DDN23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 895
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DDN23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 895
File number: PEG 302 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 12 September 2024 Catchwords: PRACTICE AND PROCEDURE – application in a proceeding for the matter to be transferred to another registry – factors for consideration. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 184, 190, 202
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 8.01
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322
National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 726
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 9 September 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 302 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DDN23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
9 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration and Multicultural Affairs’.
2.The application in a proceeding filed by the applicant on 29 August 2024 is dismissed.
3.Pursuant to s 202 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the applicant may appear at the hearing of the application by video link.
4.Reasons for the orders made today will be published from chambers at a later date.
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
On 15 December 2023 the applicant filed an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) affirming a decision made by a delegate of the Minister to refuse to grant the applicant a protection visa. That application is listed before the Court for final hearing in Perth on 30 September 2024. The parties were advised of that hearing date by email sent from my chambers on 29 May 2024.
On 29 August 2024 the applicant filed an application in a proceeding seeking that the proceeding be transferred to the Sydney registry of the Court. The application in a proceeding was opposed by the Minister.
The application in a proceeding came before me for hearing on 9 September 2024. On that occasion, I made the following orders.
1.The name of the first respondent is changed to ‘Minister for Immigration and Multicultural Affairs’.
2.The application in a proceeding filed by the applicant on 29 August 2024 is dismissed.
3.Pursuant to s 202 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the applicant may appear at the hearing of the application by video link.
4.Reasons for the orders made today will be published from chambers at a later date.
These reasons are the reasons referred to in order 4 of the Order made on 9 September 2024.
LEGAL PRINCIPLES
Section 184 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) allows the Court to order, at any stage of a proceeding, that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions, if any, as the Court imposes.
Rule 8.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) states:
(1)A party who files an application or a response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2) In considering an application, the Court must have regard to:
(a)the convenience of the parties; and
(b)the limiting of expense and the cost of the proceeding; and
(c)whether the matter has been listed for final hearing; and
(d)any other relevant matter.
It is also relevant for the Court to have regard to the test in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 (Sentry) at 162, where the Full Court of the Federal Court, in considering a request to transfer a proceeding from Victoria to New South Wales, stated:
Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
As Judge Kendall held in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 726 (Singh) at [20], the guidance in Sentry is additional to the matter the Court is required to consider under r 8.01(2) of the GFL Rules, which are mandatory relevant considerations.
The Court also has a power conferred by s 202 of the FCFCOA Act to allow or direct a person to appear at a hearing before the Court by way of video or audio link.
The above principles were explained to the parties at the hearing.
EVIDENCE
The application in a proceeding was accompanied by an affidavit deposed by the applicant, in which the applicant provided the following reasons for seeking that the proceeding be transferred to Sydney:
2. … I moved to the New South Wales, I wish to transfer my case to the Sydney Court, because I will not return to Perth.
3.I do not accept phone hearing or video hearing, therefore, I wish I can attend in person due to my sensibilities of the case.
The applicant was also afforded an opportunity to give oral evidence at the hearing.
The applicant gave oral evidence that:
(a)he has already found a legal representative and gave the name of that representative;
(b)it is important to him that his case be transferred because he will then be able to communicate effectively and efficiently with his legal representative; and
(c)another reason is because he found a job in Sydney and moved to Sydney for his job.
The applicant was not cross-examined.
CONSIDERATION
Convenience to the parties
I accept that the applicant has moved to New South Wales and note that, in addition to the evidence referred to above, he provided an address in a suburb in Sydney in his affidavit and in a Notice of Address for Service filed on 4 September 2024.
As I indicated to the parties at the hearing, if the matter remains listed in the Perth registry, the Court would not require the applicant to travel to Perth for the hearing, but would instead allow him, or his lawyer, to appear at the hearing by video.
The applicant does not wish to appear at the hearing by video or audio link and would rather the hearing take place in Sydney. The applicant’s request for the application to be transferred to Sydney proceeds on the assumption that if his application is transferred to Sydney, the hearing will proceed in person. This is not necessarily the case. Even if the proceeding is transferred to Sydney, there is no guarantee that the hearing will be conducted in person. The Court operates a Central Migration Docket and even if the matter is transferred to Sydney, there is a chance that a judge from another registry may hear the matter by video: see Singh at [36].
The applicant said that he does not accept a hearing by video or telephone but did not provide any evidence as to why the hearing of this proceeding cannot proceed by video link. The applicant gave evidence that the transfer of the proceeding to Sydney will assist him to communicate efficiently and effectively with his lawyer, but it is not apparent why this is so. There is no lawyer on the record for the applicant in this matter. If the applicant does engage a lawyer to represent him at the hearing of this matter, the lawyer will be able to appear by video. The arrangements that the applicant and his lawyer make for communication during the hearing will be a matter for them. The Court notes that applicants who are represented by lawyers in migration hearings conducted by video will sometimes choose to observe the hearing from the same room as their lawyer and provide any instructions orally during the hearing, whereas others choose to observe the hearing from a separate video link and communicate with their lawyers electronically throughout the hearing. Others simply leave it to their lawyer to represent them and do not observe the hearing at all. In any case, if the applicant engages a lawyer to represent him at the hearing, there is no reason why the hearing cannot take place via video, with the applicant and his lawyer making arrangements for communications that are suitable to them.
If the applicant represents himself at the hearing, presumably he will not have a lawyer present at the hearing and therefore there will be no need to communicate with his lawyer during the hearing. Any communications between the applicant and any lawyer who advises him in the preparation of this matter for hearing will not be affected by whether the proceeding remains in Perth or is transferred to Sydney.
In his reply submissions, the applicant referred to some technical issues that had arisen during the course of the hearing of the application in a proceeding and submitted that hearings conducted by video are not stable and will be inconvenient to everyone. He submitted that to conduct a hearing by video would be unfair to him, because his case is very important and if communication is sometimes broken, it can be disruptive and he needs to remain focused.
While I appreciate that the applicant would prefer for the hearing to be conducted in person, there is no reason why a fair hearing cannot be conducted by video. Any minor technical issues, such as those that occurred during the hearing of the application in a proceeding, can usually be quickly and easily remedied and the Court will stand the matter down if necessary to resolve any issues with the technology or otherwise adjust its processes to ensure the parties get a fair hearing. Despite the few technical issues, the applicant was able to represent himself well and articulately at the hearing of the application in a proceeding and there is no reason why he would not be able to do that at the final hearing.
While I accept that the applicant would prefer a hearing to take place in Sydney in person, there is no reason why this needs to happen. I accept the Minister’s submission that the convenience to the parties is a neutral consideration.
Limiting of expense and cost in the proceedings
I do not accept that there would be any material difference in the cost and expenses of the proceeding for either party if the proceeding is heard in Sydney or in Perth.
As indicated above, if the proceeding is not transferred, the Court will not require the applicant to travel to Perth, and the applicant gave no indication that he intended to travel to Perth for the hearing. The Court will allow the applicant or his legal representative to appear at the hearing by video. If either party chooses to travel for the hearing, that is a cost that they choose to incur themselves and not one that the Court imposes on them: see AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [17], [20].
The expense and cost of the proceeding is a neutral consideration.
Whether the matter has been listed for hearing
As indicated above, this matter has been listed for hearing on 30 September 2024. That date is three weeks from the date of the hearing of the application in a proceeding and if the matter is transferred to Sydney, it is extremely likely that the hearing date would be vacated and a new hearing date would need to be allocated.
This is highly likely to result in delay in this matter as well as ineffective use of Court time, as it is unlikely that another matter could now be heard on 30 September 2024 if the hearing of this matter is vacated.
This factor weighs heavily against the transfer of the proceeding, particularly when I also have regard to the overarching purpose of the Court’s civil practice and procedure provisions to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, as set out in s 190 of the FCFCOA Act. The objectives require the Court to have regard, relevantly, to the just determination of all proceedings, the efficient use of judicial and administrative resources of the Court, the efficient disposal of the Court’s overall caseload and the disposal of all proceedings in a timely manner. These objectives are best met by the proceeding remaining listed in the Perth registry for hearing on 30 September 2024.
For the avoidance of any doubt, while I have accepted that there would necessarily be some delay as the result of the matter being transferred to Sydney, I make no express finding about what the extent of that delay would be. At the commencement of the hearing of the application in a proceeding, Counsel for the Minister indicated that the Minister’s position was that the Minister opposed the application in a proceeding, unless the matter could be given a timely hearing date in Sydney, with what is considered timely being informed by the fact that the matter is presently listed on 30 September 2024. Counsel for the Minister confirmed that the Minister’s lawyers had not made any inquiries of the Court as to when the hearing might be relisted if the proceeding is transferred to Sydney and the Court was not on notice of the Minister’s position ahead of the hearing.
I stood the matter down very briefly to attempt to make inquiries as to whether there was any likelihood that the proceeding could be listed for hearing in Sydney in October of this year. In the limited time available to me, there were significant restrictions on the inquiries I could make. When the matter resumed, I informed the parties that based on my inquiries, it did not seem likely that they would be able to get a hearing date in October, and that it may be later this year or early next year before the hearing could be held, and that may also depend on whether it should be expedited over other matters in the Sydney registry.
Counsel for the Minister referred several times, in advancing submissions as to why the application in a proceeding to transfer the matter to Sydney should be dismissed, to my observations about possible hearing dates if the proceeding is transferred. I place no weight on the observations that I made to the parties about possible new hearing dates for the purposes of assessing the transfer application. The inquiries that I made, and the observations that I made in Court, were for the purposes of clarifying the Minister’s position as to whether the Minister opposed the application in a proceeding and nothing further. In my view, it is undesirable for the Court to place weight on the outcome of the limited inquiries I was able to make in the short time available for the purposes of considering whether the contested application in a proceeding should succeed.
Any other relevant matter
I have had regard to the applicant’s reasons for wishing the matter to be transferred to Sydney, as described above, but I consider this to be reflective of the applicant’s preferences, rather than the location or manner in which the case may best proceed having regard to the interests of all parties, the just determination of the issues between them and the effective administration of the Court.
I have had regard to the nature of the proceeding before the Court, which is a judicial review proceeding. There is unlikely to be any oral evidence required and both parties will have the benefit of knowing the materials before the Court ahead of the hearing. There is no reason why the parties cannot fairly, effectively and efficiently make their submissions via video, even taking into account the types of difficulties that self-represented litigants will often face in migration proceedings.
There is no other relevant factor identified that would weigh in favour of transferring the matter.
CONCLUSION
Having regard to each of the matters in r 8.01(2) of the GFL Rules and the test in Sentry, the Court considers it to be in the interests of the administration of justice for the matter to remain listed in the Perth registry for final hearing on 30 September 2024. The determination of the issue between the parties, namely whether there is jurisdictional error in the Tribunal decision, can be fairly and properly determined if the matter remains in the Perth registry of the Court, with the applicant being granted leave to appear at the hearing via video link.
The application in a proceeding is therefore dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 12 September 2024
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