Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 360
•14 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 360
File number(s): MLG 167 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 14 December 2021 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Partner (Temporary) (Class UK) Subclass 820 visa
PRACTICE AND PROCEDURE – Adjournment – Application orally made at hearing – where historical lengthy delays in listing matters filed in Melbourne Registry for hearing – factors for consideration – overarching civil practice and procedure provisions – whether a right to legal representation – whether to adjourn proceedings
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190 Cases cited: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322
COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145
GEQ18 v Minister for Home Affairs [2019] FCCA 3338
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 7 December 2021 Place: Perth The Applicant: Appeared in person (with the assistance of a Punjabi interpreter) Counsel for the First Respondent: Mr K. Sypott Solicitor for the First Respondent: Mills Oakley For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 167 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAKESH KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
7 DECEMBER 2021
THE COURT ORDERS THAT:
1.The time for compliance with:
(a)Order 2 of the Court’s Orders of 6 December 2021 be extended to 3 March 2022; and
(b)Order 3 of the Court’s Orders of 6 December 2021 be extended to 17 March 2022.
2.Order 4 of the Court’s Orders of 6 December 2021 be set aside and in lieu thereof, orders as follows:
(a)the matter be relisted for final hearing at 12:30 pm AWDT / 3:30 AEDT on 31 March 2022 before Judge Lucev, with leave to the parties to appear by videolink.
3.The Reasons for Judgment in relation to these orders be published from Chambers at a later date.
4.Costs of today be reserved.
THE COURT NOTES THAT:
A.If the Applicant does not appear at the relisted final hearing on 31 March 2022, the application may be dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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
This matter came before the Court for directions hearings on both 6 and 7 December 2021.
On 6 December 2021, the Court made the following orders:
1. Order 4 of the Court’s Orders of 10 August 2021 be set aside.
2. The Applicant to file and serve the following by 3 January 2022:
(a) any amended application;
(b) any supplementary Court Book; and
(c) written submissions.
3. The First Respondent to file and serve the following by 17 January 2022:
(a) any amended response; and
(b) any further written submissions.
Immediately following the directions hearing, the applicant, Mr Rakesh Kumar (“Mr Kumar”), emailed the Chambers of the presiding Judge, as follows:
Respected Court Officer
Thanks for listening to my request, As advised, I am writing this email to request, extension for a final court hearing to a further date so that I can get some lawyer to represent my case.
The consent order i signed initially with the first respondent was to extend response time because the first respondent was supposed to submit their response by 8 November 2021 as ordered by the court, but they did not send a response on 8th November 2021 and sent me a consent form so that I can sign and return.
In an email, I received on 29 November 2021 first respondent agreed that there was an issue in the interpretation but did not mentioned in the Affidavit about interpretation error.
I apologise for the inconvenience but in the video call, i don't feel comfortable my body got frozen and I wanted requested to present in face to face hearing. Honourable Judge mentioned that now hearing happening on a video call and i understand that
That is why I want to request the court to extend the final hearing date to another further date after a few months so that I can find a lawyer to present my case.
I consulted one lawyer a few weeks back even consultation fee is $500 and to present my case their fee is between $12000 to $15000 my financial situation is not that good and i need some time to save some money so that I can appoint a lawyer to present my case and when i met lawyer he said that he also needs time to read and prepare my case. or i need to find some lawyer who charges less fee
Apologies I was not able to say this in the hearing because of my mental state or I would say my brain work slow. I explained to the court officer after the hearing adjourned and I am so sorry for this.
Thanks
Rakesh Kumar
Consequently, the matter was listed for a further directions hearing the following day, and on 7 December 2021, the Court made the following orders:
1. The time for compliance with:
(a)Order 2 of the Court’s Orders of 6 December 2021 be extended to 3 March 2022; and
(b)Order 3 of the Court’s Orders of 6 December 2021 be extended to 17 March 2022.
2.Order 4 of the Court’s Orders of 6 December 2021 be set aside and in lieu thereof, orders as follows:
(a)the matter be relisted for final hearing at 12:30 pm AWDT / 3:30 AEDT on 31 March 2022 before Judge Lucev, with leave to the parties to appear by videolink.
3.The Reasons for Judgment in relation to these orders be published from Chambers at a later date.
4. Costs of today be reserved.
The following are the Reasons for Judgment in relation to the orders made on 6 and 7 December 2021.
LITIGATION HISTORY
The Court notes the substantial delay in this matter coming to final hearing. Chief Judge Alstergren in AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [25] observed that it is “common knowledge that the Melbourne Registry of this Court has a large backlog”. See too, GEQ18 v Minister for Home Affairs [2019] FCCA 3338 at [7] per Judge Dowdy, where on an application to transfer a matter from the Sydney Registry of the Court to the Melbourne Registry of the Court, the Court observed that “[d]elays in the Melbourne Registry of this Court … would mean that it would be likely that the application would not be heard for some two to three years if transferred”.
In this case, as noted in [1] above, the matter was filed in the Melbourne Registry on 25 January 2017. The First Court Date was more than six months later, on 2 August 2017, when a Registrar of the Court made orders (“First Court Date Orders”), including an order listing the matter for final hearing more than two years and nine months later on 7 May 2020, before Judge Wilson. The First Court Date Orders also included orders:
(a)as Order 3, that Mr Kumar file and serve before 2 November 2018:
(i)any amended application;
(ii)any supplementary Court Book; and
(iii)written submissions; and
(b)as Order 4, that the Minister file and serve written submissions on or before 30 November 2018.
Mr Kumar did not file and serve by 2 November 2018 any of the documents referred to in Order 3 of the First Court Date Orders, but on 27 November 2018 the Court made orders (“Court’s November 2018 Orders”) setting aside Orders 3 and 4 of the First Court Date Orders and ordering that:
(a)as Order 2, that Mr Kumar file and serve 28 days prior to final hearing:
(i)any amended application;
(ii)any supplementary Court Book; and
(iii)written submissions;
(b)as Order 3, that the Minister file and serve written submissions 14 days prior to final hearing; and
(c)as Order 4, noting that the final hearing remained listed for 7 May 2020.
On 23 May 2019 the Chambers of Judge Wilson emailed a “Notice of Adjournment” to the parties informing them that “following the appointment of the Honourable Justice Wilson to the Family Court of Australia, this proceeding has been adjourned sine die” and that “parties will be notified in due course of a new listing before a new judge in the Federal Circuit Court of Australia”. More than two years then elapsed until, on 16 June 2021, a notice of re-listing was sent to the parties from the Chambers of the Court’s National Migration Law Judge, Judge Kendall, listing the matter for hearing on 26 July 2021 before the Court as presently constituted sitting in Perth with a video-link to Melbourne.
It suffices to observe that the delay in bringing the matter to final hearing was not attributable to the conduct of the parties.
There was then a further delay following the final hearing listed for 26 July 2021, which proceeded, but which was immediately succeeded by a complaint from Mr Kumar, sent by email to the Chambers of the presiding Judge, about the quality of the interpretation provided by the interpreter. As a consequence, the final hearing was reconvened on 10 August 2021 and the following orders were made:
1. By 7 September 2021 a Registrar of this Court provide to the parties by email:
a. an electronic copy of the recording of the proceeding of this matter on 26 July 2021 at 10:01 am to 11:02 am (“the Proceedings”); and
b. an electronic copy of the written transcript of the Proceedings, produced for the Commonwealth by Auscript.
2. By 7 October 2021 the Applicant file and serve any affidavits concerning any alleged errors by the interpreter in interpreting what was said by the parties or by the Court in the Proceedings.
3. If the Applicant does not comply with Order 2, the matter remains reserved for judgment on the basis of the Proceedings as they presently stand.
4. If the Applicant does comply with Order 2:
a. the First Respondent to file and serve any affidavits in reply by 7 November 2021, limited to the issue of errors in interpreting the Proceedings;
b. the Applicant to file and serve written submissions by 7 December 2021, limited to the issue of errors in interpreting the Proceedings;
c. the First Respondent to file and serve any written submissions in reply by 7 January 2021, limited to the issue of errors in interpreting the Proceedings;
d. the matter be listed for further hearing at 12:30 pm AWST / 3:30 pm AEDT on 24 January 2022, with leave for the parties to appear via video link; and
e. pursuant to s 55(1) of the Federal Circuit Court of Australia Act 1999 (Cth) the hearing be limited to a total hearing time of 1 hour and 15 minutes, with the Applicant and First Respondent being given a maximum of 30 minutes each for oral submissions and the Applicant being given a maximum 10 minutes for oral submissions in reply.
5. The costs of today be reserved.
ADJOURNMENT APPLICATION
On 29 November 2021 the parties forwarded to the Court a Minute of Proposed Consent Orders, which resulted in the matter being listed for a directions hearing on 6 December 2021. As outlined above at [1]-[3], the matter came before the Court for the directions hearing on 6 December 2021, and immediately following the directions, Mr Kumar sent an email to the Chambers of the presiding Judge, seeking an adjournment of the final hearing. The matter was listed for a further directions on 7 December 2021 and on that occasion, Mr Kumar made an oral application for an adjournment, in order to seek the assistance of a lawyer.
Mr Kumar’s Submissions
Mr Kumar made the following submissions regarding his adjournment application:
(a)he has made contact with a lawyer who is willing to represent him, but that lawyer requires extra time to prepare;
(b)he does not currently have enough money to engage the aforementioned lawyer and requires extra time to save money to engage the lawyer; and
(c)he seeks to have the hearing relisted in late 2022 or whatever is the maximum adjournment possible.
Minister’s Submissions
Counsel for the Minister indicated that the adjournment application was opposed on the basis that:
(a)the matter has been on foot since January of 2017 and will have been on foot for 5 years by the time it reaches hearing in 2022;
(b)until the email sent to Chambers on 6 December 2021, Mr Kumar had not indicated that he desired to be legally represented in this matter and he has not put forward a rationale for why his attitude has changed;
(c)it is unclear how much money Mr Kumar needs to save in order to acquire a lawyer and how long this will take;
(d)the current hearing date of 24 January 2022 gives Mr Kumar ample time to acquire the services of a lawyer.
Adjournment - Principles
When considering whether to adjourn a hearing, the Court must to have regard to the overarching purpose of the civil practice and procedure provisions inserted into the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and, in particular, s 190 of the FCFCOA Act. The Court refers to and adopts what it said in COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145 at [13] to [19] and [21] per Judge Lucev with respect to those civil practice and procedure provisions, as follows:
13 With the coming into operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) (“GFL Rules”) there have been changes to the legislative objects and practice and procedure requirements for the Court now prescribed by s 8(2) of the FCFCOA Act as the “Federal Circuit and Family Court of Australia (Division 2)”. Those changes alter the nature of the factors for consideration when deciding whether to adjourn proceedings, as compared to the factors formerly considered in general federal law matters by the then Federal Circuit Court of Australia: as to which see, for example, EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [14]-[20] per Judge Lucev and BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.
14 The FCFCOA Act provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). 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:
190 Overarching purpose of civil practice and procedure provisions
(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.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(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).
15 The FCFCOA Act provides that the practice and procedure of Division 2 of the Court is to be in accordance with, relevantly, the Rules of Court: FCFCOA Act, s 174(1)(a). The relevant Rules of Court are the Rules of Court made under Ch 4 of the FCFCOA Act (and specifically s 217 of the FCFCOA Act): FCFCOA Act, s 7(1), and are the GFL Rules, which provide:
(a) in r 1.04(1) that the overarching purpose of the GFL Rules is “as provided in section 190 of the … [FCFCOA Act], … to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”; and
(b) in r 1.04(2) that the parties “must” (in the chapeau to the sub-rule) “avoid undue delay, expense and technicality” (in para (a)).
16 As to the use of “must” in r 1.04(2) of the GFL Rules, it was recently observed in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020 at [24] per Judge Lucev that:
The chapeau to reg 5.19(2) of the Migration Regulations provides that “[t]he application must”. The use of “must” is indicative of an imperative command: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”), in this case, a positive command, expressing necessity in the sense of an obligation to fulfil the requirements set out in the paragraphs (a), (aa) and (b) to reg 5.19(2) of the Migration Regulations: Posner v Collector for Inter-State Destitute Persons(Victoria) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444; CLR at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J; Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J.
17 Likewise in this case the use of “must” in the chapeau to r 1.04(2) of the GFL Rules imposes a mandatory requirement to fulfil the requirements in para (a) of that sub-rule, subject to any contrary legislative requirement and the Court’s power to dispense with compliance with the GFL Rules: GFL Rules, r 1.07(1).
18The word “undue” carries with it both “a quantitative connotation – in the sense of going beyond what is warranted, or excessive – or a qualitative connotation – in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable”: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 at [58] per Jessup J. In r 1.04(2)(a) of the GFL Rules it would appear that “undue” is used primarily in the former sense, that is, that which gives rise to unwarranted or excessive delay, expense or technicality, although in relation to technicality it might be used in both senses in an appropriate case.
19 It follows from the above that the factors for consideration in relation to whether to grant an adjournment are whether an adjournment might:
(a) facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and
(b) avoid undue delay, expense and technicality.
…
21 In terms of the overarching purpose of the civil practice and procedure provisions in s 190 of the FCFCOA Act, the Court also notes that it relates to the “just resolution of disputes”. The use of the plural “disputes” as opposed to the singular “dispute” is important. That is because the use of the plural “disputes” allows the Court to give consideration to the possible impact of a proposed course of action on other matters pending before the Court, and not just the “dispute” the subject of the matter immediately before it for hearing. Thus the Court may have regard, as it traditionally would have: Sali v SPC Ltd & Anor (1993) 67 ALJR 841; (1993) 116 ALR 625; ALJR at 843-844 per Brennan, Deane and McHugh JJ and 849 per Toohey and Gaudron JJ; AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, to the possible effect on other litigants who might be denied a final hearing date if this matter were to be listed for final hearing now, and which final hearing might then have to be vacated if Ministerial intervention resulted in the grant of a Protection Visa. That is a particularly cogent consideration when regard is had to the number of migration judicial review applications in the Melbourne Registry not presently allocated to a Judge of the Court for hearing: see [4] above, many of which were filed upwards of four years ago.
In regards to Mr Kumar’s submission that he seeks time to retain the services of a lawyer, the Court observes that there is no right to legal representation in migration proceedings in this Court: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev. However, the Court, when exercising the discretion as to whether to grant an adjournment, must also take into consideration the fact that Mr Kumar is self-represented, does not speak English as a first language, and does not have a lawyer to assist him: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J. The Court notes, as is quite properly conceded by Counsel for the Minister, that it is often beneficial to both the parties and the Court to have the parties legally represented in migration judicial review proceedings and that this may assist in facilitating a just resolution of this dispute. As this is the first time Mr Kumar has sought an adjournment for this reason, these factors weigh in favour of granting an adjournment.
The question of delay arises in this case, however, the Court notes, as it did at [10] above, that until the request for adjournment today, the delay in this case was not caused by Mr Kumar, but rather, the result of very lengthy historical delays in the listing of migration judicial review proceedings in the Melbourne Registry: see [6]-[9] above. In this context, the Court does not consider a short adjournment of approximately two months would be a further undue delay and, therefore, this weighs in favour of granting an adjournment.
The Court does note that Counsel for the Minister has, quite properly, conceded that there is no prejudice to the Minister that could not be cured by an award of costs for the 7 December 2021 directions hearing. Again, this weighs in favour of granting the adjournment.
CONCLUSION AND ORDERS
The Court has concluded that, in the above circumstances particular to this case, it is appropriate to grant Mr Kumar an adjournment of approximately two months, therefore the Court will order that the hearing be adjourned and relisted to a date in March.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 14 December 2021
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