FJS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 55
Federal Circuit and Family Court of Australia
(DIVISION 2)
FJS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 55
File number(s): SYG 3814 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 2 February 2023 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a protection visa – whether the Tribunal acted unreasonably or contrary to s 425 of the Act by proceeding to make a decision after the applicant failed to appear before the Tribunal to give evidence and present arguments without giving further notice to the applicant – no jurisdictional error – application dismissed. Legislation: Freedom of Information Act 1982 (Cth) ss 15(1), 15(5)(b)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2
Migration Act 1958 (Cth) ss 425, 476
Division: General Number of paragraphs: 41 Date of last submission/s: 10 November 2021 Date of hearing: 4 November 2021 Place: Sydney Counsel for the Applicant: Mr A Silva (direct access), by video Counsel for the First Respondent: Mr T Reilly, by video Solicitor for the First Respondent: Australian Government Solicitor ORDERS
SYG 3814 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FJS17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
2 February 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $7,853.
4.The matter is set down for hearing at 10.15 am on 9 March 2023 to hear submissions on the questions stated in paragraph 39 of the reasons for judgment on the basis of which theses orders are made.
5.By 2 March 2023 Mr Anthony Nicholas Silva file and serve written submissions, and any affidavit or affidavits on which he intends to rely, in relation to the questions referred to in order 4.
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
introduction
In this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act), the applicant claims that the second respondent (Tribunal) acted unreasonably, and in breach of s 425 of the Act, by affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (class XA visa) (Protection visa) after the applicant failed to appear at a hearing before the Tribunal to give evidence and present arguments. The applicant claims the Tribunal ought to have attempted to contact the applicant’s authorised representative before it made its decision.
background
The applicant is a national of Fiji. He arrived in Australia on 23 December 2015 holding a visitor visa that was valid until 23 March 2016. On 10 March 2016 the applicant applied to the Department of Home Affairs (then known as the Department of Immigration and Border Protection) (Department) for a Protection visa. On 4 July 2016 a delegate of the Minister refused to grant the applicant a Protection visa.
On 10 August 2016 the applicant lodged with the Tribunal an application for review.[1] The application noted that Ms K, a “friend”, was the applicant’s representative. The applicant recorded an email address to which communications could be sent to Ms K. The applicant also completed a form dated 2 August 2016 titled “Appointment of Representative” appointing Ms K as the applicant’s representative.[2]
[1] CB, at page 105
[2] CB, at page 112
On 14 July 2017 the Tribunal sent an email to Ms K’s email address attaching a letter inviting the applicant to appear before the Tribunal at 9:00 am on 5 September 2017 to give evidence and present arguments.[3] The applicant did not appear at the hearing.[4]
[3] CB, at page 137
[4] CB, at page 147
In an affidavit made on 2 April 2018 the applicant deposes that, from the beginning of 2017 until 15 September 2017, he did not hear from Ms K about anything, including the Tribunal hearing. On 15 September 2017 the applicant met Mr Silva, a migration agent, and “discussed about my case”. The applicant met Mr Silva again on 17 September 2017. The applicant asked Mr Silva to take over his case; and the applicant signed “the necessary documents”.
On 17 September 2017 Mr Silva sent an email to the Tribunal stating that it attached a “MR5 Form and FOI Request”.[5] The “MR5 Form” was a completed form headed “Appointment of Representative”.[6] The form is dated 17 September 2017; it appears to be signed by the applicant; and it appoints Mr Silva as the applicant’s representative. The form records Mr Silva’s email address, and the form contains a tick in the box that appears before “Yes”, signifying an agreement that the AAT send correspondence by email. The “FOI Request” is a form headed “Request for access to documents under the Freedom of Information Act 1982”.[7] Mr Silva is named as the applicant of the FOI Request, and the form requests access to “[a]ll documents on AAT file including any recording of hearing”, and “[a]ll documents on DIBP file including recording of hearing” (FOI documents). Part 3 of the FOI Request contains the applicant’s signature authorising the release of the FOI documents to Mr Silva.
[5] CB, at page 150
[6] CB, at page 151
[7] CB, at page 152
On 19 September 2017 the Tribunal sent to Mr Silva an email attaching a letter acknowledging it received the FOI Request.[8] The letter stated that the Tribunal would process the FOI request to the extent it sought access to documents held by the Tribunal, and the Department would contact Mr Silva in relation to the FOI Request to the extent it sought access to documents held by the Department.
[8] CB, at page 155
On 19 September 2017 the National FOI Coordinator sent an email to the “FOINSW”.[9] The email’s subject was “FOI request – Partial transfer – AAT MRD ….. – [applicant’s name], MR5& FOI . . . . . The email states:
Please accept a partial transfer of an FOI request received for:
Name of applicant: [Name of applicant]
AAT case number: [Tribunal file number]
DIBP file number: [Department file number]
The above mentioned DIBP file will be provided to you in due course.
If you have any questions, please contact me on the number listed below.
[9] CB, at page 156
Also on 19 September 2017 the Tribunal’s “Authorised FOI Officer” sent an email attaching a letter to “NSW Freedom of Information and Parliamentary and Ministerial Liaison Units Department of Immigration and Border Protection”, stating the following:[10]
We have received a request for access to documents under the Freedom of Information Act 1982 (the FOi Act) lodged on 17 September 2017. The period for processing the FOi request commenced on 17 September 2017.
The request for access partially relates to documents held on the department’s file(s). Pursuant to section 16 of the FOi Act, we are partially transferring the request to the department for action.
Copies of the FOI Request and acknowledgement letter are enclosed.
We are processing the part of the FOI request that relates to our documents.
[10] CB, at page 157
On 25 September 2017 the Department’s “Case Officer NSW Freedom of Information” sent an email to the “National Registry Mailbox”, stating as follows:[11]
[11] CB, at page 158
A request has been made under the FOI Act for the following TRIM File
CLF2016/16260
[Name and other details of applicant]
FOI Number . . .
The above file relates to an FOI request. The FOI Act 1982 provides a statutory timeframe of 30 calendar days to respond to a request. This request was received on 17 September 2017 and must be decided by 17 October 2017.
Please forward the file with this request attached to . . . FOI Parramatta
NSW
Or
Send a scanned copy of the file to . . . @border.gov.au
If I have not been received advice within 5 days of the date of this message that the file has been forwarded, I will send a follow-up message.
Your assistance in forwarding the file as soon as possible is greatly appreciated.
In his affidavit of 2 April 2018 the applicant deposes as follows:
Between 17/09/17 and 16/11/17, I saw Mr Silva five times (5/10/17, 12/10/17, 26/10/17, 2/11/17 and 9/11/17) to get ready for the Tribunal hearing and on all occasions it was around 8 pm or later and I went direct from work. I did this because I was quite determined to make sure that I understood whatever issues that I had to be ready about at the hearing.
The applicant does not say in his affidavit what was his understanding of the “Tribunal hearing” he believes he met Mr Silva to get ready for; and the applicant does not identify what he did in each of the meetings he says he had with Mr Silva to get ready for the “Tribunal hearing”.
tribunal’s decision
On 15 November 2017 the Tribunal decided to affirm the delegate’s decision not to grant the applicant a Protection visa. After recounting that the applicant had been invited to appear before the Tribunal on 5 September 2017 to give evidence and present arguments, and that the applicant did not appear at the hearing, the Tribunal decided “to proceed to make a decision on the review”. For reasons it is not necessary to set out, the Tribunal was not satisfied the applicant met the criteria for the grant of a Protection visa.
grounds of application
The applicant relies on the first two grounds of the four grounds of application contained in the second amended application.
Ground 1
Ground 1 is as follows (emphasis in original):
The Tribunal made jurisdictional error in that the Tribunal (a) failed to provide genuine opportunity to appear, give evidence and make submissions at a hearing (s425 breach) (b) failed take relevant and critical material/ information into account
Particulars
(a) The Tribunal knew that the email sent to Authorised Recipient [Ms K] on 14/07/17 with the Invitation to Attend a Hearing and Response to Hearing Invitation Form (CB135-145) received no response, either by email, phone or by post;
(b) There is nothing on record to show that the Tribunal tried to contact either [Ms K] or the applicant;
(c) A movement record on 4/9/17 (CB146) indicated to the Tribunal that the applicant was onshore;
(d) The Tribunal knew that the applicant didn’t attend the hearing on 5/09/17;
(e) The Tribunal knew that something had gone wrong with the communication;
(f) Mr. Silva filed Form MR5 on 17/09/17 informing that he is representing the applicant well before the Tribunal decision on 15/11/17;
(g) The Tribunal didn’t refer in the decision to the fact that on 17/09/17 Mr. Silva filed Form MR5 providing information that he is the new Migration Agent;
(h) The Tribunal should have informed Mr. Silva about the situation so that he could ask for rescheduling of the hearing so that the applicant didn’t lose the opportunity to attend hearing; and
(i) The Tribunal knew that the applicant is going to be denied an opportunity appear due to a situation for which the applicant was not responsible and didn’t try to remedy that situation by an email or a call to the new Migration Agent.
Parties’ submissions
In his written submissions Mr Silva, on behalf of the applicant, submitted that at “least at two stages the Tribunal can be attributed with the knowledge that the applicant may not have had the knowledge about the hearing” that was scheduled to occur on 5 September 2017.[12] The first stage was when the applicant did not respond to the Tribunal’s invitation to appear at the hearing. The second was when Mr Silva sent to the Tribunal his email of 17 September 2017 attaching the FOI request. Mr Silva submits that the “only rational conclusion” the Tribunal could have reached in relation to the email is that Mr Silva lodged the FOI request “for the purpose of the hearing and thus it would have confirmed to the Tribunal that not only that the applicant did not have the knowledge of the hearing, but his new representative also has no knowledge and thus its obligation under s 425 remained unfulfilled” (italics added).[13] Further, “a duty arose to inform Mr. Silva”.
[12] An Outline of the Final Submissions of the Applicant, [44]
[13] An Outline of the Final Submissions of the Applicant, [46]
The Minister, on the other hand, submits the Tribunal had given the applicant proper notice of the hearing of 5 September 2017 by sending the letter of invitation dated 14 July 2017 to the email address of the applicant’s then representative, Ms K. The Tribunal was not required to speculate why the applicant did not attend the hearing.
Determination
Ground 1, and the submissions Mr Silva makes in support of the ground, are based on premises for which there is no evidence and which are otherwise untenable. First, there is no evidence to support paragraph (e) of the particulars to ground 1 that the Tribunal knew that “something had gone wrong with the communication” of the Tribunal’s invitation to the applicant to appear before it on 5 September 2017 to give evidence and present arguments. As the Minster correctly submits, the Tribunal sent the invitation to the email address of the applicant’s authorised representative. The applicant has not identified any evidence that ought to have suggested to the Tribunal that the applicant had not been made aware of the invitation.
Second, there is no evidence to support the claim made in paragraph (i) of the particulars to ground 1 that the Tribunal “knew that the applicant is going to be denied an opportunity to appear due to a situation for which the applicant was not responsible”. There is no evidence the Tribunal was aware (if this were the case) that the applicant’s former representative did not pass on to the applicant the Tribunal’s invitation to appear at the hearing of 5 September 2017; and, as I find below, the applicant, or at least Mr Silva, was aware well before the Tribunal made its decision on 15 November 2017 that the Tribunal had invited the applicant to appear before it on 5 September 2017 to give evidence and present arguments, but that the applicant did not appear at the hearing.
Third, there is no basis for the claim made in paragraph (h) of the particulars to ground 1 that the Tribunal “should have informed Mr. Silva about the situation so that he could ask for rescheduling of the hearing so that the applicant didn’t lose the opportunity to attend hearing”. It was open to Mr Silva, as the newly appointed representative of the applicant, to make enquiries of the Tribunal about the current status of the applicant’s proceeding, to the extent the applicant was not in a position to inform Mr Silva of the current status of that proceeding. It is open to find, and I find, that the Tribunal proceeded on the reasonable assumption that Mr Silva, as the applicant’s migration agent, would act competently in the protection of the applicant’s interests so that if Mr Silva had any doubts about the stage at which the proceeding before the Tribunal had reached, he would make enquiries of the Tribunal.
In any event, on the basis of the evidence that was before me at the hearing, it is open to find, and I find, that by 19 October 2017 the Tribunal had provided the FOI documents to Mr Silva which included the letter dated 14 July 2017 inviting the applicant to appear before the Tribunal on 5 September 2017, and the “MRD Hearing Record” that showed that the applicant did not appear at the hearing;[14] and, for that reason, Mr Silva and the applicant became aware well before 15 November 2017 that the Tribunal had invited the applicant to appear before it on 5 September 2017 to give evidence and present arguments, but that the applicant did not appear. I rely on the following matters:
(a)Although the applicant, in his affidavit, says he did not hear anything from Ms K about the Tribunal’s invitation to appear before it on 5 September 2017, he does not depose that before 15 November 2017, but after meeting with Mr Silva, the applicant was unaware that he had been invited to appear before the Tribunal on 5 September 2017. If, in truth, the applicant was unware of the hearing of 5 September 2017 until after the Tribunal made its decision on 15 November 2017, it is reasonable to expect that he would have said so in his affidavit.
(b)Under s 15(5)(b) of the Freedom of Information Act 1982 (Cth) (FOI Act), an agency to whom a request for access to documents under s 15(1) of the FOI Act is made must “as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document)” (30 day requirement). The email the Tribunal’s “Authorised FOI Officer” sent on 19 September 2017 referred to this requirement and manifested an intention to comply with that requirement. Given the applicant has not adduced evidence that the Tribunal refused to give Mr Silva and the applicant access to the FOI documents, it is open to infer, and I find, that the Tribunal complied with the 30 day requirement and, therefore, granted Mr Silva access to the documents on its file by 19 October 2017. These would have included the Tribunal’s letter dated 14 July 2017 inviting the applicant to appear before it on 5 September 2017, and the hearing record which showed the applicant did not appear at the hearing.[15]
(c)The applicant does not, in his affidavit, refer to the FOI request; and he does not say whether he was aware that Mr Silva had been granted access to the FOI documents. If in truth the applicant was not aware of the FOI request or, if aware and the applicant believed the FOI request had not been met or had been refused, it is reasonable to expect the applicant would have said so in his affidavit.
[14] CB, at page 147
[15] CB, at page 147
In the course of the hearing I explored with Mr Silva the inferences that are available to be drawn on the basis of the matters to which I refer in paragraph 21 of these reasons. Mr Silva equivocated about whether the applicant had been granted access to the FOI documents before the Tribunal made its decision on 15 November 2017. Thus, in the following passage Mr Silva appears to say both that the FOI documents were not produced and there is no evidence before the Court that the FOI documents had been produced (emphasis added):[16]
HIS HONOUR: So the – so a request for access is made. So what I’m asking is when was access granted? When were you able to obtain documents? Is that clear in the evidence?
MR SILVA: No documents were – no documents were provided, your Honour.
HIS HONOUR: What’s that, sorry?
MR SILVA: There is no – nothing to show the documents were provided under FOI.
HIS HONOUR: So – but that request is still outstanding, is it?
MR SILVA: That – based on the court book, your Honour.
[16] T21.25
A little later, Mr Silva appears to submit that the evidence does not reveal the applicant obtained access to the FOI documents (emphasis added):[17]
HIS HONOUR: Am I – and you said it’s not in the court book, but am I not entitled to infer that by around this time, that is to say, 17 October 2017, the FOI request had been satisfied and that documents would have been provided to you, including documents which would have revealed that the tribunal had invited your client to appear on 5 September, and there would have been a record, one would assume, to show that your client did not turn up. Would that be a fair inference for me to draw from this or not?
MR SILVA: No, your Honour. I say two reasons for that. One is that if there is any evidence of such nature, it is for the Minister to put on record.
. . . .
HIS HONOUR: And I’m saying to you, well, on the evidence before me, the FOI request would have been – was due to be completed on 17 October, and I am saying that there is no affidavit from your side to say that that FOI request has not been complied with. And what I’m saying is, in the absence of evidence that you could have easily given and can still give, I’m entitled to infer that, in fact, your client did receive the documents and that the tribunal was therefore entitled to assume that your client knew that – or his agent knew that there was no appearance, and that, having regard to the fact that nothing happened, no request was made or no explanation given by the new agent, that the applicant did not intend to appear.
MR SILVA: Yes. With respect, your Honour, you are reading so much into a letter from the – an email from the department, and I don’t think your Honour can justifiably do that because there is no evidence here on the record to say that FOI information was provided, and it is on the Minister. It is not on the applicant to provide that. That is on the Minister to provide that.
[17] T31.40-T32; T34.25
The position Mr Silva ultimately appeared to adopt was that the applicant did not receive access to the FOI documents, although with some qualifications (emphasis added):[18]
HIS HONOUR: Are you prepared to tell me? I’m not suggesting you should, but are you prepared to tell me whether these documents were received by around the middle of October or not?
MR SILVA: Your Honour, the – the document is ‑ ‑ ‑
HIS HONOUR: You don’t have to.
MR SILVA: Your Honour, if the document is received, nobody is going to sit on their back, your Honour. If you get the document, if they know there is a hearing, it’s obviously they will act on it, not only . . . . anyone.
HIS HONOUR: No, I’m just asking you. . . . you can say to me, “I don’t want to answer that question,” or if you – and I – the answer is perfectly within your knowledge, I assume. You either received the documents in response to the FOI request or you didn’t. Now, you have got two choices. You can tell me yes, no, or, “I don’t want to answer,” so that’s what I’m – that’s what I’m asking.
MR SILVA: Your Honour – no, your Honour. Your Honour, I can say no, but I – I can also double-check after the hearing and let – let your Honour know if there was any change, but as far as I know, I can give the answer. We didn’t receive it. But just to be sure, fair to the court, I ‑ ‑ ‑
HIS HONOUR: Well, it’s up to you. If you’re going to seek leave – if you’re going to seek leave to do so, you seek leave.
MR SILVA: Yes. Yes.
[18] T35.5-T35.30
The Tribunal did not fail to comply with its obligations under s 425 of the Act; and, therefore, it did not make any jurisdictional error by affirming the delegate’s decision on 15 November 2017 without making any further attempt to contact the applicant’s nominated representative, Mr Silva. In light of the applicant having appointed Mr Silva as his migration agent; Mr Silva having made the FOI request; Mr Silva not having made any enquiry of the Tribunal about the current status of the applicant’s application for review before the Tribunal; and the 30 day requirement; it was reasonably open to the Tribunal, when it made its decision on 15 November 2017, to proceed on the basis that the applicant had elected to do nothing further in support of his application for review.
Ground 1, therefore, fails.
Ground 2
Ground 2 is as follows (emphasis in original):
The Tribunal made jurisdictional error in that the Tribunal was unreasonable in not informing the applicant's new Migration Agent of the situation of the applicant's case soon after 17 /09/17
Particulars
Repeat the particulars for Ground 1
In his written submissions, Mr Silva says ground 2 “advances a complaint of unreasonableness due to the failure by the Tribunal to appraise the new migration agent the status of the application soon after his filing of the forms indicating that the applicant has appointed him as his representative with the Tribunal”.[19] Mr Silva also submits as follows (emphasis added):[20]
Further, the new representative was appointed about two months before the Tribunal decision on 15/11/17. There was significant time in between which allowed to the Tribunal to inform the applicant. It is reasonable to presume that had the Tribunal informed Mr. Silva about the situation he could have asked (just as any migration agent would have done) for a hearing by explaining the fact that the applicant had no knowledge of the invitation to the hearing in order to get an opportunity for the applicant to attend an oral hearing.
The Tribunal must have known the possibility that the applicant is going to be denied an opportunity to appear due to a situation for which the applicant may not have been responsible and it didn’t try to remedy that situation by an email or a call to Mr. Silva.
[19] An Outline of the Final Submissions of the Applicant, [32]
[20] An Outline of the Final Submissions of the Applicant, [37], [38]
Ground 2 is based on the same particulars as ground 1. I have already found there is no evidence or basis to support paragraphs (e), (h), and (i) of the particulars to ground 1. Further, given that the applicant appointed Mr Silva as his migration agent; Mr Silva made the FOI request; Mr Silva did not make any enquiry of the Tribunal about the current status of the applicant’s application for review before the Tribunal; and the 30 day requirement; the Tribunal did not act unreasonably in deciding to proceed with its decision on 15 November 2017 without giving further notice to the applicant by his authorised representative, Mr Silva.
Ground 2, therefore, also fails.
disposition
I propose to order that the application be dismissed.
The parties agreed that costs should follow the event. The Minister submitted he only seeks costs in the amount provided for in by Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). That amount is $7,853. I therefore will also order that the applicant pay the Minister’s costs set in the amount of $7,853.
other matters
On 10 November 2021, after the hearing, Mr Silva sent the following email to my associate:
Dear Associate
At the hearing in this matter at one point there was a suggestion by the Court that I check my records and notify the Court if I had received a copy of the FOI material from the Department in advance of the Tribunal making its decision.
On the Minister's prompting I checked my 2017 records.
It seems that FOI Material was received before the Tribunal decision, but not from the Department but from the Tribunal. It was for some reason missed by my office at that time. Since it was not in the Court Book this was not apparent to both parties and the Court.
The Minister has consented to myself sending this information to the Court.
Mr Silva attached a number of documents. These included the following letter dated 26 September 2017 from the Tribunal:
Dear Mr Silva
FOI REQUEST – DECISION – RELEASED IN FULL - MR [APPLICANT’S NAME]
I am replying to your Freedom of Information (FoI) request received on 17 September 2017 for access to personal information contained on files relating to your client, Mr [applicant’s name].
Documents which are in the tribunal’s possession, and which are relevant to your request, are contained on tribunal file number . . . which consists of folios 1 to 87 and file cover, together with hearing record sheet of 5 September 2017.
As an officer authorised under the FoI Act to make decisions on access, I have decided to release these documents to you in full.
Information about how you can apply for review of this decision or complain about how the tribunal has dealt with this matter is set out in the attached fact sheet.
If you have any questions, please e-mail . . . , or contact me on the number listed below, or telephone the Tribunal's national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
Mr Silva’s email also attached two other sets of documents. The first are 64 documents that appear to comprise the Tribunal’s file in relation to the applicant’s application for review up to and including the Tribunal’s letter dated 14 July 2017 inviting the applicant to appear before the Tribunal on 5 September 2017 to give evidence and present arguments (folio 85). The second set of documents is the “MRD Hearing Record” in relation to the hearing of 5 September 2017 which has written on it the words “No Show”. It is open to infer, and I find, that the Tribunal provided to Mr Silva all of the documents attached to the email Mr Silva sent to my associate at the same time, namely, on or shortly after 27 September 2017.
The documents Mr Silva sent to my associate confirms the findings I made on the basis of the evidence that was before me at the hearing; namely, that before the Tribunal made its decision on 15 November 2017, the Tribunal had provided to Mr Silva and the applicant the FOI documents, which included a copy of the letter dated 14 July 2017 that the Tribunal sent to the applicant’s previous representative inviting the applicant to appear before the Tribunal on 5 September 2017, and the “MRD Hearing Record” that showed that the applicant did not appear at the hearing.
There is another item of information that is relevant. On 21 September 2021, almost 6 weeks before the hearing of the matter before me, the applicant filed an affidavit made by Sylvia Nicholas Silva (S N Silva) on 21 September 2021. In that affidavit, S N Silva deposed as follows (emphasis added):
1.I am employed as the Administartive [sic] Assistant to barrister Mr. A. N. Silva.
2.On 15/09/21 Mr. Silva filed an FOI request with the Administrative Appeals Tribunal (AAT) to access documents related to FJS17 who is the applicant in this court proceeding.
3.On 20/09/21 the AAT provided documents under the FOI to Mr. Silva by email correspondence.
4.Four pages from that document (Number 51 to 54) which related to the correspondence between the AAT and the Delegate of the Minister who decided the preliminary application are marked ‘A’ and attached to the affidavit.
5.This information will enlighten the Honourable Court on the delegate’s view of the validity of the second notification of the refusal decision from the Delegate to the applicant.
6.Further this formation [sic] also shows that, this view of the Delegate was conveyed to the AAT.
7.The information that I provide here are true based on my knowledge, understanding and belief.
The affidavit records that S N Silva affirmed the matters deposed in his affidavit before “Anthony Nicholas Silva”, that is, Mr Silva.
The information in paragraphs 33-38 of these reasons raises the following questions:
(a)Given that around 27 September 2017 the Tribunal had informed and granted Mr Silva access to the FOI documents, which revealed that the Tribunal did invite the applicant to appear on 5 September 2017, and the applicant did not appear at that hearing, was it open to Mr Silva, as a legal practitioner, to advance a claim based on the premise that Mr Silva and the applicant were not aware, before the Tribunal made its decision on 15 November 2017, that, by letter dated 14 July 2017, the Tribunal had invited the applicant to appear on 5 September 2017 to give evidence and present arguments, but that the applicant did not appear at that hearing?
(b)By making the statements emphasised in the extracts of the transcript of the hearing I reproduce above, and the emphasised statements in Mr Silva’s written submissions I reproduce in paragraphs 16 and 28 of these reasons, did Mr Silva intend to convey that:
(i)Mr Silva did not obtain access to the FOI documents before the Tribunal made its decision on 15 November 2017; or
(ii)Mr Silva did not know whether he had obtained access to the FOI documents before the Tribunal made its decision on 15 November 2017?
(c)To the extent (b) is answered in the affirmative, given that by letter dated 27 September 2017 the Tribunal granted Mr Silva access to the FOI documents, is it reasonably open to find and, if so, should it be found that:
(i)either or both of the statements in (b) was or were false or misleading?
(ii)if so, Mr Silva knew the statement or statements was or were false or misleading, or he was indifferent as to whether the statement or statements was or were false or misleading?
(d)To the extent (a) is answered in the negative, and (c) is answered in the affirmative, should orders be made that Mr Silva:
(i)pay the Minister’s costs by way of indemnity of the applicant’s liability to pay the Minister’s costs;
(ii)repay any fees he recovered from the applicant in relation to work Mr Silva has performed in this matter;
(iii)be restrained from seeking to recover any fees from the applicant in relation to work Mr Silva performed in this matter; and
(iv)be restrained from seeking to recover by way of reimbursement or indemnity from the applicant any amount Mr Silva may be ordered to pay on account of the Minister’s costs?
(e)If (a) is answered in the negative, and (c) is answered in the affirmative, should these reasons for judgment, and any further reasons for judgment I may deliver in relation to any of questions (a)-(d), be referred to the professional and regulatory body or bodies responsible for regulating the conduct of lawyers?
(f)Is it reasonably open to find and, if so, should it be found, that, by his email to my associate sent on 10 November 2021 Mr Silva intended to state that the documents attached to the email did not come to the notice of Mr Silva or to anyone else in his office at the time Mr Silva received the documents, or did not come to Mr Silva’s notice until he checked his records after the hearing on 4 November 2021?
(g)If (f) is answered in the affirmative, given the contents of the affidavit of A N Silva, is it open to find, and if so, should it be found, that:
(i)the statement in (f) is false or misleading?
(ii)if so, Mr Silva knew it was false or misleading, or he was indifferent to whether it was false or misleading?
(h)Given that on 17 September 2017 Mr Silva sent the FOI request to the Tribunal, and that by letter dated 26 September 2017 the Tribunal informed Mr Silva that it decided to release the FOI documents, to the extent the FOI request related to the Tribunal, is it open to find, and, if so, should it be found, that the statements conveyed by paragraphs 2 and paragraphs 3 of the affidavit of A N Silva are false or misleading?
(i)If (h) is answered in the affirmative, should these reasons for judgment, and any judgment I may give on question (h), be referred to the professional and regulatory body or bodies responsible for regulating the conduct of lawyers?
I will set the matter down for hearing at 10.15 am on 9 March 2023 for the purpose of receiving evidence and hearing submissions in relation to the questions I identify in paragraph 39 of these reasons. I will also order that by 2 March 2023 Mr Silva file written submissions and any affidavit or affidavits on which he intends to rely.
Finally, I will order that the Minister’s name be changed to its current description.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 2 February 2023
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