CUU15 v Minister for Immigration
[2016] FCCA 1886
•28 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUU15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1886 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – extension of time – whether the applicants should be granted leave for separate representation – whether the applicants have a reasonable explanation for delay – whether the Tribunal’s decision was unjust or unreasonable – whether the Tribunal denied the second applicant procedural fairness – whether the Tribunal failed to consider an integer of the second applicant’s claim – whether the Tribunal failed to provide an opportunity for the second applicant to appear – no jurisdictional error identified – application for extension of time dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 422B, 424A, 425(2)(b), 476, 477 |
| Cases cited: Spencer v Commonwealth of Australia (2010) 241 CLR 118 |
| First Applicant: | CUU15 |
| Second Applicant: | CUV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3516 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 22 July 2016 |
| Date of Last Submission: | 22 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2016 |
REPRESENTATION
| Counsel for the Applicants: | Mr A Searle & Mr S Lawrence |
| Counsel for the First Respondent: | Mr D Hughes |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application for an extension of time by the first applicant is dismissed.
The application for an extension of time by the second applicant is dismissed.
The applicants pay the costs of the first respondent fixed in the amount of $9,000.00.
The application for leave for the second applicant to be separately represented is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3516 of 2015
| CUU15 |
First Applicant
| CUV15 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 29 October 2014 affirming the decision of the delegate not to grant the applicants Protection (Class XA) visas. The applicant and her son were found to be citizens of Lebanon who arrived in Australia on 26 March 2013 as the holders of a Sponsored Family Visitor visa granted on 21 February 2013. The application for protection was lodged on 13 June 2013 at which time the second applicant was still a child.
The first applicant is a practising Sunni Muslim, and claimed to fear harm from radical Islamists who she claimed had targeted her family because of her husband’s political activities in trying to dissuade young men in their village from fighting in Syria and Tripoli against the Alawites. The first applicant claimed the Islamists had threatened to harm all members of her family and that two weeks after she arrived in Australia she was told her house was attacked and severely damaged by Islamists and that her husband was in hiding.
At her interview with the delegate the first applicant alleged that a house, at another location, of the first applicant’s was attacked by Islamists two weeks after she left Lebanon which caused her husband to go into hiding. The first applicant also alleged that one and a half years before she left when the war began in Syria the Islamists began to hassle her husband because of his attempts to dissuade young men to join the fight. The harassment escalated over time until one month prior to her departure they slashed the tyres of the family car in a particular location, fired bullets into their home at this particular location, and at her husband, and burned down her house in that location, which caused her to leave that particular location.
The first applicant alleges that she moved to another place and the same people targeted them and two weeks after her departure they attacked the family car. The first applicant also raised a claim of feared harm in relation to the second applicant being required to join an armed military group, and gave evidence that the second applicant did not want to do so. The first applicant provided at the time of the application for protection a statement which relevantly said that she and her husband remained fearful for the safety and wellbeing of their youngest child, who was then 16, and feared that radicals would influence him and he may be forced to join the militants in Syria or fight in Tripoli.
Before the delegate the applicants were represented by a migration agent, Mr Sam Issa of Firmstone and Associates. The delegate noted that the first applicant travelled to Australia on 25 November 2004 holding a tourist TR 676 visa granted on 19 November 2004 which remained in force until 23 February 2005, and that the first applicant departed Australia on that date.
The first applicant lodged a Sponsored Family Visitor visa application on 29 October 2012, which was found to be invalid on 1 November 2012. The first applicant was then granted subsequently a UL 679 visa on 21 February 2013, which remained in effect until 26 June 2013. The first applicant entered Australia on 26 March 2013. It was not until 16 June 2013 that the first applicant lodged the protection application for herself and her son.
The delegate expressed credibility concerns in relation to the applicants’ claims, and was not satisfied that the applicants had a real chance of persecution for Refugees Convention reason, and was not satisfied the applicants’ fears were well founded. The delegate found that it was not satisfied there were substantial grounds for believing as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that the applicants would be the subject of significant harm. It was for those reasons that the delegate refused the grant of a visa on 20 February 2014.
The applicants, with assistance of their migration representative, lodged an application for review on 3 March 2014. That application identified, again, Mr Sam Issa of Firmstone and Associates as the migration representative for the applicants. Thereafter the Tribunal corresponded with the applicant’s migration representative, addressing letters to both the mother and son. Relevantly on 14 July 2014 the Tribunal invited both applicants to appear before the Tribunal on 25 August 2014 to give evidence and present arguments. The first applicant appeared on that date to give evidence and present arguments, together with her migration representative, and the second applicant, who was a minor, did not appear on that date.
The RRT hearing record identifies that the hearing on 25 August 2014 occupied approximately an hour and a half, and that the hearing had been adjourned to another day for a date to be fixed.
The parties agreed that the following exchange took place during the hearing:
Member: Now You indicated in your application or the response to the hearing that your son would come but he is not here, is there any reason he is not here?
Merheb: He had the flu that’s why.
Member: Alright, I note that he has not made any claims himself
Merheb: Mm
Merheb: I didn’t know that I had to bring him as he was unwell
Member: Well you don’t have to bring him, it’s just that if he wanted the opportunity to present any claims about fears of returning to Lebanon he had that opportunity today.
Merheb: I didn’t have that in mind.
Member: Do you want to say anything about that Mr Issa?
Issa: He has no claims, he has no claims, like you say.
Member: Now I also note that you have your nephew here in the hearing room…
On 26 August 2014 the Tribunal invited both applicants to attend a hearing on 3 September 2014. In response to that invitation the applicants’ migration agent completed a form indicating that the first applicant wished to attend to take part in the resumed hearing, but that second applicant did not.
On 3 September 2014 a further adjournment was sought, and the Tribunal on that date sent another letter to both applicants inviting them to attend a hearing on 17 September 2014. A response to the hearing invitation was sent to the Tribunal indicating that only the first applicant proposed to attend. On 9 September 2014 a further communication was sent by the Tribunal to both applicants inviting their comment on information going to the credibility of the first applicant, and identifying a combination of inconsistencies in the first applicant’s evidence.
On 17 September 2014 the applicants’ migration representative conveyed that the first applicant was not well, and requested another seven days to enable the applicant to respond to the letter. On 17 September 2014 a file note also notes contact from the migration agent that the applicant is not seeking a further date for hearing at the Tribunal because she does not feel well enough to attend, and requesting that any further issues be raised under s.424A of the Migration Act 1958, so that they could be addressed.
On 17 September 2014, consistent with that request, a further letter was sent to both applicants identifying, consistent with s.424A of the Migration Act 1958, inconsistencies in relation to the first applicant’s evidence and inviting a response. On 19 September 2014 the applicants’ representative was informed that a response was required to the letter by 1 October 2014, and the case note identifies a telephone request for confirmation whether the applicant was seeking a further opportunity to appear before the Tribunal.
On 1 October 2014 the applicants’ migration representative sent a response to the alleged inconsistencies taking issue with the alleged inconsistencies and that the first applicant’s evidence was consistent with severe memory disturbance, which is frequently found in a person who has been exposed to severe past trauma, and that the burden of proof of this incident should be significantly lightened. On 2 October 2014, the migration agent wrote to the Tribunal and said that the first applicant was incapacitated to attend a further oral hearing, and requested the Tribunal to proceed with the making of a decision on the evidence and submissions that had been provided. There was no suggestion of a desire for the second respondent to attend and the response inviting the making of a decision was clearly made on behalf of both applicants.
The Tribunal then delivered its decision on 29 October 2014 identifying, in appendix 1, the relevant law. The Tribunal identified the applicants’ claims and evidence, and relevantly at para.20 noted that at the first hearing on 25 August 2014 the Tribunal asked why the second applicant was not present and the migration agent said that the second applicant has no claims and did not want to give evidence. In fact, both the first applicant and the migration agent conveyed to the Tribunal that the second applicant had put no claims himself. In the course of the Tribunal’s reasons the Tribunal noted that the first applicant’s son had not made a claim and that the migration agent had said that he does not have any and does not want to give evidence. The proposition that the second applicant did not have any claims came from both the first applicant and the migration agent. The proposition that the second applicant did not want to give evidence was an inference open from both what was said by the applicant and what was said by the migration agent as well as being open as an inference from the forms completed by the migration agent on behalf of both applicants.
The Tribunal noted that the first applicant said she was worried about him, and noted that the second applicant had not been asked to join a group, and does not have any interest in fighting. The Tribunal identified the inconsistencies in the first applicant’s evidence in relation to the first applicant’s contradictory evidence, and found that the first applicant’s evidence about her protection claims was confusing, inconsistent and contradictory. The Tribunal expressed significant concerns about the reliability of the first applicant’s evidence.
The Tribunal noted that had the first applicant attended a further hearing it may have had an opportunity to resolve the issues of discrepancies about her claims. The Tribunal noted that it was not able to do this despite accepting two invitations to attend a resumed hearing, and then the first applicant informed the Tribunal she did not want to participate in another hearing and consented to the Tribunal deciding the application on the material before it, without her appearing before it again, in accordance with s.425(2)(b) of the Migration Act 1958. That communication included on a fair reading the second applicant and that is how the Tribunal understood the same.
The Tribunal noted that it held concerns in relation to the first applicant’s credibility in relation to the applicants’ claims and found that the first applicant was not a reliable witness, and was unable to have any confidence in accepting her evidence about what she claims occurred to her and her family in Lebanon. The Tribunal made reference to the first applicant’s fear in relation to the second applicant being vulnerable to recruitment by an armed military group, and the Tribunal noted that it was advised the second applicant did not want to attend the hearing and had no claims of his own.
The Tribunal, nevertheless, considered the claim raised by the first applicant in relation to the second applicant. The Tribunal found that on the available information the possibility exists in Lebanon for the second applicant to join a military group. The evidence before the Tribunal from the first applicant and the migration agent supported the conclusion that the second applicant did not want to give evidence. The Tribunal noted that there was no independent information before the Tribunal to indicate that young, able-bodied men in the north of Lebanon are being forced or pressured or made to join the armed militant groups. It was in those circumstances that the Tribunal found that there was not a real chance the second applicant would join or would be forced, or pressured, or made to join an armed military group in the event that he returned to Lebanon now or in the reasonably foreseeable future.
The Tribunal found, having considered the applicants’ claims individually and cumulatively, that it did not accept, as a real chance, either applicant would suffer serious harm for a convention reason if they returned to Lebanon now or in the reasonably foreseeable future. The Tribunal found that the applicants did not have a well-founded fear of persecution.
The Tribunal turned to the issue of complementary protection, including relevantly in relation to the second applicant being recruited into an armed militant group. The Tribunal said in light of the reasons why it found there was no real chance that would happen, that there are no substantial grounds for believing that there is a real risk either that the second applicant will suffer significant harm.
The Tribunal found that there were no substantial grounds for believing it is a necessary and foreseeable consequence of either applicant being removed from Australia to Lebanon, there is a real risk that either applicant will suffer significant harm. The Tribunal concluded that the applicants did not meet the criteria under s.36(2) of the Migration Act 1958, and affirmed the decision of the delegate.
On 2 March 2016 a Judge of the Court made orders providing the applicants with an opportunity to file an amended application updating evidence and submissions. The originating application was filed on behalf of both applicants, and was completed by a barrister acting for both applicants. On 27 May 2016 a notice of intention to withdraw as lawyer for the applicants was filed.
On 15 July 2016 an amended application was filed by a barrister acting on behalf of the second applicant only, and that amended application on behalf of the second applicant, identified the following grounds:
Ground 1: Breach of section 422B - Failing to Provide a Fair and Just Process for the Second Applicant
The Tribunal failed, giving rise to jurisdictional error, to act in a way that was fair and just, by proceeding to hear and determine the application of the second applicant without him having had any real opportunity to be heard as to his claim and thereby depriving him of a procedurally fair process for the determination of his claim for protection.
Ground 2: Failure to Take into Account a Relevant Consideration - The Vulnerable Status of the Second Applicant.
The Tribunal failed, giving rise to jurisdictional error, to take into account the vulnerable status of the second applicant as a child and the 'Guidance on Vulnerable Persons' promulgated to guide the exercise of the Tribunal's powers in respect of children such as the second applicant, when determining the application made by the second respondent.
Ground 3: Breach of 426A - Failure to Take Steps to Facilitate the Appearance of the Second Applicant at the Hearing.
The Tribunal acted unreasonably and/or failed to take into account a relevant consideration, amounting to jurisdictional error, in not, upon the second applicant's failure to appear before the Tribunal, rescheduling the applicant's appearance before it, in order to enable the applicant's appearance as rescheduled, by not ensuring the second applicant was actually notified of the rescheduling, by misapprehending the reason for the second applicant's non-appearance before the Tribunal and by accepting the obviously wrong assertion that the second applicant “had no claims of his own”.
Ground 4: Breach of 425 - Failure to Take Steps to Facilitate the Appearance of the Second Applicant at the Hearing.
The Tribunal erred, in contravention of section 425 of the Act, amounting to jurisdictional error, by not affording the second respondent a meaningful opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Ground 5: Breach of section 424A- Failure to Give the Second Applicant an Opportunity to Comment.
The Tribunal failed, giving rise to jurisdictional error, to comply with section 424A of the Migration Act 1958 (Cth) in respect of the second applicant by continuing to treat the first applicant's migration agent as being a representative of the second applicant when it was clear he was not and thereby failing to give to the applicant clear particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review; and by thereby failing to ensure, as far as was reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that was under review.
The original application identified the following grounds:
Ground 1: No Evidence
1. There was no evidence or other material to justify the making of the decision to affirm the decision by the delegate of the first respondent to deny the applicant a protection visa or alternatively, the second respondent relied on facts, which did not exist, when making the decision.
Particulars
Credibility
a) At [72], the second respondent found:
Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility on these matters leads it to find that she was not a reliable witness and it is unable to have any confidence in accepting her evidence about what she claims occurred to her and her family in Lebanon.
b) The adverse credibility finding by the second respondent was affected by jurisdictional error as it revealed a sufficient lack of rational or logical connection between the Tribunal's assessment of the applicant's credit and the material upon which it relied to make that assessment.
At the commencement of the hearing the Court raised with the first applicant, counsel for the second applicant, and counsel for the first respondent whether or not any order had been made granting leave to the second applicant to be separately represented. The Court identified that the ordinary rule was that applicants or plaintiffs should be represented by the same lawyer. The principle is identified in the decision of Yates J in MDA National Limited v Medical Defence Australia Limited [2014] FCA 954, relevantly at [55] to [76].
The Court raised with all parties whether there was any objection to hearing the application for the second applicant to be separately represented concurrently with hearing the substantive application for an extension of time under s.477 of the Migration Act 1958. No objection to that course was identified by the first applicant or the legal representative on behalf of the second applicant, and no objection to that course was taken by counsel for the first respondent.
The Court indicated to the parties that this would permit the Court to deal with the substance and merits of the matter, and that the Court would make an order in relation to whether or not such separate representation should be granted at the same time as determining the substantive rights of the parties in respect to the s.477 application. No objection was taken to that course.
At the commencement of the hearing the Court explained to the first applicant that this was an application for an extension of time under s.477 of the Migration Act 1958. The Court explained to the first applicant that this meant that the Court had to consider whether there was a satisfactory explanation for the delay in the filing of the application in this Court, and whether the application had sufficient merits to warrant an extension of time in the interests of the administration of justice.
The Court explained that whether there was a sufficiently arguable case depended upon whether there was a sufficiently arguable case of relevant legal error by the Tribunal. The Court explained that the relevant legal error had to be either an excess of statutory power, or a denial of procedural fairness to the applicants. The Court explained to the first applicant that, in summary, this meant the Court was determining whether there was a sufficiently arguable case that the Tribunal’s decision was either unlawful or unfair so as to warrant an extension of time.
The first applicant confirmed that she understood what had been explained by the Court. The Court further explained to the first applicant that it would have identified the evidence and then hear submissions from the first applicant, and then submissions from the other parties. The first applicant confirmed that she understood what had been said by the Court.
The first applicant, from the bar table, maintained that she wished to pursue her application for a protection visa and also asked the Court to listen to the application being made on behalf of her son. Nothing said by the first applicant from the bar table identified any arguable jurisdictional error. The explanation for the delay in the present case which was one year and 14 days out of time by the first applicant was that she suffered from a mental illness and did not know that she had to pursue the application. The applicants pursued Ministerial intervention after the delivery of the decision, and that is not a proper explanation for delay. The delay in the present case is a substantial period and on that ground alone the Court would decline to extend time in relation to the first applicant.
However, of greater significance is the issue of the merits of the application on behalf of the first applicant. The grounds in the application filed on behalf of the applicants has been treated as still on foot for the first applicant as none of the grounds in the amended application advanced a case for the first applicant.
The adverse findings in relation to the first applicant’s credit were open on the material before the Tribunal. The Tribunal provided logical and rational reasons in support of the adverse credit findings and it cannot be said that the adverse credit findings lack an evident and intelligible justification. Ground 1 fails to identify any arguable case of jurisdictional error.
Nothing was said by the first applicant to identify any arguable jurisdictional error. The Court takes into account the principles in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. The Court is clearly satisfied that the original application filed on behalf of both applicants fails to identify any arguable jurisdictional error in relation to the first applicant. The merits in relation to the first applicant do not warrant an extension of time in the interests of the administration of justice. For these reasons the application for an extension of time so far as concerns the first applicant should be dismissed.
The first applicant requested the Court to take into account the submissions put on behalf of her son as to whether or not leave should be granted for separate representation. Nothing said by the first applicant identified any relevant conflict of interest or other ground upon which leave should be granted for the second applicant to be separately represented. The Court heard submissions from counsel on behalf of the second applicant on the issue of extension of time and the merits of the application, as well as whether or not leave should be granted for the second applicant to be separately represented.
In relation to the delay, counsel on behalf of the second applicant sought to rely upon the second applicant being a child at the time of the decision, and that the second applicant was unaware of the 35 day time limit. Ministerial intervention was sought on behalf of both applicants.
I do not regard the explanation of the second applicant being a child at the time of the decision as an adequate explanation for the very long delay that has occurred in the present case in relation to the second applicant. On that ground alone I would refuse the application for an extension of time under s.477 of the Migration Act 1958. However, in relation to the second applicant the more material issue are the merits of the application.
Counsel for the second applicant sought to advance in the submission that the migration agent was not representing the second applicant. That submission is without substance and is inconsistent with the material before the Court. The application for review makes patent that the legal migration representative was acting for both applicants. The Tribunal corresponded with the migration agent in the name of both respondents. There was no suggestion, at any stage, by the migration agent that he was not acting for both applicants.
Counsel for the first respondent submitted that the second applicant had not been given an opportunity to appear before the Tribunal. That is patently inconsistent with the invitation sent to the legal representative for the applicants inviting the applicants to appear.
On the material before the Court, the Tribunal complied with its statutory obligations inviting the applicants to attend a hearing. The first applicant only attended the hearing. When invited to attend proposed dates for further hearing, the first applicant declined the invitation to attend a further hearing and on a fair reading that was also a refusal on behalf of the second applicant.
At the time that the first applicant declined to attend a further hearing, it is clear the second applicant was still a child. No claim was advanced by the migration agent or the first applicant, that the second applicant’s claims should be the subject of any further or separate hearing.
The Tribunal was not required to address the claims advanced on behalf of the second applicant by any separate further hearing. The second applicant had already failed to attend the first hearing and the Tribunal was told no claims were being advanced by the second applicant. The affidavit evidence before this Court by the second applicant contending otherwise was not before the Tribunal and cannot make out any jurisdictional error. I am satisfied that the applicants had a genuine and meaningful hearing, and that the Tribunal complied with its statutory obligations under s.425 of the Migration Act 1958 and, relevantly, that both applicants were the subject of a fair and just process in relation to the claims advanced.
In relation to ground 1 there is nothing in the material before the court to support the contention, that there was a breach of s.422B. It is clear that the second applicant was represented by the migration agent and had the opportunity to attend the first hearing and did not do so. The second applicant had the opportunity to participate in the further invitations to a hearing and, through the agent, had declined to participate. There is no arguable jurisdictional error disclosed by ground 1.
In relation to ground 2, the Tribunal did refer to the guidance on vulnerable persons in para.71 of its reasons. The guidance was tendered and marked as an exhibit. It had a section referring to vulnerability in relation to impact of age. There is nothing in the paragraphs of the guidance on vulnerable persons that required specific attention or reference by the Tribunal. No submission was put to the Tribunal that the second applicant was a vulnerable person by reference to the guidance. The Court does not accept that there is any arguable case that the Tribunal failed to have regard to the guidance on vulnerable persons referred to in para.71, insofar as it might have impacted on the second applicant.
There was no necessity for the Tribunal to expressly refer to the guidance in relation to the second applicant, given the limited significance of the paragraphs relating to the impact of age and children. It was not necessary for the Tribunal to expressly identify its reference to that guidance in relation to the second applicant. The Court is not satisfied that ground 2 identifies any arguable jurisdictional error.
In relation to ground 3, for the reasons ordered, it is clear that the second applicant had a proper opportunity to attend the hearings and had failed to do so. The information that was provided to the Tribunal by both the first applicant and the migration agent was that the second applicant had no claims of his own. This was information on which the Tribunal was entitled to act and does identify any jurisdictional error by the Tribunal.
The Tribunal was not required to go behind the information provided to it by the first applicant and the migration agent representing the second applicant. Further, the Tribunal did, in fact, address the limited claim concerning the second applicant identified in the first applicant’s statement in support of the protection visa. Ground 3 fails to identify any arguable jurisdictional error.
In relation to ground 4, The Court is satisfied on the material before it that the applicants had a genuine hearing and a meaningful opportunity to appear before the Tribunal. No arguable error is disclosed in relation to ground 4 of the amended application.
In relation to ground 5, counsel for the applicant sought to argue that the information provided by the migration agent at the hearing, referred to in the Tribunal’s reasons, that the second applicant had no claims and did not want to give evidence, was information that should have been the subject of compliance with s.424A of the Migration Act 1958. I reject that submission.
The information was provided by the first applicant and the migration agent. Both had authority to act for the second applicant before the Tribunal as the second applicant was still a child. The information provided by the migration agent as to the second applicant’s absence of a desire to give evidence was entirely consistent with the communications received by the Tribunal from the first applicant’s evidence, as was the absence of claims.
The second applicant’s absence of claims or desire to attend the hearing were not matters that constitute information that the Tribunal should have considered would be the reason, or part of the reason, for affirming the decision that is under review. I do not accept that the information identified by counsel for the first respondent enlivened any obligation under s.424A of the Migration Act 1958.
Further, I accept the submissions of the first respondent that even if there had been any information conveyed by the first applicant and the migration agent that might otherwise have fallen within s.424A, it was excluded by reason of s.424A(3)(b).
The statutory reference in relation to not applying to information that the applicant gave for the purpose of the application for review, clearly, on its proper construction includes information that the first applicant, as parent for a child applicant and information through the applicants’ migration agent, given for the purpose of the application for review. No arguable jurisdictional error is disclosed in relation to ground 5 of the amended application.
Counsel for the second applicant argued that this was an appropriate case to permit separate representation, given the issue raised by the second applicant as to whether the migration agent had been representing the second applicant.
That issue, of whether the migration agent was representing the second applicant, was without substance and is not a proper basis upon which there should be an order for granting leave for the second applicant to be separately represented.
It is an important rule that applicants in a judicial review should be represented by the same legal practitioner, unless there are exceptional circumstances. Whilst I accept that the Court has power to grant leave in exceptional circumstances for the applicants to be separately represented, this is not a case in which there is any proper basis to do so.
The convenience or desire of the practitioners or, indeed, a want of willingness to provide instructions are not, ordinarily, exceptional circumstances that would justify separate representation. It is not only the cost issue that underlies the rule for unified representation by plaintiffs or applicants before a court, there is also a public interest underlying that principle. It would add unduly to the length, complexity and conduct of litigation if applicants or plaintiffs were each entitled to be separately represented when there is a common interest, and no real or substantial conflict that prevents common representation. There was no real or substantial conflict in the present case that warranted separate representation.
The refusal of leave for the second respondent to be separately represented does not, in any way, impact on the rights of the second applicant to seek to pursue any rights of appellate challenge that the second applicant may be advised to pursue.
The Court has dealt with the substance of the grounds of the alleged jurisdictional error, both raised by the first applicant and also raised by the second applicant. No prejudice was raised by any of the parties to hearing the substantive applications at the same time as considering whether leave for the second applicant to be separately represented should be granted. Having in a practical sense heard both applicants separately, the Court will preserve the rights for both applicants in this regard by making separate orders.
In all the circumstances, all parties have been fully heard on the substantive issue under s.477 of the Migration Act 1958. In relation to the second applicant, the Court is not satisfied that there is a satisfactory explanation for the delay.
Further, the Court is not satisfied in relation to the second applicant that the grounds identified in the amended application are of sufficient merit to warrant an extension of time in the interests of the administration of justice.
The Court has taken into account the principles and caution identified in Spencer v Commonwealth of Australia supra. The Court is clearly satisfied that the grounds identified in the amended application on behalf of the second applicant have no reasonable prospect of success.
The application for an extension of time in relation to the second applicant is dismissed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 28 July 2016
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