set out under s. 5J(1)(a) of the Act.
The Court finds that it cannot be said that no other rational or logical decision maker could not have arrived at the same conclusion as the Tribunal. [3] The decision of the Tribunal could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
[66]This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76]As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
[3] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 5 September 2023
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