DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor
[2019] FCCA 2951
•11 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUN16 v MINISTER FOR IMMIGRATION & ANOR and DUO 16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2951 |
| Catchwords: MIGRATION – Absence of particulars in grounds for review – whether non-compliance with procedural orders of Registrar – responsibility of lawyers for first respondent to file an interlocutory application to resolve issues relating to lack of particularity of grounds for review well before hearing date – waste of court time, resources and costs – matter adjourned. |
| Legislation: Federal Circuit Court Rules2001 (Cth) r. 1.05, 13.03A, 13.03B. Federal Court Rules 2011 (Cth) r. 30.11. Migration Act 1958 (Cth) s. 473DC. |
| Cases cited: DQQ17 & Minister for Immigration and Border Protection [2018] FCA 784. Frome United Breweries Company Ltd v Keepers of the Peace and Justices for County Borough of Bath [1926] AC 586. |
| Applicant: | DUN16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 662 of 2018 |
| Applicant: | DUO16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 665 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 11 October 2019 |
| Date of Last Submission: | 11 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 11 October 2019 |
REPRESENTATION
| Applicants: | In person |
| Solicitor for the First Respondent: | Ms A. Ladhams of AGS |
ORDERS (DUO16)
The two proceedings in DUN16 v Minister for Home Affairs & Anor (PEG662/2018) and DUO16 v Minister for Home Affairs & Anor (PEG665/2018) be heard together on 11 October 2019 pursuant to the provisions of Rule 1.05(2) of the Federal Circuit Court Rules 2001 (Cth) and Rule 30.11 of the Federal Court Rules 2011 (Cth).
The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Applicant is to provide particulars of each of the grounds of review in her application for review filed on 11 December 2018 on or before 25 October 2019.
The First Respondent is to file and serve any further submissions on which the First Respondent intends to rely on or before 15 November 2019.
The further hearing of this matter be adjourned to 21 February 2020 at 10:15am AEST (8:15am WST), with the application not to be heard with DUN16 v Minister for Home Affairs & Anor (PEG662/2018).
Costs of today’s hearing be reserved.
ORDERS (DUN16)
The two proceedings in DUN16 v Minister for Home Affairs & Anor (PEG662/2018) and DUO16 v Minister for Home Affairs & Anor (PEG665/2018) be heard together on 11 October 2019 pursuant to the provisions of Rule 1.05(2) of the Federal Circuit Court Rules 2001 (Cth) and Rule 30.11 of the Federal Court Rules 2011 (Cth).
The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Applicant is to provide particulars of each of the grounds of review in her application for review filed on 11 December 2018 on or before 25 October 2019.
The First Respondent is to file and serve any further submissions on which the First Respondent intends to rely on or before 15 November 2019.
The further hearing of this matter be adjourned to 21 February 2020 at 10:15am AEST (8:15am WST), with the application not to be heard with DUO16 v Minister for Home Affairs & Anor (PEG665/2018).
Costs of today’s hearing be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 662 of 2018
| DUN16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
PEG 665 of 2018
| DUO16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
This matter was listed for final hearing today before the Court. Because of the factual similarity between the two matters, Ms Ladhams, on behalf of the first respondent, made application that the two matters be heard together. The Court made an order that the matters be heard together pursuant to the provisions of rule 1.05(2) of the Federal Circuit Court Rules2001 (Cth) and Rule 30.11 of the Federal Court Rules 2011 (Cth), in particular, subparagraph (d) of that rule.
Each of the originating applications for review which were filed in DUN16 and DUO16 had exactly the same grounds of review for the application. The grounds of the application in each case were as follows:
(1) The Assessor failed to properly consider all of my claims.
(2)The Assessor didn’t give me a chance to comment on one aspect of my claims.
Being mindful of the decision of Colvin J in DQQ17 & Minister for Immigration and Border Protection [2018] FCA 784 at [9] to [11] inclusive, the Court, at the commencement of the hearing, invited the applicant in DUN16 to provide the Court with particulars of Ground 1 of her application for review. The relevant parts of the decision of Colvin J in DQQ17 relating to suggested procedural fairness obligations owed to self-represented litigants in circumstances such as the present are as follows:
[9] However, it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister's discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.
[10] Further, in these cases, a submission by counsel appearing for the Minister that a decision under appeal is not attended with any doubt, or sufficient doubt or error must reflect the independent judgment of counsel after considering all of the materials in performance of counsel's paramount duty to the Court. It is not to be based upon the lack of particularisation of grounds by an appellant who is appearing in person.
[11] Notwithstanding the form in which the written submissions were expressed, the matter proceeded on appeal by affording the appellant an opportunity to make oral submissions identifying matters of concern in relation to the approach by the Federal Circuit Court to the decision by the Immigration Assessment Authority reviewer. The Minister submitted that there was no appellable error as the Federal Circuit Court judge had dealt with the matters raised by the appellant on his application for review (notwithstanding that they were expressed in general terms) and had done so correctly and nothing was raised orally to demonstrate jurisdictional error by the assessor. For the following reasons, I uphold that submission.
Notwithstanding, with the greatest of respect, that this Court doubted whether it was a fulfilment of its judicial role, or the performance of a judicial function, for the court to enter upon the endeavour of attempting to elicit from the applicant particulars of the applicant’s case, and then, of necessity, recording such particulars in a coherent form and for the applicant’s benefit, the Court nevertheless attempted to do so, so as to enable the matter to proceed to a final hearing. The Court, in that regard, was concerned that it could be the subject of adverse later criticism, perhaps, for:
a)erroneously appreciating the import of anything said by an applicant in response to the Court’s request for particulars;
b)failing to so formulate, in writing, what was said by the applicant in a way most advantageous to such applicant;
c)not accurately recording some of, or what the Court might have considered an irrelevant part of, the particulars orally provided to the Court by the applicant.
The Court was concerned that, in effect, it was being required to become the applicant’s advocate or adviser, at the risk of assuming all of the attendant responsibilities which that entailed. [1] The Court was also concerned that the exercise would, in a practical sense, leave the Court open to having any subsequent decision it might make in the matter overturned on any number of grounds associated with the process of the Court:
a)advising the applicant as to the inadequacy of the particulars of their grounds for review;
b)asking the applicant to explain what her complaints were concerning the adverse decision she was seeking to review;
c)recording the answers of the applicant to the Court’s questions;
d)evaluating such of the applicant's answers for the purpose of identifying what were or were not legitimate grounds of review;
e)recording, in writing, what the Court considered were the applicant’s legitimate grounds for review.
[1] Frome United Breweries Company Ltd v Keepers of the Peace and Justices for County Borough
In the case of Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] inclusive, Beazley JA (with whom Giles and Whealy JJA agreed) said as follows:
“[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:
"A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'."
[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.
[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
"But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant."
[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
"A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6."
[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”
In DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, Flick J, sitting on appeal, was there dealing with a contention that a Federal Circuit Court judge had, in that matter, failed to ensure that the hearing was fair, and that the appellant (applicant) did not “suffer a disadvantage from exercising his or her right to be self-represented”. It was further contended that the primary judge “failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court”. The contention was that it was a requirement imposed upon the primary judge to “explain in plain terms to unrepresented litigants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process” and that it is “not enough to merely say that they must demonstrate jurisdictional error”.
When considering the above contentions, Flick J at [37] noted the undesirability of a judge imposing himself upon the proceedings, as an advisor or advocate for an unrepresented party, when His Honour said:
“[37] Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party “why the Tribunal’s decision was not made lawfully”. The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected.”
For a judge to not only elicit information from an applicant orally for the purpose of particularising the applicant’s grounds for review, but to then necessarily have to formulate and record the judge’s assessment of what was said orally by the applicant, goes far beyond providing advice to the applicant as to matters of practice and procedure. It blurs the lines between the judge’s duty to remain impartial, and the judge’s duty to ensure a fair hearing. It is this Court’s view that it is not in the interests of justice for a judge to be so integrally involved in the formulation of one party’s case.
In any event, it became apparent after a period of time of having been addressed by the applicant in DUN16, that the applicant was, firstly, asserting unreasonableness on the part of the Immigration Assessment Authority (the Authority) in its consideration of claims that the applicant had changed her religion to Christianity and, secondly, by asserting that the Authority ought to have sought new information from a particular minister of religion (whose identity and address details were in the material before the Authority), an assertion which could have substance based upon the provisions of s. 473DC of the Migration Act 1958 (Cth) (the Act).
In particular, the applicant referred the Court to the contents of a letter from Westcity Christ of Church dated 17 April 2018, which appeared at court book page 247. It was asserted by the applicant that the Authority ought to have contacted the minister who wrote that letter to seek confirmation of the applicant’s claimed status as a Christian.
Neither of such broad particulars today elicited from the applicant in DUN16 had been the subject of relevant prior consideration by the legal representatives for the first respondent. The lawyers for the first respondent had not had the opportunity to include any written submissions on point. It would have been procedurally unfair to the first respondent had the first respondent been required to formulate a response to the new particulars “on the run”. Further, the Court had not had any opportunity in advance to consider any such new claims.
When asked as to why no interlocutory application for directions or other orders had been made in relation to the lack of particulars prior to trial, Ms Ladhams advised the Court that it had been ordered by a registrar that the applicant was to file and serve an amended application upon which the applicant intended to rely, giving complete particulars of each ground of review. Such order had been made “by consent”, by Registrar Benter, on 6 February 2019. The inference which the Court was invited to draw was that the applicant was in default of such order. It appears that she had been for in excess of six (6) months.
Rules 13.03A and 13.03B of the Federal Circuit Court Rules2001 (Cth) countenance a situation such as the present where a party has failed to comply with an order of the Court. Those rules provide as follows:
13.03A When a Party is in Default
(1) For rule 13.03B, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
(2) For rule 13.03B, a respondent is in default if the respondent:
(a) has not satisfied the applicant's claim; and
(b) fails to:
(i) give an address for service before the time for the respondent to give an address has expired; or
(ii) file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
13.03B Orders on default
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
(2) If a respondent is in default, the Court may:
(a) order that a step in the proceeding be taken within the time limited in the order; or
(b) if the claim against the respondent is for a debt or liquidated damages—grant leave to the applicant to enter judgment against the respondent for:
(i) the debt or liquidated damages; and
(ii) if appropriate—costs; or
(c) if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant; or
(d) give judgment or make any other order against the respondent; or
(e) make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.
(3) The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2)(b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:
(a) an affidavit, or affidavits, proving:
(i) service of the application claiming judgment for the debt or liquidated damages; and
(ii) that the respondent is in default; and
(b) an affidavit for the debt or liquidated damages in accordance with the approved form.
(4) Unless the Court otherwise orders, if a respondent to a cross‑claim is in default:
(a) a judgment or decision on any claim, question or issue in the proceeding on the originating process; or
(b) any other cross‑claim in the proceeding;
is binding as between the cross‑claimant and the respondent to the cross‑claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross‑claim.
(5) In subrule (4):
decision includes a decision by consent.
judgment includes a judgment by default or by consent.
(6) The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court thinks just.
The above provisions make it abundantly clear that there are clear powers on the part of a party not in default in a proceeding to seek the dismissal of a claim, at an early time, in circumstances where another party to the proceeding is in default of an order of the Court. The Court also has wide powers to give directions as to matters of procedure, and to order, where appropriate, that further and better particulars of the applicant’s grounds of review should be provided. What has transpired today is that the Court doesn’t have the time required to both tease out the necessary particulars and then conduct a fair hearing. The Court is unable to proceed with a hearing of either DUN16 or DUO16 because of the lateness of the identification of particulars of the grounds upon which each applicant seeks a review of the relevant decision of the Authority. It is regrettable that that situation has arisen. No interlocutory steps were taken by the lawyers for the first respondent to earlier resolve the issue. Court time has been wasted, costs have been incurred, and there has been unnecessary delay in the hearing and determination of an application for review in each case.
By reason of the lack of particularisation of the claims, it is necessary to have each matter adjourned. Orders will be made for the particularisation of the applicants’ grounds for review. The Court has available hearing time on 21 February 2020. Each matter will accordingly be adjourned for hearing before this Court, on that day, at 10.15 am, Brisbane AEST. The applicants may appear at that time by video conference link up.
It is also desirable, prior to the next hearing date, that any interlocutory application for orders, consequent upon any further or ongoing lack of particularisation of the claims made by or on behalf of each applicant, is filed at an early time, such that it can be adjudicated upon, and resolved, well in advance of such hearing date.
The costs of and incidental to the adjournment are reserved.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 17 October 2019
of Bath [1926] AC 586 at 618 per Lord Carson.
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