ESG18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 478
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ESG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 478
File number(s): ADG 366 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 7 June 2023 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizens of Fiji – where judicial review hearing process and requirements explained by the Court – where first applicant not in attendance – where lawyer for the Minister and the Court not satisfied with second applicant’s understanding of the proceedings – referral for mediation
PRACTICE AND PROCEDURE – Where judicial review hearing process and requirements explained by the Court - where first applicant not in attendance - where lawyer for the Minister and the Court not satisfied with second applicant’s understanding of the process and requirements - referral for mediation – reasons for referral – dispute resolution requirements in Federal Circuit and Family Court of Australia Act 2021 (Cth) – necessity to explain to applicants legal processes and requirements of litigation engaged in – matters referred to in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 and necessity to maintain proper record of mediation arising therefrom
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) (Cth) ss 5, 157, 158, 190
Federal Circuit Court of Australia Act 1999 (Cth) ss 22, 23
Federal Magistrates Act 1999 (Cth) ss 22, 23
Migration Act 1958 (Cth) s 476
Cases cited: Broad Spectrum Training Pty Ltd v Bidding Buzz Ltd [2010] FMCA 932; (2010) 244 FLR 335
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of last submission/s: 22 May 2023 Date of hearing: 22 May 2023 Place: Perth Applicants: The Second Applicant appeared in person by phone via CISCO Webex with the assistance of an interpreter Counsel for the First Respondent: Mr C Retallick Solicitor for the First Respondent: The Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 366 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ESG18
First Applicant
ESH18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
22 May 2023
THE COURT ORDERS THAT:
1.The matter be adjourned to a mediation conference before a Registrar in the Adelaide Registry of the Court on a date to be fixed by that Registrar and advised to the parties.
2.The mediation conference must be attended by:
(a)both of the applicants in person; and
(b)a lawyer for the Minister in person.
3.If the matter does not resolve at mediation there be a further directions hearing before Judge Lucev on a date to be fixed.
4.The name of the First Respondent be amended to read "Minister for Immigration, Citizenship and Multicultural Affairs".
5.Costs of today reserved.
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
(Published from Chambers)JUDGE LUCEV
INTRODUCTION
Before the Court is an application under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) for judicial review (“Judicial Review Application”) by the applicants, ESG18 (the first applicant) and ESH18 (the second applicant), who are wife and husband (together “Applicants”). The Judicial Review Application relates to a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) dated 10 August 2018. The Tribunal Decision affirmed a decision of a delegate of the first respondent Minister (“Delegate” and “Delegate’s Decision” respectively) of 8 June 2017 to refuse to grant ESG18 a Subclass 866 Class XA Protection visa (“Protection Visa”).
These Reasons for Judgment have been prepared to assist the parties (and others) to understand why the Court has taken the step of referring a migration judicial review proceeding to a Registrar of the Court for mediation.
A DIRECTIONS HEARING
The matter was listed for a directions hearing on 22 May 2023.
At the directions hearing only ESH18 attended, and he was assisted by an interpreter. No specific explanation was given as to ESG18’s absence, ESH18 simply saying that ESG18 was not able to attend on the day of the directions hearing: Transcript, p 8.
ORDERS MADE AT DIRECTIONS HEARING
At the directions hearing, the Court made the following orders (“May 2023 Orders”):
1.The matter be adjourned to a mediation conference before a Registrar in the Adelaide Registry of the Court on a date to be fixed by that Registrar and advised to the parties.
2. The mediation conference must be attended by:
a) both of the applicants in person; and
b) a lawyer for the Minister in person.
3.If the matter does not resolve at mediation there be a further directions hearing before Judge Lucev on a date to be fixed.
4.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
5. Costs of today reserved.
EXPLANATION AT DIRECTIONS HEARING
At the directions hearing, the Court endeavoured to explain, at Transcript pp 2-3, to ESH18:
(a)the need to establish material jurisdictional error in the Tribunal Decision;
(b)the nature of jurisdictional error;
(c)the necessity to provide grounds, properly particularised, alleging what the jurisdictional error or errors committed by the Tribunal were;
(d)that a failure to specify and particularise jurisdictional error in the grounds may result in the dismissal of the originating application or any amended originating application; and
(e)that if the originating application or any amended originating application is dismissed at hearing that ESG18 and ESH18 may have to pay the Minister’s costs.
The Court’s explanation to ESH18 was made having regard to the requirements set out in the recent Federal Court judgment in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 (“BKT17”) at [31]-[35] per Feutrill J, and in particular (emphasis added):
(a)at [31] that “orders that make provision for amending applications and filing submissions and affidavits where a party is a litigant-in-person and for whom English is not his or her first language may not remove the disadvantage of self-representation if no explanation of the process is provided to that litigant in his or her language before the time for compliance with such orders expires or an oral hearing takes place”;
(b)at [33] that a “primary judge … attempt further explanation of the nature of judicial review and … make sufficient enquiries of the appellants to be satisfied that they understood what they were required to do in order to identify and particularise grounds of review and, …, to ensure that they were given reasonable opportunity to remedy the deficiency in the grounds of review”; and
(c)at [35] for the primary judge to “provide the assistance necessary to ensure that the appellants had not, because of a lack of legal skill, failed to put forward arguments in support of their application for judicial review”.
ESH18’S RESPONSE TO THE EXPLANATION
ESH18 at first indicated that the Applicants did not intend to proceed with the Judicial Review Application, but then indicated that the Applicants would abide by whatever decision “has been made” and therefore would not proceed on the Judicial Review Application: Transcript, p 3. When the Court explained that it had not made a decision, and that the Court was going to put in place orders to allow for the filing of further documents and a hearing in February 2024, ESH18 said that the Applicants “won’t submit” any more applications, and that they were happy with the change in government (in Fiji), this latter point being repeated a number of times: Transcript, pp 3-4 and 7.
The Court explained to ESH18 that if the Applicants did not file any further documents that it was “almost inevitable” that the Judicial Review Application would be dismissed with costs (the grounds of the Judicial Review Application assert no more than that the Tribunal “made a jurisdictional error in the determination of my case”), and initially ESH18 said that the Applicants understood that “we are going to pay the cost”, but then went on to say that “we will accept the decision”: Transcript, p 4.
The Court asked the Minister’s lawyer’s what the Court might do in the circumstances, and the Minister’s lawyer said it was not entirely clear what the Applicants wanted to do, but if they wished to discontinue they might get assistance from the Registry: Transcript, p 4. Upon the Court indicating that if the Applicants wished to discontinue the Judicial Review Application the Court would be prepared to grant leave to allow discontinuance forthwith, the Minister’s lawyer indicated there would be an application for costs: Transcript, p 4. When the Minister indicated the quantum of costs to be sought if the Judicial Review Application was discontinued was $4189.38, ESH18 asked if the Applicants could reside permanently in Australia if they paid the costs, and raised the issue of paying the costs and still not having work rights, and the consequences generally if the costs were ordered to be paid but not paid, including whether they would have to return to Fiji or possibly go to jail: Transcript, pp 6-7.
The Court then indicated that it was “increasingly concerned” that the Applicants (through ESH18) might not understand what they were consenting to, a concern that the Minister’s lawyer echoed, and which was reinforced by an interpolation from the interpreter that ESH18 just kept on saying the “same thing again”: Transcript, p 7.
THE COURT’S LACK OF SATISFACTION
Court not satisfied of ESH18’s understanding of the issues
Having regard to the course of the directions hearing as set out above, the Court was unable to reach a level of satisfaction as whether ESH18 actually understood the various courses of action discussed during the directions hearing. The confusion apparent in ESH18’s statements, the Minister’s lawyer’s concerns, and the interpolation from the interpreter, all exacerbated the Court’s concerns.
Absence of ESG18 at Directions Hearing
As ESG18 is the first, and primary, applicant in this matter, it is appropriate that ESG18 be in attendance if the matter was to be dismissed. ESG18’s absence simply compounded the Court’s concerns that it was inappropriate to dismiss the matter at the directions hearing.
REFERRAL TO A REGISTRAR
The Court determined there needed to be a referral for mediation before a Registrar of this Court to assist in determining whether the matter is to be discontinued, dismissed (presumably by consent), or proceed to final hearing. The Court did so because:
(a)of its lack of satisfaction as to ESH18’s understanding of the possible outcomes of the directions hearing and the proceedings generally;
(b)of the absence of ESG18 from the directions hearing;
(c)of the requirements set out in BKT17 (see [7] above) “to ensure” that self-represented litigants understand the legal procedures and requirements of the litigation in which they are engaged, a process which in this case will be further assisted by further exploration and explanation in an in-person mediation before a Registrar of the Court;
(d)to do so is consistent with the mandatory requirements in:
(i)s 157 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCAFCOA Act”) to consider whether or not to advise parties about dispute resolution proceedings (which include “mediation”: see para (b) of the definition of “dispute resolution proceeding” in s 5(1) of the FCAFCOA Act);
(ii)s 158(1) of the FCAFCOA Act to advise the parties to use the dispute resolution process where the Court considers that it may help the parties to resolve a dispute, which it may do here where it may be that the Applicants wish to discontinue the proceedings, or where it may be possible that they can be dismissed by consent in any event,
(and as to the meaning and effect of ss 157 and 158 of the FCAFCOA Act (formerly enacted in essentially the same terms in ss 22 and 23 of both the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Magistrates Act 1999 (Cth)), see Broad Spectrum Training Pty Ltd v Bidding Buzz Ltd [2010] FMCA 932; (2010) 244 FLR 335 at [23]-[44] per Lucev FM); and
(e)to do so is consistent, in the circumstances of this case, with the overarching purpose of the civil practice and procedure provisions in the FCAFCOA Act to facilitate the just resolution of disputes as quickly and inexpensively as possible: FCAFCOA Act, s 190(1), and with the object of ensuring the efficient use of judicial resources and the efficient disposal of the Court’s overall caseload: FCAFCOA Act, s 190(2)(b) and (c).
If, having been before a Registrar of the Court for mediation, the matter is not to be discontinued or dismissed, it is appropriate, in this case, that the matter be referred for a further directions hearing before the presiding Judge before any final hearing. Also, having regard to what was said by the Federal Court in BKT17, it will be necessary, if the matter does not settle at mediation, for the relevant Registrar to make an appropriately detailed note in the Report of Listing of the matters explored and explained to the Applicants by the Registrar in the course of the mediation in relation to the relevant legal processes and requirements (but not matters particular to why the matter did not settle) so that these matters can be incorporated in any final judgment of this Court in endeavour to satisfy the requirements set out in BKT17.
CONCLUSION AND ORDERS
In conclusion, the Court found that it would be appropriate for the matter to be referred for mediation, and that the mediation occur in person, in Adelaide, in the presence of a Registrar of the Court. The Applicants should have the assistance of an interpreter for the mediation. If the mediation is unsuccessful in resolving the issue then the matter should come back before the presiding Judge for a further directions hearing at a later date.
It was for the above reasons that the Court made the May 2023 Orders.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 7 June 2023
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