CWX17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 365
•16 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CWX17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamc2G 365
File number(s): MLG 1384 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 16 April 2024 Catchwords: PRACTICE AND PROCEDURE – whether further documents allowed to be filed – whether documents relevant to the establishment of jurisdictional error in Administrative Appeals Tribunal decision
PRACTICE AND PROCEDURE – interlocutory application for matter to be heard face-to-face in Melbourne Registry of the Court – nature of judicial review proceedings – practice of the court – video link hearings – no prejudice identified – delay
PRACTICE AND PROCEDURE – interlocutory application for adjournment – new issue arising as to possible alleged fraud on the Administrative Appeals Tribunal – where at least some applicants not native English speakers and all self-represented – further short delay not prejudicial
Legislation: Migration Act 1958 (Cth) Cases cited: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
SZFDE v Minister for Immigration and Citizenship [2007] HCA 36; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510
Division: Division 2 General Federal Law Number of paragraphs: 14 Date of last submission/s: 16 April 2024 Date of hearing: 16 April 2024 Place: Perth First, Second and Third Applicants: In person by Microsoft Teams, with the assistance of a Malay interpreter Fourth and Fifth Applicants: No appearance by or for the Fourth and Fifth Applicants Counsel for the First Respondent: Ms P Durham Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1384 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CWX17
First Applicant
CWZ17
Second Applicant
CXA17 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
AUSTRALIAN GOVERNMENT SOLICITOR
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
16 APRIL 2024
THE COURT ORDERS THAT:
1.The Applicant’s application for transfer of the matter to the Melbourne Registry be dismissed.
2.The hearing of the Applicant’s amended application in a proceeding filed 20 June 2023 be adjourned.
3.The Applicants are to file and serve:
(a)any further amended application in a proceeding;
(b)any further affidavits; and
(c)a further written outline of submissions,
by 30 April 2024.
4.The First Respondent is to file and serve:
(a)any further affidavits; and
(b)a further written outline of submissions,
by 14 May 2024.
5.The further hearing of the Applicant’s amended application in a proceeding or any further amended application in a proceeding be listed for hearing at 10:00am on 23 May 2024.
6.Costs reserved.
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
(Delivered ex tempore and revised)JUDGE LUCEV
These are Reasons for Judgment on an interlocutory application by the applicants for transfer of their application to reinstate migration judicial review proceedings to the Melbourne Registry of the Court and for adjournment of these proceedings, and in relation to an issue separately arising as to the filing of further documents by the applicants.
FILING OF FURTHER DOCUMENTS
The documents which the applicants seek to file are:
(a)a statutory declaration of the first applicant which deals with the factual circumstances in relation to her business dealings in Malaysia and some personal circumstances relating to her daughters and son and husband in relation to their life circumstances and a request to the Australian Government to allow the family to live in Australia;
(b)a letter addressed to: ‘Dear Immigration Officer’ – from the first applicant’s daughter who is the fifth applicant in these proceedings and which sets out her circumstances in Malaysia and experiences in Malaysia prior to coming to Australia and upon return to Malaysia, and also a plea for a protection visa from the Australian Government;
(c)a letter of offer for a Bachelor of Information Technology course at Victoria University for the first applicant’s son, who is the fourth applicant in these proceedings;
(d)a letter from a firm of advocates and solicitors in Malaysia setting out what is described as confirmation of events in the first applicant’s life; and
(e)a series of company documents, being a certificate of incorporation of a private company, corporate information, particulars of the company secretary and particulars of the directors and officers of that company, which appear to have been extracted in Malaysia within the last month.
None of the documents are relevant to the question of whether these proceedings ought to be transferred to the Melbourne Registry of this Court, nor are they relevant to the question of an adjournment of these proceedings, or the reinstatement of the earlier proceedings because they are documents which:
(a)first, were not before the Tribunal and that is evident from the fact that all of the documents are of recent origin or extraction; and
(b)second, insofar as the first applicant and the fourth applicant seek to explain their personal circumstances in Malaysia and Australia, those personal circumstances are not relevant to the question of an adjournment of these proceedings and nor are they relevant to the issue of whether or not there is a jurisdictional error evident in the Tribunal decision for the purposes of assessing whether there is some arguable merit in the reinstatement application.
Insofar as the reinstatement is concerned the company documents were documents which, as the Court has already said, were not before the Tribunal, and it is not evident that there were any documents of that type before the Tribunal. The applicants need to bear in mind that the task which this Court is engaged in, in an application for judicial review if the reinstatement application were to be successful, is to determine whether or not the Tribunal Decision is affected by jurisdictional error. That is a limited type of legal error whereby the Court looks to determine whether or not the Tribunal has considered the wrong legal question or the wrong legal issue, or whether the Tribunal failed to consider a claim which was actually made or which arises squarely on the material before the Tribunal, whether the Tribunal ignored relevant material or relied upon irrelevant material, whether the Tribunal Decision was legally unreasonable, whether the Tribunal breached procedural fairness requirements in the limited manner allowed for under the provisions of the Migration Act 1958 (Cth) (“Migration Act”), or whether the Tribunal showed actual apprehended bias or whether that was some kind of fraud upon the Tribunal. Further, any jurisdictional error found must, of course, be material in the sense that it had a realistic possibility of affecting the outcome of the Tribunal Decision.
None of the documents to which the Court has referred and which the applicants seek to file go to the question of jurisdictional error as the Court has described it, but, rather, appear to be directed to an endeavour to impermissibly re-argue the factual merits of the Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, for the purposes of establishing that there may be a sufficiently arguable case on the reinstatement application. So for those reasons the Court does not propose to allow those documents to be filed.
TRANSFER TO MELBOURNE
These are interlocutory proceedings in relation to an application to reinstate judicial review proceedings. That is, administrative law proceedings in relation to the Migration Act. These types of proceedings in this Court are regularly heard by video link. And, if not the majority, then certainly a significant proportion of the applications of this type, both interlocutory and substantive in this Court, are heard by video link. Merely by way of example, the Court as presently constituted would hear eight or nine out of every 10 applications of this type by video link in relation to persons who are applicants in the Melbourne and Adelaide Registries. Because the proceedings are judicial review proceedings, there is generally no need for evidence to be led because what the Court is doing is seeking to establish whether or not there was jurisdictional error in the Tribunal decision. And even in cases where evidence does need to be led and cross-examination and re-examination need to occur, that regularly does happen by video link. Since the COVID pandemic, this Court has made a significant move away from face to face in-person hearings in the migration space. And as indicated earlier, if not the majority, then certainly a significant proportion of the applications before this Court in relation to Migration Act proceedings are heard by video link.
It follows that, there is no necessity for applicants or lawyers to travel to the place or to the Registry where the Judge is sitting. And it is not uncommon, for example, to have a situation such as today’s where the applicants are in Victoria; the Minister’s lawyer is from Melbourne; and the Judge is sitting in Perth. And it is not unusual, again, for example, to have a judge sitting in Perth; applicants in South Australia; applicant’s lawyers in Melbourne; and the Minister’s lawyers in Sydney, all appearing or observing by video link. There is simply no necessity in a proceeding such as this for it to be heard on a face-to-face in-person basis.
There is no prejudice identified by the applicants if the matter proceeds by video link. And, as the Minister submits, a transfer to the Melbourne Registry would simply cause further delay in relation to migration proceedings which have already been significantly delayed, the originating application having been filed in March 2018, and the hearing resulting in the dismissal of the originating application (the originating application which it is now sought to re-instate) and the orders therefrom now being more than two years ago. So, in those circumstances, there ought not be any further delay as a consequence of a transfer of venue. So there will be an order that the applicants’ application for a transfer of the matter to the Melbourne Registry be dismissed.
ADJOURNMENT
In relation to the applicants’ application for an adjournment, the applicants seek a further two weeks to submit documents which would appear to include, at least, police reports from Malaysia. The applicants say that these documents were given to their original lawyer prior to the Tribunal proceedings but were not submitted to the Tribunal. And that when the applicants queried that with their lawyer, they were told to, “Just wait.” The applicants are evidently dissatisfied with what occurred in relation to their lawyer before the Tribunal and evidently dissatisfied with what has happened with what they say are four other lawyers who have been engaged in relation to the judicial review proceedings. The Minister opposes the application for an adjournment. The Minister says, quite rightly, that these proceedings have been the subject of significant delay. But as the Court observed, part of that delay would not appear to be the applicants’ fault. The application for an adjournment arguably raises – albeit at a very late stage – a possible assertion that there may have been a fraud on the Tribunal.
As the Minister, correctly submits, the authorities set a high bar for establishing a fraud on the Tribunal – in this case allegedly by the applicants’ own representatives. Fraud on the Tribunal is to be distinguished from mere negligence, inadvertence or incompetence by a party’s representatives: SZFDE v Minister for Immigration and Citizenship [2007] HCA 36; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
It is not possible in this case to determine whether or not there might be an arguable case of fraud on the Tribunal on the papers as they presently stand because, until the recently filed application in a proceeding, the matter simply had not arisen. And indeed, it might be said that it did not arise properly in some more discernible form until the applicants’ oral submissions today in circumstances where the Court notes that the applicants’ most recent lawyers have only recently – that is, within the last four weeks – withdrawn from these proceedings. In circumstances where the first (and primary) applicant and possibly the second applicant are not native English speakers and where all the applicants are now self-represented, the Court is conscious that it ought not too readily dismiss matters that are now raised by the applicants which they say were previously raised with their representatives, but were seemingly not taken up: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J; BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 (“BKT17”) at [31]-[35] per Feutrill J; MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J.
The Court is very conscious of the delay that has occurred in this matter but is also mindful that the applicants ought not be deprived of an opportunity to properly put their case and considers that a further short delay would not unduly prejudice the Minister.
So, the Court will make an order that the hearing of the applicants’ application in a proceeding filed 20 June 2023, or any amended application in a proceeding, be adjourned.
ORDERS AND FURTHER HEARING
The Court made further orders to facilitate the further hearing of the application in a proceeding, or any amended application in a proceeding, on 23 May 2024.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 16 April 2024
SCHEDULE OF PARTIES
MLG 1384 of 2017 Applicants
Fourth Applicant:
CXB17
Fifth Applicant:
CXC17
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