FTK18 v Minister for Immigration and Anor (No.2)
[2020] FCCA 518
•20 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FTK18 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 518 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for re-instatement – whether the applicant alleges that it was procedurally unfair that he did not have access to an interpreter – whether the applicant alleges that it was procedurally unfair that he did not have access to a copy of written reasons – whether the applicant alleges that it was procedurally unfair that he did not have legal representation – whether the Federal Circuit Court denied the applicant procedural fairness – no jurisdictional error made out – the application for re-instatement is dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.16.05 |
| Cases cited: AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951 |
| Applicant: | FTK18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3073 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 6 March 2020 |
| Date of Last Submission: | 6 March 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 20 March 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Turner, Turner Coulson Immigration Lawyers |
| Solicitors for the Respondents: | Mr Gardner, Minter Ellison |
ORDERS
The application for re-instatement is dismissed.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $1,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3073 of 2018
| FTK18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter has a somewhat complex history, which is necessary to set out in order for there to be a proper understanding of the judgement that is about to be given.
The applicant is a citizen of Nepal. The applicant left Nepal legally on 12 February 2009 and entered Australia on a student visa.
On 11 April 2018, the applicant applied for a protection visa. A delegate of the Minister for Immigration (“the delegate”) refused to grant the application for a protection visa in a decision dated 19 June 2018.
The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). The applicant was unrepresented before the Tribunal. In a decision dated 5 September 2018, the Tribunal affirmed the decision of the delegate not to grant a protection visa.
As regards to the need for an interpreter at the Tribunal hearing, which was the subject of the application to this Court, the following appears at paragraph 26 of the Tribunal decision:
The applicant appeared before the Tribunal to give evidence and provide arguments in support of his application for review. The applicant did not request an interpreter and the hearing was conducted in English. The Tribunal was satisfied that the applicant was well able to communicate both in writing and orally in English. At the commencement of the hearing the Tribunal reminded the applicant that if he was having any difficulties at all understanding its questions he should mention that immediately. The applicant did not mention to the Tribunal at any time during the hearing that he was having any difficulties understanding the Tribunal’s questions.
The applicant then sought judicial review in this Court.
Background of the Current Application in a Case
The matter was listed for hearing at Parramatta on Wednesday 29 January 2020. The applicant appeared before the Court unrepresented. The applicant was not in custody or at an immigration detention at the time.
In the applicant’s initiating application to the Court dated 28 October 2018, he indicated that he did not require the services of an interpreter.
The applicant further stated on his application that his lawyer advised him that they could no longer represent him. Legal Aid also advised the applicant that they could not assist and so he wrote “I need to do this myself” in his application. Despite numerous opportunities between the time the application was lodged with the Court and the final hearing, the applicant did not obtain legal representation nor did he seek to amend his grounds of appeal. Despite Court orders, no written submissions were provided by the applicant prior to the hearing.
At the commencement of the hearing, the Court carefully explained to the applicant the procedure that would be followed in relation to how the matter would be conducted. This included advising the applicant that it was likely that an ex tempore judgement would be delivered and that if he wished to obtain written reasons, he could apply to the Court.
The Court also confirmed that the applicant had been provided with a copy of the “Green Book”, being a copy of all relevant documents in relation to the matter and that he had been provided with and understood the first respondent’s submissions.
At the hearing, it was necessary to deal with a preliminary question as to whether or not an extension of time should be granted for the lodging of the application before the Court. The applicant’s application was some 23 days outside of the 35 day time limit.
In an ex-tempore judgement delivered that day, the Court considered the matter through the lens of the principles set out in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at pages 348-349, per Wilcox J. Those principles are as follows:
1) The extent of the delay.
a)In this case 23 days.
2) The explanation for the delay.
a)The applicant asserted that he waited for a copy of a recording from his previous solicitor of his protection interview. The applicant was in an immigration detention at that time. The applicant quite frankly conceded that he was responsible for the delay.
3) Any prejudice that the first respondent might suffer because of the delay.
a)The solicitor for first respondent quite properly conceded that the Minister would not suffer any prejudice if time to lodge the application review were to be extended; and
4) The merits of the proposed application.
The Court was satisfied that it should find in the applicant’s favour, in relation to each of the first three points. The Court then went on to consider, in some considerable detail, the merits of the proposed Grounds of Application. The Court was satisfied that none of the proposed Grounds of Application disclosed jurisdictional error.
Accordingly, the Court dismissed the application for an extension of time, as it was futile for leave to be granted in circumstances where the proposed application had no merit.
On the day, the applicant was provided and left the Court with a written copy of the Court’s Orders which were as follows:
1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural affairs.
2. The application for an extension of time is dismissed.
3. The Applicant pay the First Respondent’s costs fixed in the sum of $3737.00.
The Court Notes:
4. No jurisdictional error was found in the proposed grounds of the application or in any other unarticulated claim.
Following the hearing, no request for written reasons was received by the Court. Had the applicant requested a copy of the written reasons of the Court’s decision, this would have been made available to him after the request to Auscript had been made.
The Application before the Court
On 4 March 2020, an Application in a Case was lodged with the Court seeking the following orders:
1. The dismissed application for an extension of time filed on 2 November 2018 be reinstated.
Particulars:
1. The proceedings were interlocutory under rule 16.05(2)(c).
2. The Applicant was unrepresented at the hearing.
In support of the application, an affidavit by a solicitor Sia Priya Sivalohan, sworn 4 March 2020, sets out the following:
1. I am a solicitor employed by Turner Coulson Immigration Lawyers
2. On 29 January 2020, the Applicant attended the hearing for an extension of time before the Federal Circuit Court without legal representation and without an interpreter.
3. I refer to AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951, where the Court found at [37]:
In my opinion, it is an unfair procedure, and denial of procedural fairness in the sense explained by Gageler J in Condon, for orders to be announced at a final hearing of a judicial review application, with reasons delivered orally and contemporaneously to a self-represented litigant who is using an interpreter, without those reasons being interpreted, and without provision of any version of written reasons to that litigant as soon as practicable after the orders are pronounced.
[50] The point of procedural fairness lies in the fairness of the process, not any assessment of the fairness of the outcome: see, by analogy , the observations of Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256C CLR 326 at [55] – [56]. Here, the opportunities
islost to the appellant were, first, to understand for himself why he had not succeeded in his attempt to overturn the Tribunal’s decision; second, to consider for himself what he might want to argue on any appeal, by reference to how the Federal Circuit Court had explained its rejection of his application; and third, to secure assistance in formulating his grounds of appeal from a person who could read and digest Federal Circuit Court’s reasons for its orders.4. The Applicant was not able to understand why his extension of time application was dismissed as he did not have legal representation or an interpreter present with him. Therefore the Applicant was denied procedural fairness.
Ms Sivalohan was present in Court when the hearing of the application in a case commenced. Ms Sivalohan’s firm had come into the matter only three days prior to the hearing, being 3 March 2020. In response to a series of questions by the Court, in relation to Ms Sivalohan’s affidavit, she conceded that she was, firstly unaware of the contents of paragraph 26 of the Tribunal’s decision. Secondly, unaware that the applicant had not requested an interpreter for the Court hearing. Thirdly, unaware that the applicant had been advised, during the original hearing, he could seek a copy of the written reasons should he so wish to and finally, that she had conducted her conference with the applicant, for the purpose of taking instructions, in English.
This raised considerable concerns with the Court as to the assertion contained in Ms Sivalohan’s affidavit that the applicant was unable to understand why his extension of time application was dismissed because he did not have an interpreter present with him.
The Applicant’s Submissions
Mr Turner, who appeared on behalf the applicant, stated that there was no complaint in relation to the Court giving judgements ex tempore. Mr Turner’s complaint was that, as a matter of course, the ex tempore reasons of the Court were not settled and provided to the applicant and/or the Courts orders were not stayed, until such a time as the applicant received a copy of the settled reasons of the Court. Mr Turner did not particularise what prejudice if any the applicant had suffered.
In terms of the futility of reinstating the matter, Mr Turner indicated that having perused the Tribunal decision, he was of the view that there are aspects of the decision which disclosed jurisdictional error. These were not matters which were contained in the applicant’s Grounds of Application that had been considered by the Court on the last occasion, rather these were matters for which, leave of the Court would be required to be relied upon, if the application for reinstatement was successful. Mr Turner did not outline what those jurisdictional errors were.
The First Respondent’s Submissions
The first respondent opposed the application for reinstatement. The first respondent conceded that, as the application for reinstatement concerned an interlocutory matter, that being an extension of time to receive an application, power existed under r 16.05 (2)(c) of the Federal Circuit Court Rules 2001 (Cth), to consider the application, the subject of the current proceedings. The Court was not functus officio (see Mimebourne Pty Ltd As Trustee for the Fountain Family Trust v Gambaro [2018] FCA 1619).
The first respondent submitted, in the circumstances of the case, no procedural unfairness accrued by the applicant. The applicant was able to attend the hearing, his English language skills were not an issue that prevented him from participating in the hearing, he neither requested nor required an interpreter, his rights were clearly explained to him, including his right to seek written reasons and he was able to listen and if necessary, take notes as to the Court’s reasons for dismissing his application for extension of time.
It was submitted that there was no procedural unfairness in what had had occurred.
Consideration
In this matter, what the applicant effectively seeks to do, is having been the subject of a hearing for an extension of time, which was refused and having, as at the date of the application, past the timeframe for appeal to the Federal Circuit Court and having now obtained legal representation, seeks to reopen the matter by way of a Reinstatement Application alleging procedural unfairness.
That unfairness alleged is that the applicant did not have an interpreter present at the hearing and he was not subsequently provided with a written copy of the reasons for judgement post hearing.
As to the first matter, there is an abundance of evidence that the applicant never sought nor required the assistance of an interpreter in order to be able to actively and meaningfully participate in the hearing. This is evidenced by the fact that the applicant did not request an interpreter, together with the observations of the Tribunal contained at paragraph 26 of its decision. There is also the fact that his solicitor candidly admitted she did not need an interpreter in order to take instructions from the applicant. The assertion that the applicant was denied procedural fairness, due to the absence of an interpreter at the hearing, simply cannot be sustained.
The second issue concerns whether or not there is a procedural fairness requirement for written reasons to be provided where an ex tempore judgement is given and the applicant is unrepresented. It was not suggested that this is an absolute requirement where the applicant is legally represented.
AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951 (“AAM17”) has a number of distinguishing features to the present case. In AAM17, Mortimer J found that at [23], the Federal Circuit Court’s oral and contemporaneous reasons were not interpreted to the appellant.
In this current matter the applicant was present, his English skills were adequate and he had the opportunity to take any notes he desired. Second, it was explained to the applicant, at the beginning of the hearing, that he could seek a copy of the Court’s reasons in written form. The applicant has not even, as at the current date, availed himself of that opportunity nor has he sought to listen the oral recording or sought a copy of the transcript of the hearing.
At [24] in AAM17, Mortimer J also made reference to the Full Court’s decision in CQX18 v Minister for Home Affairs [2019] FCAFC 142 (“CQX18”) where at [10], the Full Court set out matters of concern, as to the procedural fairness of the Federal Circuit Court hearing.
Distinguishing matters in CQX18, as compared to the present case, are as follows:
(2) He appeared at the hearing of the application for judicial review via video link from immigration detention without an interpreter present. The interpreter was located in the Courtroom in Sydney.
(3) The transcript of the hearing before the primary judge demonstrated difficulties with the video-link transmission of the hearing.
(4) The appellant raised the question of unfairness at the hearing as he had to make his submissions “all on my own” (i.e. from a remote location).
(5) There was real doubt as to whether the appellant received the Minister’s written submissions or the court book. While the Minister’s counsel offered to assist the Court about service of the court book on the appellant, the primary judge considered it sufficient to have explained the contents of the court book to the applicant before admitting it into evidence. As such, no steps were taken to clarify one way or the other whether these had been served.
(6) The appellate explained to the primary judge in any event that he could not read the Minister’s submissions without the assistance of a translator. The Minister’s counsel acknowledged in his submissions before the primary judge that it was not evident that his written submissions had been translated and that “it may be that the applicant, given the need for interpreting, may not have had the opportunity to consider those submissions fully”.
(7) The appellant explained that there were inaccuracies in the translation of his affidavit which he wanted to correct and he sought a short adjournment of half an hour to an hour to do so with the assistance of the interpreter. However, his application for an adjournment was not dealt with by the primary judge and his affidavit was taken as read without the appellant being afforded the opportunity to correct it by evidence.
None of the above concerns appear to apply in the present case. I consider CQX18 to be distinguishable from the current matter. The applicant was in Court, able to follow the proceedings without the need for an interpreter, had access and was able to understand both the Court Book and the first respondent’s submissions. Further, it was explained to the applicant that if he required a copy of the reasons, in a written format, he could apply for them and they would be provided.
At [31] in AAM17, Mortimer J sets out a number of ways that a person would have reasonable and timely access in some form, to the Federal Circuit Court’s initial reasons for its orders and that form was intelligible to the person. This included informing the person that he or she could request a copy of the Federal Circuit Court’s reasons and also staying the effect of the Federal Circuit Court’s orders, pending the delivery of any requested reasons to that person.
A practical difficulty with staying, at the effect of the Federal Circuit Court’s orders, pending the delivery of any requested reasons to an appellant, does not take account of the fact that the appellant may not seek written reasons. In this circumstance, orders dismissing the appeal could effectively be permanently stayed by the applicant simply not seeking written reasons. This might be considered an absurd outcome. I am sure this is not what Mortimer J intended.
The Federal Circuit Court is a high volume Trial Court. The Court’s Migration list is currently under intense pressure. Somewhat prophetically, it was reported in the Australian Newspaper on 6 March 2020, being the day that this application was heard before the Court, that the President of the Law Council of Australia, Ms Pauline Wright, said at an Immigration Law Conference in Melbourne on 5 March 2020, that there were 11,000 pending Migration matters in the Federal Circuit Court, contributing to an “unsustainable and unacceptable situation for the judiciary and those appearing before them”.
Ms Wright noted that in the last financial year, being 2018/2019, some 6000 new cases were filed with the Court, whilst it was only able to deal with 3000 matters that year. This meant that “times for final hearings are getting further and further delayed”.
It was also noted that it was predicted that the intake of new migration matters in the Court in 2019/2020 was predicted at 6000-6500.
The use of ex tempore reasons, without the necessity of producing settled written reasons in every case, provides a much needed efficiency for the Federal Circuit Court. The Court’s protocol for the provision of reasons for judgement recognises this fact. Written reasons, where the decision is delivered ex tempore, are not provided as a matter of course. Such a practice simply enables more matters to be listed and disposed of. The use of such a practice however, needs to be tempered with ensuring that applicants, particularly where they are unrepresented, are ensured procedural fairness.
There must be a careful balance between the needs of the Court to engage in effective and efficient case management processes and the need to ensure procedural fairness to applicants, where they are unrepresented. A requirement for written reasons in every matter, on the assumption that they may be subject to appeal, will add significantly to the administrative burden of the Court and delay in the finalisation of migration matters into the future.
It will simply not be possible to list as many matters, as additional time will be taken in reducing all reasons to writing and then settling them.
In considering whether or not the applicant in this matter has been denied procedural fairness, as alleged, I have taken into account the fact that any assertion that he was not assisted by an interpreter, is simply unsustainable. The applicant’s English skills were more than sufficient to be able to follow both the proceedings and the ex tempore judgement.
The Court then needs to consider whether or not the Court adopted an appropriate practice in dealing with an unrepresented applicant, explaining his rights to him and ensuring he understood what the Court’s procedure would be, in relation to the hearing. Had the Court not explained to the applicant, that whilst an ex tempore judgement would be delivered, he was at liberty to request written reasons, I would be prepared to concede that the applicant in this case, had been denied procedural fairness in terms of the case law, particularly CQX18 and AAM17.
In effect however, in this case, having received an adverse outcome in relation to the applicant’s application before the Court for an extension of time, which included findings that his grounds of appeal lacked any merit, the applicant seeks to reopen the matter.
The applicant is now legally represented. That legal representative foreshadows leave being sought to agitate new grounds of appeal. In effect, a complete new hearing would be required.
However, there is also a significant public interest in the finality of administrative decisions. The relevant principles are referred to in Re Commonwealth of Australia & Anor; Ex parte Marks (2000) HCA 67 (“Ex parte Marks”), in which McHugh J stated at [15] and [17], as follows:
[15] An extension of time for seeking relief against a decision or judgement can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of the parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
[17] … Upon the expiry of the time for the issue of a constitutional writ against the decision or judgement, the respondent has a vested right to retain the judgement or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgements cannot be the hostage of an applicant’s search for favourable legal advice.
I consider the above quote to be a factor that I must weigh against the applicant. Like in Ex parte Marks, the applicant has now sought legal representation and seeks to re-agitate his claim before this Court. The litigation will go on.
The basis upon which the argument has been put to the Court is that due to the applicant’s lack of English language skills, it was procedurally unfair for him not to be provided subsequent to the hearing, a copy of any written reasons. The second point seems to be cumulative and relies upon the first point being sustained. If it cannot, then in my view the argument fails.
The Court has carefully considered the rights of the applicant to procedural fairness, as against the counterbalancing interest for there to be a need for an end to litigation. The Court is satisfied that the balance falls in favour, in the particular circumstances of this case, against the application for reinstatement not being granted.
In so doing I have also considered the fact that as the applicant was unrepresented, I considered as part of the judgement whether there was any jurisdictional error apparent on the face of the record which was not articulated. I could find none. Reinstatement would be futile (see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]).
I am therefore, not satisfied that there has been procedural unfairness in terms of the case law discussed above.
Conclusion
Accordingly, the application for re-instatement is dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 20 March 2020
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