Moussa v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 1501
•1 December 2023
FEDERAL COURT OF AUSTRALIA
Moussa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1501
Appeal from: Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 194 File number(s): NSD 130 of 2021 Judgment of: DOWNES J Date of judgment: 1 December 2023 Catchwords: MIGRATION – where appellants sought adjournment of judicial review application in (then) Federal Circuit Court of Australia – where judge refused adjournment and dismissed application for judicial review – appeal brought on basis of refusal to adjourn – no error shown in primary judge’s exercise of discretion – appeal dismissed Cases cited: Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 194 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 12 Date of hearing: 21 November 2023 Counsel for the Appellants: The First Appellant appeared in person with the assistance of an interpreter on behalf of the Appellants Solicitor for the First Respondent: Ms D Stone of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 130 of 2021 BETWEEN: LAURENCE MOUSSA
First Appellant
CARLA ISHAK
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DOWNES J
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs fixed in the amount of $4,000.00.
3.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWNES J:
This is an appeal from a decision of the (then) Federal Circuit Court of Australia refusing to grant an adjournment and dismissing the appellants’ application for judicial review of a decision of the second respondent (Tribunal) which affirmed the decision of the first respondent (Minister) not to grant visas to the appellants: Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 194 (J).
The factual background is set out in the judgment of the primary judge below at [1]–[14] and [23]–[24] J. As the legal principles are well-settled and there is no challenge by the appellants to either the facts or the Minister’s submissions in this proceeding as to the application of the legal principles to the facts, it is appropriate to deliver a short form judgment in this matter.
Although the appellants appeal from the whole of the judgment of the primary judge, which included a dismissal of the three grounds advanced in the judicial review application, only the decision to refuse the request for an adjournment is challenged in the Notice of Appeal.
Specifically, the appellants rely on two grounds of appeal:
1.That legal representation was sought on the 28th of January 2021 and there was insufficient time to adequately prepare for hearing which was on the 4th of February 2021.
2.The adjournment which was sought was unreasonably denied.
Material relied upon by the appellants
The appellants did not file any written submissions or seek to rely upon any affidavit material in the appeal. Further, the first appellant, who appeared on behalf of both appellants, did not address his oral submissions to the primary judge’s decision to deny the request for an adjournment, but instead attempted to re-agitate the merits of the original decision of the Minister.
Following the hearing of the appeal, the appellants emailed copies of certain documents to my chambers. I construed this email as a request to admit these documents into evidence on the appeal. The appellants did not explain why this material was not provided earlier, or their relevance to the appeal (specifically, the relevance to the complaint concerning the adjournment being refused by the primary judge). As the Minister submits, these documents are not relevant to the appeal and will therefore not be admitted for this reason.
Consideration
The appellants did not identify any basis on which it could be said that the primary judge erred in the exercise of the discretion to refuse the adjournment. For example, the appellants did not identify that the primary judge acted on a wrong principle, and they did not identify any mistake of fact made by the primary judge or submit that the primary judge allowed extraneous or irrelevant matters to guide him in the exercise of the discretion.
The appellants’ grounds of appeal could arguably be characterised as a submission that the primary judge failed to take into account the submission by the appellants’ solicitor that he had not had time to adequately prepare for the hearing. However, that submission was taken into account by the primary judge, who referred to it expressly in his reasons but then refused the adjournment for reasons which included that the material was concise, the issues were not complex, and the documents were available to the appellants (and their solicitor) via the Commonwealth Courts Portal: [12]–[13], [23]–[24] J.
To the extent that the appellants’ grounds of appeal could be construed as a complaint that the appellants were not afforded procedural fairness, that contention also fails. That is because the proceedings below had been on foot since 19 August 2019, the matter had initially been listed for hearing on 15 September 2020 before being adjourned due to the COVID-19 pandemic, and orders had been made on 20 September 2020 re-listing the matter for hearing on 4 February 2021. In those circumstances, the appellants had been given ample opportunity to present their case. If they wished to engage solicitors to represent them at the hearing before the primary judge, they could have (and should have) taken that step at a much earlier time than they did.
Critically, the appellants do not challenge the primary judge’s finding that the merits of the three grounds advanced in the proceeding below were relevant to the adjournment application, or the primary judge’s conclusions as to those merits, including his finding that no arguable case of jurisdictional error by the Tribunal had been demonstrated.
Disposition
For these reasons, the appeal should be dismissed with costs fixed in the amount of $4,000.
The Minister also sought an order that the name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”. I will make that order.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes. Associate:
Dated: 1 December 2023
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