FGG19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 159
•3 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
FGG19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 159
File number(s): BRG 1115 of 2019 Judgment of: JUDGE EGAN Date of judgment: 3 February 2021 Catchwords: MIGRATION – sensational claims made by applicants – no evidentiary basis established for such claims – Tribunal did not err in its consideration of claims of applicants - failure by applicants to twice comply with orders of the Court requiring them to file a properly particularised application for review – consideration by Court of whether an adjournment ought to be granted or not to enable a properly particularised application for review to be filed – whether as a matter of public policy applicants in migration review claims should be granted an adjournment of a hearing if they were in default of Court orders – backlog of migration review claims a consideration – applications dismissed. Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 36(2A).
Federal Circuit Court Rules 2001 (Cth), rr 13.03A(1)(a), 13.03B(1)(a), 13.03B(1)(c).
Cases cited: Velauther Selvadurai v MIEA & Anor [1994] FCA 1105.
Zhang v RRT & Anor [1997] FCA 423.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
DUN16 v Minister for Immigration & Anor & DUO16 v Minister for Immigration & Anor [2019] FCCA 2951.
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 92.
MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392.
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75.
Number of paragraphs: 46 Date of last submission/s: 28 January 2021 Date of hearing: 28 January 2021 Place: Brisbane First and Second Applicants: The Applicants appeared in person Solicitor for the First Respondent: Ms Reid, Solicitor of Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
BRG 1115 of 2019 BETWEEN: FGG19
First Applicant
FGH19
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
3 FEBRUARY 2021
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 20 January 2021 be dismissed.
2.The First Applicant and the Second Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
History after Filing of Originating Application
The steps taken, and orders made, in this matter, were relevantly as follows:
(a)On 23 December 2019, the applicants filed an Originating Application for Review.
(b)On 27 February 2020, Registrar Carlton made an order facilitating the orderly filing of trial material including that “the applicant shall file and serve any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.”
(c)Upon identification by Judge’s Chambers that the applicants’ Originating Application for Review was un-particularised, and accordingly deficient, the matter was listed for directions on 29 July 2020. On such date, the Court made an order, inter alia, requiring the applicants to 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 them at the final hearing of the application for review. It was noted that the applicants were put on notice that in the event the applicants failed to file a particularised amended application, then their application for review was liable to be dismissed pursuant to the provisions of Rule 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (‘the FCC Rules’).
Applicants’ First Request for an Extension of Time
(d)On 4 August 2020, the applicants sent an email to Judge’s Chambers, copying in the lawyers on the record for the first respondent, requesting an extension of time to file and serve an amended application for review. The applicants indicated that they were awaiting documentation from the Australian Federal Police (“AFP”) under a freedom of information request. The applicants claimed the information sought from the AFP supported the grounds of review contained in the Originating Application for Review. The lawyers for the first respondent indicated that the Minister neither consented to, nor opposed, the applicants’ request for an extension of time.
(e)On 12 August 2020, this Court made an order in Chambers granting the applicants an extension of time to file and serve an amended application for review to 28 September 2020.
Applicants’ Second Request for an Extension of Time
(f)On 13 September 2020, the applicants sent an email to Judge’s Chambers, copying in the lawyers on the record for the first respondent, requesting a further extension of time to file and serve an amended application for review. The applicants cited a delay in the processing of their AFP freedom of information request as the basis for the request for an extension. The lawyers for the first respondent again indicated that the Minister neither consented to, nor opposed, the applicants’ request for an extension of time.
(g)On 16 September 2020, this Court made an order in Chambers granting the applicant an extension of time to file and serve an amended application for review to 8 October 2020.
Applicants’ Third Request for an Extension of Time
(h)On 1 October 2020, the applicants sent an email to Judge’s Chambers, copying in the lawyer on the record for the first respondent, requesting a third extension of time to file and serve an amended application for review. The applicants cited further freedom of information requests sent by them to Victoria Police and the Australian Criminal Intelligence Commission as the basis for the request. The lawyers for the first respondent indicated that the Minister opposed the applicants’ request for a further extension.
(i)On 7 October 2020, this Court made an order in Chambers listing the matter for directions on 2 November 2020.
(j)On 2 November 2020, this Court again made an order, inter alia, requiring the applicants to 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 them at the final hearing of the application for review. The applicants were again put on notice that in the event the applicants failed to file a particularised amended application, then their application for review was liable to be dismissed. The matter was listed for final hearing on 28 January 2021.
(k)On 20 January 2021, the applicants filed an Amended Application for Review which was not properly particularised.
It was apparent at the time of each of the hearings in this matter that the applicants clearly understood the English language, and appreciated their responsibilities to comply with the orders of the Court.
Introduction
The first and second applicants are citizens of Iran who arrived in Australia on Student visas in 2013.
On 21 January 2018, the applicants applied for Protection visas. On 15 April 2019, a delegate of the Minister refused the Protection visa applications.
On 26 April 2019, the applicants made application for review of the delegate’s decision by the Administrative Appeals Tribunal (“the Tribunal”).
On 20 November 2019, the Tribunal invited the applicants to attend a hearing on 5 December 2019, at which time they were advised that they could give evidence and make submissions in relation to their application.
On 26 November 2019, the applicants advised the Tribunal by email that they did not wish to attend the hearing. In part, the applicants cited depression and anxiety as reasons for their not attending. There was no medical evidence to support such claims. The email was as follows: [1]
[1] Court Book (CB) p. 265.
“Hi
I am writing this regarding our interview appointment on 5th December. We would like to say that if you need any more documents and evidences, you need to ask or get them from police or who ever get involved in this case and find out why all these evidences were hidden from us. We think AAT as the centre of information can access to all of the information and evidences by law which is a part of AAT's responsibility and authority.
Regarding the point that you couldn't get any 'favourable results', we should say that it is very disappointing after 6 years poisoning, false accusations and making frames for us, hiding everything from us, 24/7 hearing our privacy illegally, ruining our family and reputation and our eligibility, yet you say that you couldn't get a 'favourable result'. Of course for the people who used asbestos and similar things on us take time to get favourable result.
We completely can feel your exhaustion and becoming desperate to make a final decision and this is because of the wrong credits that you gave to cult religious people and racist groups in one hand and on the other hand supporting unscrupulous people whom have close cooperation with Iran's government and don't know nothing but taking advantage of other people's lives. It is hard to justify the things that it was wrong and against the law from the first step. It is the time now we hear from you. Since September 2013 we are providing documents and evidences and cooperating with all the organisations such as immigration and police. It is the time for us now to get our right by law.
As long as you sacrifice fair go and your own law as well as human rights to support who committed crime for sake of cult religion and racism and taking advantage, you never get a favourable result. As long as you replace victim's place with criminals you never get a favourable result.
At the end, if you have any questions you can send them through email to us and if it was related to our case we will consider and answer.
After 6 years being tortured and targeted we are now experiencing depression and anxieties so attending in an interview is too much for us and we are not sure we can cope and handle it.
Therefore we are not willing to participate in the interview as long as this game is ongoing. We want to hear from you why this things happened for us.
[FGG19]
[FGH19]”
On 28 November 2019, the Tribunal responded to the applicants’ email of 26 November 2019. In part, such response was as follows: [2]
“… Please note that it is up to you to provide evidence and information to the Tribunal in support of your claims for the Member to consider. The Tribunal is unable provide advice in preparing information and evidence for your matter.
You may wish to seek advice from a migration agent or another organisation. You may find a Migration Agent in your area by contacting the Office of the Migration Agents Registration Authority (OMARA) and check their registration by telephone (1300 226 272 or 02 9078 3552; or visit Further information can be obtained from a fact sheet ‘Immigration Assistance – MR Division’, which is available from any of our offices or from our website at your correspondence received on 27 November 2019, you indicated that you did not wish to attend the Tribunal. Please note, if you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.”
[2] CB p. 267.
Despite the Tribunal’s correspondence of 28 November 2019 having been sent by email to the applicants, the applicants did not appear before the Tribunal at the time of the hearing on 5 December 2019. On 10 December 2019, the Tribunal affirmed the decision of the delegate to refuse the Protection visa applications.
Treatment of Claims by Tribunal
At [45] of the reasons of the Tribunal, the Tribunal found that the Tribunal was unable to be satisfied of the claims of the applicants because of their non-appearance at the Tribunal hearing. At [46] of the reasons, the Tribunal found that the applicants’ claims “were brief and very general and relate to a fear of being persecuted in Iran because of religious and political issues. Their claims then reference generally matters about breaches of their privacy and accusations of terrorism having been made against them”.
At [47] of the reasons of the Tribunal, the Tribunal noted that had there been an appearance at the Tribunal hearing, the Tribunal would have asked for further detail about the applicants’ claims to address what were considered to be gaps in such claims, and to generally provide further information and detail. At [48], the Tribunal identified the claims about which there was insufficient evidence before it as follows:
• “Details and evidence of the religious issues that make them feel unsafe;
• Details and evidence of the political issues that make them feel unsafe;
• Details and evidence of the privacy breaches he complains of;
• Details and evidence of the accusations made against him;
• Details and evidence of the raids made by Federal Police;
• Details and evidence of his home being broken into and complaints he may have then made as a consequence;
• Details and evidence of the asbestos placed in his home and food and actions taken to prove the same and complain about same;
• Details and evidence from friends and family of having been asked to deceive the applicants;
• Details and evidence as to how his wife’s IELTS score was altered;
• Details and evidence of religious faith, practice and whether they would continue to practice that faith in Iran if they returned;
• Details and evidence of the applicant’s return to Iran in 2017;
• An explanation of what was meant by their advice that “we are not seeking refugee visa” in their email of 17 November 2019;
• An explanation of what was meant by their advice that “we know that you still change our medical examination and give our private information…”
• Details and evidence of complaints made to Crime Stoppers, ACORN, Federal Police and the Iranian Embassy;
• Details and evidence of bribes and blackmail claims made;
• Details and evidence of termination from employment.”
At [49] of the reasons of the Tribunal, the Tribunal noted that had the applicants attended the hearing, the Tribunal would have asked why they had waited over six months from the date of return to Australia before lodging a Protection Visa application.
At [54] of its reasons, having already referred to cases which support the proposition that a delay in seeking protection can support an adverse credibility finding, as well as a finding that the applicants’ fear was not well founded, [3] the Tribunal stated that the Tribunal was unable to ask the applicants whether they had a reasonable explanation for their delay in making the protection application. The Tribunal found that the explanation given to the delegate for such delay was not reasonable. The Tribunal found that it had grave concerns about the genuineness of the applicants’ claims.
[3] Velauther Selvadurai v MIEA & Anor [1994] FCA 1105 per Heerey J at [11]: Zhang v RRT & Anor
On the question of the applicants’ religious claims, at [61] of its reasons, the Tribunal found that because the applicants were able to enter and depart Iran in 2016-2017, and remain in Iran for six months without any issue, that was an indication that the religious beliefs of the applicants were not likely to constitute a concern for them if they were to return in the future.
At [63] of its reasons, the Tribunal did not accept that the male applicant was a Christian, nor that he had a genuine interest in Christianity (his having very little knowledge of Christianity). At [64] of its reasons, the Tribunal found, based on country information, that because the applicant did not actively practice his Muslim faith, it was satisfied that such non-practice in Iran would not result in him (and presumably the female applicant) facing any real chance of harm.
At [65] – [67] inclusive of the reasons of the Tribunal, the Tribunal, when considering the applicants’ claims about political issues, noted that notwithstanding the claims relating to breaches of privacy and accusations about his allegedly being involved in terrorism activities, the Tribunal noted that no evidence or details of such claims had been provided. It was found that the applicants had not articulated how such claims, even if established, might impact upon them if they were returned to Iran. The Tribunal also found that the applicants did not have any political views, actual or imputed, which would give rise to any adverse interest on the part of Iranian authorities, either at the time of the decision, or in the reasonably foreseeable future.
At [71] – [76] inclusive of its reasons, the Tribunal considered the unarticulated claim that as a failed asylum seeker the applicants might be of adverse interest to the Iranian authorities. The Tribunal rejected such claims based upon country information contained in a DFAT report. It also found that there was no evidence that the applicants were high profile political activists. It found that there was not a real chance that the applicants would suffer serious harm at the hands of the Iranian authorities should they be returned to Iran.
At [79] of its reasons, the Tribunal found that, having considered all of the applicants’ claims both individually and cumulatively, as well as all of the evidence and submissions and the personal circumstances of the applicants, there was no real chance that the applicants would suffer persecution on the grounds of any actual or imputed political opinion, their claimed interest in Christianity or faith, their attempts to seek asylum in Australia, their departure from Iran, or for any other reason. The Tribunal found that the applicants did not have a well-founded fear of persecution for any reason if they were to return to Iran. It found that the applicants did not satisfy the criterion as set out in s. 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’).
At [80] – [91] inclusive of its reasons, the Tribunal considered whether the applicants met the complimentary protection criteria. It found that it was not satisfied that there was a real risk that the applicants would suffer significant harm for any of the reasons claimed if they were to return to Iran. The Tribunal found that due to their respective qualifications as an engineer and a teacher, the male applicant and the female applicant could find similar work to that which they found during the seven month period when they returned to Iran in 2016-2017.
At [90] of its reasons, having noted that it had considered all of the applicants’ claims both individually and cumulatively, as well as all of the evidence and submissions, the Tribunal found that it was not satisfied that the applicants would be arbitrarily deprived of life, that they would lose their life after the imposition of a death penalty, that they would be subjected to cruel or inhuman treatment or punishment, or that they would be subjected to degrading treatment or punishment if they were returned to Iran. The Tribunal found that it was not satisfied that there were substantial grounds for believing that there was a real risk that the applicants would suffer significant harm as defined in s. 36(2A) of the Act. The Tribunal found that the applicants did not meet the relevant complimentary protection criterion as set out in s. 36(2)(aa) of the Act.
The Court finds that the Tribunal did the best it could in considering the applicants’ claims having regard to the vague and imprecise evidence before it concerning such claims. It carefully analysed both the articulated and unarticulated claims able to be advanced on behalf of the applicants. It properly had regard to country information and weighed up all of the claims and evidence before it prior to arriving at a considered opinion. It was entitled to find as it did.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
Further, it cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
Applications for Review
On 23 December 2019, the applicants filed an Originating Application for Review, the grounds of which were as follows:
“Grounds of application
1.We believe that our application process was not based on fair and justice and it was completely influenced and forced by political and religious matters. It is obvious that all the process system was suspicious and unreliable.
2.We believe that all our documents has been hid[d]en and changed by the authorities.”
On 20 January 2021, the applicants filed an Amended Application for Review, the ground of which was as follows:
“Grounds of application
1.Genuinely we cannot return to Iran according to the attached statement and documents and we will be at serious harm and risk, in particular my husband who got medical condition due to being mentally under pressure. We tried once to go back and this time there is no way to return.”
The first respondent relied upon paragraphs 29 – 40 inclusive of its written submissions in respect of Grounds 1 and 2 of the Originating Application for Review. As to Ground 1 of the Amended Application for Review, Ms Reid, on behalf of the first respondent, made oral submissions as follows:
(a)The ground for review was un-particularised and ought to be dismissed on that basis, and for the reasons as set out in the judgment of this Court in DUN16 v Minister for Immigration & Anor & DUO16 v Minister for Immigration & Anor [2019] FCCA 2951;
(b)There was no evidentiary basis before the Court probative of the male applicant suffering from any medical or psychological/psychiatric condition which might be adversely affected should the applicants be returned to Iran;
(c)The applicants were seeking an impermissible merits review of the decision of the Tribunal.
The applicants relied upon the material filed by them in the matter. No objection to any of such material was made on behalf of the first respondent. A summary of such material was as follows:
Applicants’ affidavit filed on 23 December 2019
(a)The applicants’ affidavit filed on 23 December 2019 contained three (3) annexures being Annexures A, B and C.
(i)Annexure A was a letter entitled “Notification of refusal of application for a Protection (Subclass 866) visa” and dated 15 April 2019. The letter was sent by the department to the applicants via email.
(ii)Annexure B was the delegate’s Protection visa decision record with a “draft” watermark throughout the document.
(iii)Annexure C was the Tribunal’s decision record dated 10 December 2019.
Applicants’ affidavit filed on 24 January 2020
(a)The applicants’ affidavit filed on 24 January 2020 contained four (4) annexures being Annexures A, B, C and D.
(i)Annexure A was a statement by the applicants whereby the applicants’ comment upon the alleged departmental delays in responding to the applicants’ pending Bridging visa applications. Such visa applications are not relevant to the subject proceedings before this Court.
(ii)Annexure B was a letter entitled “Notification of decision – [FGG19] and [FGH19]” and dated 11 December 2019. The letter was sent by the Tribunal to the applicants via email.
(iii)Annexure C was a letter sent by the second applicant’s former employer in Australia advising the second applicant that due to her working rights in Australia ceasing, the employer was no longer able to continue her employment.
(iv)Annexure D was a copy text conversation relating to the progress of the applicants’ visa application.
Applicants’ affidavit filed on 27 February 2020
(a)The applicants’ affidavit filed on 27 February 2020 contained six (6) annexures being Annexures A, B, C, D, E, and F.
(i)Annexure A was an email entitled “Claim Letter” (“First Claim Letter”) sent by the applicants to the department on 23 November 2018. The First Claim Letter contained nine (9) ‘claims’, but to the extent that such claims were made they were non-specific, un-particularised as to date, place, time and name of alleged perpetrator/s or the basis for the making of such claims.
(ii)Annexure B was an email entitled “Regarding to our interview” sent by the applicants to the department on 18 March 2019. By the email, the applicants’ requested for the department to focus on their “main claims”. The content of the email made no sense.
(iii)Annexure C was a second “Claim Letter” (“Second Claim Letter”) allegedly sent to the Tribunal by the applicants. The document was undated and the method of transmission was unclear on its face. The Second Claim Letter contained fourteen (14) ‘claims’ which were un-particularised, vague, general concerns about unnamed persons conspiring against the applicants, and otherwise was a historical record of the applicants’ lives since the time of their arrival in Australia.
(iv)Annexure D was an email sent by the applicants to the Tribunal on 27 November 2019 (“27 November 2019 Email”). [4] The contents of the email were said to be an explanation as to why the applicants were unable to attend the Tribunal hearing scheduled for 5 December 2019.
[4] CB p. 265.
(v)Annexure E was a medical certificate dated 20 February 2020. The medical certificate specified that the female second applicant was receiving medical treatment for “Severe Adjustment Disorder with Mixed Anxiety and Depression, consequent on several traumatic life events and with Visa issues. … I strongly support her application for income protection as she is unfit to continue her employment”.
(vi)Annexure F was a letter sent by the department to the applicants via email entitled “Notification of grant of a Bridging visa” dated 10 February 2020. The letter attached a Bridging Visa Grant Notice for each of the first applicant and the second applicant.
Applicants’ affidavit filed on 16 March 2020
(a)The applicants’ affidavit filed on 16 March 2020 contained three (3) annexures being Annexures A, B and C.
(i)Annexure A was an undated Crime Stoppers Victoria reference letter relating to the submission of an online report.
(ii)Annexure B was an automated response email sent by the Australian Cybercrime Online Reporting Network (“ACORN”) to the first applicant. Such email confirmed that an ‘ACORN report’ had been generated.
(iii)Annexure C was an email chain between the first applicant and staff from QML Pathology dating from 9 May 2019 to 16 May 2019. The correspondence evidences a refusal by QML Pathology to conduct hair drug tests on samples provided by the applicants that were allegedly held outside of a laboratory for approximately three (3) years due to quality control concerns.
Applicants’ affidavit filed on 25 March 2020
(a)The applicants’ affidavit filed on 25 March 2020 contained one (1) annexure being Annexure A.
(i)Annexure A was a document dated 24 March 2020 and referred to in the affidavit as “Responding to Court”. The letter was self-serving and of no relevance.
Applicants’ “Additional Document” filed on 2 November 2020
(a)The Additional Document filed by the applicants on 2 November 2020 contained a statement by the applicants dated 1 November 2020 (“Applicants’ Statement”) as well as three (3) annexures being Annexures A, B and C.
(i)The Applicants’ Statement in part accused the Tribunal of hiding information and intentionally not taking the applicants’ claims seriously. The claims related to allegations that whilst in Australia the applicants had been spied upon and otherwise subjected to surveillance – both of which allegations, they alleged, had not been acted upon by police. They claimed that they could not find a lawyer who was interested in their case.
(ii)Annexure A contained documents relating to the applicants’ freedom of information request sent to the AFP. The documents produced did not confirm that any of the applicants’ allegations were true.
(iii)Annexure B contained documents relating to the applicants’ freedom of information request sent to Victoria Police. The letter from Victoria Police to the applicants dated 25 September 2020 indicated that a written response would be sent after further searches had been conducted.
(iv)Annexure C contained documents relating to the applicants’ freedom of information request sent to the Australian Criminal Intelligence Commission. One document was forward, namely the transcript of a conversation with the applicants concerning the applicants’ claims of spying, poisoning and their alleged implications in the accessing of illicit online website content.
Applicants’ affidavit filed on 16 November 2020
(a)The applicants’ affidavit filed on 16 November 2020 contained submissions as well as four (4) annexures being Annexures 1, 2, 3 and 4.
(i)Annexure 1 was the First Claim Letter previously referred to.
(ii)Annexure 2 was the Second Claim Letter previously referred to.
(iii)Annexure 3 was the 27 November 2019 Email previously referred to.
(iv)Annexure 4 was the Applicants’ Statement referred to in the applicants’ Additional Document filed on 2 November 2020 referred to above. It was not new information.
Ms Reid, the lawyer having the conduct of the matter on behalf of the first respondent, swore an affidavit which was filed on 28 January 2021. In that affidavit, Ms Reid deposed that the matters required to be attended to on the part of the first respondent by reason of the orders made by this Court had been duly attended to.
Grounds of Review
The first respondent has treated each of the grounds for review in the Originating Application for Review and in the Amended Application for Review as warranting consideration to the extent that one was able to do so.
Grounds 1 and 2 of the Originating Application for Review filed on 23 December 2019 were un-particularised and inflammatory claims asserting that “the application process” was unfair and completely influenced by religious and political matters, and further, that their documents had been hidden and “changed by the authorities”. On 29 July 2020, it was ordered by this Court as follows:
1.“The Applicants 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 Applicants at the hearing of the application for review, by 4:00pm on 19 August 2020.
2.The Applicants shall file and serve any affidavit containing any additional evidence upon which the Applicants propose to rely relevant to the amended grounds of review by 4:00pm on 19 August 2020.
3.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 2 September 2020.
4.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 Applicants’ compliance or noncompliance with Order 1 hereof relating to the ordered filing by the Applicants of an amended application containing detailed particulars of the grounds for review to be relied upon at the final hearing of this matter.
5.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 Applicants.
6.In the event that the Applicants have failed to comply with Order 1 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.
7.The costs of and incidental to the hearing today be reserved.
IT IS NOTED THAT:
A. The Applicants were put on notice, during the course of today’s hearing, that in the event that the Applicants failed to comply with Order 1 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 10 December 2019 was liable to be dismissed pursuant to the provisions of Rule 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth), a copy of which Rule is to be provided to the Applicants by the lawyers for the First Respondent.”
The applicants did not comply with the requirement, as ordered by this Court, that they were to cause an amended application for review to be filed by 4.00pm on 19 August 2020. The applicants had been put on notice at the hearing on 29 July 2020 that if they failed to comply with such requirement their claims might be dismissed pursuant to the provisions of rule 13.03B(1)(c) of the FCC Rules.
On 2 November 2020, the Court made further orders as follows:
1.“The Applicants are to 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 Applicants at the hearing of the application for review, by 4:00pm on 16 November 2020.
2.The Applicants are to file and serve any affidavit containing any additional evidence upon which the Applicants propose to rely relevant to the grounds of review by 4:00pm on 16 November 2020.
3.The First Respondent shall file and serve any affidavit containing any additional evidence upon which the First Respondent proposes to rely relevant to the grounds of review by 4:00pm on 23 November 2020
4.The Applicants shall file and serve written submissions in support of the application for review by 4:00pm on 7 December 2020.
5.The First Respondent shall file and serve a set of consolidated written submissions in response by 4:00pm 21 December 2020.
6.This matter be adjourned for final hearing before His Honour Judge Egan at 9:45am on 28 January 2021 in the Federal Circuit Court of Australia sitting at Brisbane.
7.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.
8.The costs of and incidental to the hearing today be reserved.
IT IS NOTED THAT:
A. It was made clear during the course of today’s hearing that the particulars of the Applicants’ grounds for review were deficient and inadequate. The Court, for the purposes of bringing to the attention of the Applicants the requirement to file and serve an amended application with detailed particulars, has today indicated that in the event that the Applicant fails to comply with Order 1 hereof requiring the particularisation of the Applicants’ claim, the Applicants are liable to have their application 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.”
The applicants did not comply with the order of the Court made on 2 November 2020. The applicants had been put on notice at the hearing on 2 November 2020 that if they failed to comply with such requirement their claims might be dismissed pursuant to the provisions of rule 13.03B(1)(c) of the FCC Rules.
The ground of review as set out in the Amended Application for Review filed on 20 January 2021 was an un-particularised assertion that the applicants could not return to Iran because “we will be at serious harm and risk, in particular my husband who got medical condition due to being mentally under pressure. …”. As earlier found, there was no medical evidence before the Tribunal probative of any such claim.
In Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 92, judgment was handed down by this Court where the grounds of review in the applicant’s claim were in part un-particularised. The Court, at [17] – [21] inclusive of its judgment, found as follows:
“[17] Ground 1 of the application for review is an un-particularised claim that the Tribunal treated the applicant unfairly. It has been held that an un-particularised ground of appeal to the Federal Court of Australia is itself a sufficient basis for dismissing that ground of appeal. In the recent decision of Farrell J in SZRKF v Minister for Immigration [2020] FCA 1389 at [22] it was said:
[22] The second ground of appeal should be rejected. It is well established that the fact that an appeal ground is put with a high degree of generality and lack of specificity or any real particulars is itself a sufficient basis for dismissing that ground: see WZAVW at [35] followed in BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13] (Bromwich J); CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] (Perry J); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20] and [24] (Reeves J); ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] (Derrington J); DIF17 v Minister for Immigration and Border Protection [2019] FCA 1055 at [29] (Abraham J); and GSQ18 v Minister for Home Affairs [2019] FCA 2057 at [14] (Lee J).”
[18] In CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20] – [22], Gilmour J said as follows:
[20] This ground is un-particularised as to just what evidence it is alleged was not considered by the Tribunal or what relevant considerations the appellant alleges the Tribunal did not take into account, or as to what "wrong information" the Tribunal is alleged to have based its decision upon.
[21] This first ground of appeal is merely an un-particularised assertion of jurisdictional error. As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]:
(This ground is) an un-particularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
[22] The first ground therefore fails.
[19] In CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179 at [23] – [26], Farrell J said as follows:
“[23] The Court explained to the appellant that the Court cannot meaningfully engage with an appeal ground that makes a general complaint of error by the FCCA, without providing particulars of the ways in which he says that the FCCA Judge erred. The appellant did not provide any further particulars.
[24] The Minister filed written submissions. The Minister’s representative submitted that, where (as here) the appellant had been given the opportunity to provide particulars and make oral submissions, the Minister has no case to answer.
[25] In EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12], I said:
While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant’s ground of appeal where the ground makes a general and un-particularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration and Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs. See also SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [17], [24]-[26], [29]-[30] and [32] per Flick J.
[26] Those remarks are equally applicable in this case. In this case, the appellant has not identified appealable error by the FCCA Judge, nor is any apparent from the reasons that her Honour gave for dismissing the application for judicial review of the Tribunal’s decision.”
[20] Further, this Court has referred to the difficulties associated with the carrying out of its judicial functions in circumstances where grounds in a filed application for review of a decision of the Administrative Appeals Tribunal or the Immigration Assessment Authority were wholly un-particularised. In DUN16 and DUO16 v Minister for Immigration & Anor [2019] FCCA 2591 at [4] – [9] it was said:
[4] Notwithstanding, with the greatest of respect, that this Court doubted whether it was a fulfilment of its judicial role, or the performance of a judicial function, for the court to enter upon the endeavour of attempting to elicit from the applicant particulars of the applicant’s case, and then, of necessity, recording such particulars in a coherent form and for the applicant’s benefit, the Court nevertheless attempted to do so, so as to enable the matter to proceed to a final hearing. The Court, in that regard, was concerned that it could be the subject of adverse later criticism, perhaps, for:
a) erroneously appreciating the import of anything said by an applicant in response to the Court’s request for particulars;
b) failing to so formulate, in writing, what was said by the applicant in a way most advantageous to such applicant;
c) not accurately recording some of, or what the Court might have considered an irrelevant part of, the particulars orally provided to the Court by the applicant.
[5] The Court was concerned that, in effect, it was being required to become the applicant’s advocate or adviser, at the risk of assuming all of the attendant responsibilities which that entailed. The Court was also concerned that the exercise would, in a practical sense, leave the Court open to having any subsequent decision it might make in the matter overturned on any number of grounds associated with the process of the Court:
a) advising the applicant as to the inadequacy of the particulars of their grounds for review;
b) asking the applicant to explain what her complaints were concerning the adverse decision she was seeking to review;
c) recording the answers of the applicant to the Court’s questions;
d) evaluating such of the applicant's answers for the purpose of identifying what were or were not legitimate grounds of review;
e) recording, in writing, what the Court considered were the applicant’s legitimate grounds for review.
[6] In the case of Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] inclusive, Beazley JA (with whom Giles and Whealy JJA agreed) said as follows:
[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson, Mason J, at [31] 534, noted that:
A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'.
[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.
[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant.
[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.
[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”
[7] In DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, Flick J, sitting on appeal, was there dealing with a contention that a Federal Circuit Court judge had, in that matter, failed to ensure that the hearing was fair, and that the appellant (applicant) did not “suffer a disadvantage from exercising his or her right to be self-represented”. It was further contended that the primary judge “failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court”. The contention was that it was a requirement imposed upon the primary judge to “explain in plain terms to unrepresented litigants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process” and that it is “not enough to merely say that they must demonstrate jurisdictional error”.
[8] When considering the above contentions, Flick J at [37] noted the undesirability of a judge imposing himself upon the proceedings, as an advisor or advocate for an unrepresented party, when His Honour said:
[37] Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party “why the Tribunal’s decision was not made lawfully”. The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected.
[9] For a judge to not only elicit information from an applicant orally for the purpose of particularising the applicant’s grounds for review, but to then necessarily have to formulate and record the judge’s assessment of what was said orally by the applicant, goes far beyond providing advice to the applicant as to matters of practice and procedure. It blurs the lines between the judge’s duty to remain impartial, and the judge’s duty to ensure a fair hearing. It is this Court’s view that it is not in the interests of justice for a judge to be so integrally involved in the formulation of one party’s case.”
[21] This Court sees no relevant distinction between a Federal Circuit Court being unable to properly exercise jurisdiction under s. 476 of the Act when dealing with an un-particularised ground of review, and a Federal Court sitting on appeal finding that an un-particularised ground of appeal is a sufficient basis for dismissing that ground of appeal. This Court dismisses Ground 1 on that basis.”
(Footnotes omitted)
The Court finds that the grounds of review as set out in both the Originating Application for Review and the Amended Application for Review were so lacking in particularity as to warrant dismissal of the applicants’ claims. It is unfair to expect the first respondent to meaningfully engage with the applicants’ claims when they are so wide and un-particularised.
The Court, likewise, is at the same disadvantage. The applicants had twice been ordered to file an amended application for review which contained detailed particulars of the ground or grounds on which it was asserted that the Tribunal had erred. Having failed to do so, the only way for a possible resolution of such default would have been for the Court to order that the applicants again file and serve a properly particularised Further Amended Application for Review. That would necessarily have required the further adjournment of the hearing before this Court. This Court is not prepared to further adjourn the hearing.
When discussing whether a court ought to exercise its discretion to adjourn a matter or not, Logan J in MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 at [10] – [12] inclusive, said as follows:
“[10] Whether or not to adjourn the hearing of the appeal calls for the exercise of a discretion. It is not only the medical evidence, such as it is, which is relevant in that regard. The Full Court’s judgment in Luck at [43] – [46] offers a reminder of this in the references by the Full Court to wider considerations which attend the question of whether or not any adjournment should be granted. These are no new subjects but they are worth repeating.
[11] Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a court is entitled to be conscious of:
… the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court, as well as the interests of the parties.
[12] Luck also offers a reminder in the reference at [44], [45] and [46] to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 that, quite apart from having to the consumption of public resources, a costs order is not necessarily palliative.”
In Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75, Collier, Griffiths and Mortimer JJ, when considering the circumstances in which an adjournment ought to be granted, said at [42] – [47] inclusive, as follows:
“[42] In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the FCA Act, to which we have referred earlier in these reasons in summary form.
[43] These objectives set out in statutory form some of the considerations earlier expressed as conditioning a discretion to adjourn a hearing. In Sali v SPC Ltd (1993) 116 ALR 625 at 629, Brennan, Deane and McHugh JJ said the Court is entitled to be conscious of the “effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”.
[44] In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).
[45] In Aon at [5], French CJ referred to the broader considerations at work in considering an adjournment application:
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.
[46] The plurality in Aon expressed a similar opinion at [93]:
[T]he rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants.
[47] Whether examined on the basis of factors particular to the parties in these appeals, or the basis referred to at [43]-[46] above, we do not consider an adjournment should be granted to Ms Luck.”
The Federal Circuit Court currently has a backlog of almost 14,000 migration review applications awaiting hearing. The Court’s Judges are working hard to attempt to reduce that backlog. As a matter of public policy, Courts overwhelmed with workloads when exercising a particular jurisdiction ought not to continually avail to applicants the opportunity to properly particularise their claims in circumstances where, if a Court was to so order, it would only further exacerbate Court backlogs by denying other applicants the opportunity of having their applications for review expeditiously heard and determined.
In the present matter, the sensational claims made by the applicants in each version of their review applications have not been the subject of any successful investigative outcome. The claims made to this Court lacked an evidentiary basis which alone justified dismissal of such claims.
The Court finds that the applicants have twice failed to comply with orders of the Court requiring them to properly particularise their claims. They were in default as provided for in rule 13.03A(1)(a) of the FCC Rules.
In the exercise of its discretion, and for the reasons set out above, the Court also considers that this is an appropriate matter where the applicants’ claims ought to be dismissed pursuant to the provisions of rule 13.03B(1)(a) and r. 13.03B(1)(c) of the FCC Rules. Such Rules provided as follows:
“Rule 13.03B – Orders on default
(1)If an applicant is in default, the Court may order that:
a.the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
…
c.if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.”
The applications for review filed on behalf of the applicants are without merit and are dismissed accordingly. The Court will hear the parties as to costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 3 February 2021
[1997] FCA 423
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