DIT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 169

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 169

File number(s):	SYG 2275 of 2019
Judgment of:	JUDGE DRIVER
Date of judgment:	3 February 2021
Catchwords:	MIGRATION – Review of Immigration Assessment Authority decision – oral application at the trial for leave to file an amended application, to read an affidavit by the applicant’s solicitor, and to rely upon written submissions – application refused.
Legislation:	Migration Act 1958 (Cth), s 473DD
Number of paragraphs:	14
Date of hearing:	3 February 2021
Place:	Sydney
Counsel for the Applicant:	Mr P Bodisco
Solicitors for the Applicant:	ABU Legal
Counsel for the Respondents:	Mr N Swan
Solicitors for the Respondents:	Mills Oakley

INTERLOCUTORY ORDERS

SYG 2275 of 2019

BETWEEN:

DIT19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	3 FEBRUARY 2021

INTERLOCUTORY ORDERS:

1.Leave to amend the application filed on 4 September 2019, and introduce the evidence of Mr Abu Siddque is refused.

REASONS FOR JUDGMENT

JUDGE DRIVER

1. Shortly before I came on the bench this morning to deal with this matter, I was informed by my associate that documents relating to the matter had been emailed to her and I subsequently was given three documents, they being a proposed amended application, an affidavit by the applicant solicitor’s, Abu Siddque, and submissions prepared by counsel in support of the proposed amended application.  No written application for leave to amend the application was made, but counsel made an oral application at the outset of the hearing this morning, which I am now dealing with.

2. There are a number of concerns about the approach taken on behalf of the applicant, and I should say clearly, at this point, that those concerns do not reflect on counsel.  The concerns are about delay, noting that the application currently before the Court was filed on 4 September 2019 and has not been amended to this point.

3. The matter was in my docket from the outset, and on 24 September 2019 I made orders by consent for steps to be taken to progress the matter to a hearing this morning at 10.15.  There has been no change to that hearing date.  The applicant was represented from the outset of the proceedings by Mr Siddque, who prepared the original show cause application.

4. I was satisfied at the time of approving the consent orders prepared by the parties that there was sufficient arguability in the application to dispense with the need for a show cause hearing and proceed directly to a final hearing.  In accordance with the timetable set, the Minister filed a court book on 19 November 2019, and an outline of submissions on 29 January 2021.[1] 

   [1] The orders were amended by consent in chambers on 27 January 2021.

5. Because nothing had been heard from Mr Siddque in the days leading up to today’s hearing, both my associate and, it appears, the Minister’s solicitors, made enquiries of Mr Siddque as to his conduct of the matter at the hearing.  No response was received by my associate, although it appears that Mr Siddque informed the Minister’s solicitors of at least an intention to brief Mr Bodisco.  It appears that there was some delay between Mr Siddque forming that intention and him actually approaching Mr Bodisco.

6. Mr Bodisco, to his credit, has worked over the weekend to produce the proposed amended application and written submissions in support of it. Those submissions and the amended application challenge the Authority’s approach to dealing with correspondence, in particular, a letter dealt with by the Authority for the purpose of considering the application of s 473DD of the Migration Act 1958 (Cth) from [3] through to [11], but particularly at [9].

7. The letter in question is reproduced at CB 226.  It purports to bear the signature of Md. Sultan Ahmed and it purports to be authenticated by a notary public in Bangladesh.  The affidavit prepared by Mr Siddque tells me that yesterday he contacted the notary public on the telephone number appearing on the stamp on the letter.

8. Mr Siddque was successful in identifying the notary public and discussed the possibility of sending the document to her to assess its authenticity, or at least, the notarisation of it.  It does not appear that that last step has, to this point, been taken, although it hypothetically might be.

9. In his submissions in support of the granting of leave, counsel told me that he had advanced a similar argument in another proceeding but had failed for want of evidence.  Mr Siddque’s affidavit is presented in an attempt to deal with that issue. 

10. Counsel for the Minister opposes the granting to leave, noting the extreme lateness of the proposed amended application and the complete inability of the Minister to deal with the matter today.  If leave were granted, that would necessitate an adjournment, either for the making of written submissions or for a further hearing.  It would also entail the Minister incurring additional legal costs.  Further, costs incurred by the Minister for preparing for a hearing on the existing application would be substantially thrown away.  Through his counsel, the applicant concedes that an order for costs, including costs thrown away, could not be resisted, and neither could an order for an adjournment. 

11. It is, in my view, very troubling that Mr Siddque did not act until the days immediately before the hearing in order to instruct Mr Bodisco, and to pursue the inquiry of the notary public.[2] 

    [2] No attempt was made to deal with the matter in the orders made by consent on 27 January 2021.

12. As I put to counsel for the applicant, the affidavit of Mr Siddque is not particularly conclusive.  It is evidence that the notary public is a real person who may well have a fixed a stamp or stamps on the letter dealt with by the Authority.  It also establishes that there was a means for the Authority to contact the notary public, if not the purported author of the letter.

13. On the other hand, on my reading of the Authority’s reasons at [6], its concern was not so much with the authentication of the letter, but rather the authenticity of the authorship with it and the truth of the statements contained in it.  The Authority expressed concern that the author of the letter, rather than the notary, invited contact without any direct means of communication.

14. Given the extreme lateness of the presentation of the proposed amended application, and my consideration, at least at a general level, of the merit of it, I have come to the view that the oral application for leave to amend the application and introduce the affidavit of Mr Siddque should be refused, and I so order.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       4 February 2021