DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs - [2022] FedCFamC2G 564

Federal Circuit and Family Court of Australia
(DIVISION 2)
DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564

File number(s): SYG 2780 of 2017

Judgment of: JUDGE GIVEN

Date of judgment: 25 July 2022

Catchwords:
MIGRATION – application for extension of time – applicant not told of outcome of Tribunal decision until after expiry of time to apply to Court for review – conduct of solicitor and Counsel in relation to preparation of originating process without applicant’s knowledge or instructions – extension of time granted – application dismissed on final basis

PRACTICE AND PROCEDURE – whether Counsel properly engaged on a direct access basis – whether Counsel engaged without instructions of client – failure to disclose involvement of Counsel or solicitor in originating process – misleading nature of documents filed – whether misleading statements made to Court about timing and nature of Counsel’s brief – referral of practitioners to Bar Association and Law Society

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191

Migration Act 1958 (Cth) ss 5J, 36, 441A, 441C, 441G, 476, 476A, 477, 486I

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04(1), 22.06

Federal Circuit Court Rules 2001 (Cth) r 44.05(1)

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 20, 21, 22, 57, 101, 105

Cases cited:
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10

BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49

CDY15 v Minister for Immigration and Border Protection [2018] FCA 175

CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495

DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246

FKV17 v Minister for Home Affairs [2022] FCAFC 93

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Jackamarra v Krakouer (1998) 195 CLR 516

Jones v Dunkel (1959) 101 CLR 298

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZABP v Minister for Immigration & Border Protection [2015] FCA 1391

SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774

SZSHK v Minister for Immigration and Border Protection (2013)138 ALD 26

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55

XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535

Division: Division 2 General Federal Law

Number of paragraphs: 219

Dates of hearing: 5 May, 20 June 2022

Place: Sydney

Counsel for the Applicant: Name withheld

Solicitor for the Applicant: Abu Legal (from 10 May 2022 only, and not the subject of these reasons for judgment)

Solicitor for the Respondents: Australian Government Solicitor
ORDERS

SYG 2780 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DZW17

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE GIVEN

DATE OF ORDER:

25 July 2022

THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the time to make the originating application in this matter is extended up to and including 6 September 2017.
2.The application made pursuant to s 476 of the Migration Act 1958 (Cth), as amended on 8 June 2022, is dismissed.
3.Within 7 days of the date of these orders, the first respondent is to serve a sealed copy of these orders and the reasons for judgment published today on each of:
(a)Counsel who appeared for the applicant at the hearings on 5 May 2022 and 20 June 2022 at her chambers email address; and
(b)the solicitor who in the reasons for judgment is anonymised as “Mr V”, by sending an email to the Yahoo address contained in the originating application.

4.The matter be listed for a hearing in respect of costs at a time to be administratively advised.
5.The papers in this matter, together with a copy of the reasons for judgment and any subsequent judgment in respect of costs, be referred to:
(a)the NSW Bar Association in respect of Counsel referred to in Order 3(a) (and whose details will be provided); and
(b)the Law Society of New South Wales in respect of the solicitor who in the reasons for judgment is anonymised as “Mr V” (but whose details will be provided to that professional body).

THE COURT NOTES THAT:
The parties, together with each of the persons referred to in orders 3(a) and 3(b), are hereby on notice that at the costs hearing referred to in order 4 the question of all costs of these proceedings, including pursuant to rule 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), will be heard for determination.
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 GIVEN:

I have before me an application for extension of time brought pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act).
The applicant in this matter was assisted in her various applications (including to this Court) by a person who is both a migration agent and a solicitor and, for the purposes of this judgment, will be referred to as “Mr V” for reasons which will become apparent.
Mr V and the Counsel who appeared for the applicant at all relevant hearings in these proceedings (Counsel) require a degree of anonymisation in this judgment and because Mr V has acted in an array of capacities throughout the life of these proceedings and its antecedents, it is not possible to describe him simply by reference to his role.
It should also be noted that the firm of solicitors for the applicant who are recorded on the cover sheet of this judgment as acting for the applicant only came into the matter on 10 May 2022, are not the firm of Mr V nor do they appear to have any affiliation with Mr V.
The conduct of Counsel and/or Mr V as discussed in these reasons for judgment has not been taken into account to the detriment of the applicant in assessing the relevant factors required in relation to her application for an extension of time or the substantive application under s 476.
Background and applicant’s claims
The applicant is a citizen of Vietnam who arrived in Australia on 29 April 2015 travelling on a Tourist visa, which expired on 29 July 2015, following which she was in Australia unlawfully. On 14 December 2016 the applicant was arrested by NSW Police and transferred to immigration detention (Court Book (CB) at 68).
On 10 January 2017, the applicant applied for a Protection (Class XA) visa (visa) (CB 1 to 46). That visa application:
(a)indicated that the applicant had been assisted in the preparation of it by Mr V (CB 16);
(b)was paid for by the inclusion within it of credit card details which were in the name of, and signed by, Mr V (CB 16);
(c)contained an interpreter’s declaration which was completed by Mr V (CB 18);
(d)provided a PO Box as the address for correspondence, which appears from other documents in the Court Book[1] to be that of Mr V/his legal/migration practice (CB 23, 47, 81, 113);
(e)provided a particular Yahoo email address (Yahoo address) as being the email address at which the applicant agreed to receive correspondence from the Department (CB 23 at Question 41), but was actually the email address of Mr V;
(f)answered a question about whether the applicant had any personal contacts in Australia (examples of which were said to “include friends, other family members and acquaintances” (CB 26 at Question 45)) with the details of a friend of the applicant, for whom a residential address and telephone numbers were provided. The response to this question included Mr V’s Yahoo address as being the email address of the friend;
(g)included a declaration which was witnessed by Mr V, this time expressly in his capacity as a solicitor (CB 43);
(h)was accompanied by a Form 956 which appointed Mr V as the applicant’s authorised recipient and again provided each of Mr V’s PO Box and Yahoo addresses;[2]
(i)attached copies of some pages of the applicant’s passport (CB 50 to 53); and
(j)was accompanied by a separate written document providing answers to various questions which are posed by the visa application form on Mr V’s letterhead (CB 47 to 49). This document appears to have been signed by Mr V, but not signed by the applicant.
[1] See, for example, letterhead at CB 47.
[2] Referred to at [7(d)] and [7(e)] above.
By the visa application, the applicant claimed that she started a motorbike business in a particular city in Vietnam in January 1988, but the local government asked her to pay large amounts to them each year. When this became untenable the applicant said she had to move. The applicant said she moved twice to different addresses in the same city but again received bribe demands from the local government which she could not pay. The applicant said that in May 2013 she was threatened that if she “continued” (presumably meaning continued not to pay) “they would get rid” of her (CB 47).
The applicant claimed to have hidden in another city in Vietnam in October 2014 in order to avoid harm and later to “escape again” to Singapore, Malaysia, Thailand and Indonesia in February 2015, but that she had to return to Vietnam because of language barriers and a lack of support. The applicant said her daughter (who had previously studied in Australia) told her about Australia and so she sought a visitor visa to travel here (CB 48).
On 20 January 2017, the applicant attended a Departmental interview for the purpose of the visa application (CB 60, 68.9). At that interview, the applicant claimed that she ran a successful taxi and motorcycle business in Vietnam. Differently than had been expressed in the visa application, the applicant claimed that a high-ranking state official and two police officers had invested in her business. The government official allegedly forced her to transfer assets to his family member when the business began to struggle. The applicant claimed that if returned to Vietnam she would face falsified charges from other investors who are connected to corrupt police officers. The applicant claimed to have large debts in Vietnam as a result of her failed business, and that her creditors had tried to extort money from her, and from her family (CB 70 to 71).
On 7 March 2017, the first respondent’s delegate refused to grant the visa, finding that the applicant was an unreliable witness and comprehensively rejecting her claims for protection (CB 75).
Tribunal proceedings
On 22 March 2017, an application was made to the Administrative Appeals Tribunal (Tribunal) on behalf of the applicant (CB 80 to 81) which:
(a)was lodged online;
(b)provided the applicant’s address details as being the PO Box and Yahoo address of Mr V;
(c)separately included the PO Box and Yahoo address as being those of Mr V;
(d)provided a particular telephone number purporting to be the applicant’s daytime and evening telephone number as well as being Mr V’s evening telephone number; and
(e)provided the same mobile number purporting to be that of each of the applicant and Mr V.
On 13 April 2017 the Tribunal sent a letter to the applicant (via Mr V in his capacity as her authorised recipient (for the purposes of s 441G of the Act)) inviting the applicant to attend a hearing (CB 88 to 91). Mr V responded to accept that hearing invitation by an email from the Yahoo address sent on 1 May 2017 (CB 92 to 95). The Tribunal hearing was rescheduled (CB 96 to 99) and, on 2 June 2017, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Vietnamese language (CB 104 to 106). Mr V was also present at the Tribunal hearing (CB 104).
On 22 June 2017, the Tribunal affirmed the decision under review (CB 119 to 131).
The Tribunal:
(a)set out the applicant’s claims as made in each of the visa application (CB 121 at [16] to [18]) and the Department interview (CB 122 at [19] to [24]) before summarising the delegate’s decision (CB 122 to 123 at [25] to [34]) and the evidence given by the applicant at the hearing before it (CB 123 to 126 at [36] to [53]);
(b)expressed at the outset of its findings and reasons that it was not satisfied that the applicant had provided truthful evidence about her circumstances and experiences in Vietnam (CB 126 at [54]);
(c)found there had been a material shift in the applicant’s claims over time from the visa application, in which she claimed to have been extorted by corrupt local government officials, to claims made later at the Departmental interview that those officials had been the disgruntled investors in her business. The Tribunal was not satisfied that the claims were unchanged or consistent as the applicant asserted, but rather that the claims had changed and there was no credible explanation provided for that evolution (CB 126 at [55]);
(d)did not accept that the applicant’s travel to Malaysia, Thailand, Singapore and Indonesia in early 2015 were attempts to escape Vietnam but which had failed because of a lack of resources in those places and language barriers, noting that such matters had not later been obstacles to the applicant travelling to Australia and later seeking protection (CB 126 to 127 at [56]);
(e)found the applicant’s conduct upon arriving in Australia was not consistent with a claim to have fled Vietnam to Australia to seek protection, given the delay in doing so after she arrived and given that it appeared she had only applied for protection once placed in immigration detention and after a considerable period, during which she had remained unlawfully in Australia (CB 127 at [57]);
(f)had serious concerns arising from the applicant’s evidence that her husband continued to operate the passenger transport business in Vietnam under the same business name as had the applicant. The Tribunal considered that if disgruntled investors were still seeking to recoup losses then it was plausible they would approach her husband. The Tribunal was not persuaded by the applicant’s explanation that the reason this had not occurred was that her husband was more akin to an employee, given the applicant’s other claim that her daughters had been harassed by the gangsters (CB 127 at [59]);
(g)found that the foregoing aspects led it to not be satisfied that the applicant’s claims of past harm were true. While the Tribunal was prepared to accept that the applicant had been involved in a passenger transport business and even that there may be debts associated with that business, it did not accept the applicant was harmed by corrupt government officials who had extorted her, by officials who had invested in her business or by gangsters engaged by such officials. The Tribunal also did not accept that the applicant had been threatened herself or that the applicant’s children had been threatened by officials, police officers, gangsters or any creditors (CB 127 at [60]);
(h)was not satisfied the applicant had a genuine fear of serious or significant harm at the time of the decision (CB 127 at [60]);
(i)found that there was not a real chance or risk that the applicant would be threatened, killed, arrested, falsely prosecuted or subject to any other form of serious or significant harm at the hands or behest of government officials or police officers in Vietnam (CB 127 to 128 at [60]);
(j)in relation to the possibility that the applicant’s debts could give rise to harm, was not satisfied that it would be for a reason set out in s 5J(1)(a) of the Act and therefore found that it would not satisfy the refugee criterion (CB 128 at [61]); and
(k)concerning the complementary protection criterion in relation to the applicant’s debt position, stated that it was plausible that if the applicant been harassed in the past about her debts, then unpaid creditors might do so again but noted that the applicant had not claimed to have been threatened or otherwise harmed by such creditors in the past (despite her having speculated that it might occur in future). The Tribunal relied on its anterior factual and credit findings, and was not satisfied the applicant would face significant harm from any creditors in future (CB 128 at [61]).
Accordingly, the Tribunal was not satisfied that the applicant satisfied either of the s 36(2)(a) or (aa) criteria.
On 23 June 2017, being the day after its decision was made, the Tribunal sent a copy of the reasons for decision to Mr V (as her authorised recipient) by email to the Yahoo address (CB 117 to 118) pursuant to ss 441G and 441A(5)(b) of the Act. The applicant is taken to have received the notification at the end of 23 June 2017 pursuant to s 441C(5) of the Act.
Application to this Court
The chronology in this matter is difficult to set out because aspects of it which were not initially apparent have revealed themselves as the matter has unfolded. Accordingly, some events may be addressed either out of order or more than once, depending on whether the timing of how, and when, they became known to the Court is a relevant factor.
On 6 September 2017, an application for an extension of time in which to seek judicial review of the decision of the Tribunal was filed with this Court, which had the effect of commencing the instant proceedings (originating application).
Pursuant to s 477(1) of the Act any application for judicial review was required to be filed within 35 days of the Tribunal’s decision, namely on or by 27 July 2017. Accordingly, the originating application was filed 41 days out of time.
The originating application formally sought the necessary extension of time (by ticking a box), and provided the following statements under the heading “Grounds of application for extension of time”:
1. Applicant needed time to consult with relatives in Vietnam
2. Applicant needed time to source finance from Vietnam
However, the Affidavit of the applicant made on 29 August 2017 (2017 Affidavit) and filed at the same time as the originating application[3] was silent as to any explanation for why the application had not been made in time.
[3] Albeit stating that it was in support of an “application in a case”, even though no such application had been filed.
Instead, the total content of the body of the 2017 Affidavit was as follows:[4]
1.I am the Applicant in this proceeding and I make this affidavit in support of an application in a case.
2.        xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
3.        xxxxxxxxxxxxxxxxxxxxxxxxxxxx
4.        Annexed and marked “A” is a copy of the AAT’s decision record.
[4] Where [2] and [3] of the 2017 Affidavit contain only a row of the letter “x”, this is a direct replication of the Affidavit and not an anonymisation of text.

Before turning to an assessment of each of the matters which fall for consideration in an application for extension of time, it is necessary to set out a more detailed background to the commencement of the proceedings which emerged during the course of two hearings before me, and from which an additional issue arises in relation to the conduct of the legal practitioners who have been involved with the applicant.[5]
[5] Excluding the applicant’s current solicitors who first entered an appearance on 10 May 2022.
Further, because the explanation for the delay in commencing these proceedings which was ultimately advanced before me relies upon alleged failures on the part of Mr V, these matters are also relevant to the interlocutory issue before the Court.
This additional background is sourced from the following:
(a)various documents on the Court file, including correspondence from the parties to the Court and vice versa;
(b)documents in the Court Book which was filed for the first respondent on 6 November 2017;[6]
(c)the 2017 Affidavit;
(d)an Affidavit of the applicant made on 5 May 2022 which Counsel for the Applicant provided to the Court on that date initially unexecuted and then
(e)purportedly in an executed form (5 May Affidavit); and
(f)an additional bundle of documents tendered for the first respondent at hearing which had been provided by Counsel.[7]
[6] Exhibit “1R”.
[7] Exhibit “2R”.
At the time the originating application was filed with the Court, the form by which such an application was to be made was Form “MIGAPP_FCC_1015” and which was approved for the purposes of r 44.05(1) of the (then) Federal Circuit Court Rules 2001 (Cth) (approved form). The footer to the approved form provided as follows:
In contrast to the approved form, the version of the footer on the originating application had been altered to provide as follows (redactions applied):
An examination of the entire originating application reveals the following:
(a)the section in the footer in which the name of the author of the document should be included has been altered from “Prepared by” to read “Prepared for” (emphasis added). Accordingly, the document does not disclose by whom it was prepared. Further, this alteration of the form can have served no legitimate purpose given that it is clear from the very fact it was an originating application, that it was prepared for the applicant;
(b)at first glance, the originating application gave the impression that the applicant was unrepresented. Certainly no details of a practitioner were included and in the section of the footer to provide “Name of law firm” this was completed as follows:
“NOT APPLICABLE”
(c)the Yahoo address was included which (together with the matters referred to at [29(a)] and [29(b)] above) gave the impression that it was the email address of the applicant;
(d)on page 6 of the originating application an interpreter was requested in the Vietnamese language for the applicant;
(e)it was signed by the applicant (a fact deposed to (see 5 May Affidavit at [5]));
(f)the box below the signature block was also ticked to indicate that it was the signature of the applicant (rather than that of a lawyer); and
(g)the section for “Lawyer’s Certification” pursuant to s 486I of the Act was left blank.
On 28 September 2017 a Response was filed with the Court for the first respondent which opposed time being extended. The Response said, inter alia, that the originating application did not adequately explain why it was necessary in the interests of the administration of justice to make the order under s 477(2)(a) of the Act.
At the time of the filing of the originating application the matter was docketed to Judge Manousaridis and given a return date before a Registrar for a first Court date directions hearing on 9 October 2017.
In accordance with the preference indicated in the originating application, the Court arranged an interpreter in the Vietnamese language to be present at that directions hearing. This is customary for cases when there is no indication of a legal representative in the originating application: see CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495 at [19] per Charlesworth J.
It transpires that provision of an interpreter was unnecessary because (as was discovered by me much later in the proceedings) Counsel appeared for the applicant on that occasion before the Registrar. That same Counsel who appeared at the first Court date on 9 October 2017 also appeared to represent the applicant at all hearings before me. There is nothing before the Court to indicate one way or another whether the applicant attended Court on 9 October 2017 with Counsel, whether Mr V was present as well, or whether Counsel was there alone and without any instructor.
At the first Court date, the orders to which Counsel consented on behalf of the applicant included the following (original emphasis):
1. The first respondent file two hard copies and an electronic copy of a bundle of relevant documents (“the Court Book”) and serve a hard copy on the applicant by 6 November 2017.
2.The applicant has leave to file and serve an amended application give complete particulars of each ground of review relied upon by 18 December 2017.
3.The applicant file and serve any affidavit containing additional evidence to be relied upon by 18 December 2017.
…
6.The applicant file and serve written submissions and list of authorities 14 days before the hearing.
…
10.A show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) be dispensed with.
11.The substantive application be listed for a final hearing at 2:15pm on 5 September 2019 before Judge Manousaridis, it is the responsibility of the parties to check the court list to find out the location of the hearing.
…
That orders 10 and 11 were made in the aforementioned terms (namely dispensing with a show cause hearing and listing for a final hearing) is odd considering that the first respondent had opposed the grant of an extension of time by his Response to the originating application. However, it has never been contended by either party that the above orders were intended to constitute the first respondent’s consent to time being extended and, until now, no order was made pursuant to s 477(2) of the Act.
The first respondent filed a Court Book on 6 November 2017 as ordered. No amended application or evidence was filed for the applicant by 18 December 2017 in accordance with the Court’s grant of leave.
Initially, from a review of the Court file it appeared to me that the proceedings lay dormant until 26 August 2019. However a detailed search of correspondence of the Court’s systems now reveals that on 28 August 2018 the chambers of Judge Manousaridis wrote to the parties to notify them of the vacation of the 5 September 2019 hearing fixture, which was to be relisted on a date to be administratively advised (Vacation Email). The Vacation Email was sent to the solicitor for the first respondent at his email address, and to the applicant at the Yahoo address.
The proceedings then did lie dormant until when, at 6:24am on 26 August 2019, the chambers of Judge Manousaridis received an email from Counsel (August 2019 Email) who wrote as follows (errors in original):
Dear Associate,
I was retained on 1 August 2019 to appear for the Applicant in the above-mentioned matter. I was retained on a direct access basis. The matter is scheduled to be heard on 5 September 2019.
Due to anomalies in my diary entry, I realized (on 25 August 2019) that the Applicant's submission was due on 22 August 2019. I have not been able to draft the written submissions as I am yet to receive the court book.
On 25 August 2019(Sunday), I sent an email to the Minister's representative (copied on this email) requesting a soft copy of the court book.
I am writing to request an extension of time to prepare and submit the Applicant's written submissions. I would be able to send in the Applicant's submissions by Close of Business on 28 August 2019.
The Court, no doubt taking Counsel’s email at face value in a number of respects (including that the matter was listed at the time she said it was), granted Counsel additional time to file written submissions on or by 28 August 2019, such extension being then communicated to the parties by the Associate to Judge Manousaridis at or about 9:01am on 26 August 2019.
It is important to note at this juncture that the appearance of Counsel at the first Court date was not something which was readily apparent from the documents on the Court’s electronic file. From a more in-depth review of the Court’s records which was ultimately necessary for me to make sense of the chronology of this matter, I retrieved a scanned copy of the signed proposed Consent Orders which were handed to the Registrar at the first Court date and, were for the applicant’s part, signed with the addition of a handwritten notation “Counsel for the Applicant”.
However, the sealed version of those orders which is the copy to which the Court would ordinarily have regard, did not record appearances for the parties (as has become the Court’s custom in more recent times). The relevance of this is that, without having cause to source the signed version of the orders from the Court’s electronic archive, Judge Manousaridis would not have been aware of the involvement of Counsel at the matter’s first Court date even if his Honour had had occasion to review those sealed orders. Accordingly, his Honour would have had no reason to doubt the veracity of Counsel’s statements regarding when she was retained, nor the basis of that retainer, when his Honour made a decision to grant Counsel an extension for the preparation of the applicant’s submissions.
At or about 9.04am on 26 August 2019, Counsel acknowledged receipt of the email from the Associate confirming the grant of the extension to file submissions. At or about 9:12am, the solicitor for the Minister replied to the Associate and Counsel and explained his understanding that the matter had adjourned a year earlier. The solicitor for the first respondent attached a copy of the Vacation Email. At or about 9:15am the Associate to Judge Manousaridis replied to all and confirmed that the matter had indeed been previously vacated, was not presently listed and that the parties should tell the Court if there was a reason why it needed to be listed urgently.
Despite having written to the Court, with Counsel copied, to confirm that the matter was not listed, the solicitor for the first respondent did not seek to correct the suggestion that Counsel could not in fact have only just been retained in the matter despite the fact that the solicitors for the first respondent knew from her appearance at the first Court date that this was not accurate.
At or about midday on 28 August 2019, and despite having been informed that the matter did not have a hearing date, Counsel wrote again to the Associate to Judge Manousaridis by email, copying the Minister’s solicitor and attaching written submissions and a proposed amended application. The email stated as follows (emphasis added):
Dear Associate
Please find attached the Applicant’s written submissions in this matter.
I have asked the Applicant’s community representative to file the attached documents (the written submissions and the amended application) at the court registry, today. The Applicant will also file an affidavit in support of the amended application.
It later came to be understood that the reference to a community representative should be taken as being a reference to Mr V.[8]
[8] See [65] below.
Despite what was stated in the 28 August 2019 email:
(a)neither the written submissions nor the proposed amended application was filed; and
(b)no Affidavit of the applicant of the kind presaged in that email was filed at that time either.
The proposed amended application sent to the Court by email was advanced well outside the grant of leave to which Counsel had herself agreed at the first Court date. Any amended application was due to be filed and served on or by 18 December 2017. Further, there had been no such document foreshadowed by the August 2019 Email, no extension sought and consequently no extension was granted.
It is convenient at this point to note the following about the proposed amended application:
(a)it bore a similar footer to that of the originating application, insofar as it was altered to state that it was “Filed on behalf of” and “Prepared for” the applicant but not to disclose its author;
(b)the footer also included “NOT APPLICABLE” in the section for “Name of law firm”;
(c)the Yahoo address was again provided as the email address for service for the applicant;
(d)it included a mobile telephone number which appears to be that of Mr V (see [12(d)] above;
(e)the heading “Grounds of application for extension of time” was highlighted in yellow, but the grounds themselves were now omitted such that the section was relevantly blank;
(f)the relevant section regarding the need for an interpreter still requested that an interpreter in the Vietnamese language be provided;
(g)it was unsigned albeit the applicant’s name was included under the blank signature block for completion; and
(h)the “Lawyer’s Certification” section remained blank.[9]
[9] Albeit that in the case of an amended application this may be understood as being technically unnecessary due to a lacuna in s 486I: see AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 at [49] to [50].
Presumably based on the knowledge that the hearing had adjourned almost a year beforehand, no written submissions were filed at that time for the first respondent in response to the written submissions referred to in [44] above.
The matter was later transferred to the Court’s central migration docket where it was held in abeyance until 3 March 2022 when it was brought into my docket and a Registrar of the Court made, inter alia, the following orders:
1.The matter be listed for hearing of the application for an extension of time and, if granted, final hearing before Judge Given at 10.15am on Thursday, 5 May 2022.
2. The applicant must file and serve a written outline of submissions and list of authorities 14 days before the final hearing.
3. The first respondent must file and serve a written outline of submissions and list of authorities 7 days before the final hearing.
The listing notice was sent from the Court to the applicant at the Yahoo address.
By reference to the hearing date, the applicant and first respondent’s written submissions were due to be filed and served on or by 21 April 2022 and 28 April 2022, respectively. Nothing was filed for the applicant in time.
The first respondent’s written submissions were filed on 27 April 2022 and relevantly:
(a)stated the following at [14] to [15] (now anonymised):
14. On 28 August 2019, counsel for the applicant, [NAME], sent an amended application and written submissions dated 28 August 2019 to the Associate of Judge Manousaridis via email. The amended application was not signed by the applicant or anyone on behalf of the applicant.
15. On 26 April 2022, [NAME] sent the same unsigned amended application along with written submissions dated 26 April 2022 to the Associate of Judge Given via email.
(b)noted at [20] that the applicant had still not provided any substantive explanation for the delay despite being legally represented.
On 3 May 2022 (namely two days before the scheduled hearing before me and five days after the filing of the first respondent’s written submissions), the following documents were filed for the applicant:
(a)a proposed amended application, being substantively in the same form which had been circulated on 28 August 2019 (and which still bore that same date); and
(b)written submissions (3 May Submissions).
The 3 May Submissions:
(a)commenced with the following paragraph (emphasis in original):
This is an application for judicial review of the decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 22 June 2017, affirming the decision made by a delegate of the First Respondent on 7 March 2017, to refuse to grant the Applicant a protection visa (the “Visa”) under s.65 of the Migration Act (the “Act”); and
(b)thereafter entirely failed to refer to, let alone address, the matters which ordinarily inform the Court’s assessment of the factors to be considered in relation to an application under s 477(2) of the Act. Instead, the 3 May Submissions proceeded as if the hearing was in relation to relief sought under s 476 of the Act.
Knowing that there was an issue regarding leave to amend which would need to be dealt with at hearing, and which might involve a question of at what stage the applicant became represented in the matter, my interest in the chronology was piqued by [14] to [15] of the first respondent’s submissions[10] such that it caused me to find, and review, the email correspondence between Counsel and the chambers of Judge Manousaridis, in advance of the hearing.
[10] See [53(a)] above.
At 10.15am on 5 May 2022, the matter came before me for hearing using the Microsoft Teams platform (due to ongoing COVID-19 precautions). Approximately 16 minutes before that hearing was due to commence, Counsel for the applicant emailed my Associate an unexecuted copy of the 5 May Affidavit, saying that it would be imminently affirmed by the applicant.
At the commencement of the hearing there were a number of accounts which had joined the Microsoft Teams “meeting”. Visible on my computer screen was the solicitor for the first respondent, Counsel and the applicant herself (in a different location to Counsel). An account in the name of Mr V was also connected to the hearing, albeit with the camera off. The significance of his presence was not readily apparent until later.
An executed version of the 5 May Affidavit was emailed by Counsel to my Associate at 10:19am, namely after the hearing commenced.
By the 5 May Affidavit the applicant deposed inter alia to the following:
…
3. In 2017, I retained [Mr V] as my solicitor to assist with my case. I paid him money to ensure that everything would run smoothly.
4. [Mr V]’s email address is on all the documents and he received all the document from the Court.
5. I am not fluent in English Language. I was not aware that my application was filed late.
6. [Mr V] was responsible for filing my documents to ensure that I comply with the time requirements.
7. Each time I have asked [Mr V] about my case, he has assured that everything was going smoothly
8. I was in a difficult situation because I could not read English properly, especially in respect of matters relating to law and those sort of things are out of my understanding
…
10. My Counsel was retained by [Mr V] to appear in my matter on 23 August 2017.
11. My Counsel has sent me an email she sent to [Mr V] on 27 August 2017 advising him to prepare an affidavit to support the extension of time application.
12. [Mr V] did not advise my Counsel that my matter was listed to be heard on 5 May 2022.
13. I confirm that my friend [NAME] who is fluent in English and Vietnamese has interpreted the contents of this affidavit to me and I accept the representations as mine.
Having been alerted by the first respondent’s written submissions to the August 2019 Email (which I had by then read), I observed a patent inconsistency between the version of events contained in the 5 May Affidavit as to when, and on what basis, Counsel was said to have been briefed, and those which were conveyed by Counsel to the Associate to Judge Manousaridis by the August 2019 Email. I also saw that the 5 May Affidavit had been executed without using the non-English speaking jurat despite the fact that within the body of that very Affidavit[11] the applicant is said to not be fluent in English.
[11] 5 May Affidavit at [5], [8] and [13].

I raised these matters with Counsel who told me that this was because the Affidavit was drafted “under very urgent circumstances”.[12] I asked Counsel by whom the 5 May Affidavit had been drafted and was informed by Counsel that Counsel had drafted it herself, based on instructions received from the applicant received that morning.
[12] Transcript, 5 May 2022, p.3.41.
When I noted that, in contrast to the suggestion the Affidavit was drafted on the applicant’s instructions, parts of the Affidavit deposed to interactions which appeared to be exclusively between Counsel and Mr V and not matters which might be personally known to the applicant,[13] the Court was told that this had been done to provide clarity and to give the Court “a bit of background”.[14] Despite having prepared an Affidavit for the applicant the body of which expressly deposes to the Yahoo address as belonging to Mr V and to Mr V receiving all the documents from the Court,[15] Counsel had again included the Yahoo address in the footer of the 5 May Affidavit.
[13] 5 May Affidavit at [10], [11] and [12].
[14] Transcript, 5 May 2022, p.4.13.
[15] 5 May Affidavit at [4].
I raised with Counsel various matters of concern which arose from the August 2019 Email by reference to the 5 May Affidavit, namely the inconsistency between the statement to Judge Manousaridis’ chambers that Counsel had been “retained on 1 August 2019 to appear for the Applicant in the above-mentioned matter. I was retained on a direct access basis” and the statement in the 5 May Affidavit that Counsel had been retained on 23 August 2017 by Mr V. I reiterate that at this time I was still unaware that Counsel had also appeared for the applicant at the first Court date directions hearing.
The following exchange then occurred (redactions applied):[16]
[COUNSEL]: Your Honour, if I can ask – if I can step in. I start by saying that I have not put any document out to the court which misrepresents – this is to the best of my knowledge – misrepresents what has transpired in this case. The background of this case, your Honour, was that this matter came to me in 2017. I have today assessed the access – the agreement which I had and it’s agreed 24 August 2017. So if I had communicated to the judge’s – to Judge Manousaridis’ Associate to indicate it was 2019, it would have been an error, and there would have been no need for me to state at that time that it was – it was August 2019 if it was indeed 2017.
JUDGE GIVEN: Well, there would be - - -
[COUNSEL]: I came into this - - -
JUDGE GIVEN: There would be, [NAME], because you were trying to get an extension from the court on the basis you had been recently brought into the matter. You also told Judge Manousaridis you act on a direct access basis.
[COUNSEL]: Yes, I – that has not changed. What happened is that in each case where I have acted on a direct basis, I’ve always had a community representative. Someone between me and the client. In this case, there was – the person involved was a person by the name [Mr V]. At the time he approached me, he told me he was a solicitor but he was not acting in the capacity of a solicitor and that he was not going to be on the record. So I took on this matter at all times stating that it was a direct access matter, and when you read the initial application, the name on the matter is the client’s name, whereas the email address was the community representative, who at the time said he was a solicitor, put his name – his email address on the matter. So all the documentations and all the communication between the court was between himself and the court.
I did not receive any direct communication with the – from the court on this matter. So if there’s any discrepancy with respect to what I said to – and I could not have lied because that matter was – this matter was previously scheduled to be heard in September 2019, so there would have been no basis for me to indicate that I had been – and if there was an error, then I accept it, but there’s no reason for me – as a professional, I never communicate lies in this – and I can back myself. So with respect to the other issues, I have done – when I sent – when I filed this – when I sent the application to [Mr V], [Mr V] took on all the responsibilities with respect to filing.
I basically have an email that I sent to him in 2017 indicating that I could not file documents, I could not file an affidavit. I gave him a template of a document, an affidavit – the court’s document which he could use to prepare the affidavit. I basically – and I sent that email to the applicant today as well, indicating that I gave him instructions and advice on how to prepare the affidavit so it could support an extension of time. What he then did is to take that template, without including any reason or any deed, and that’s the document that was filed, I believe, on the 28^th...[17]
[16] Throughout the 5 May 2022 Transcript Counsel referred to Mr V by a different name by erroneously using his first name as being his surname.
[17] Transcript, 5 May 2022, p.6.13-7.13.
Following this exchange and the revelations regarding the existence in the proceedings of Mr V, I expressed concern to Counsel regarding the preparation by her of documents filed in the proceedings and by Mr V, and the nature of the arrangements between Counsel and Mr V. These concerns included:
(a)the matter had not been properly prepared because the application before me was for an extension of time, yet it appeared to be advanced on the basis that it was a final hearing insofar as:
(i)there was no Affidavit evidence filed for the applicant deposing to her explanation for having failed to commence the proceedings within time (until receipt of the 5 May Affidavit which had been provided to the Court and to the solicitor for the first respondent during the hearing); and
(ii)the 3 May Submissions were entirely silent regarding the factors going to the extension of time.
(b)the manner in which the documents had been prepared was apt to mislead by reason of not disclosing the existence of Mr V and his role in the proceedings, Counsel’s authorship of the originating application, and the subsequent proposed amended applications and certain Affidavits;
(c)what appeared to be a real possibility that Counsel may relevantly be conflicted and/or a witness in the matter having been uniquely involved in certain events leading to the commencement of the proceedings which might relevantly inform the applicant’s explanation for not having applied in time; and
(d)that based on the concerns which had been raised in relation to the nature of the arrangement between Counsel and Mr V, it did not appear to be a direct access brief for the purposes of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Barristers Rules) and that this, together with discrepancies in the information she had provided to Judge Manousaridis in relation to when she was briefed, suggested to me that in fairness to Counsel, she may also need to take advice but, in any event, consider whether it was appropriate for her to remain in the matter as the applicant’s representative.
In relation to the issue of non-attribution in the originating application (and other documents) filed for the applicant, Counsel sought to rely on the decision of CPJ17 (supra) and said it contained:[18]
…a lot of background with respect to the role of direct access counsel in matters like this, and this is where I have gotten my understanding that we’re not – so the construction of “lawyer” with respect to the relevant legislation. The argument was that it does not include counsel.
[18] Transcript, 5 May 2022, p.13.16-19.
Counsel also stated in respect of CPJ17 that:[19]
…my understanding is that counsel is not allowed to put their names on those documents because that document – we’re not allowed to receive documents that are filed or served…
[19] Transcript, 5 May 2022, p.14.32-34.
Counsel had earlier said in the hearing:[20]
I did draft the application and I also did draft the amended application, however, my understanding from previous matters where I have appeared in a direct access capacity was that barristers were not supposed to put their names on those documents.
[20] Transcript, 5 May 2022, p.3.24-27.
In relation to the 3 May Submissions, there was a suggestion by Counsel that the deficiencies outlined[21] were trivial, and that it was Counsel’s intention to simply address these orally at the hearing.
[21] At [66] above.
However, this was not an acceptable course nor in the interests of procedural fairness which is also owed to the first respondent, not only to the applicant. Applications made pursuant to s 477 of the Act for an extension of time involve the Court’s assessment of whether it is necessary in the interests of the administration of justice to extend time, by reference to a number of regularly considered factors. Those factors include the explanation for the delay which was noticeably missing in the instant case. Often in an application for an extension of time (and as ultimately occurred at the resumed hearing of this matter on 20 June 2022) an applicant will be required for cross-examination about their explanation for delay.
It is neither acceptable nor satisfactory for a barrister to meet a patent deficiency in the substance of their case to say it will be rectified by oral submissions, in circumstances where this causes (what can only be described as) the “ambush” of another party who may wish to test critical evidence, which is missing in-chief until the hearing.
As a result of the matters outlined at [66] above, I adjourned the matter to a directions hearing a month hence, to enable the situation to be explained to the applicant and for Counsel and Mr V to consider the matter, their involvement in it and any potential need for them to go into evidence.
I made no other directions nor did I grant leave for the filing of further evidence or submissions.
Between the adjournment and the subsequent directions hearing the following transpired:
(a)I discovered from a review of the Court’s file that Counsel had appeared at the first Court date in the matter;[22]
(b)on 10 May 2022 a Notice of Address for Service was filed by the applicant’s current solicitor;
(c)on the afternoon of 30 May 2022 written submissions were filed for the applicant without leave (30 May Submissions) which appeared to finally address the factors which had been absent from the 3 May Submissions;
(d)on the evening of 30 May 2022 further written submissions were filed also without leave, apparently for Counsel herself (Personal Submissions). The Personal Submissions purported to “exhibit” a number of documents in support of the assertions contained within the Personal Submissions. At a glance those documents included text messages between Counsel and the applicant (which I have not reviewed) and the costs disclosures between the applicant’s Counsel and Mr V; and
(e)at or about midday on 2 June 2022, two Affidavits made by the applicant on that date, were filed with the Court simultaneously.
[22] See [33], [40] and [64] above.
On the afternoon of 2 June 2022 the matter came back before me for directions. The applicant was again represented by Counsel, who was instructed by the applicant’s newly appointed solicitor. The Minister was represented by a solicitor.
Counsel handed up a proposed Further Amended Application which she gave to the Minister’s solicitor for the first time at the Bar table. I directed that while this document may be filed, the question of leave would be dealt with at the hearing of the matter in order to give the first respondent an opportunity to consider his position in respect of it. While the proposed substantive grounds of review remained unchanged, the proposed Further Amended Application sought to replace the grounds supporting the extension of time from those in the originating application[23] to the following:
1.The Tribunal made a decision in the Applicant’s matter on 22 June 2017. The Applicant’s former Solicitor and Registered Migration agent did not advise her that the Tribunal had made a decision in her matter until 27 August 2017.
2.The Applicant’s former Solicitor and Registered Migration Agent did not advise her that her application was out of time.
[23] Which are extracted at [21] above.
At the directions hearing the parties indicated that they were prepared to take a date before me and the matter was listed for hearing at 10.15am on 20 June 2022, with some consequential orders for the first respondent to file a supplementary written submission now that the 30 May Submissions addressed the extension of time. As discussed at that directions hearing, the matter was to proceed to a hearing in relation to the extension of time and also the substantive grounds on the basis that both matters, if necessary, would be dealt with in the ultimate judgment.
Consistent with the position set out in the Response filed in 2017, the first respondent opposes the extension of time and seeks orders that the application be dismissed with costs.
Extension of time
Relevant principles
Section 477(2) of the Act gives the Court power to extend the 35 day time limit if satisfied that it is necessary in the interests of the administration of justice to do so. While s 477(2) does not prescribe factors which mandatorily fall for consideration in determining whether to exercise that discretion (see BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 per Logan J at [24]), the task for the Court is “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”: BTI15 (supra) per Jagot and Halley JJ at [40]. In so doing the following matters generally arise for consideration:
(a)the length of delay;
(b)the explanation for such delay;
(c)a balance of the interests of the parties, namely the relative prejudice to the respondent and public interest matters as well as the consequences for the applicant if time were not extended; and
(d)whether the proposed substantive grounds have a reasonable prospect of success, with that assessment to be taken at a reasonably impressionistic level, such that they warrant time being extended in order that they can be determined on a final basis: DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246 citing MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 at [62] per Mortimer J and in turn Jackamarra v Krakouer (1998) 195 CLR 516 at [7] to [9]); see also BTI15 (supra) per Logan J at [25] to [26].
It is also accepted that in relation to the question of the merits of the proposed substantive application, whether the standard of assessment is described as being arguable, reasonably or sufficiently arguable or having a reasonable prospect of success, the hurdle is low: DHX17 at [76] per Collier, Rangiah and Derrington JJ; see also SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [47] and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 to 349 per Wilcox J.
The hearing before me proceeded on the basis that the parties addressed all of the above factors and the submissions in terms of merits were addressed by the parties in relation also to whether a jurisdictional error was present such that, if I were persuaded that it was necessary in the interests of justice to extend time, the grounds could be determined on a final basis, within the same judgment.
Evidence
At hearing, the following Affidavits were read for the applicant:
(a)Affidavit of the applicant affirmed 2 June 2022 which commences “1. I am the applicant in the above named proceeding” (First June Affidavit); and
(b)Affidavit of the applicant affirmed 2 June 2022 which commences “1. I am the applicant” (Second June Affidavit).
The First June Affidavit is relevantly the same as the unfiled 5 May Affidavit which was provided to the Court (and discussed at length) at the hearing on that date. However, unlike the 5 May Affidavit, the First June Affidavit has been executed with a non-English speaking jurat. Accordingly, to the extent that I have referred to the 5 May Affidavit above, while it was not ultimately read at the hearing on 20 June 2022, a relevantly identical version of it was.
The Second June Affidavit provides additional detail which goes to advancing the applicant’s explanation for delay. The explanation deposed to by the Second June Affidavit includes the following:
(a)the originating application was filed with the assistance of Mr V of [FIRM NAME] Lawyers;[24]
(b)the applicant engaged and paid for the service of [FIRM NAME] Lawyers for her representation in the Tribunal proceedings and to lodge the originating application in this Court;[25]
(c)Mr V told the applicant by telephone on 27 August 2017 that a decision had been made by the Tribunal and that she should attend his offices on 29 August 2017, with payment, to lodge a review application;[26]
(d)the applicant did so on 29 August 2017 and signed a document which she now knows to be the originating application. On the same occasion the applicant also executed her 2017 Affidavit which was witnessed by Mr V.[27] The content of the originating application was not discussed with the applicant and she was not aware of the fact that it was to be filed out of time;[28]
(e)on 3 May 2022 Counsel prepared an amended application and asked the applicant to file it, which Mr V did for the applicant;[29] and
(f)on 10 May 2022 the applicant engaged the services of her present solicitor.[30]
[24] Second June Affidavit at [2]; Mr V’s firm has been anonymised here and going forward and again, is not the firm recorded on the cover sheet of this judgment.
[25] Second June Affidavit at [3].
[26] Second June Affidavit at [4].
[27] Second June Affidavit at [4] and [5].
[28] Second June Affidavit at [8].
[29] Second June Affidavit at [11].
[30] Second June Affidavit at [12].
At hearing the first respondent tendered the following evidence:
(a)the Court Book filed 6 November 2017; and
(b)a bundle of documents being a selection of documents extracted by the first respondent from the Exhibits to Counsel’s Personal Submissions.
No objection was made to the Court Book being received and it was marked Exhibit “1R” and, ultimately, after some exchange with Counsel, there was also no objection to the bundle of documents being received, which were thereafter marked as Exhibit “2R”.
Counsel sought to rely on both the 3 May Submissions and the 30 May Submissions.[31] The solicitor for the first respondent relied on the written submissions filed 27 April 2022 and 14 June 2022. Other than the documents which were tendered, and form Exhibit “2R”, I have not had regard to Counsel’s Personal Submissions. Nor was I asked to.
[31] Even though it appears that the latter wholly replaces the former.
In the days preceding the 20 June 2022 hearing, the solicitor for the first respondent indicated that the applicant would be required for cross-examination and, accordingly, requested that a Vietnamese interpreter be provided by the Court. Due to difficulties in obtaining said interpreter, the hearing commenced approximately 45 minutes after its scheduled 10.15am start time.
At the commencement of the hearing, Counsel for the applicant sought leave to rely on the proposed Further Amended Application which had been filed on 8 June 2022 in accordance with my direction to do so. Leave was not opposed by the first respondent who by then had proper time to consider it and, accordingly, I made an order granting same.

Having identified all the documents before me upon which the parties sought to rely, the applicant was called to give evidence and was cross-examined.
Under cross-examination the applicant said that she engaged Mr V because she wanted help with her application. She was not clear (nor was she asked to clarify) whether by “this application” she meant her protection visa application or the application to the Court. The applicant said she paid Mr V money to do so and that “The first lot was 15,000, and then in 2017 he demanded for a further, I think, nearly $8000”. The applicant could not remember the specific dates upon which the money was requested or paid. However, the applicant was clear that she had instructed Mr V to lodge the protection visa application on her behalf.
When asked about when she applied to the Tribunal for review of the delegate’s decision the applicant said that at the relevant time Mr V told her that he had already done it and she just had to wait. The applicant recalled that after she was released from immigration detention she attended a hearing with Mr V and a Vietnamese interpreter.
In relation to when the applicant was told that her application to the Tribunal had been unsuccessful, the applicant said she did not recall very well and that it was too long ago. She said she could not remember what she said to Mr V or what he said to her, but remembered that a while later he asked for the nearly $8,000 to be paid to him.
When questioned about her specific account in the Second June Affidavit alleging that it was only on 27 August 2017 that she was informed by Mr V about the outcome of the Tribunal’s decision, the applicant said she did not remember, but that Mr V kept telling her that to get a protection visa is a long process and he told her to keep waiting until in 2019 he demanded that she pay him $5,000 more, and so her boyfriend paid Mr V $5,000.
When asked about the specific events of 27 August 2017 to 29 August 2017, being the period in which the Second June Affidavit deposes to her having been told that her application to the Tribunal had been unsuccessful and her attending Mr V’s office in Cabramatta to sign the originating application and execute the 2017 Affidavit, the applicant said she attended Mr V’s office once, but did not remember the dates while under cross-examination.
The applicant was keen to reiterate (even when in non-sequitur to the questions being asked) that she had paid Mr V and that he had told her that she should “rest assured” that her application was being looked after, that it had good prospects and she should simply wait.
When asked directly whether she knew on 7 August 2017 that Counsel had been engaged by Mr V in relation to advice for her case, the applicant said no.
Counsel declined to re-examine the applicant.
In my view the applicant was essentially forthright in her evidence. She was unable to precisely recall dates (which is unsurprising given the significant passage of time) albeit the timeline she described was consistent with the documentary evidence.
Explanation and length of delay
The explanation for the applicant’s delay has changed from the originating application to the Further Amended Application upon which the matter ultimately proceeded, but having regard to what has emerged about the events leading up to the commencement of these proceedings, this is also not surprising. The explanation included in the originating application was that the applicant needed time to consult with relatives in, and source finance from, Vietnam. However, I am prepared to infer by reason of the chronology that this explanation was inserted by Counsel (or Mr V), likely without instructions from the applicant.
A partial explanation was next proffered by the 5 May Affidavit.[32] In addition, by the Second June Affidavit, the applicant now provides a more detailed explanation.[33]
[32] Extracted above at [60] (and subsequently repeated in the First June Affidavit).
[33] As set out at [85] above.
By the 30 May Submissions, Counsel also advanced the following (errors in original):
The Applicant submits that given her peculiar profile (he is a non-English speaker with minimal knowledge of the Australian legal system) and the circumstances of her case as highlighted in his affidavit, this is not an overwhelmingly substantial delay so as to weigh against the grant of the extension.
At hearing, when I questioned Counsel about why being a non-English speaker with minimal knowledge of the legal system would set the applicant apart from other applicants in migration proceedings who do manage to file on time, Counsel submitted:
…in the course of her cross-examination it became apparent that there were certain questions that she could or should have asked her solicitor which she did not know to ask. It also became apparent that she was in a position where she, basically, relied totally on the solicitor, and whatever document that was put before her she signed.[34]
[34] Transcript, 20 June 2022, p.26.8-12.
I do not accept that the applicant is in a unique predicament by reason of being a non-English speaking, lay person in migration proceedings. However, those same factors which Counsel advanced instead highlight vulnerabilities which are relevant to the applicant having relied (seemingly entirely) upon legal practitioners to prosecute her proceedings.
What can be discerned from the material before me is that the applicant has been assisted at relevant times from at least 10 January 2017[35] until at least 3 May 2022[36] by Mr V.[37] The precise nature and terms of that retainer (or various retainers) is not known to the Court but I accept that the applicant has, from time to time, paid Mr V sums of money which she understood to be for his legal services (it is also possible[38] that some of these amounts went via Mr V, to Counsel).
[35] When the visa application was lodged.
[36] Being the date on which the proposed Further Amended Application was filed with the Court.
[37] Second June Affidavit at [11].
[38] See Exhibit “2R” page 2 (numbered page 19, being Counsel’s fee estimate) and [112(b) and (c)].
Further, while Counsel told the Court on 5 May 2022 that (emphasis added):
… [Mr V]. At the time he approached me, he told me he was a solicitor but he was not acting in the capacity of a solicitor and that he was not going to be on the record.[39]
this characterisation is at odds with the content of the 5 May Affidavit (which Counsel admits she drafted) and First June Affidavit where at [3] the applicant says “I retained [Mr V] as my solicitor to assist with my case” and the description of Mr V in the Further Amended Application as “The Applicant’s former solicitor and Registered Migration Agent” (see [76] above, emphasis added).
[39] See [65] above.
I accept that the applicant understood herself to be represented by Mr V at the visa application phase, during the Tribunal review and also in her application to this Court. I accept that in relation to the proceedings before the Court, the applicant understood that Mr V was acting as her solicitor.
Mr V’s involvement with the applicant from his lodgement of the visa application up to, and including, his attendance in the Microsoft Teams hearing on 5 May 2022 reflects that his participation in those phases is not a mere fancy on the applicant’s part. Mr V has certainly been involved throughout, in a variety of guises.
The applicant said under cross-examination, and I accept, that when the application was made by Mr V to the Tribunal, she was told by Mr V after the event that the application to the Tribunal had been lodged. As set out at [12] above, all contact details which were provided as part of the Tribunal application were those of Mr V, even where they purported to be those of the applicant. This means that the Tribunal only ever had the contact details of Mr V. Even if he had not been the applicant’s authorised recipient, the significance of which is that pursuant to s 441G of the Act the Tribunal was required to correspond with Mr V instead of with the applicant in reality, the Tribunal had no other way to contact the applicant, even by telephone.[40]
[40] See [12(d)] and [12(e)] above.
By reason of the fact that s 441G operated, it is entirely plausible the applicant was not aware immediately of the Tribunal’s decision having been made and/or notified because she would not have come into that knowledge unless, and until, Mr V told her.
What then emerges in the chronology is the following which, while concerning in respect of what it seems to reveal about the conduct of the legal practitioners, is consistent with the version of events and explanation advanced by the applicant. As previously noted[41], none of the matters identified in relation to the conduct of the legal practitioners has weighed against the applicant in my consideration of her application for an extension of time or her substantive grounds. However, they are relevant to outline to the extent they inform the following chronology which was revealed by Exhibit “2R” in conjunction with the Second June Affidavit. Having received notification from the Tribunal on 23 June 2017 that the applicant has been unsuccessful, Mr V apparently took no further steps until 7 August 2017 following, when:
[41] See [5] above.
(a)on 7 August 2017 Mr V emailed Counsel from his Yahoo address and forwarded to Counsel the Tribunal’s email to Mr V notifying him of its decision. There is nothing in that email chain to indicate that the applicant was a party to that correspondence from the Tribunal or to Counsel;[42]
[42] Exhibit “2R” at page 1.
(b)on 8 August 2017, Counsel replied to Mr V at the Yahoo address. The email told Mr V that the application was out of time and that “we will need to include grounds for the extension of time”. The email concluded:[43]
[43] Exhibit “2R” at page 8.
Please find attached the Cost Agreement. I will commence work once you return a signed copy of the agreement.
(c)the costs agreement referred to above has been provided to the Court as part of Exhibit “2R” and appears to have been counter-signed by Mr V. The costs agreement is in three parts:
(i)Agreement (dated 22 August 2017);
(ii)Schedule 1 – Costs Disclosure Notice (dated 8 August 2017); and
(iii)Schedule 2 – Direct Access Disclosure (dated 8 August 2017 but also dated 22 August 2017 by hand in the signature block);
(Costs Agreement)
(d)in all three parts of the Costs Agreement the party described as being the “Client” is Mr V. He is referred to by his name, sometimes together with his Migration Agents Registration Number;
(e)the applicant (together with her Tribunal case reference number) is only referred to in the subject line of the Agreement document;[44]
(f)the Costs Disclosure Notice[45]states (with anonymisation to remove the applicant’s name):
This notice relates to legal services in the following matter, in which you have advised that you wish to instruct me:
Application to the Federal Circuit Court of Australia to review the Administrative Appeals Tribunal’s decision in [DZW17] (case Number: [NUMBER]).
However, there is nothing before me, nor has it been suggested for the applicant, that she was a party to this agreement, that it was executed on her instructions that she even knew about it or ever received a copy. On the applicant’s version of events, as advanced by Counsel at hearing, the applicant could not have been privy to the retention of Counsel on a direct access (or any other) basis by Mr V because at that time she was not even aware that the Tribunal had made a decision in her matter;
(g)the applicant says she was telephoned by Mr V on 27 August 2017 and told that the Tribunal had made a decision in her matter and that she should attend his office on 29 August 2017, with payment, to lodge the originating application.[46] The applicant attended the office of Mr V as directed, signed the originating application without understanding its contents and executed the 2017 Affidavit, which Mr V witnessed;[47] and
(h)on one reading of the Second June Affidavit, the applicant says she filed the originating application in the Court with the assistance of Mr V on 6 September 2017, but later[48] the applicant says “I now know and understand the initiating application was filed on the 06 September 2017”. Given the applicant did not prepare the Affidavit herself and she has limited English language skills, I find that the apparent inconsistency about who filed the originating application to be an infelicitous use of language. I am satisfied that there is not in fact an inconsistency and that the expression “I filed” is to be read in conjunction with the words “with the assistance of Mr V” as meaning that the document was filed for the applicant by Mr V, which then accords with the expression that the applicant later knows and understands that the filing took place.[49]
[44] Being the document referred to in [112(c)(i)]
[45] Being the document referred to in [112(c)(ii)]
[46] Second June Affidavit at [4].
[47] Ibid.
[48] Second June Affidavit at [6].
[49] Ibid.
The effect of [112(h)] is to render Mr V a lawyer filing a document commencing migration litigation for the purposes of s 486I of the Act.
There is nothing before me to indicate what, if any, knowledge the applicant had or instructions she gave in relation to the attendance by Counsel at the first Court date. There is nothing to demonstrate that the applicant was aware that a request was being made to Judge Manousaridis’ chambers to purportedly file submissions late (even if they were not in fact overdue[50]) or to prepare and rely on the amended application, the 3 May Submissions or to attend the hearings. By the Second June Affidavit, the applicant refers to Counsel as being “my counsel”[51] but there remains a genuine question as to whether or not there was (at that stage) any retainer between the applicant and Counsel at all.
[50] See [37] above.
[51] Second June Affidavit at [11].
The applicant says she engaged the services of Mr V to lodge the originating application but this is to be understood in the context of her explanation that by the time she was told about the outcome of the Tribunal proceedings, and from what is apparent from Exhibit “2R”, the preparation of the originating application was already advanced if not completed when, two days after being so informed, the applicant attended to sign the originating application and Affidavit and pay Mr V. I infer that to the extent there may have been a formal engagement of Mr V it likely took place on 29 August 2017 by which time the originating documents were already prepared for the signature of the applicant. Given how the applicant describes the process of being informed of the outcome of the Tribunal decision, and the circumstances surrounding the preparation, execution and filing of the originating application, the applicant seems to have been a somewhat hapless and passive participant in that process.
On balance, and for the purposes of assessing her explanation for delay, I am prepared to accept that the applicant thought she had engaged Mr V in his capacity as a solicitor for these proceedings somewhere between 27 and 29 August 2017. The Second June Affidavit refers on a number of occasions to having engaged Mr V by reference to a named law firm.[52] Whether that is an accurate description of their relationship at law is not entirely clear but, for the purposes of considering the applicant’s explanation for why she did not commence the proceedings within time, it is plausible and consistent with the evidence before the Court.
[52] See [2], [3] and [5] of the Second June Affidavit.
There is no explanation before me as to why Mr V did not tell the applicant about the outcome of her Tribunal matter in a timely fashion (or at all before the time to seek judicial review to this Court, namely 35 days thereafter, had elapsed). By the time Mr V contacted Counsel on 7 August 2017 to retain her, the time to seek review had already passed.
At hearing and after the applicant was cross-examined, the solicitor for the first respondent urged upon the Court a different version of events, drawing from dates in the Second June Affidavit. For the first respondent it was suggested that the applicant did in fact know of the decision of the Tribunal as at 7 August 2017 because this was the date on which Mr V wrote to Counsel seeking to retain her. Ordinarily, this inference might be not only available, but also more logical and plausible. However, in the whole circumstances of this case I do not accept that hypothesis.
Firstly, nothing in Exhibit “2R” (which is comprised of documents contemporaneous to the events in question) indicates that the applicant was aware of the Tribunal’s decision by the time Counsel was engaged nor of the engagement itself. Secondly, under cross-examination the applicant specifically denied knowing that Counsel had been engaged on 7 August 2017.
Further, the applicant gave evidence in relation to her earlier application to the Tribunal that when it came to the making of that application, Mr V did so without telling the applicant and only informed her of its lodgement after the event. So Mr V retaining Counsel to prepare the judicial review documents prior to informing the applicant of the Tribunal outcome was consistent with his modus operandi with this applicant. The version of events proffered by the Second June Affidavit and seemingly sanctioned by Counsel who advanced it expressly at the hearing, states that the applicant was not told until 27 August 2017 and this version was knowingly advanced by Counsel despite the fact it reveals a further professional difficulty for her and Mr V in terms of how and when Counsel was retained.
The first respondent also says that I should draw a Jones v Dunkel[53] inference in relation to the applicant not having called Mr V to give evidence, namely that it is open to infer that his evidence would not have assisted her. I am not bound to draw such an inference and I decline to do so. It seems that against the background of this matter an equally, if not more, likely inference is that Mr V has not been called (or has elected not) to give evidence because of what that evidence might reveal in relation to his involvement in and the conduct of these proceedings, or perhaps even the conduct of Counsel. I doubt it was a forensic decision of the applicant’s own.
[53] Jones v Dunkel (1959) 101 CLR 298 at 320.
In all the circumstances of this case I am prepared to give the applicant the benefit of the doubt that even though she ought to have taken a significantly more active role in the prosecution of her proceedings, the reason the originating application was not filed in time was because she was not aware until 27 August 2017 that her matter had been dismissed by the Tribunal.
In terms of the length of delay, the first respondent relies on the period being 41 days, namely by how far out of time the originating application was filed. This is technically correct. However, on the basis of her evidence which I have accepted, there were actually only 10 days between the applicant coming into the knowledge of the Tribunal’s decision, and the filing of the application for judicial review.
I am prepared to accept the applicant’s statements that she was both unaware that the application was being made out of time and that, had she known about the decision in a timely way, she would have endeavoured to ensure that the originating application was filed in time.
The first respondent says that by reference to authorities a delay of 41 days is “inordinate”. However, having accepted the applicant’s explanation for why she did not file in time, and given that on her version of events she attended Mr V’s office within two days of being asked in order to execute documents, that is a relatively prompt set of actions on any view. The applicant did not file the documents herself,[54] so, having somewhat swiftly attended in order to do her part, there is no explanation for why another week elapsed between the applicant’s execution of the documents and the filing of them. However, this seems to be something which again fell to Mr V to action.
[54] See [112(1)(h)(h)] above.

Later, at [46] the Tribunal again records an attempt to precisely frame the applicant’s claims (emphasis added):
The Tribunal noted that the applicant was essentially claiming that she would be harmed by the official and police officers who had invested in her businesses as she was unable to repay their investments. The applicant agreed. The Tribunal put to the applicant that the claims she had made at the hearing appeared to be different to the claims the applicant had made in her written visa application. The Tribunal noted that the written claims appeared to suggest that the applicant had been extorted by corrupt government officials who took money from private businesses. When the applicant did not pay, the officials had sent gangsters after her. The applicant responded, saying that both claims were true. Both the investors and the corrupt officials had hired gangsters to threaten the applicant. The applicant's representative at this point sought to clarify the applicant's claims, stating that the government official who had invested in her business hired gangsters to threaten her and the police officers asked their junior officers to threaten her. The Tribunal put to the applicant that it still appeared that the claims presented in the written application were different to the claims being presented to the Tribunal now. The applicant insisted that the details of her story had remained the same as between the visa application, the departmental interview and the Tribunal hearing.
There was no specific claim in relation to “trumped-up charges” that went beyond a very vague and basic assertion that the high-ranking government official, or potentially police, who had invested in the applicant’s business would harm the applicant, or alternately hire gangsters to do so, and that she had a general fear of being detained. There was no more detailed claim about how this would come to pass.
Under the heading “Findings and reasons” in the decision, the Tribunal commences at [54] by expressing its lack of satisfaction that the applicant’s claims are true. At [55] the Tribunal clearly articulates the applicant’s claim to fear:
…harm from gangsters engaged by a high ranking official and two police officers who had invested in her business.
At [60] (CB 127) the Tribunal found that it was:
…not satisfied that the applicant was threatened or that her children have been threatened by official, police office, gangsters or any creditors.
This finding covers the field in so far as the claim to fear detention came from the claim in relation to the high-ranking government official. Even if the claim was said to arise separately and emanate from the police officers or the gangsters hired by the official or the police, all permutations are addressed in that finding. Even if that were not so then, as the first respondent submits, the claim (or any residual aspect of it) is squarely addressed in the finding at [60] (CB 128) when the Tribunal said it was not satisfied (emphasis added):
…That there is a real chance of risk that the applicant would be threatened, killed, arrested, falsely prosecuted or subjected to any other form of serious of significant harm at the hands of, or at the behest of, government officials or police officers in Vietnam.
The finding in relation to false prosecution meets the assertion that a residual claim that the applicant might face “trumped-up charges” on return to Vietnam was not considered, squarely in relation to both of the ss 36(2)(a) and (aa) criteria.
Accordingly, the Tribunal did not fail to exercise jurisdiction nor to consider the “trumped-up charges” claim. To the extent that the applicant was taken to fear false prosecution which might lead to arrest or detention, in my view this was expressly addressed and the Tribunal did not err in the manner alleged by this ground.
Ground 3
Ground 3 makes a similar assertion to ground 2 and says that the Tribunal erred by failing to consider the applicant’s claims that corrupt government officials extorted money from her. Specifically the Tribunal is said to have failed to consider whether the applicant had been extorted at all, if so whether this extortion constituted persecution, and then whether there was a real chance the applicant would suffer persecution on return to Vietnam.
This ground can be dealt with succinctly because it fails at a factual level in light of the Tribunal’s express findings, some of which have already been addressed above in relation to ground 2.
As a starting point, the Tribunal’s consideration of the applicant’s claims must again be read in light of its two findings (CB 126 at [54] and 127 at [60]) that her claims of past harm were untrue.
The applicant’s claims in relation to the extortion objectively changed over time, such evolution having been expressly set out by the Tribunal (CB 126 at [55]) where it expressed its conclusions about the changing nature of the claims which had been discussed with the applicant at the hearing (recorded in the Tribunal’s decision at [46] which is extracted above at [163]).
In essence, this ground seeks to take advantage of the evolution of the applicant’s claims from the visa application through to the version which was advanced for consideration by the Tribunal. The import of this ground is that there was a residual claim extant from the manner in which the applicant had first expressed her claims in the visa application, namely that local government officials (separate from the high-ranking government official and the police officers who were investors in her business) had sought to extort money from her.
A fair reading of the entirety of the Tribunal’s decision and its conclusions in relation to each of the statutory criteria in s 36(2) demonstrates that the Tribunal’s findings were primarily directed to the extortion claim which was the primary basis upon which the applicant claimed to fear harm. To the extent there remained an extant claim to fear extortion from a general group of local government officials then this was addressed by the Tribunal at [60] (CB 127) when it found:
The Tribunal is not satisfied that the applicant was harmed by corrupt government officials who had asked her to pay bribes or by officials who had invested in her businesses…
Accordingly, ground 3 is not made out.
For the foregoing reasons the grounds of the Further Amended Application do not give rise to a jurisdictional error. Accordingly, the decision of the Tribunal is a privative clause decision and must be dismissed. I will so order.
I will hear the parties in due course as to costs of the proceedings, subject to the matters which are now raised below.
Conduct of legal practitioners
In concluding, it is necessary to address certain issues which have emerged throughout the hearings in this matter. In this regard it is also highly unsatisfactory and regrettable that much of what has been discovered occurred not through transparent disclosure but rather through a forensic analysis of the proceeding and the Court file, the catalyst for which was anomalies in representations to the Court. At [18] above I made reference to the difficulty in compiling the chronology. That the Court has continued to uncover these matters throughout the course of the various hearings reflects on the level of candour of Counsel (in particular, but not only).
As noted,[55] I have not taken the conduct of Counsel or Mr V into account to the detriment of the applicant in assessing the relevant factors required of me in relation to her extension of time. Nevertheless, how practitioners conduct themselves in proceedings before a Court has a considerable impact of the business of that Court. Aside from their various professional duties and obligations to the Court, the administration of justice and to their clients, lawyers (be they barristers or solicitors) in this Court also have a specific duty which arises from the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCoA Act).
[55] See [5] and [112] above.
Sections 190 and 191 of the FCFCoA Act provide as follows:
190 Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions 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.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
191 Parties to act consistently with the overarching purpose
(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2) A party’s lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party’s behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
(3) The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:
(a) the likely duration of the proceeding or part of the proceeding; and
(b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:
(i) the costs that the lawyer will charge to the party; and
(ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.
…
(4) In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5) Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party’s lawyer to bear costs personally.
(6) If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.
It will be observed that the effect of s 191(4) of the FCFCoA Act is that the Court is mandated to consider any failure of a lawyer to comply with their s 191(2) duty.
The failure of a legal practitioner to act consistently with the overarching purpose (and their other duties) has significant effects on the party they represent, other parties in the matter and legal representatives whom they may have engaged, the Court and its resources which are publically funded and on Court users in other proceedings who may suffer delay or disruption by reason of the inevitable “domino effect” caused when Court time and resources are wasted. Some of these costs are financial and quantifiable, but others are less tangible.
There are two particular areas of the conduct of Counsel and Mr V in this matter which I will address in detail as these may be relevant to costs, having regard to ss 190 and 191 of the FCFCoA Act referred to above.
Failure to disclose authorship and involvement
Until the time I was put on notice by the first respondent’s submissions in late April 2022,[56] I was unaware from the face of the filed documents in this case that the applicant was (purportedly) represented. I say “purportedly” because there remains a question as to the time, nature and existence of a proper retainer between the applicant, Mr V and/or Counsel and whether that agreement could be said to extend to the applicant in circumstances where at the time Counsel was retained, the applicant was not even aware that the Tribunal had made a decision in her matter, much less that steps were being taken to seek judicial review of that decision on her behalf.
[56] See [53] above.
At hearing on 5 May 2022, Counsel informed the Court that she had prepared the originating application and that Mr V was given the task by Counsel of preparing the applicant’s Affidavit. Certain features of the originating application and the 2017 Affidavit have been discussed earlier in this judgment.[57] Counsel’s explanation for the failure to disclose the authorship of the originating application was to rely on CPJ17 as being authority for the proposition that barristers are not required to put their name on documents. Counsel’s reliance on CPJ17 is concerning for two reasons.
[57] See [21] to [23] and [29] above.
Firstly, it demonstrates a misunderstanding of that decision. The understanding that Counsel has expressed, namely that because she is a barrister she need not disclose her involvement in the preparation of pleadings (or other Court documents), is mistaken. In AYF15v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 this Court made findings in relation to a similar situation, relying heavily on the principles expressed in CPJ17. I will record here that neither the barrister nor solicitor for the applicant in AYF15 is involved in these proceedings. While lengthy, it is worthwhile extracting [44] to [48] of that decision:
44.I would treat as r 2.16 of the FCA Rules as applying in this Court with a now necessary amendment to the chapeau by the omission of the words “under a horizontal line at the foot of the front page of the document”. While it is true that r 2.04(2) of the Rules makes provision for substantial, and not strict, compliance with forms, in my view one area where strict compliance with forms is required is the “prepared by” component prescribed by r 2.16(1)(b) of the FCA Rules, a fortiori when the author is a lawyer.
45. First, there are the professional obligations of solicitors (and barristers). The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 relevantly provide that a solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. Among the duties of a solicitor is frankness in court. In ARN17 v Minister for Immigration and Border Protection [2018] FCA 974 at [43], Charlesworth J noted the following in relation to an application before the Court whereby the footer stated that the document had been prepared by the applicant personally:
…The documents contain assertions on their face that they were prepared by the applicant personally and yet clearly they were not. The assertions are apt to mislead the Court as to the identity of the person who has drawn the documents and thus as to the status of the applicant as a truly self-represented litigant.
46. I accept that unlike in ARN17 which made an express statement that the documents were prepared by the applicant, in the present case the documents are simply silent as to their provenance and they do not go so far as to falsely state that the applicant prepared them. However, in my view the omission of any detail as to the author of the documents, when there is no solicitor on the record and the applicant has been unrepresented throughout he proceedings is significant and is still apt to give the impression that they were prepared by the applicant himself. If that omission is an omission on the part of a solicitor, it becomes more significant.
47. In CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495 (to which the Minister drew my attention in the course of oral submissions at hearing) her Honour Justice Charlesworth again addressed the importance of r 2.16(b) (among a host of other matters which do not arise in this case), from which the following can be distilled:
(a) there should be no doubt as to the obligations of a lawyer, briefed in whatever capacity, to disclose his or her identify as the person responsible for the preparation of a document which is subsequently filed in a proceeding: CPJ17 at [56];
(b) the Court has an interest in knowing the identity of any person (lawyer or not) who has encouraged the commencement or continuation of proceedings including by the formulation and drafting of arguments in documents filed in Court (with specific reference to ss 486E and 486F of the Act): CPJ17 at [58];
(c) rule 2.16 contemplates that a lawyer responsible for the preparation of a document may not be the same person who is engaged to represent that party in the proceeding: CPJ17 at [79];
(d) the disclosure of the identity of the author of the document does not inform the Court as to whether that person is engaged to represent the person in the proceedings in any capacity: CPJ17 at [91];
(e) the obligation in r 2.16 is in absolute terms: CPJ17 at [97]; and
(f) where a document is prepared by a lawyer (including by the formulation of grounds of appeal), that lawyer’s name must be identified in the document irrespective of the capacity in which they are engaged: CPJ17 at [100]; see also BEN17 v Minister for Immigration and Border Protection [2019] FCA 1232 per Derrington J at [42].
48. The clarity with which these expectations have been expressed in the Federal Court should be heeded by parties and practitioners in this Court. The disclosure of the identity of a document’s author does not create some obligation on them to represent an applicant and so this is not a valid explanation for such an omission.
Where in AYF15 I expressed at [46] emphasis that the failure to disclose authorship was moreso in respect of a solicitor (relevant to the facts of that particular case) that statement applies equally to Counsel. At the hearing on 5 May 2022, I drew Counsel’s attention to the decision in AYF15 and suggested it should be read and considered by her as part of the matters I asked her to contemplate during the one month adjournment.
The second matter arising from Counsel’s misplaced reliance on CPJ17 which gives this Court reason for pause is that she was the Counsel referred to in CPJ17 (supra) (in which reasons for judgment her name was also withheld). Counsel also appeared for an applicant in an earlier decision of the Federal Court (which I will not cite here because it does identify her, but will provide with the papers as part of my referral) to similar effect.
The judgment in CPJ17 was delivered on 21 August 2018. This means that while Counsel did not have the benefit of Charlesworth J’s reasons for decision (which ought to have had the effect of correcting her misunderstanding of the need to disclose her authorship) at the time she drafted the originating application in this matter, she most certainly did by the time she drafted the proposed amended application in 2019 which was sent to Judge Manousaridis’ chambers, and the next version of that document which was filed on 3 May 2022 in neither of which did she include her name.

In CPJ17 at [98], Charlesworth J stated as follows:
To the extent that Counsel maintains the view that her identity as the drawer of a document filed in the Court need not be disclosed, a separate application for relief will be necessary, should the occasion arise.
Counsel, being the same barrister to whom that statement was directed, does not appear to have heeded the Court’s direction by filing an application (either in CPJ17 or any other proceeding) to seek vindication of the position she clearly holds but which was said in CPJ17 to be misconceived.
Next, at the hearing on 5 May 2022 and again on 20 June 2022 before me, Counsel made various assertions about the lack of assistance she received from Mr V[58] and that she was not provided with relevant documents in the case by him. However, aside from the fact that if the matter were genuinely direct access she could have refused it at the outset because the cab rank rule would not apply,[59] the Barristers Rules also make provision for circumstances in which a brief may be returned.[60]
[58] Seemingly proffered to excuse aspects of her own conduct in the matter.
[59] See Rule 21 of the Barristers Rules.
[60] See Rule 105 of the Barristers Rules.
Specifically, rule 105(f) of the Barristers Rules provides that one such circumstance is:
(f) if the solicitor does not comply with a request by the barrister for appropriate attendances by the instructing solicitor, solicitor’s clerk or client representative for the purposes of:
(i)  ensuring that the barrister is provided with adequate instructions to permit the barrister properly to carry out the work or appearance required by the brief,
(ii)  ensuring that the client adequately understands the barrister’s advice,
(iii)  avoiding any delay in the conduct of any hearing, and
(iv)  protecting the client or the barrister from any disadvantage or inconvenience which may, as a real possibility, otherwise be caused,
By the inclusion of Mr V’s Yahoo address in the footer of the originating application which Counsel drafted, she ought to have known that documents and correspondence would go to Mr V, and only to Mr V. So to the extent that she was not receiving Court documents or correspondence this was a situation partly of her own creation. Counsel again inserted Mr V’s Yahoo address and mobile telephone number into the footer of the 5 May Affidavit which she drafted, a document which expressly deposed to the very fact that this was not the applicant’s email address and that Mr V had not been diligent in passing documents to Counsel.[61]
[61] A token gesture was made in the 5 May Affidavit by inserting into the footer the words “DIRECT ACCESS” in the section provided for “Lawyer’s code”, however this does not rectify the actual malady nor constitute a proper completion of the footer of that form.
Another reason that was proffered to the Court on 5 May 2022 for not having included her name in the footer was that, as a barrister, she was not permitted to receive documents by way of service. However, and again as noted in CPJ17, that is not the purpose of authorship being identified. It is not in doubt that the work of a barrister does not include accepting service of documents, even where a barrister is properly briefed on a direct access basis.
However, in the Court’s experience in migration matters, where a barrister acts on a direct access basis and makes their involvement in the proceedings known - as they should do - the various law firms who represent the Minister make note of that barrister’s involvement and endeavour to ensure that copies of all relevant documents, while served directly on the applicant, are provided as a courtesy to the direct access barrister. Similarly, the Court is then also on notice and can seek to ensure that the barrister is included in all correspondence from chambers for their information and as a corollary that public funds are not unnecessarily expended in relation to services which are provided for unrepresented litigants, such as interpreters. In making their involvement known, the barrister ensures their client is not disadvantaged because essential information about the hearing of the matter is shared among all relevant stakeholders in the proceedings.
The above does nothing to convert the role of a barrister beyond the work permitted by the Barristers Rules, but does have considerable practical benefits in ensuring the smooth running of matters, consistent with the Court’s overarching purpose provisions.
In AYF15 I indicated that such a failure to disclose authorship by a lawyer should not occur in this Court. It is more surprising that, even after the decision in CPJ17 in which Charlesworth J reiterated that this conduct was “apt to mislead the Court”, this particular Counsel persisted (or at the very least did not remedy past transgressions when amending documents which had been filed prior to the time at which she received clear direction from the Federal Court) in not disclosing her authorship or involvement in proceedings.
In relation to the non-disclosure of Mr V’s involvement and authorship, this responsibility falls to him personally but also to Counsel who drafted documents that included the Yahoo address which she knew to be his and stating “NOT APPLICABLE” in the footer of the documents relating to “Name of law firm”.
Each of Counsel and Mr V ought to have properly disclosed their involvement in these proceedings, by reference to the nature of it, within the parameters of their respective professional responsibilities to the Court and to the applicant.
Quality of work and compliance with timetables
There was an era in the migration jurisdiction in which practitioners who appeared for applicants would invoke the fact that they were appearing on a pro bono basis to excuse them from properly preparing matters, or as to why timetables and the courts’ practice and procedure were not adhered to.
In ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [68] the Full Federal Court said as follows:
The Court acknowledges that the applicant’s legal representatives were acting on a pro bono basis. Such involvement generally assists in the due and efficient administration of justice and the Court is grateful to practitioners who become involved on a pro bono basis. It is no excuse, however, for not complying with the Court’s orders in the manner and frequency which occurred here.
Barristers acting on a direct access basis may act pro bono, but may also do so for payment. The material before the Court[62] indicates that Counsel in this matter sought payment for her services.
[62] In particular the costs disclosure and email of 8 August 2017 from Counsel to Mr V which are in Exhibit “2R”.
If acting pro bono is not an excuse for failing to act in a proper manner, then acting on a direct access basis is not either. Further to obligations to comply with the Court’s overarching purpose, barristers have an obligation[63] to ensure that work is done with sufficient time to enable compliance with orders, directions, rules or practice notes of the Court and, if there are reasonable grounds to believe that a barrister may not complete any such work on time, they must promptly inform their instructing solicitor or the client.
[63] For example, pursuant to rule 57 of the Barristers Rules
A number of the documents prepared in this matter by Counsel have been below the standard which the Court expects of a barrister. Aside from the quality of the written submissions themselves, Counsel failed to comply with the Court’s timetable on several occasions and, on others, proceeded to have documents placed before the Court without leave.[64] It is the Court’s understanding that with the exception of the 2017 Affidavit (drafted by Mr V) and the Second June Affidavit (drafted by the applicant’s new solicitor) all documents in this matter have been drafted by Counsel. While not an exhaustive list, the following deficiencies can be noted:
[64] See [47] and [74], [75] and [77] above.
(a)the failure to properly complete the footer in each of the following documents:
(i)originating application filed 6 September 2017;
(ii)2017 Affidavit filed 6 September 2017;
(iii)proposed amended application sent by email to chambers of Judge Manousaridis 28 August 2019;[65]
[65] This, and all other documents from this point onwards, post-dates delivery of the judgment in CPJ17.
(iv)amended application filed 3 May 2022; and
(v)5 May Affidavit.
(b)the use of a non-English speaking jurat in each of the following Affidavits:
(i)2017 Affidavit; and
(ii)5 May Affidavit.
(c)the written submissions sent by email to chambers of Judge Manousaridis on 28 August 2019 completely omitted to address (or even acknowledge) the relevant factors for consideration in an application for extension of time;
(d)the 3 May Submissions completely omitted to address (or even acknowledge) the relevant factors for consideration in an application for extension of time;
(e)the 30 May Submissions commence with “1. The Applicant intends to appeal from a decision of the [Tribunal]”. The matter was not an appeal. The 30 May submissions also variously refer to the applicant by incorrect pronouns (see for example the extract at [103] above).
In terms of compliance, despite having been at the 2017 first Court date at which Counsel personally agreed to the timetable in the matter,[66] she failed to adhere to what she understood that timetable to be, which led to the writing of the August 2019 Email to seek an extension. Of course, it transpires that in reality the submissions were not late but, because Counsel was unaware of the vacation of the hearing date, she believed they were and yet it was not until the time she thought they were late that she sought the extension from the Court.
[66] The dates for submissions being self-executing by reference to any hearing dates set.
Then, when the matter was first listed before me, the applicant’s written submissions were due to be filed and served on 21 April 2022. As noted above at [52], no submission was filed on time, and the first respondent filed written submissions which were not able to respond to the applicant’s submissions in chief. So, by the time the 3 May Submissions were filed for the applicant, they were already out of the specific order in which they were required to be filed (as is customary, for the applicant to file first) and, as a consequence, also outside of the time by which they were due to be filed. As the 3 May Submissions were also filed out of time (without any approach to the Court for an extension), this constitutes a default.[67]
[67] Pursuant to rule 13.04(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
The combination of these matters already put the first respondent at a disadvantage insofar as the written submissions filed for the first respondent were prepared absent the applicant’s explanation for delay. Ultimately I found it necessary to order the first respondent to file supplementary written submissions so as to address the explanation for delay which had eventually been proffered and to remedy the applicant’s default. This no doubt created additional costs for the first respondent.
The unfitness for purpose of a number of the applicant’s documents, but in particular the late-filed 3 May Submissions, was in part a reason why the matter could not proceed on that day. The other reason I adjourned it was to enable Counsel and Mr V to reflect upon their professional duties and whether they should continue in the matter. None of those factors appears, on the material before the Court, to have been caused by the applicant.
The matters addressed above, which may take the costs of this matter beyond the ordinary will be considered when I hear the parties and practitioners as to costs, in accordance with s 214 of the FCFCoA Act and including rule 22.06 of the Rules as appropriate.
Referral
The Court proceeds on a presumption of regularity that practitioners will conduct themselves in accordance with their respective professional duties and the Court’s overarching purpose provisions. Sometimes, that presumption is disappointingly rebutted.
Based on all that has been revealed through the course of the hearings in this matter, I have decided to refer each of Mr V and Counsel to the professional bodies which regulate their respective branches of the legal profession. The decision to do so has not been reached lightly.
In fairness, this possibility was foreshadowed at the hearing on 5 May 2022 during which both Counsel and Mr V were present in the MS Teams forum. On that occasion I also adjourned the matter for one month in part to enable those practitioners to consider their involvement in the proceedings to date and whether they should continue. Since that time, additional concerns have arisen by reason of the material which was subsequently filed and relied upon in relation to the applicant’s explanation for the delay in commencing proceedings.
While I have accepted the applicant’s version of events for the limited purpose of assessing her explanation in the context of these proceedings, it may be that on further investigation, the relevant professional bodies reach a different conclusion with further material about the state of the applicant’s knowledge, the information that she had and her interactions with Mr V and Counsel. For that reason, inter alia, I anonymised the identity of the practitioners in these reasons for judgment.
Counsel asserted from the Bar table at each of the hearings on 5 May 2022 and 20 June 2022 that she believes she has consistently acted in accordance with her professional duties. I accept Counsel may believe this to be so, but am also of the view that the belief is misplaced.
At the present time and on the materials before the Court, there are matters which warrant exploration by the relevant professional bodies. These matters can be broadly summarised as follows:
(a)the timing and basis of Counsel having been briefed and continuing in the matter, including matters arising under rr 20, 21, 22, 101 and 105 of the Barristers Rules;
(b)Counsel’s understanding of direct access briefs and the role of a “community representative” therein[68];
[68] See [44], [45] and [65] above.
(c)the role of Mr V including allegedly:
(i)failing to tell the applicant about the outcome of the Tribunal proceedings within a timeframe which preserved her full rights to seek judicial review;
(ii)retaining Counsel without the applicant’s instructions;
(iii)entering into a “direct access” fee agreement with Counsel notwithstanding that he was a solicitor;
(iv)possibly seeking fees from the applicant either for his services or those of Counsel (whether so disclosed to the applicant) and any trust accounting issues which follow therefrom;
(v)failing to properly draft the applicant’s Affidavit which accompanied the originating application and failing to ensure it was executed with a non-English speaking jurat;
(vi)failing to comply with s 486I of the Migration Act by not completing the certificate in the originating application despite being the lawyer who was filing a document commencing migration litigation for the purposes of that section; and
(vii)filing the originating application which contained his Yahoo address as the relevant addresses for service but not disclosing his involvement in the proceedings such that inclusion of same on the footer of the originating application would have had the effect of him entering an appearance in the matter.
(d)misrepresentations made to Judge Manousaridis by Counsel in the August 2019 Email in pursuit of an extension to comply with the timetable, having regard to the timing and basis of Counsel’s retention in the matter;
(e)the failure of the practitioners to disclose authorship of documents and their respective involvement in the proceedings;[69] and
(f)quality of work and compliance with timetables[70].
[69] See [185] to [201].
[70] See [206] to [210].
Accordingly, in addition to the substantive orders in this matter I will make an order referring the papers in this matter, together with the relevant judgments[71], to the New South Wales Bar Association and the Law Society of New South Wales.
[71] Cited at [187] above.
I will hear the parties as to costs in due course, with notice to be given to each of Counsel and Mr V in that regard so that they may be heard on that question also.

I certify that the preceding two hundred and nineteen (219) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.
Associate:
Dated: 25 July 2022

File number(s):	SYG 2780 of 2017
Judgment of:	JUDGE GIVEN
Date of judgment:	25 July 2022
Catchwords:	MIGRATION – application for extension of time – applicant not told of outcome of Tribunal decision until after expiry of time to apply to Court for review – conduct of solicitor and Counsel in relation to preparation of originating process without applicant’s knowledge or instructions – extension of time granted – application dismissed on final basis PRACTICE AND PROCEDURE – whether Counsel properly engaged on a direct access basis – whether Counsel engaged without instructions of client – failure to disclose involvement of Counsel or solicitor in originating process – misleading nature of documents filed – whether misleading statements made to Court about timing and nature of Counsel’s brief – referral of practitioners to Bar Association and Law Society
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191 Migration Act 1958 (Cth) ss 5J, 36, 441A, 441C, 441G, 476, 476A, 477, 486I Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04(1), 22.06 Federal Circuit Court Rules 2001 (Cth) r 44.05(1) Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 20, 21, 22, 57, 101, 105
Cases cited:	ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 CDY15 v Minister for Immigration and Border Protection [2018] FCA 175 CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495 DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246 FKV17 v Minister for Home Affairs [2022] FCAFC 93 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Jackamarra v Krakouer (1998) 195 CLR 516 Jones v Dunkel (1959) 101 CLR 298 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 SZSHK v Minister for Immigration and Border Protection (2013)138 ALD 26 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535
Division:	Division 2 General Federal Law
Number of paragraphs:	219
Dates of hearing:	5 May, 20 June 2022
Place:	Sydney
Counsel for the Applicant:	Name withheld
Solicitor for the Applicant:	Abu Legal (from 10 May 2022 only, and not the subject of these reasons for judgment)
Solicitor for the Respondents:	Australian Government Solicitor

SYG 2780 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	DZW17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	25 July 2022