CYT18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 121
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYT18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 121
File number: MLG 1601 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 7 February 2025 Catchwords: PRACTICE AND PROCEDURE – application in a proceeding seeking the adjournment of a hearing date to enable the applicant to obtain legal representation – where the applicant took steps to obtain legal representation in a timely manner after being notified of the listing for hearing – where the applicant engaged a lawyer who then had to go overseas for personal reasons – adjournment granted. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Migration Act 1958 (Cth) s 473DD
Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
SZVLE v Minister for Immigration and Border Protection [2017] FCA 90
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of hearing: 31 January 2025 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr R O’Shannessy Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1601 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYT18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
31 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The first respondent’s time to file written submissions is extended to 23 January 2025
3.The hearing of the judicial review application filed on 7 June 2018 is adjourned to 14 April 2025 at 12:00pm AWST / 2:00pm AEST.
4.The applicant has leave to file and serve the following documents by 4:30pm on 17 March 2025:
(a)any amended application;
(b)any supplementary court book; and
(c)written submissions.
5.The first respondent has leave to file and serve the following documents by 4:30pm on 31 March 2025:
(a)written submissions; and
(b)any further evidence upon which the first respondent intends to rely.
6.The applicant is to pay the first respondent’s costs of and incidental to the hearing today, fixed in the amount of $500.
7.The Court will publish reasons for these orders from chambers at a later date.
THE COURT NOTES THAT:
A.The first respondent reserves his position in relation to costs in the event that an amended application is filed.
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 LADHAMS:
INTRODUCTION
The applicant’s application for judicial review of a decision made by the Immigration Assessment Authority (Authority) was listed for hearing before the Court on 31 January 2025. The applicant filed an application in a proceeding on 30 January 2025 seeking that the hearing listed on 31 January 2025 be adjourned to enable him to find a legal representative (adjournment application). The adjournment application was listed for hearing on 31 January 2025. After hearing from both parties, I made the following orders:
1.The name of the first respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The first respondent’s time to file written submissions is extended to 23 January 2025
3.The hearing of the judicial review application filed on 7 June 2018 is adjourned to 14 April 2025 at 12:00pm AWST / 2:00pm AEST.
4.The applicant has leave to file and serve the following documents by 4:30pm on 17 March 2025:
(a) any amended application;
(b) any supplementary court book; and
(c) written submissions.
5.The first respondent has leave to file and serve the following documents by 4:30pm on 31 March 2025:
(a) written submissions; and
(b) any further evidence upon which the first respondent intends to rely.
6.The applicant is to pay the first respondent’s costs of and incidental to the hearing today, fixed in the amount of $500.
7. The Court will publish reasons for these orders from chambers at a later date.
These are the reasons referred to in order 7.
THE EVIDENCE IN RELATION TO THE ADJOURNMENT APPLICATION
The applicant filed an affidavit to support his adjournment application which relevantly contained the following paragraphs:
2.I am unable to seek legal representation due to the holiday seasons intervened prior to the scheduled hearing date.
3.I respectfully seek the court an additional time of further 90 days to prosecute this matter
4. I will be gravely disadvantaged if the extension is not granted.
When my chambers advised the parties that the adjournment application would be heard on 31 January 2025, they also put the applicant on notice that where an applicant seeks an adjournment to obtain legal advice or representation, the Court would usually expect to receive evidence of the steps taken to date to find a lawyer and when those steps were taken. I also explained this to the applicant at the hearing on 31 January 2025 and gave him an opportunity to give oral evidence to the Court. The applicant was cross-examined by Counsel for the Minister.
It is not necessary to summarise the whole of the applicant’s oral evidence. The most relevant evidence for the purposes of the adjournment application can be summarised as follows:
(a)After he filed his application in 2018, the applicant had a lawyer, who was based in Sydney. Because ‘the period was long’, the lawyer did not take an active interest in the case and told the applicant that he would help him ‘when the time comes’.
(b)The applicant received the email in October 2024, advising him of the listing for hearing. After he received this email, he tried to contact his lawyer in Sydney by calling his mobile number one or two times. No one answered and the applicant did not leave a message or send a text or email to this lawyer.
(c)The applicant received advice from his friends that it is better to find a lawyer based in Melbourne.
(d)He started looking for another lawyer in November. He had a free consultation as well. He tried looking on Google and ‘things like that’.
(e)A lawyer he found said that there was not enough time to look into the case and charges would be high. The lawyer refused to take the case. The lawyer was from a big firm and said that the charges were very high. It was the holiday period and that is why they said the costs were expensive and there was not enough time.
(f)The applicant then spoke to another lawyer and she agreed to take his case. He paid an initial payment of $600 to the lawyer for her to take the case, which he paid via an app on his computer and he could show the Court proof if required. Then, because of an emergency situation involving the lawyer’s mother, the lawyer had to return to Sri Lanka. The lawyer told the applicant that if he can get an adjournment, she will look into his case upon her return from Sri Lanka. The lawyer told the applicant that she will return from Sri Lanka in three weeks and will look into his matter then. The applicant said in cross-examination that he was told this by the lawyer via WhatsApp, and showed a message to the Court via the Microsoft Teams screen that indicated the name of the law firm was Maryam Migration Lawyers.
The Minister tendered an email from my chambers to the parties dated 29 October 2024, advising the parties that the matter was listed for hearing on 31 January 2025. That email was received into evidence and marked as exhibit 1.
THE MINISTER’S POSITION
The Minister originally opposed the adjournment application. This position was not surprising or unreasonable, given the evidence in the applicant’s affidavit, which was, on its face, insufficient to warrant the adjournment of the hearing.
However, after the applicant’s oral evidence was complete, I asked Counsel for the Minister whether the Minister continued to oppose the adjournment application. Counsel for the Minister withdrew the Minister’s opposition to the adjournment application, acknowledging that the applicant gave credible evidence of steps he took to obtain legal representation once he knew the matter was listed for hearing. Counsel for the Minister acknowledged that it was unfortunate, but not surprising given the time that has elapsed since the application was filed, that the first lawyer the applicant approached is no longer involved in the matter. Counsel for the Minister conceded that the Minister would not be prejudiced by an adjournment and acknowledged that the application for judicial review is not entirely without merit in circumstances where the Minister, as a model litigant, raised an issue for the Court’s consideration.
The concessions made by Counsel for the Minister were appropriate and reflect experienced Counsel acknowledging the significant difference between the applicant’s evidence as presented in writing and his oral evidence. I thank Counsel for the Minister for his cooperation in this matter.
REASONS FOR GRANTING THE APPLICANT AN ADJOURNMENT
In deciding whether to grant the adjournment, I am required to have regard to the overarching purpose of the Court’s civil practice and procedure provisions, as set out in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Section 190(1) and (2) provide:
(1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(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.
I acknowledge that granting the adjournment will result in greater delay in the resolution of this proceeding and will, in all likelihood, result in the parties incurring further costs in relation to the proceeding. I also acknowledge that there is a significant backlog of migration cases pending before this Court. Granting an adjournment to the applicant means that the final hearing listed on 31 January 2025 did not proceed and this case has now been allocated a new hearing date, which might otherwise have been allocated to another case that is pending before the Court. Considerations relating to the quick resolution of this proceeding, the efficient use of the Court’s judicial and administrative resources, and the efficient disposal of the Court’s overall case load weigh against granting the adjournment.
However, there are other considerations in this matter that, in my view, support the grant of the adjournment. In particular, considerations relating to the just determination of the proceeding support the grant of the adjournment.
Although there remain some gaps in the applicant’s evidence of the steps he took to obtain a lawyer, I am satisfied that the applicant took steps to engage a lawyer upon being notified of the hearing date in this matter. I accept that the applicant found a lawyer to represent him in this proceeding and paid some money to the lawyer. It appears from the applicant’s evidence that the lawyer became unavailable to assist him through no fault of the applicant. While there is no right to a lawyer in a migration proceeding (see, for example, SZVLE v Minister for Immigration and Border Protection [2017] FCA 90 at [40] and ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [25]), I accept that the applicant is likely to be assisted by having a lawyer in this matter.
In his written submissions filed on 23 January 2025, the Minister, in his capacity as a model litigant, appropriately raised an issue for the Court’s consideration that was not raised in the grounds of application. That issue relates to the Authority’s application of s 473DD of the Migration Act 1958 (Cth). The Minister concedes that the Authority did not apply s 473DD of the Migration Act in the manner required by the High Court’s judgment in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37, but submits that the Authority’s error is not material and therefore does not amount to a jurisdictional error. Assessment of materiality is complex and, in circumstances where the applicant engaged a lawyer who, for reasons unconnected with the applicant, is temporarily unable to assist him, the just resolution of this proceeding will be better facilitated if the applicant has an opportunity to receive legal representation (or at least advice). Further, if the applicant’s lawyer does go on the Court record and represent him at the hearing, the Court is likely to be assisted by receiving submissions on this issue prepared by a lawyer.
Taking into account the steps taken by the applicant to engage a lawyer, the complexity of the issues and the assistance that the Court and the applicant are likely to receive from the applicant being represented and the likelihood that the grant of the adjournment will not be inutile (given the applicant’s evidence that his lawyer will return to Australia in three weeks and will be able to review his application then), I considered that it was appropriate to grant the adjournment.
Noting, however, that this proceeding has now been pending before the Court for six and half years, any adjournment should be for the shortest time practicable. I have relisted the matter for the first available date taking into account that the applicant’s lawyer needs to be afforded an appropriate (albeit relatively short) opportunity to review the application and prepare Court documents upon her return from Sri Lanka and the Minister needs to be afforded an appropriate opportunity to respond.
REASONS FOR THE OTHER ORDERS MADE
Only very brief explanation is required in relation to the other orders made by the Court.
Order 1 simply changes the name of the first respondent to reflect the current title of the Minister.
The Minister filed his written submissions in this matter outside of the time required by an Order made by a Registrar on 4 September 2019. I accept the Minister’s explanation that the submissions were filed late because the Minister’s lawyer, when finalising the submissions, identified a further issue that it was appropriate for the Minister to raise as a model litigant, and further instructions were required. Order 2 regularises the late filing of the Minister’s submissions.
In circumstances where the applicant anticipates being represented by a lawyer who will review his application upon her return from Sri Lanka, and where the original application filed by the applicant contains unparticularised grounds that may have been included in the application without proper consideration of their merit, it is appropriate to give the applicant a further opportunity to file an amended application, any supplementary court book and submissions. If the applicant files any additional documents, it is appropriate that the Minister be afforded a proper opportunity to respond. Orders 4 and 5 reflect these opportunities.
The Minister incurred costs preparing for and appearing at the hearing on 31 January 2025. Insofar as those costs relate to the substantive judicial review application (which was to be heard immediately after the adjournment application, if the adjournment application was unsuccessful), those costs are wasted as a consequence of the applicant’s late application for an adjournment, which was granted. Insofar as the costs relate to the adjournment application, those costs might have been avoided if the adjournment application and affidavit in support had contained sufficient detail to enable the Minister to properly understand the factual basis on which the adjournment application was made and to consider whether the Minister might consent to the requested adjournment. It is appropriate that the applicant pay the Minister’s costs of and incidental to the hearing on 31 January 2025. The quantum of costs sought by the Minister, namely, $500, is reasonable and appropriate in the circumstances.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 7 February 2025
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