Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 98
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 98
File number(s): MLG 3998 of 2020 Judgment of: JUDGE GIVEN Date of judgment: 10 February 2022 Catchwords: MIGRATION – PRACTICE AND PROCEDURE – Judicial review of Administrative Appeals Tribunal decision refusing to grant the applicant a Temporary Work visa – a legal representative appointed on behalf of the applicant –correspondence received from applicant requesting an adjournment and claiming to be unrepresented – subsequent correspondence received from applicant’s representative stating that the applicant is seeking another lawyer and would attend hearing in person – operation of Part 9 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and rule 22.06 considered – observations on sections 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and solicitors’ obligations concerning overarching purpose of civil practice and procedure provisions – adjournment granted. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss.190, 191
Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)Cases cited: FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293 Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing:
The Applicant:
Solicitors for the Respondents:
10 February 2022
The Applicant appeared in person
Ms Q Ren of Australian Government Solicitor
Place: Sydney ORDERS
MLG 3998 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZAHID SALEEM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
10 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The proceedings are adjourned until 10.15am on Monday 21 March 2022 before Judge Given for final hearing.
2.The applicant must file or serve written submissions on or by 7 March 2022.
3.The first respondent has leave to file and serve any additional submissions on or by 14 March 2022.
4.The parties are granted liberty to restore on 2 days’ notice.
5.The question of costs of and incidental to today’s adjournment, including any question arising in respect of a costs order to be made pursuant to r 22.06 of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), is reserved to the final hearing.
6.The solicitor for the first respondent is to serve a copy of these orders on each of the applicant and the current solicitor for the applicant.
THE COURT NOTES THAT:
For the purposes of r 22.06 of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the applicant and his solicitor on the record as at the date of these orders, are hereby on notice that the question of costs will be determined in accordance with order 5 above, irrespective of whether the applicant is unrepresented or represented by another legal representative at the time of the final hearing.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE GIVEN:
Before me is an application to show cause filed on 13 November 2020, by which the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) which affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Temporary Work (Skilled) (subclass 457) visa (visa). At the time that the applicant commenced the proceedings, he was unrepresented. On 29 June 2021, a Notice of Address for Service was filed by his solicitor, Mr Imran Warraich, which had the effect, under r 9.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), of appointing him as the applicant’s legal representative in the proceedings.
On 21 July 2021, proposed consent orders signed by the parties’ legal representatives and dated 21 July 2021 were sent to the Court and were made by a Registrar the following day. By those consent orders, the applicant was to file and serve any amended application on or by 14 October 2021. This did not occur.
On 22 December 2021, the matter was brought into my docket and listed for hearing before me today. On the same date, a Registrar of the Court made other orders which included that the applicant must file and serve a written outline of submissions and a list of authorities 14 days before the hearing, namely, on or by 27 January 2022.
I note at this juncture, that as of today’s date, no Notice of Withdrawal as Lawyer has been filed in accordance with the Rules, or at all. On 27 January 2022, being the day on which is written submissions were due, the Court received correspondence purporting to be from the applicant, seeking an adjournment (adjournment correspondence). The contents of that correspondence is as follows:
I, Zahid Saleem is responding to the court order of 22 December 2021, hearing date is 10th Feb 2022.
I consider to update my current situation, I recently come out from COVID-19 Quarantine in Adelaide and facing a serious financial hardship here.
I am not able to get a lawyer / legal representative who can represent my point.
I request to Honourable Court and both respondents, kindly give me some time to get me back to in position to represent my case in front of honourable court.
I am requesting for adjourned this hearing just for few months to make me able to represent myself.
(errors in original)
The Minister opposed the adjournment, and my Associate responded at my request, to inform the parties that the matter would remain listed today, that in the event that the applicant wished to renew the adjournment application at the commencement of the hearing this should be supported by evidence, and that the Microsoft Teams link would be sent in due course, which it was.
Given that the applicant’s solicitor remained on the record on 8 February 2022 when the Microsoft Teams link was first sent to the solicitor, it was also sent to the applicant at his personal email address (out of an abundance of caution, given that the applicant had written directly to Chambers). On the afternoon of 9 February 2022 my Associate resent the Microsoft Teams link to the parties’ representatives and, again, included the applicant at his personal email address. At 1.52 am today, the applicant’s solicitor replied to my Associate’s most recent email stating (errors in the original):
Dear Concern,
This email has been passed to the applicant as Mr. Zahid Saleem intends to attend the hearing by self. The applicant has confirmed through the phone all as well.
He instructed me that he is looking for another lawyer to represent him.
The notice of withdrawal will be served and then will be filed accordingly.
In sending the aforementioned email, the applicant’s solicitor copied neither his client nor the solicitors for the Minister. Accordingly, I had it forwarded to the parties by my Associate this morning. At the commencement of the hearing before me today, the applicant again sought an adjournment and he told me that the basis for this was that he no longer had a lawyer because when he tried to call his present lawyer, the lawyer was not taking his calls. He said that the lawyer told him that “you and I are not in contract” and that should send the adjournment correspondence because then he “would be able to get Legal Aid in South Australia”, which is where the applicant now resides.
The applicant recounted that his lawyer told him that he was so busy he wasn’t able to take his calls and later, that the lawyer said that he was not representing him anymore because when he was hired him, the applicant was in Sydney and now he was not.
The first respondent’s position in relation to the adjournment request was that it continued to be opposed because there is a lack of merit in the substantive proceedings and that the Minister’s solicitors understood from the correspondence sent by the applicant’s solicitor early this morning, that the representative would be withdrawing. The Minister’s solicitor said that the applicant had had sufficient time to liaise with his lawyer or to prepare for this case. Notwithstanding this, I have a number of concerns about the circumstances of the case which confront me this morning.
Part 9 of the Rules deals with the appointment and removal of lawyers. Rule 9.01 of the Rules is directed to how a lawyer is appointed if a person is first unrepresented.
That occurred in this case when on 29 June 2021, the applicant appointed his current solicitor. In the adjournment correspondence the applicant said that he was not able to obtain a lawyer. This is misconceived because even as of today he continues to have a lawyer unless and until one of three things happens:
(a)the applicant again elects to represent himself, in which case he would file a Notice of Address for Service indicating this, pursuant to r 9.01(2) of the Rules. To my knowledge, this step has not been taken;
(b)the applicant appoints another lawyer who pursuant to r 9.02(2) of the Rules must, as soon as practicable, file and serve a new Notice of Address for Service which would have the effect of removing and replacing his current solicitor. Rule 9.01(3) of the Rules specifically provides that a party’s former lawyer remains the lawyer on the record until the party serves the notice on the former lawyer. To my knowledge, none of these steps have occurred; or
(c)if the applicant’s solicitor wished to cease to act, he first must serve on the applicant a Notice of Intention to Withdraw, in accordance with r 9.03 of the Rules, and then not less than seven days after, file with the Court, a Notice of Withdrawal as Lawyer. As noted earlier, none of those events have occurred either.
As such, Mr Warraich remains the solicitor on the record for the applicant. As a result, Mr Warraich has ongoing obligations to assist the applicant with the preparation of the matter. Section 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act) states that 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 efficient as possible.
Rule 22.06(2) of the Rules is as follows:
A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a) to attend, or send another person to attend, the hearing; or
(b) to file, lodge or deliver a document as required; or
(c) to prepare any proper evidence or information; or
(d) to do any other act necessary for the hearing to proceed.
Section 191(1) of the Act relevantly provides that the parties to a civil proceeding before this Court must conduct the proceeding in a way that is consistent with its overarching purpose. Section 191(2) provides that a party’s lawyer must:
(a)in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia, on the party’s behalf, take account of the duty that is imposed by subsection (1), and
(b)assist the party to comply with that duty.
Further, s 191(4) of the Act relevantly provides that in exercising the discretion to awards costs in a civil proceeding, I must take account of any failure to comply with the duty imposed by subsections (1) or (2). I have recently addressed the overarching purpose in relation to an adjournment request and the conduct of a solicitor not prepared for hearing in the matter of FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293.
What is most concerning to me is that FEH18 also involved Mr Warraich, the solicitor for the applicant in this case. As such, it cannot be said that he is not aware of the overarching purpose nor of his obligations, nor the duty that he has to assist the applicant in complying with it.
Upon receipt of the email from the applicant’s solicitor, which I read for the first time this morning, what struck me was that it seemed to proceed on either a misunderstanding or assumption that the applicant would necessarily be given a further opportunity to obtain a lawyer such that when that occurred in future, the applicant’s solicitor would then file a Notice of Withdrawal as Lawyer. As has already been observed, Part 9 of the Rules does not operate in that fashion. If the applicant were to retain another lawyer, then that lawyer’s appearance would have the effect of replacing Mr Warraich on the record, such that a Notice of Withdrawal as Lawyer would be otiose.
I was given pause to review the adjournment correspondence again upon receipt of Mr Warraich’s correspondence sent this morning as there appears to be a similar style of expression to them both. The adjournment correspondence bears, in the top right-hand corner, a red “received” stamp with a time and date, 27 January 2022, at 4.18 pm and 35 seconds, Australian Eastern Daylight Time. This indicated to me that it was neither emailed nor posted to the Court, but rather in my experience, this marking shows that it was uploaded through the Court’s electronic portal, directly to the matter and retained there as correspondence.
That is a somewhat unusual step for applicants to have access to this electronic upload facility, so I made inquiries this morning of the Registry as to the source of the upload, and I am informed by the Registry that it was uploaded from the account belonging to the law firm of the applicant’s solicitor. The applicant confirmed with me this morning that he had asked his solicitor to upload it to the Court. The applicant claims authorship, however given what has transpired between the applicant and his solicitor in terms of why his solicitor chose not to attend today, is somewhat unclear and not really for the Court to delve into and resolve. Whatever agreement or contract they had between them I am not privy to and, in one sense, it is not relevant to the purposes of today’s adjournment.
What is clear, however, is that the applicant’s solicitor remaining on the record gives rise to certain obligations and duties that he has to the Court and to his client. Irrespective of whether or not the applicant had moved from Sydney to Adelaide, which was one of the explanations given to me by the applicant, as to when his solicitor deciding to represent him does not seem to be relevant as the applicant’s solicitors has been in Melbourne. Given that the matter was heard and was always likely to be heard via the Microsoft Teams platform due to ongoing COVID-19 restrictions, the location of the parties was largely immaterial.
What is relevant for the purpose of today’s hearing is that the applicant is clearly not prepared and has asked me for further time. He has not complied with the Court’s timetable in terms of the filing of written submissions and is unrepresented before me in circumstances where there is a solicitor on the record. Further, having regard to the adjournment correspondence, the applicant’s solicitor has been aware of the hearing for some time. On the date on which he ought to have been filing his client’s written submissions as ordered by the Court, he was instead uploading the adjournment correspondence to the electronic Court file.
Whatever might have passed between the applicant and Mr Warraich, it is clear that the applicant is not prepared to proceed today. I am inclined to grant a brief adjournment so that he can either obtain alternative legal representation, or at least prepare his case, with me being satisfied that he is properly on notice of the date on which the matter will next proceed and the steps he must take so that the matter can proceed on the next occasion. I have already explained to the applicant that while he may wish to obtain legal representation in the matter, his inability to do so will (in and of itself) not cause the matter to adjourn on the next occasion, noting that there is no right to legal representation in migration proceedings. In the event that the applicant is unable to obtain legal representation in advance of the next date, he will be able to represent himself, and the Court will accord to him the same procedural fairness as is accorded to other unrepresented applicants.
As I noted in FEH18, there are costs associated with an adjournment which are not just financial but sound in other ways, including the general administration of justice and the use of the time and resources of the Court and other parties.
In granting the adjournment, the Minister seeks costs thrown away. I will reserve the question of costs with a view that Mr Warraich be put on notice for the purposes of r 22.06 of the Rules, that he should attend on the next occasion, irrespective of whether or not the applicant obtains alternative legal representation, in order to be heard on the question of any order for costs thrown away occasioned by today’s adjournment, being borne personally by him.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Dated: 21 February 2022
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