Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1556
•8 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
File number(s): MLG 291 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 8 July 2021 Catchwords: MIGRATION – judicial review – decision of the Administrative Appeals Tribunal – cancellation of visa – Higher Education Sector (class TU) (subclass 573) visa
PRACTICE AND PROCEDURE – adjournment – whether leave to adjourn pending obtaining legal representation to be granted – where significant delays in listing and relisting – where short notice of relisting – whether prejudice to applicant
Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss 3, 42
Federal Circuit Court Rules 2001 (Cth), rr 1.03, 13.03B
Migration Act 1958 (Cth), s 476
Cases cited: ADN15 v Minister for Immigration & Border Protection [2016] FCA 810
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
BHG16 v Minister for Immigration & Anor [2017] FCCA 2745
CVA17 v Minister for Immigration and Border Protection [2017] FCCA 3208
EBB17 v Minister for Immigration & Anor [2018] FCCA 48
Jarial Couriers Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1313
Myers v Myers [1969] WAR 19
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203
MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68
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 & Citizenship [2012] FCA 1234
Number of paragraphs: 25 Date of last submission/s: 6 July 2021 Date of hearing: 6 July 2021 Place: Perth (via Microsoft Teams to Melbourne) Applicant: In person Counsel for the First Respondent: Ms B Roscoe Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 291 of 2017 BETWEEN: GOVARTHAN RAJMOHAN
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:
8 JULY 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent to be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The hearing listed for 16 July 2021 be vacated.
3.The matter be re-listed for hearing on 19 October 2021 at 12 noon AWST/3pm AEDST.
4.The applicant must file and serve:
(a)any amended application with proper particulars of the application;
(b)a supplementary Court Book, if any; and
(c)an outline of written submissions,
by 21 September 2021.
5.If the applicant fails to comply with order 4 the originating application be dismissed pursuant to r 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
6.The First Respondent may file and serve any further outline of submissions by 5 October 2021.
7.Costs of the adjournment application be reserved.
8.Reasons for Judgment in relation to the adjournment application be published from Chambers at a later date.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
The applicant, Mr Govarthan Rajmohan (“Mr Rajmohan”), emailed the Court on 30 June 2021 requesting an adjournment of the hearing in this matter listed for 16 July 2021. The Court has treated that email as a valid request for an adjournment of the hearing.
BACKGROUND
The relevant background is as follows:
(a)Mr Rajmohan filed an application for judicial review in the Melbourne Registry of the Court on 15 February 2017 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”);
(b)the Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal”) handed down 16 January 2017. The Tribunal affirmed a decision of a delegate of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to cancel Mr Rajmohan’s Higher Education Sector (class TU) (subclass 573) visa (“Higher Education Sector Visa”);
(c)the Judicial Review Application contains the following three grounds of review:
1.The Tribunal's finding that the applicant had no compelling reasons for waiving condition 8202 of Schedule 8 criteria was so illogical and irrational reasoning process which resulted in the Tribunal fell in to jurisdictional error. (Vide - Minster for Immigration & Citizenship-VSZMDS {2010} HCA 16.
2.The Tribunal's finding at paragraph 13 that there are no requirement to be considered in relation to the exercise of discretion was an incorrect interpretation of the law and by not exercising the discretion the Tribunal fell into jurisdictional error.
3.The Tribunal erred in affirming the cancellation of the visa under section 116(1) of the Migration Act without considering the extenuating circumstances beyond the applicant's control which existed at the relevant time, such as the illness of the applicant’s mother who was supporting the applicant financially, resulting in Emotional and Financial problems upon the applicant.
(d)six months after the Judicial Review Application was filed, at the First Court Date on 16 August 2017, a Registrar of this Court made the following orders by consent (“Registrar’s Orders”):
1 Pursuant to rule 44.11(c) of the Federal Circuit Court Rules (2001) (Cth), a hearing under rule 44.12 be dispensed with and the application be listed for final hearing.
2 By 4.00 pm on 30 August 2017, the first respondent file and serve one copy of a bundle of relevant documents (court book) in electronic form, and one copy in paper form and for that purpose, the court book:
a) be in portable document format (pdf);
b) be capable of being searchable for specified text;
c) have an index and be paginated;
d) have each entry in the index bookmarked; and
e) be set so that when opened:
i. it displays at 100% zoom; and
ii. the bookmarks menu is displayed.
3 The applicant file and serve the following by 28 days before the final hearing:
3.1 any amended application with proper particulars of the grounds of the application;
3.2 supplementary Court Book, if any; and
3.3 written submissions.
4 The first respondent file and serve written submissions by 14 days before the final hearing.
5 The Application be listed for final hearing at 10.00 am on 18 February 2020 before Judge McNab.
(e)on 20 August 2019, more than two years after the First Court Date, the Court sent the parties a notice of adjournment (“Notice of Adjournment”) which relevantly stated:
Please note that the hearing on 18 February 2020 has been vacated and this proceeding has been adjourned to a date to be fixed.
The parties will be notified in due course of a new listing date in the Federal Circuit Court of Australia.
(f)almost 22 months later, on 16 June 2021 a notice of listing was emailed to the parties from the Chambers of the Court’s National Migration Law Judge, Judge Kendall, relisting the matter for final hearing on 16 July 2021 (“Notice of Relisting”);
(g)Mr Rajmohan emailed the Chambers of Judge Kendall on 30 June 2021 requesting an adjournment of the relisted final hearing on 16 July 2021;
(h)later on 30 June 2021 the Chambers of Judge Kendall forwarded Mr Rajmohan’s request for adjournment to the Chambers of the hearing judge;
(i)on 1 July 2021 the Court listed the matter for a directions hearing on 6 July 2021; and
(j)at the directions hearing the parties made oral submissions in relation to the adjournment, and the Court, as presently constituted, made orders which, amongst other things, granted the adjournment and provided that Reasons for Judgment would be published from Chambers at a later date (“Court’s Orders”).
ADJOURNMENT PRINCIPLES
The role and mode of operation of this Court, as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss 3 and 42 of the FCCA Act and the objects in r 1.03 of the FCC Rules, provide for the Court to operate in a manner:
(a)as informal as possible in the exercise of judicial power;
(b)which is not protracted in its proceedings;
(c)which resolves proceedings justly, efficiently and economically;
(d)which uses streamlined procedures; and
(e)that avoids undue delay, expense and technicality,
see CVA17 v Minister for Immigration and Border Protection [2017] FCCA 3208 at [12] per Judge Lucev, and the cases cited therein.
In considering an application for adjournment:
(a)the Court has broad discretion in relation to whether or not it adjourns a hearing: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev; and
(b)the Court’s paramount consideration must be the interests of justice. To this end, this Court has, in determining adjournment applications had regard to the following principles in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“AON Risk Services”) at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ:
(i)that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any relevant legislative purpose or object;
(ii)modern principles of case management;
(iii)the avoidance of undue delay; and
(iv)the wastage of public resources,
see EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [14]-[20] per Judge Lucev; BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.
PARTIES SUBMISSIONS
The bases for Mr Rajmohan’s adjournment application are that he was in the process of obtaining legal representation and that he had not received the Court Book and “Court Timetable” until or around the time the Notice of Relisting was sent to him on 16 June 2021.
The Minister opposes the adjournment on the basis that Mr Rajmohan has had ample time to prepare his case and to seek legal advice and that the Minister provided all relevant Court materials to him in an appropriate manner.
CONSIDERATION
As the Chief Judge of this Court observed Chief Judge
8Delay has plagued this case.
on 18 February 2020 before Judge McNab,
from the Chambers of Judge Kendall relisting the matter for final hearing, just 30 days later, on 16 July 2021
The Court considers it to be unfair that Mr Rajmohan has had to wait four years to have his Judicial Review Application heard, only to have it suddenly brought on, without the opportunity to be heard about the final hearing date, and with just 30 days’ notice.
14The unfairness arising from the haste with which the matter has been relisted is compounded by the terms of the Notice of Relisting read with the Registrar’s Orders. The Notice of Relisting gives 30 days’ notice of the relisted hearing. Order 3 of the Registrar’s Orders requires any amended Judicial Review Application, with proper particulars of the grounds of the Judicial Review Application, any Supplementary Court Book, and written submissions to be filed 28 days before final hearing. The effect of the Notice of Relisting was to give Mr Rajmohan two days in which to comply with Order 3 of the Registrar’s Orders, and in the view of the Court, as presently constituted, that is fundamentally unfair, both of itself and when considered together with other matters referred to in these Reasons for Judgment: see, for example, [16] and [18] below.
The Court notes that it does not appear that at any stage during the lengthy delay the Minister enquired about the further listing of the matter or made any request that the matter be brought on for hearing.
Mr Rajmohan seeks the adjournment in part to enable him to obtain legal advice and prepare submissions. The Minister says that Mr Rajmohan has had ample time to take advice and prepare submissions. Further, the Minister says that there is no evidence of what, if any, steps Mr Rajmohan has taken to obtain legal advice. There is no disputing that what the Minister says in this regard is correct. There are, however, two matters which negate the Minister’s submission: first, that in the more than four years in which the Judicial Review Application has been on foot the first time that the requirement to file and serve under Order 3 of the Registrar’s Orders was actually triggered was two days after the Notice of Relisting was sent on 16 June 2021, and, second, for reasons set out above, the two days thereby given in which to comply with Order 3 of the Registrar’s Orders is fundamentally unfair.
There is, of course, 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 & Citizenship [2012] FCA 1234 at [24] per Katzmann J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev.
Albeit that there is no right to legal representation in migration proceedings in this Court, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor that might be taken into account when exercising a discretion: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J. Additionally, there are a number of matters that weigh against the Minister’s submission, and the lack of a “right” to legal representation, including that :
(a)Mr Rajmohan has not been legally represented and does not have English as a first language (he utilised a Tamil interpreter for the directions hearing), and it is apparent from his submissions at the directions hearing that he has a somewhat limited appreciation of the nature of the legal system and the relevant legal issues: ADN15 at [29] per Charlesworth J; and
(b)the obtaining of legal advice is likely to be of assistance to Mr Rajmohan, in that he might have proper submissions prepared and filed, which would be of assistance to the Court in the management of the case. The obtaining of proper legal advice, and the preparation of submissions, is likely to take more time than Mr Rajmohan has been given by the Notice of Relisting;
(c)further, if the matter is to proceed to hearing, the usual case is that it would be beneficial to an applicant and the Court for an applicant to be legally represented; and
(d)alternatively, Mr Rajmohan might, upon advice, withdraw the Judicial Review Application if, for example, the legal advice was that there is not an arguable case (the Court does not suggest that that is the case).
For the reasons set out at [16] and [18] above, and otherwise in the particular circumstances of this case, Mr Rajmohan’s request for an adjournment to seek legal advice is not without merit.
Rule 13.03B(1) of the FCC Rules provides as follows:
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
(b) a step in the proceeding be taken within the time limited in the order;
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.
It is the case that as at the date of the directions hearing Mr Rajmohan was in default of Order 3 of the Registrar’s Orders, and as the Minister submitted he had a significant period of time in which to undertake the necessary preparation for any hearing. It is necessary for the Court to have regard to the objects summarised at [3] above, and in particular the need to avoid further delay in, and protraction of, these proceedings. The Court therefore proposes to make an order that Mr Rajmohan must, by the date specified, comply with Order 4 of the Court’s Orders, and that if he does not do so, the Judicial Review Application is to be dismissed pursuant to r 13.03B(1)(c) of the FCC Rules. This means that Mr Rajmohan must comply by the date specified in the Court’s Orders and that he must do so whether or not he has obtained legal advice or representation, and that if he does not do so by that date, the Judicial Review Application will be dismissed. Thus the Court’s Orders (together with this paragraph) place Mr Rajmohan on notice that non-compliance with Order 4 of the Court’s Orders, will result in the Judicial Review Application being dismissed pursuant to r 13.03B(1)(c) of the FCC Rules.
The Minister also submitted that an adjournment ought not to be granted because it would be inutile where the present grounds of the Judicial Review Application reveal no arguable case of jurisdictional error. The Minister conceded however in submissions filed by the Minister there had been a concession that the Tribunal had denied procedural fairness to the applicant, but in a manner that was not material. Having regard to the fact of that concession, and the fact that the Registrar’s Orders allowed, and the Court’s Orders allow, for an amended Judicial Review Application to be filed, it is not appropriate to refuse the adjournment as to do so would be to render inutile those Orders in circumstances where Mr Rajmohan has seemingly not presently had the benefit of legal advice in relation to his Judicial Review Application.
A further delay in these proceedings might be said to be inconsistent with the underlying intent of the FCCA Act or FCC Rules. However, the paramount consideration remains that justice be able to be properly done between the parties, and to do that, it is necessary for a proper balance to be struck by way of judicial consideration of the issues: AON Risk Services at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 74 per Smithers J; Jarial Couriers Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1313 (“Jarial”) at [29] per Judge Lucev.
Fortunately, given the current state of the migration lists and the significant diminution in the migration and other caseloads in the Perth Registry of this Court over the last three and a bit years (down from more than 700 applications in 2017 to slightly less than 400 applications in 2020, and 137 applications in the six months to 30 June 2021), any adjournment would only result in a short delay. Thus, the matter can be relisted for final hearing in about three months, which is not an inordinate delay and, in these particular circumstances, is a delay consonant with the interests of justice and not contrary to the objects set out in the FCCA Act and FCC Rules: Jarial at [29] per Judge Lucev.
CONCLUSION
Having considered the interests of justice, and having weighed the various matters set out at [7]-[24] above, the Court, in the exercise of its broad discretion to grant or deny an adjournment, has determined that the matters particular to this case weigh in favour of granting an adjournment of the final relisted hearing on 16 July 2021, for a short time. Accordingly, the final hearing will be adjourned to 3.00pm AEDST / 12.00noon AWST on 19 October 2021.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 8 July 2021
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