Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 435
•24 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 435
File number(s): BRG 304 of 2020 Judgment of: JUDGE EGAN Date of judgment: 24 February 2021 Catchwords: MIGRATION – non-appearance by Applicant at final hearing of application for review – no reasonable excuse given by Applicant for non-appearance – failure by Applicant to comply with an order of the Court – application for review dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth) rr 13.03A(1)(a), 13.03B(1)(c), 13.03C(1)(c). Cases cited: FGG19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 159. Number of paragraphs: 6 Date of last submission/s: 24 February 2021 Date of hearing: 24 February 2021 Place: Brisbane Applicant: There being no appearance by or on behalf of the Applicant Solicitor for the First Respondent: Ms Allen of Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
BRG 304 of 2020 BETWEEN: SUGIN KIM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
24 FEBRUARY 2021
IT IS ORDERED THAT:
1.The Originating Application for Review filed on 28 May 2020 be dismissed pursuant to the provisions of r. 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (due to the non-appearance of the Applicant) and also pursuant to the provisions of r. 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (by reason of the Applicant’s default in failing to comply with Order 5 of the Orders of Registrar Carlton made on 2 July 2020).
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $3,737.00.
EX TEMPORE REASONS FOR JUDGMENT
JUDGE EGAN:
In this matter, there was no appearance on behalf of the applicant when the matter was called at approximately 11:00am today. The matter was listed for hearing to commence at 9.45 am this morning. The Court had another matter to deal with, and accordingly, this matter was only called over at about 11:00am.
The Court marks as Exhibits 1, 2 and 3 respectively the following:
(a)Federal Circuit Court Registry notice of listing dated 22 December 2020;
(b)An email from Judge’s Chambers to the parties advising of the hearing commencing at 9.45 am today, such email being dated 16 February 2021; and
(c)Today’s Court list.
In addition to there being no excuse given by the applicant in respect of the non-appearance before the Court today, the Court notes that the applicant was, at the time of the calling over of the matter this morning, in default of Order 5 of the Orders of Registrar Carlton made on 2 July 2020. By reason of such non-compliance, the applicant was in default, pursuant to the provisions of r. 13.03A(1)(a) of the Federal Circuit Court Rules. Again, no excuse was given for the applicant’s non-compliance with the order of Registrar Carlton.
The originating application filed on 28 May 2020 had two grounds of review. Those grounds were as follows:
“1. The AAT failed to accord procedural fairness throughout the process.
2. The Applicants were denied a true opportunity to present the evidence to the AAT.”
This Court, in FGG19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 159 at [35] – [45] inclusive, said as follows:
“[35] The applicants did not comply with the order of the Court made on 2 November 2020. The applicants had been put on notice at the hearing on 2 November 2020 that if they failed to comply with such requirement their claims might be dismissed pursuant to the provisions of rule 13.03B(1)(c) of the FCC Rules.
[36] The ground of review as set out in the Amended Application for Review filed on 20 January 2021 was an un-particularised assertion that the applicants could not return to Iran because “we will be at serious harm and risk, in particular my husband who got medical condition due to being mentally under pressure. …”. As earlier found, there was no medical evidence before the Tribunal probative of any such claim.
[37] In Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 92, judgment was handed down by this Court where the grounds of review in the applicant’s claim were in part un-particularised. The Court, at [17] – [21] inclusive of its judgment, found as follows:
“[17] Ground 1 of the application for review is an un-particularised claim that the Tribunal treated the applicant unfairly. It has been held that an un-particularised ground of appeal to the Federal Court of Australia is itself a sufficient basis for dismissing that ground of appeal. In the recent decision of Farrell J in SZRKF v Minister for Immigration [2020] FCA 1389 at [22] it was said:
[22] The second ground of appeal should be rejected. It is well established that the fact that an appeal ground is put with a high degree of generality and lack of specificity or any real particulars is itself a sufficient basis for dismissing that ground: see WZAVW at [35] followed in BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13] (Bromwich J); CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] (Perry J); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20] and [24] (Reeves J); ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] (Derrington J); DIF17 v Minister for Immigration and Border Protection [2019] FCA 1055 at [29] (Abraham J); and GSQ18 v Minister for Home Affairs [2019] FCA 2057 at [14] (Lee J).”
[18] In CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20] – [22], Gilmour J said as follows:
[20] This ground is un-particularised as to just what evidence it is alleged was not considered by the Tribunal or what relevant considerations the appellant alleges the Tribunal did not take into account, or as to what "wrong information" the Tribunal is alleged to have based its decision upon.
[21] This first ground of appeal is merely an un-particularised assertion of jurisdictional error. As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]:
(This ground is) an un-particularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
[22] The first ground therefore fails.
[19] In CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179 at [23] – [26], Farrell J said as follows:
“[23] The Court explained to the appellant that the Court cannot meaningfully engage with an appeal ground that makes a general complaint of error by the FCCA, without providing particulars of the ways in which he says that the FCCA Judge erred. The appellant did not provide any further particulars.
[24] The Minister filed written submissions. The Minister’s representative submitted that, where (as here) the appellant had been given the opportunity to provide particulars and make oral submissions, the Minister has no case to answer.
[25] In EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12], I said:
While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant’s ground of appeal where the ground makes a general and un-particularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration and Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs. See also SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [17], [24]-[26], [29]-[30] and [32] per Flick J.
[26] Those remarks are equally applicable in this case. In this case, the appellant has not identified appealable error by the FCCA Judge, nor is any apparent from the reasons that her Honour gave for dismissing the application for judicial review of the Tribunal’s decision.”
[20] Further, this Court has referred to the difficulties associated with the carrying out of its judicial functions in circumstances where grounds in a filed application for review of a decision of the Administrative Appeals Tribunal or the Immigration Assessment Authority were wholly un-particularised. In DUN16 and DUO16 v Minister for Immigration & Anor [2019] FCCA 2591 at [4] – [9] it was said:
[4] Notwithstanding, with the greatest of respect, that this Court doubted whether it was a fulfilment of its judicial role, or the performance of a judicial function, for the court to enter upon the endeavour of attempting to elicit from the applicant particulars of the applicant’s case, and then, of necessity, recording such particulars in a coherent form and for the applicant’s benefit, the Court nevertheless attempted to do so, so as to enable the matter to proceed to a final hearing. The Court, in that regard, was concerned that it could be the subject of adverse later criticism, perhaps, for:
a) erroneously appreciating the import of anything said by an applicant in response to the Court’s request for particulars;
b) failing to so formulate, in writing, what was said by the applicant in a way most advantageous to such applicant;
c) not accurately recording some of, or what the Court might have considered an irrelevant part of, the particulars orally provided to the Court by the applicant.
[5] The Court was concerned that, in effect, it was being required to become the applicant’s advocate or adviser, at the risk of assuming all of the attendant responsibilities which that entailed. The Court was also concerned that the exercise would, in a practical sense, leave the Court open to having any subsequent decision it might make in the matter overturned on any number of grounds associated with the process of the Court:
a) advising the applicant as to the inadequacy of the particulars of their grounds for review;
b) asking the applicant to explain what her complaints were concerning the adverse decision she was seeking to review;
c) recording the answers of the applicant to the Court’s questions;
d) evaluating such of the applicant's answers for the purpose of identifying what were or were not legitimate grounds of review;
e) recording, in writing, what the Court considered were the applicant’s legitimate grounds for review.
[6] In the case of Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] inclusive, Beazley JA (with whom Giles and Whealy JJA agreed) said as follows:
[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson, Mason J, at [31] 534, noted that:
A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'.
[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.
[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant.
[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.
[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”
[7] In DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, Flick J, sitting on appeal, was there dealing with a contention that a Federal Circuit Court judge had, in that matter, failed to ensure that the hearing was fair, and that the appellant (applicant) did not “suffer a disadvantage from exercising his or her right to be self-represented”. It was further contended that the primary judge “failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court”. The contention was that it was a requirement imposed upon the primary judge to “explain in plain terms to unrepresented litigants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process” and that it is “not enough to merely say that they must demonstrate jurisdictional error”.
[8] When considering the above contentions, Flick J at [37] noted the undesirability of a judge imposing himself upon the proceedings, as an advisor or advocate for an unrepresented party, when His Honour said:
[37] Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party “why the Tribunal’s decision was not made lawfully”. The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected.
[9] For a judge to not only elicit information from an applicant orally for the purpose of particularising the applicant’s grounds for review, but to then necessarily have to formulate and record the judge’s assessment of what was said orally by the applicant, goes far beyond providing advice to the applicant as to matters of practice and procedure. It blurs the lines between the judge’s duty to remain impartial, and the judge’s duty to ensure a fair hearing. It is this Court’s view that it is not in the interests of justice for a judge to be so integrally involved in the formulation of one party’s case.”
[21] This Court sees no relevant distinction between a Federal Circuit Court being unable to properly exercise jurisdiction under s. 476 of the Act when dealing with an un-particularised ground of review, and a Federal Court sitting on appeal finding that an un-particularised ground of appeal is a sufficient basis for dismissing that ground of appeal. This Court dismisses Ground 1 on that basis.”
(Footnotes omitted)
[38] The Court finds that the grounds of review as set out in both the Originating Application for Review and the Amended Application for Review were so lacking in particularity as to warrant dismissal of the applicants’ claims. It is unfair to expect the first respondent to meaningfully engage with the applicants’ claims when they are so wide and un-particularised.
[39] The Court, likewise, is at the same disadvantage. The applicants had twice been ordered to file an amended application for review which contained detailed particulars of the ground or grounds on which it was asserted that the Tribunal had erred. Having failed to do so, the only way for a possible resolution of such default would have been for the Court to order that the applicants again file and serve a properly particularised Further Amended Application for Review. That would necessarily have required the further adjournment of the hearing before this Court. This Court is not prepared to further adjourn the hearing.
[40] When discussing whether a court ought to exercise its discretion to adjourn a matter or not, Logan J in MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 at [10] – [12] inclusive, said as follows:
“[10] Whether or not to adjourn the hearing of the appeal calls for the exercise of a discretion. It is not only the medical evidence, such as it is, which is relevant in that regard. The Full Court’s judgment in Luck at [43] – [46] offers a reminder of this in the references by the Full Court to wider considerations which attend the question of whether or not any adjournment should be granted. These are no new subjects but they are worth repeating.
[11] Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a court is entitled to be conscious of:
… the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court, as well as the interests of the parties.
[12] Luck also offers a reminder in the reference at [44], [45] and [46] to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 that, quite apart from having to the consumption of public resources, a costs order is not necessarily palliative.”
[41] In Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75, Collier, Griffiths and Mortimer JJ, when considering the circumstances in which an adjournment ought to be granted, said at [42] – [47] inclusive, as follows:
“[42] In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the FCA Act, to which we have referred earlier in these reasons in summary form.
[43] These objectives set out in statutory form some of the considerations earlier expressed as conditioning a discretion to adjourn a hearing. In Sali v SPC Ltd (1993) 116 ALR 625 at 629, Brennan, Deane and McHugh JJ said the Court is entitled to be conscious of the “effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”.
[44] In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).
[45] In Aon at [5], French CJ referred to the broader considerations at work in considering an adjournment application:
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.
[46] The plurality in Aon expressed a similar opinion at [93]:
[T]he rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants.
[47] Whether examined on the basis of factors particular to the parties in these appeals, or the basis referred to at [43]-[46] above, we do not consider an adjournment should be granted to Ms Luck.”
[42] The Federal Circuit Court currently has a backlog of almost 14,000 migration review applications awaiting hearing. The Court’s Judges are working hard to attempt to reduce that backlog. As a matter of public policy, Courts overwhelmed with workloads when exercising a particular jurisdiction ought not to continually avail to applicants the opportunity to properly particularise their claims in circumstances where, if a Court was to so order, it would only further exacerbate Court backlogs by denying other applicants the opportunity of having their applications for review expeditiously heard and determined.
[43] In the present matter, the sensational claims made by the applicants in each version of their review applications have not been the subject of any successful investigative outcome. The claims made to this Court lacked an evidentiary basis which alone justified dismissal of such claims.
[44] The Court finds that the applicants have twice failed to comply with orders of the Court requiring them to properly particularise their claims. They were in default as provided for in rule 13.03A(1)(a) of the FCC Rules.
[45] In the exercise of its discretion, and for the reasons set out above, the Court also considers that this is an appropriate matter where the applicants’ claims ought to be dismissed pursuant to the provisions of rule 13.03B(1)(a) and r. 13.03B(1)(c) of the FCC Rules. Such Rules provided as follows:
“Rule 13.03B – Orders on default
(1) If an applicant is in default, the Court may order that:
a. the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
…
c. if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.””
Ms Allen, on behalf of the first respondent, has asked for an order that the application for review be dismissed, pursuant to the provisions of rule 13.03C(1)(c) of the Rules. The Court accedes to such application.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 9 March 2021
0
35
0