NOOR v Minister for Immigration
[2020] FCCA 2137
•28 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NOOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2137 |
| Catchwords: MIGRATION – Lack of particularity in grounds for review – orders for the filing of an amended application which contained detailed particulars of grounds for review – matter adjourned for compliance with orders of the court. |
| Legislation: Federal Circuit Court Act 1999 (Cth), ss.102(2)(i), 102(2)(f). Federal Circuit Court Rules 2001 (Cth), rr.13.03A(1)(a), 13.03B(1)(c), 21.02(2). |
| Cases cited: DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951. AID19 v Minister for Immigration & Anor [2020] FCCA 1002. |
| Applicant: | SAQIB NOOR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1108 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 28 July 2020 |
| Date of Last Submission: | 28 July 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 28 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the First Respondent: | Mr Freeburn, Solicitor of Clayton Utz |
| Second Respondent | Submitting appearance save as to costs |
ORDERS
The Applicant shall file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the Applicant at the hearing of the application for review, by 4:00pm on 18 August 2020.
The Applicant shall file and serve any affidavit containing any additional evidence upon which the Applicant proposes to rely relevant to the amended grounds of review by 4:00pm on 18 August 2020.
The First Respondent shall file and serve any affidavit containing any additional evidence upon which the First Respondent proposes to rely relevant to the amended grounds of review by 4:00pm on 1 September 2020.
This matter be adjourned to the Registrar of the Federal Circuit Court of Australia at Brisbane, to a date to be fixed, for the purpose of the listing of the matter for directions concerning the Applicant’s compliance or noncompliance with Order 1 hereof relating to the ordered filing by the Applicant of an amended application containing detailed particulars of the grounds for review to be relied upon at the final hearing of this matter.
The First Respondent shall obtain a copy of the transcript of today’s proceedings and reasons, and forthwith provide a copy of such transcript and reasons to the Applicant.
In the event that the Applicant has failed to comply with Order 1 hereof, in breach of the provisions of Rule 13.03A(1)(a) of the Federal Circuit Court Rules 2001 (Cth)(‘the Rules’), the Court directs, pursuant to the provisions of s. 102(2)(i) and s. 102(2)(f) of the Federal Circuit Court of Australia Act 1999 (Cth), that the Registrar have such powers of the Federal Circuit Court of Australia to dismiss the application pursuant to the provisions of Rule 13.03B(1)(c) of the Rules, and thereupon to make an order as to costs pursuant to the provisions of Rule 21.02(2) of the Rules.
The costs of and incidental to the hearing today be reserved.
IT IS NOTED THAT:
(A)The Applicant was put on notice, during the course of today’s hearing, that in the event that the Applicant failed to comply with Order 1 hereof relating to the filing of an amended application, the application before the Court for review of the decision of the Administrative Appeals Tribunal handed down on 29 November 2019 was liable to be dismissed pursuant to the provisions of Rule 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth), a copy of which Rule is to be provided to the Applicant by the lawyers for the First Respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1108 of 2019
| SAQIB NOOR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS AND ANOTHER |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the originating application had three grounds for review. None of the grounds provide particulars as to why it is claimed by the applicant that the Administrative Appeals Tribunal (‘the Tribunal’) either failed to provide to natural justice to the applicant, or failed to afford procedural fairness to applicant.
It was asserted that the second respondent had misunderstood the explanation of the applicant. Such allegation was un-particularised. It was further claimed that the second respondent had failed to afford procedural fairness to the applicant in circumstances where it was asserted that the Tribunal had failed to take relevant information into consideration.
This court has dealt with the issue of lack of particularity in grounds for review in two recent judgments, namely, DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951, and AID19 v Minister for Immigration & Anor [2020] FCCA 1002.
This court is not of the opinion that it is either fair for the Court, or for the first respondent at a final hearing of a matter, to seek to proceed in circumstances where the grounds for review in the application for review are un-particularised.
This court is also of the view that it is not possible for the court to conduct a fair hearing in the absence of such particulars.
In a recent decision of the Federal Court, Greenwood J in FEY17 v Minister for Home Affairs [2020] FCA 1014 at 90 said as follows:
“[90] The appellant has not particularised which integers of his claims or which parts of his oral or written evidence were not considered by the IAA. The failure to particularise a ground of review is itself a sufficient basis to dismiss that ground: WZAVW The Minister for Immigration and Border Protection 2016 FCA 760 at plea five to Gilmore J citing WZATH The Minister for Immigration and Border [2014] FCCA 612 at 60 as upheld in WZATH The Minister for Immigration and Border Protection [2014] FCA 969.”
In those circumstances, this court is granting an indulgence to the applicant by allowing the applicant until 18 August 2020 to file and serve an amended application for review.
It has also been the case that this court has put the applicant on notice that should he fail to file and serve an amended application, as ordered, by 4 pm on 18 August 2020, he is liable to have the whole of his application for review dismissed pursuant to the provision with the rule 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
Accordingly, the Court makes an order in terms of the draft order emailed to the parties, as initialled by me, and placed on the court file.
The Court does note that the applicant indicated during the course of the hearing today that he fully understood the terms of the order. The applicant appeared today unassisted by an interpreter, but from the short dialogue which the court has had with the applicant, the applicant appeared competent in the English language.
It is further ordered that the costs of the hearing today be reserved.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 10 August 2020
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