GPG18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1120
•31 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GPG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1120
File number(s): ADG 506 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 31 October 2024 Catchwords: MIGRATION – Judicial review application - decision of the Immigration Assessment Authority – citizen of Vietnam of the Catholic faith – claims of persecution on the basis of religion, Australian Government data breach and asylum seeker status – single unparticularised ground of review – whether jurisdictional error otherwise – whether material jurisdictional error
PRACTICE AND PROCEDURE – Application for adjournment – whether right to legal representation – other factors – length of time in the Court’s lists – further delay before hearing – backlog of unheard cases – length of time in which legal representation might have been obtained – where proper explanation of processes and nature of proceedings provided at earlier directions hearing.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 190
Migration Act 1958 (Cth) pt 7AA, ss 5H, 36, 46A, 473CA, 473CB, 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 10.01
Cases cited: ADN15 v Minister for Immigration & Border Protection [2016] FCA 810
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 238 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
ATD16 v Minister for Immigration [2018] FCCA 139
Babar v Minister for Immigration and Border Protection [2017] FCA 655
BIK18 v Minister for Home Affairs [2019] FCA 788
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCA 531
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 FLR 173; (2017) 347 ALR 173
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
EKY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 638
ELE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1091
ELR18 v Minister for Home Affairs [2019] FCA 1583
Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146; (2008) 82 ALJR 1177; (2008) 69 ATR 41
FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293
FRK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144
FSQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383
GKH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Maere v Minister for Home Affairs [2018] FCA 1694
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Myers v Myers [1969] WAR 19
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203
MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234
SZTSY v Minister for Immigration [2015] FCCA 229
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
WZAWB v Minister for Immigration [2016] FCCA 1345; (2016) 309 FLR 398
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submission/s: 7 February 2024 Date of hearing: 7 February 2024 Place: Perth Applicant: In person with the assistance of an interpreter Counsel for the First Respondent: Ms G Ellis Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 506 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GPG18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
31 OCTOBER 2024
THE COURT ORDERS THAT:
1.The originating application filed on 14 December 2018 be dismissed.
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
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review (“Judicial Review Application”) filed by the applicant, GPG18, on 14 December 2018. The Judicial Review Application is made under s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks judicial review of a decision made by the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”), not to grant GPG18 a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHE Visa”). The Authority Decision appears in the Court Book (“CB”) at CB 153-166.
BACKGROUND
The background to the matter prior to the Authority Decision is as follows:
(a)GPG18 is a citizen of Vietnam who arrived in Australia at Christmas Island on 8 May 2013 as an unauthorised maritime arrival, and was accompanied by his brother-in-law and sister: CB 40 and 60;
(b)on 30 May 2017 GPG18’s brother-in-law lodged a SHE Visa application, which included GPG18 as a secondary applicant: CB 20-62;
(c)in a statement dated 28 February 2017 annexed to his brother-in-law’s SHE Visa application GPG18 claimed to fear harm from the Vietnamese authorities because of his Catholic faith, as a member of his brother-in-law’s family who were members of a religious Catholic group targeted by police, and his status as someone who had departed Vietnam illegally: CB 60-62. These claims were substantially similar to and reliant on the claims of his brother-in-law;
(d)on 4 July 2017 the Department advised GPG18 that the Minister had exercised the power under s 46A(2) of the Migration Act to lift the bar in s 46A(1) of the Migration Act for the making of a valid visa application: CB 82;
(e)on 22 February 2018 GPG18 attended an interview with the Delegate (“Delegate’s Interview”): CB 88;
(f)following the Delegate’s Interview a submission was provided on 8 March 2018 by the brother-in-law on behalf of his family and GPG18 which provided further details on their claims: CB 98-112, and in which it was claimed that the personal details of the brother-in-law and “his family” were released online during a data breach by the Department in February 2014 which disclosed all their names (“2014 Data Breach”): CB 99 at [6];
(g)on 12 October 2018 in a separate decision to that of his brother-in-law’s family, the Delegate refused to grant GPG18 a SHE Visa: CB 126-135. The Delegate:
(i)was not satisfied that GPG18 was a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Migration Act; and
(ii)found that GPG18 was not a member of the same family unit as a non-citizen who held a SHE Visa under s 36(2)(b) or (c) of the Migration Act; and
(h)the matter was referred to the Authority pursuant to s 473CA of the Migration Act: CB 140-141.
AUTHORITY DECISION
On 13 November 2018 the Authority Decision affirmed the Delegate’s Decision: CB 153-162.
In the Authority Decision the Authority:
(a)had regard to the material referred to it by the Secretary under s 473CB of the Migration Act, and noted that no new information had been obtained or received: CB 155 at [4];
(b)accepted:
(i)GPG18’s brother-in-law’s background as claimed and that he was a Catholic from a province in Vietnam: CB 156 at [6]-[7]; and
(ii)that GPG18 was born in December 1998 and that he, his sister and his brother-in-law departed Vietnam using legally issued passports: CB 156 at [6];
(c)recorded the inconsistencies and implausibility in GPG18’s brother-in-law’s evidence given at an entry interview, in the SHE Visa application and Delegate’s Interview, and:
(i)was not satisfied that the brother-in-law had attended a prayer meeting on 1 July 2012 that was disrupted by the Vietnamese authorities;
(ii)was not satisfied that the brother-in-law subsequently went into hiding, and that the brother-in-law’s children could not attend school because of their faith or that they were otherwise of interest to the Vietnamese authorities: CB 156-157 at [8]-[13]; and
(iii)found that the brother-in-law’s claim regarding his attendance at the prayer meeting in July 2012 was fabricated and that he was not a witness of truth: CB 157 at [12];
(d)based on its credibility findings above:
(i)did not accept GPG18’s brother-in-law’s claim that he was the leader of a Catholic religious group, but accepted that it was plausible that he was a member: CB 158 at [14];
(ii)did not accept that GPG18’s brother-in-law’s membership of the Catholic religious group was of any particular interest to the Vietnamese authorities, or that he was harassed, threatened or subjected to surveillance from 2006 onwards; and
(iii)found that GPG18, his sister and brother-in-law were not prevented from practising their faith in Vietnam: CB 158 at [14];
(e)found that GPG18’s brother-in-law had not undertaken anti-Vietnam government political activities in either Vietnam or Australia: CB 159 at [17]
(f)found that there was no evidence of harm or harassment due to the alleged “Catholic activism” of GPG18’s cousin, and found that GPG18, his sister and brother-in-law would not be harmed because of the cousin’s activities or incarceration: CB 159 at [17];
(g)based on country information and the lack of evidence that suggested GPG18’s brother-in-law had to modify his religious practice or conceal his views to avoid harm:
(i)found that the brother-in-law:
(A)did not face a real chance of harm due to his Catholic faith: CB 159-160 at [20]; and
(B)was not a religious activist and would not participate in religious activism on return to Vietnam: CB 160 at [21]; and
(ii)was not satisfied that the brother-in-law faced a real chance of any harm on the basis that he would be considered a political activist: CB 160 at [21];
(h)had serious doubts about the route GPG18, his sister and brother-in-law claimed to have taken prior to arriving in Australia, but accepted evidence that they departed Vietnam for Malaysia on legally issued passports, and found that their immigration records would indicate that they departed Vietnam legally: CB 158 at [15];
(i)accepted that GPG18’s brother-in-law:
(i)would have been affected by the 2014 Data Breach in that it may have revealed that he had sought asylum in Australia, and that he may be identifiable on re-entry as a person who sought asylum: CB 158 at [16]; and
(ii)if returned to Vietnam involuntarily, the Vietnamese authorities would be aware that he was a failed asylum seeker: CB 160 at [22];
(j)recorded that it was an offence under Vietnamese law to flee the country in order to oppose the Vietnamese Government, however, noting country information, did not accept that there was a real chance that GPG18’s brother-in-law would suffer harm on return to Vietnam or that his family would face a real chance of persecution: CB 160 at [22]-[23];
(k)found that the brother-in-law’s children who were born in Australia would be regarded as Vietnamese citizens and rejected a claim that the children would not be allowed to live in Vietnam: CB 161 at [24];
(l)based on a its cumulative assessment of the claims made, was not satisfied that GPG18, his sister and brother-in-law would face a real chance of serious harm on return to Vietnam: CB 161 at [25], and concluded that they did not:
(i)satisfy the definition of refugee in s 5H of the Migration Act: and
(ii)meet s 36(2)(a) of the Migration Act: CB 161 at [26];
(m)relying on its anterior findings, was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Vietnam, there was a real risk that GPG18, his sister and brother-in-law would suffer significant harm, and concluded that they did not meet s 36(2)(aa) of the Migration Act: CB 162 at [29]-[30]; and
(n)found that as none of GPG18, his sister and brother-in-law met the refugee or complementary protection criterion, it also found that they also did not meet the family unit criterion in either s 36(2)(b) or (c) of the Migration Act: CB 162 at [31]-[32].
THE JUDICIAL REVIEW APPLICATION
Ground
The Judicial Review Application contains a single unparticularised ground of review as follows:
I BELIEVE THE IAA COMMITTED JURISDICTIONAL ERROR IN MY CASE.
Litigation history
It is appropriate to set out the litigation history of the matter, which is as follows:
(a)the Judicial Review Application and a supporting affidavit were filed on 14 December 2018 in the Adelaide Registry of the Court (then the Federal Circuit Court);
(b)on 8 February 2019 the Minister filed a Response seeking that the Judicial Review Application be dismissed on the basis that it did not establish any jurisdictional error in the Authority Decision;
(c)on 15 February 2019 a Registrar of the Court made consent orders (“Registrar’s February 2019 Consent Orders”) that included orders to the following effect:
(i)that GPG18 have leave to file and serve any amended Judicial Review Application and such further material that he may rely upon at the hearing of the Judicial Review Application by 19 April 2019;
(ii)the Judicial Review Application be listed for a final hearing on a date to be advised; and
(iii)the matter be listed for a directions hearing on 12 June 2020 at 9.30am;
(d)GPG18 did not file any documents pursuant to the Registrar’s February 2019 Consent Orders;
(e)on 2 January 2020 the Adelaide Registry of the Court advised the parties that the 12 June 2020 directions hearing had been vacated and adjourned to a date to be fixed. No reason was given for the adjournment;
(f)nothing further occurred with the matter for more than three years until May 2023 when the matter was docketed to the presently presiding Judge, and a directions hearing was listed for 22 May 2023;
(g)at the 22 May 2023 directions hearing, at which this matter was listed together with a judicial review application by GPG18’s brother-in-law and family, none of the applicants appeared and the matter was adjourned to 26 May 2023;
(h)at the 26 May 2023 directions hearing, at which this matter was again listed together with a judicial review application by GPG18’s brother-in-law and family, and at which GPG18 had the assistance of an interpreter:
(i)the Court explained the nature of the process to be followed in relation to the Judicial Review Application: Transcript, 26 May 2023, pp 2-5, and
(ii)when the Court asked GPG18 if he had any questions or anything which required clarification he responded: Transcript, 26 May 2023, p 5 as follows:
So I understand everything, and I have no more questions.
(iii)following the making of the Court’s May 2023 Orders (including the notes thereto) the Court asked GPG18 whether there were any questions arising, and GPG18 said:
He need a solicitor to represent him
to which the Court responded by advising that:
Well, a solicitor will only represent the applicants if the applicants engage a solicitor to act for them. The Court does not provide a solicitor as such.
(Transcript, 26 May 2023, p 7);
(i)the Court made orders (“Court’s May 2023 Orders”) setting aside the Registrar’s February 2019 Consent Orders and making further orders, including an order that GPG18 file and serve any amended Judicial Review Application, further affidavits, and an outline of submissions by 12 December 2023 and listing the matter for hearing by videolink on 7 February 2024. Additionally, the Court made a note on the Court’s May 2023 Orders to the following effect:
B.Having regard to the recent Federal Court judgment in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384, the Court has explained to the applicant:
a)the need to establish material jurisdictional error in the Immigration Assessment Authority decision;
b)the nature of jurisdictional error;
c)the necessity to provide grounds, properly particularised alleging what the jurisdictional error or errors committed by the Immigration Assessment Authority were;
d)that a failure to specify grounds and particularise grounds may result in the dismissal of the application or any amended originating application; and
e)that if the originating application or any amended originating application is dismissed at hearing the applicant may have to pay the Minister’s costs.
(j)the final hearing of the matter proceeded on 7 February 2024, and at the final hearing the Court:
(i)noted that GPG18 had not filed any materials pursuant to the Court’s May 2023 Orders;
(ii)reiterated what had been said at the 26 May 2023 directions hearing about GPG18 needing to establish material jurisdictional error in the Authority Decision, and the nature of jurisdictional error, and that the Court was not rehearing the merits of the SHE Visa application; and
(iii)said it would hear oral submissions from both GPG18 and the Minister: Transcript, 7 February 2024, pp 2-3
Albeit that GPG18 did not file any amended Judicial Review Application, further affidavits, or an outline of submissions (in accordance with either the Registrar’s February 2019 Consent Orders or the Court’s May 2023 Orders) he was permitted to make oral submissions at hearing, consistent with Federal Court authority to the effect that even where there are unparticularised grounds of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (“DQQ17”) at [9] per Colvin J, an authority regularly applied in the Federal Court, see, for example BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCA 531 at [35] per Wheelahan J; GKH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125 (“GHK18”) at [26] per Banks-Smith J; BIK18 v Minister for Home Affairs [2019] FCA 788 at [3] per McKerracher J, and in this Court, see, for example, FSQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383 at [8(j)] per Judge Lucev and FRK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144 at [25]-[26] per Judge Ladhams.
Submissions
GPG18’s oral submissions
In GPG18’s oral submissions: Transcript, 7 February 2024, pp 3-4 and 6, GPG18 said that he:
(a)was not aware of the reasons for the dismissal of his SHE Visa application;
(b)had planned to obtain legal advice to help him submit new information and reasons and evidence for him being able to stay in Australia but that he had not been able to obtain a lawyer because of the extended period of holidays, being Christmas, New Year (2024) and the upcoming lunar New Year “so the solicitors are on holiday. I haven’t been able to get one, and the date of the hearing is too soon for me able to do that”: Transcript, 7 February 2024, p 4;
(c)sought an adjournment to be able to provide information and evidence in support of his case and to be able to get a lawyer to be able to submit that information; and
(d)had been in Australia for a long time, had become familiar with the Australian life, and sought a chance to be able to stay and for time to seek legal advice (this, in reply, having heard the Minister’s oral submissions).
Minister’s submissions
The Minister submitted that:
(a)no jurisdictional error was asserted and none was sufficiently particularised to be the subject of a meaningful response, and that that was a basis for the sole ground of review in the Judicial Review Application to be dismissed;
(b)the Authority had accurately summarised GPG18’s brother-in-law’s claims, and that the Authority Decision disclosed an active intellectual engagement with those claims, and the findings and conclusions ultimately reached in respect of those claims were open to the Authority on the evidence;
(c)the claims made by GPG18 were addressed by the Authority; and
(d)by reason of the foregoing no jurisdictional error had been demonstrated or was otherwise apparent.
Consideration – application for adjournment
As set out at [8(b), (c) and (d)] above, GPG18 sought, at hearing, an adjournment to enable him to brief a lawyer to provide further information and evidence to the Court. The Court refused to grant the adjournment, indicating that it would provide its reasons in these Reasons for Judgment: Transcript, 7 February 2024, p 4. Those reasons are set out hereunder.
Insofar as the adjournment request relied upon the assertion in GPG18’s oral submissions that GPG18 was not aware of the reasons for the dismissal of his SHE Visa application: see [8(a)] above, that assertion is implausible in circumstances where:
(a)the Authority Decision was sent to GPG18 at a postal address in Elizabeth South in the state of South Australia: CB 150, which is the same postal address as subsequently appears as the address for service on the Judicial Review Application and GPG18’s contemporaneously filed affidavit (“GPG18’s Affidavit”), and is the same postal address to which the Delegate’s Decision had earlier been sent: CB 122; and
(b)the Authority Decision was annexed to GPG18’s Affidavit, and both GPG18’s Affidavit and the Judicial Review Application were signed by GPG18 personally.
When pressed during submissions on this issue by the Court at the hearing: Transcript, 7 February 2024, pp 3-4, GPG18 ultimately said “I don’t remember accurately what happened”: Transcript, 7 February 2024, p 4.
In making the request for an adjournment GPG18 relied upon the need for a lawyer to provide information and evidence to the Court on his behalf. If, in so doing, GPG18 assumed that there was a right to have a lawyer represent him in migration proceedings in this Court, then he proceeded upon a false premise.
In SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 (“SZHTI”) at [3]-[4] per Gyles J, the Federal Court observed as follows:
3 The first paragraph of the affidavit in support of the application is:
I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.
4That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 (“SZQRU”) at [24] per Katzmann J the Federal Court observed that there is no right to legal representation and procedural fairness does not require that a person be legally represented.
The observations of the Federal Court in SZHTI and SZQRU that there is no right to legal representation in this Court have been regularly applied over the years in this Court (and its statutory predecessors): see, for example, ELE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1091 at [33] per Judge Ladhams; EKY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 638 at [31] per Judge Given; ATD16 v Minister for Immigration [2018] FCCA 139 at [31] per Judge Nicholls; WZAWB v Minister for Immigration [2016] FCCA 1345; (2016) 309 FLR 398 at [86]-[90] per Judge Lucev; SZTSY v Minister for Immigration [2015] FCCA 229 at [26] per Judge Nicholls; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev. Likewise, the Federal Court has regularly applied SZHTI and SZQRU: see, for example, ELR18 v Minister for Home Affairs [2019] FCA 1583 at [34] per Snaden J; Maere v Minister for Home Affairs [2018] FCA 1694 at [8] per Bromberg J; Babar v Minister for Immigration and Border Protection [2017] FCA 655 at [52] per Siopis J.
Albeit that there is no right to legal representation in migration proceedings in this Court, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion to grant an indulgence (such as an adjournment), waive a requirement or extend a relevant time limitation: and particularly so when considering the weight to be accorded to any delay by an applicant: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J.
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a) of the FCFCOA Act. That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Under r 10.01(3)(r) and (s) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the Court can make orders or directions in relation to hearing date and any other matter considered appropriate, and therefore has power to adjourn proceedings if it sees fit to do so. Those paragraphs are civil practice and procedure provisions: FCFCOA Act, s 190(4)(a).
In considering GPG18’s request for a further adjournment of the hearing the Court has a broad discretion to grant or not grant an adjournment: Myers v Myers [1969] WAR 19 at 21 per Jackson J; FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293 at [15] per Judge Given. That broad discretion is exercisable having regard to the overarching civil practice and procedure provisions under s 190 of the FCFCOA Act.
GPG18’s request for an adjournment must be dismissed for a number of reasons set out hereunder.
First, the matter has been in the Court’s lists for almost six years, and whilst the delay in the matter coming to final hearing is no fault of GPG18, it is nevertheless the case that the matter has gone on too long and there comes a point where first instance litigation must be brought to an end, and this case has reached that point: FCFCOA Act, s 190(1)(b) and (2)(d).
Second, if the matter were to be adjourned there would be a further not insignificant delay until sometime in 2025 before the matter could in the normal course be re-listed: FCFCOA Act, s 190(1)(b) and (2)(d).
Third, in light of the numerous opportunities already afforded GPG18 to make file an amended Judicial Review Application, further affidavits and submissions: see [6(c) and (i)] above and [31] below, case management considerations weigh against the exercise of the discretion to grant an adjournment, particularly so when this Court already has a backlog of many thousands of unheard migration judicial review cases dating back to at least 2018. In that regard, it is important to consider the effect on other litigants who might be denied a final hearing date by reason of an adjournment and re-listing of a matter: FCFCOA Act, s 190(2)(c) and (d); AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 238 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Fourth, in relation to obtaining legal advice GPG18 had more than four and a half years after the filing of the Judicial Review Application on 14 December 2018 to obtain legal advice prior to the May 2023 directions hearings. Following those directions hearings, and in particular the directions hearing on 26 May 2023 attended by GPG18 and at which he had the assistance of an interpreter, GPG18 had a further period of:
(a)at least six and a half months to obtain any legal advice or legal representation prior to the due date (12 December 2023) for the filing by him of any amended Judicial Review Application, further affidavits and an outline of submissions; and
(b)almost eight and a half months to brief a lawyer to represent him at hearing.
Fifth, in light of the fact that GPG18 had a period of a further six and a half months to file the documents referred to in the Court’s May 2023 Orders, and which are set out above, the submission that all the lawyers were going on holiday for Christmas, New Year or the Lunar New Year, is at worst implausible, and at best indicates that GPG18 delayed for too long in seeking the assistance of a lawyer.
Sixth, in this case the relevant processes, and the desirability and purpose of filing the further documents referred to in the Court’s May 2023 Orders, were explained (with the assistance of an interpreter) to GPG18 at the 26 May 2023 directions hearing, and the one issue that he ultimately raised as to being represented by a solicitor resulted in the Court explaining that he would need to obtain his own solicitor to represent him. This is not therefore a case where there was a want of explanation of the nature of, and the procedural requirements associated with, the matter: contrast BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 (“BKT17”) at [31] and [35] per Feutrill J, although it must be borne in mind that it has been recognised that jurisdictional error is difficult to understand and explain, as was observed in Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146; (2008) 82 ALJR 1177; (2008) 69 ATR 41 at [129] per Kirby J:
Jurisdictional error is nearly impossible to explain to lay people even though the Constitution (including the central provisions of s 75(v)) belongs to them. Most non-lawyers would regard it as a lawyer’s fancy.
Seventh, insofar as MZZIV and ADN15 indicate that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion to grant an indulgence (such as an adjournment), that factor is tempered here because:
(a)in each of his appearances before the Court GPG18 had the assistance of an interpreter;
(b)the relevant processes, and the desirability and purpose of filing the further documents referred to in the Court’s May 2023 Orders, were explained (with the assistance of the interpreter) to GPG18 at the 26 May 2023 directions hearing;
(c)GPG18 does not appear to have taken any serious steps to obtain advice or assistance from, or representation by, a lawyer, or if such steps were taken they were simply taken too late for a lawyer to be of assistance to GPG18 in circumstances where:
(i)the Judicial Review Application had been on foot for more than four and a half years at the time of the 26 May directions hearing and more than five years at the time of the hearing, and
(ii)GPG18 made a specific enquiry at the 26 May directions hearing about representation by a lawyer and was told that he would need to arrange any such representation himself.
For the above reasons the Court dismissed GPG18’s adjournment application at the final hearing on 7 February 2024.
Consideration – whether jurisdictional error in the Authority Decision
Material jurisdictional error required
For present purposes it suffices to observe that this Court may set aside the Authority Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, the majority plurality in the High Court said (footnotes omitted) that:
15What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Not merits review
The Court’s role is not to review the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”). The “line between judicial review and merits review…must be maintained”: LPDT at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, and the reasons of the Authority are not to be over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.
No jurisdictional error alleged or particularised
The Court notes that GPG18 was given a number of opportunities to file material setting out an alleged jurisdictional error in the Authority Decision. The first opportunity was upon the making of the Judicial Review Application on 14 December 2018. That opportunity was not taken. The second opportunity was as a consequence of the Registrar’s February 2019 Consent Orders which permitted GPG18 to file an amended Judicial Review Application and further material by 19 April 2019, but he did not do so. The third opportunity was as a consequence of the 26 May 2023 directions hearing, at which GPG18 had the assistance of an interpreter, and at which the May 2023 Court Orders were made allowing GPG18 to file an amended Judicial Review Application, any further affidavits and an outline of submissions by 12 December 2023. GPG18 did not file any of those documents. At the final hearing on 7 February 2024 the nature of jurisdictional error, and the requirement to establish material jurisdictional error in the Authority Decision, and that the Court did not engage in merits review of the Authority Decision, were all again explained to GPG18, but GPG18’s submissions did not assert any alleged jurisdictional error. In the circumstances, the Court is satisfied that GPG18 had adequate opportunity to allege and particularise any alleged jurisdictional error in the Authority Decision: BKT17 at [31]-[35] per Feutrill J; DQQ17 at [8]-[9] per Colvin J.
Having explained the nature of jurisdictional error to GPG18 and given GPG18 the opportunity to assert and explain what jurisdictional error he alleged affected the Authority Decision, the failure to go beyond the bare assertion of jurisdictional error in the sole ground of review, and the failure to particularise the sole ground of review, is sufficient reason to warrant this Court dismissing the sole ground of the Judicial Review Application: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J, citing WZAVW.
The Court is nevertheless cognisant that GPG18 was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 (“Ludgero”) at [26] per Judge Lucev.
In the circumstances the Court will endeavour to assess if any reasonably arguable jurisdictional error might arise on the face of the Authority Decision and the material before the Court.
Consideration of claims and whether jurisdictional error otherwise
The crux of GPG18’s claims was that he feared harm from the Vietnamese authorities because of:
(a)his Catholic religion;
(b)his status as a member of his brother-in-law’s family;
(c)his status as a returnee asylum seeker who departed Vietnam illegally; and
(d)the 2014 Data Breach.
The Authority Decision deals with GPG18’s claims as to:
(a)his Catholic religion at CB 156 at [6]-[13], 157 at [12], 158 at [14], 159 at [17] and 160 at [20]-[21]: see [4(b)(i) and (c)-(g)] above;
(b)his status as a member of his brother-in-law’s family at the same paragraphs as in (a) above and CB 162 at [31]-[32]: see [4(n)] above;
(c)his status as a returnee asylum seeker who departed Vietnam illegally at CB 160 at [22]-[23]: see [4(i)(ii) and (j)] above; and
(d)the 2014 Data Breach at CB 158 at [16]: see [4(i)(i)] above.
It is evident from the review of the Authority Decision set out at [4] and [36] above that the Authority engaged with each of the claims made by GPG18, and considered country information in relation to those claims, as it was required to do: as to claims, see, for example, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ and Ludgero at [47]-[50] per Judge Lucev, and as to country information, see NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ and Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481 at [27] per Rares and Jagot JJ. It is clear from its reasons that the Authority correctly treated the brother-in-law as the primary SHE Visa applicant and made specific findings on his claims, claims which were similar to or relied upon by GPG18. The Authority considered the country information and utilised the country information and the conclusions drawn therefrom to find that GPG18 did not require protection as a refugee or under the complementary protection or family unit provisions of the Migration Act: CB 162 at [29]-[32]. The Authority therefore properly performed its statutory task as set out in Part 7AA of the Migration Act.
In the circumstances, the Authority Decision was one that was open to the Authority on the evidence before it, for the reasons that it gave, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 FLR 173; (2017) 347 ALR 173 at [43]-[46] per Griffiths, White and Bromwich JJ. While GPG18 might not agree with the Authority Decision, that is not indicative of jurisdictional error, and the weight to be afforded to the material before the Authority was a matter for the Authority, and the Court cannot engage in a general review of the merits of the Authority Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It follows that the Court is unable to otherwise discern any error, let alone material jurisdictional error, in the Authority Decision.
CONCLUSION AND ORDERS
The Court has concluded that GPG18 has failed to establish jurisdictional error in the Authority Decision. It follows that the Judicial Review Application must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 31 October 2024
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