Phan v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 427
•26 April 2023
FEDERAL COURT OF AUSTRALIA
Phan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 427
Review of: Phan v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2894 File number: SAD 136 of 2022 Judgment of: CHARLESWORTH J Date of judgment: 26 April 2023 Date of publication of reasons: 5 May 2023 Catchwords: MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal – whether the applicant was deprived of a fair hearing before the Tribunal by reason of his status as a self-represented litigant – where applicant made no adjournment application to secure representation – Tribunal under no general duty to ensure litigant is represented – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 39
Migration Act 1958 (Cth) ss 474, 476A, 500, 501, 501CA
Cases cited: Craig v South Australia (1995) 184 CLR 163
EXT20 v Minister for Home Affairs (2022) 291 FCR 55
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398
Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20
Phan v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2894
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 20 Date of hearing: 26 April 2023 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr P d’Assumpcao Solicitor for the First Respondent: HWL Ebsworth Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
SAD 136 of 2022 BETWEEN: CHIEN PHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
26 APRIL 2023
THE COURT ORDERS THAT:
1.The originating application is dismissed.
2.The time specified in r 36.03(b) of the Federal Court Rules 2011 (Cth) to commence an appeal from the order in paragraph 1 be extended so as to expire 28 days after the publication of the written reasons for the order.
3.The applicant is to pay the first respondent’s costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J
The applicant, Mr Chien Phan, is a citizen of Vietnam. He first arrived in Australia in 1991 after fleeing Vietnam as a refugee. He most recently held a Class BB Subclass 155 Five Year Resident Return visa which authorised him to remain in Australia indefinitely.
Whilst in Australia, Mr Phan was convicted and sentenced to nine years imprisonment for taking part in the sale of heroin valued between $250,000.00 to $1,000,000.00. As such, Mr Phan has a “substantial criminal record” within the meaning of s 501(7)(c) of the Migration Act 1958 (Cth), and he cannot pass the character test prescribed in s 501(6)(a).
Section 501(3A)(a)(i) of the Act requires the Minister for Immigration, Citizenship and Multicultural Affairs to cancel an individual’s visa if satisfied that the individual does not pass the character test because they have a substantial criminal record or if satisfied that the person is serving a sentence of imprisonment on a full-time basis for an offence against a law of a State. On 18 February 2020, a delegate of the Minister cancelled the applicant’s visa on both grounds (the cancellation decision).
In response to an invitation made under s 501CA(3) of the Act, Mr Phan made representations to the Minister in relation to the revocation of the cancellation decision. Section 501CA(4) empowers the Minister or a delegate to revoke the cancellation decision if satisfied that the person passes the character test or there is “another reason” why the decision should be revoked.
On 28 April 2022, a second delegate of the Minister refused to revoke the cancellation decision (the non-revocation decision).
The applicant sought merits review of the non-revocation decision in the Administrative Appeals Tribunal. The Tribunal affirmed the non-revocation decision in the exercise of its powers of review under s 500(1)(ba) of the Act: Phan v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2894. This is an application for judicial review of that decision.
On 26 April 2023, I made an order dismissing Mr Phan’s originating application. I provided oral reasons on that day given that Mr Phan at that time had the assistance of an interpreter and otherwise cannot read English. It was explained to the parties that written reasons for the order would be provided and that the reasons may be more elaborate, but not inconsistent with, the reasons given orally.
I now provide written reasons.
THE APPLICATION
The Court’s jurisdiction to determine this application is conferred by s 476A(1)(c) of the Act. On such an application, the onus is on the applicant to show that the decision of the Tribunal was affected by jurisdictional error: Act, s 474; Craig v South Australia (1995) 184 CLR 163, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
Mr Phan’s originating application contained only one ground of review. It is to the effect that he was not afforded procedural fairness in the proceedings before the Tribunal because he did not have the benefit of legal representation to explain his situation.
In determining the content of the obligation to afford procedural fairness in any case, the statutory and factual context is important: EXT20 v Minister for Home Affairs (2022) 291 FCR 55 (at [47]). In this case, s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) requires the Tribunal to “ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case …”. It may be accepted that a breach of procedural fairness in failing to afford an individual a reasonable opportunity to be heard may readily be characterised as a jurisdictional error: Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398, Kiefel CJ, Keane and Gleeson JJ (at [33]), Gageler J (at [41] and [55]), Gordon J (at [76]).
The applicant did not file written submissions giving additional particulars to the allegation of breach of procedural fairness. At the outset of the hearing, the Court made it clear that the applicant should address that ground of review and demonstrate how he was not afforded a reasonable opportunity to be heard. It was emphasised to Mr Phan that his oral submissions should be directed to the ground of review relied upon.
The Court invited Counsel for the Minister to make submissions on the ground of review first so that Mr Phan could understand the Minister’s case.
In his oral submissions, Mr Phan did not take issue with the Minister’s summary of the legal principles, facts nor with the summary of the Tribunal’s reasons. His submissions largely focussed on a complaint that he had been wrongly convicted of the offences that led the Tribunal to the conclusion that he could not pass the character test. The reasons of the Tribunal disclose that Mr Phan had made the same complaint in the proceedings before it. The Tribunal proceeded on the basis that Mr Phan had been convicted in fact.
The Court has the discretion to grant leave to Mr Phan to raise an additional argument not presently specified on his originating application. However, the complaints concerning his alleged wrongful conviction are not reasonably arguable because they do not identify jurisdictional error on the Tribunal’s part. To the extent that Mr Phan may be understood to have sought leave to amend the originating application, leave is refused.
Mr Phan’s oral submissions otherwise did not address at all the question of whether he was afforded procedural fairness in the Tribunal by reason of his self-represented status or otherwise. As such, he has not discharged his onus in this proceeding of demonstrating jurisdictional error on the Tribunal’s part and the originating application may be dismissed on that basis alone.
There is otherwise no reason on the material before me to conclude that the Tribunal failed to afford Mr Phan procedural fairness. It may be accepted that a self-represented litigant in legal proceedings (including proceedings before the Tribunal) may be disadvantaged relative to a litigant who has legal representation. Lack of legal training may limit the ability of a self-represented litigant to properly identify available arguments (particular as to questions of law) and to articulate his or her case. However, lack of legal representation does not necessarily have the consequence that a litigant has not had a reasonable opportunity to present a case in accordance with the requirements of the general law or with s 39 of the AAT Act.
The Tribunal is under no general duty to ensure that a litigant in review proceedings be legally represented: Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 (at [36]). There may be cases in which a Tribunal’s decision to refuse to grant an adjournment for the purpose of enabling a party to obtain legal advice or representation may be characterised as legally unreasonable. However, it is not apparent on the material before me that Mr Phan made any application for an adjournment for that or any other purpose.
Mr Phan has not otherwise demonstrated that the hearing before the Tribunal was conducted in such a way as to depart from the rules of procedural fairness more generally, and there is nothing in the material before me evidencing any such departure. The reasons of the Tribunal disclose that Mr Phan was given the opportunity to give evidence and his evidence was considered by the Tribunal against the principles affecting the exercise of its powers.
It follows that Mr Phan has failed to discharge the onus of demonstrating that the Tribunal’s decision is affected by jurisdictional error and his originating application must therefore be dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 26 April 2023
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