EKO19 v Minister for Immigration

[2020] FCCA 613

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKO19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 613

Catchwords:
MIGRATION – Lack of particularity in grounds for review – failure by lawyers for the first respondent to seek interlocutory orders, at an early time, to regularise matters relevant to the provision of particulars – matter adjourned for the purpose of particulars being provided.

Applicant: EKO19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 957 of 2019

Judgment of: Judge Egan

Hearing date: 12 March 2020

Date of Last Submission: 12 March 2020

Delivered at: Brisbane

Delivered on: 12 March 2020

REPRESENTATION

Applicant: In Person

Solicitors for the First Respondent: Mr J. Kyranis

Second Respondent: Submitting appearance

ORDERS

1. The hearing of this matter listed for 21 May 2020 be vacated.

2. The Applicant shall file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the Applicant at the hearing of the application for review, by 4:00pm on 26 March 2020.

3. The Applicant shall file and serve any affidavit containing any additional evidence upon which the Applicant proposes to rely relevant to the amended grounds of review by 4:00pm on 26 March 2020.

4. The First Respondent shall file and serve any affidavit containing any additional evidence upon which the First Respondent proposes to rely relevant to the amended grounds of review by 4:00pm on 9 April 2020.

5. This matter be adjourned to the Registrar of the Federal Circuit Court of Australia at Brisbane, to a date to be fixed, for the purpose of the listing of the matter for directions concerning the Applicant’s compliance or noncompliance with Order 2 hereof relating to the ordered filing by the Applicant of an amended application containing detailed particulars of the grounds for review to be relied upon at the final hearing of this matter.

6. The First Respondent shall obtain a copy of the transcript of today’s proceedings and reasons, and forthwith provide a copy of such transcript and reasons to the Applicant.

7. In the event that the Applicant has failed to comply with Order 2 hereof, in breach of the provisions of Rule 13.03A(1)(a) of the Federal Circuit Court Rules 2001 (Cth)(‘the Rules’), the Court directs, pursuant to the provisions of s. 102(2)(i) and s. 102(2)(f) of the Federal Circuit Court of Australia Act 1999 (Cth), that the Registrar have such powers of the Federal Circuit Court of Australia to dismiss the application pursuant to the provisions of Rule 13.03B(1)(c) of the Rules, and thereupon to make an order as to costs pursuant to the provisions of Rule 21.02(2) of the Rules.

8. The costs of and incidental to the hearing today be reserved.

NOTATION:

A.The Applicant appeared by telephone today with the assistance of an interpreter in the Malay language who interpreted to the Applicant each of the Orders made by the Court today.

B.The Applicant was put on notice, during the course of today’s hearing, that in the event that the Applicant failed to comply with Order 2 hereof relating to the filing of an amended application, the application before the Court for review of the decision of the Administrative Appeals Tribunal handed down on 8 January 2018 was liable to be dismissed pursuant to the provisions of Rule 13.03B(1)(c) of the Rules, a copy of which Rule is to be provided to the Applicant by the lawyers for the First Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 957 of 2019

EKO19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter, the originating application for review, unparticularised as it was, was filed on 7 November 2019. The matter was listed for hearing on 21 May 2020. 

2. It was identified by the Court that the application for review was lacking in sufficient particularity so as to allow either the Court, or the first respondent, to appropriately assess whether there were any arguable grounds for review or not.  Had the matter not been listed for directions today, it is likely that this matter would have proceeded to a full hearing in circumstances where that lack of particularity prevailed. Such has been the demonstrated reluctance on the part of lawyers for the first respondent (in circumstances where there has been a lack of particularisation of claims) to bring interlocutory applications to resolve that issue, either by seeking directions from the Court, or for the summary dismissal of the application for review, the Court has been required to be proactive in that regard. 

3. The lawyers for the first respondent have opposed the adjournment of the hearing today. In that regard, and in circumstances where no action has been taken by the lawyers for the first respondent to resolve the issue of lack of particularity at an early stage, the Court is incapable of properly considering the opposition by the lawyers for the first respondent to any adjournment of the application for review hearing today on the ground that the application for extension of time is without merit.  The applicant does not understand English and is self-represented. The applicant in those circumstances ought to be given at least one opportunity to regularise his application for review.  If the applicant does regularise matters by appropriately providing particulars, then the Court will be able to assess whether there is any merit to the applicant’s claim in the context of his application for extension of time. 

4. In those circumstances, the application opposing the making of the orders in the draft order handed to Mr Kyranis on behalf of the first respondent, and to the interpreter, who has read out those draft orders to the applicant, is refused. 

5. Accordingly, orders are made as per the draft order handed to the parties and initialled by the Court.

6. The Court has made those orders. If, applicant, you do not comply with the orders, your application is likely to be dismissed. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  17 March 2020