Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1550
•8 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550
File number(s): MLG 2145 of 2016 Judgment of: JUDGE LUCEV Date of judgment: 8 July 2021 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) 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 – where short notice of relisting sent to wrong email address – 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: 27 Date of last submissions: 5 July 2021 Date of hearing: 5 July 2021 Place: Perth The Applicant: In person (via Microsoft Teams, with the assistance of an interpreter) Counsel for the First Respondent: Ms M. Stone Solicitor for the First Respondent: Mills Oakley The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2145 of 2016 BETWEEN: GURVIKRAMJIT SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
5 JULY 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The hearing listed for 12 July 2021 be vacated.
3.The matter be relisted for hearing on 5 October 2021 at 9.00am (AWST) / 12.00pm (AEST).
4.The Applicant must file and serve an Outline of Submissions by 6 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 20 September 2021.
7.Costs of the Adjournment Application be reserved.
8.The Reasons for Judgment in relation to the Adjournment Application be published from Chambers at a later date.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
The matter presently before the Court is an opposed application for adjournment brought by the applicant, Mr Gurvikramjit Singh (“Mr Singh”), of a hearing listed on 12 July 2021.
BACKGROUND
The relevant background is as follows:
(a)on 4 October 2016 Mr Singh filed an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 16 September 2016. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) 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 refuse to grant the applicant a Skilled (Provisional) (Class VC) visa (“visa”);
(b)the Judicial Review Application contains the following grounds:
1.Member was biased. When I arrived at hearing she was already prepared to make decision. She was not interested to listen to me.
2.She looked at the wrong information and did not consider right information. She spent time discussing about non-relevant qualification. Member did not look at skill set required to work as welfare worker.
(c)on the First Court Date on 29 March 2017 a Registrar of the Court made orders (“Registrar’s Orders”) that:
1. Pursuant to rule 44.11(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), a hearing under rule 44.12 be dispensed with and the application be listed for final hearing.
2. By 4.00pm on 12 April 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 3 May 2017:
a. any amended application with proper particulars of the grounds of the application;
b. supplementary Court Book, if any; and
c. written submissions.
4. The first respondent file and serve written submissions by 24 May 2017.
5. The Application be listed for final hearing at 10.00am on 12 September 2019 before Judge Wilson.
(d)on 8 May 2019, more than two years after the Registrar’s Orders were made, a Notice of Adjournment was emailed to the parties, adjourning the hearing listed on 12 September 2019, consequent upon the appointment of Judge Wilson as a Justice of the Family Court of Australia;
(e)on 16 June 2021, more than two years after the Notice of Adjournment was sent, a Notice of Relisting was emailed to the parties from the Chambers of the Court’s National Migration Law Judge, Judge Kendall, listing the matter for hearing on 12 July 2021 before the Court as presently constituted;
(f)on 23 June 2021 the Melbourne Registry of the Court emailed Mr Singh a “Reminder Notice: Outstanding Fees” (“Outstanding Fees Notice”) for a “Setting Down Fee” of $735. The Outstanding Fees Notice contained no reference to the 12 July 2021 hearing;
(g)Mr Singh evidently attended the Melbourne Registry on 28 June 2021;
(h)on 29 June 2021 Mr Singh emailed the Chambers of Judge Kendall (“Mr Singh’s 29 June 2021 Email”) and:
(i)advised that the Notice of Relisting had been sent to the wrong email address (a matter not in dispute);
(ii)advised that Mr Singh first discovered the wrong email address error when he attended the Melbourne Registry on 28 June 2021, after having received the Setting Down Notice, and, at that time, being given a hard copy of the Notice of Relisting email;
(iii)requested that the relisted hearing on 12 July 2021 be adjourned;
(i)the Chambers of Judge Kendall forwarded Mr Singh’s 29 June 2021 Email to the Chambers of the hearing judge on 29 June 2021;
(j)later on 29 June 2021 the Minister’s lawyers, having been emailed a copy of Mr Singh’s 29 June 2021 Email by the Chambers of the hearing judge, indicated the Minister’s opposition to any adjournment in an email to Mr Singh and the Chambers of the hearing judge;
(k)later again on 29 June 2021 the parties were advised by email from the Chambers of the hearing judge that as the adjournment of the relisted hearing was opposed, the applicant would need to file an Application in a Case, supported by affidavit, requesting the adjournment;
(l)on 30 June 2021 the parties were advised that the matter was listed for directions on 5 July 2021 via Microsoft Teams;
(m)on 5 July 2021, immediately prior to the directions hearing, the Chambers of the hearing judge were emailed the applicant’s Application in a Case seeking an adjournment and a supporting affidavit (“Mr Singh’s Affidavit”) by the Court’s National Migration Team;
(n)the Minister’s lawyer had not seen a copy of the Application in a Case or Mr Singh’s Affidavit, and so the Court told the Minister’s lawyer what the contents of those documents were;
(o)the Application in a Case sought “orders” as follows:
1. Hearing on 12th July to be adjourned
2. No notice given to me was sent to wrong email
3. I need time to take advise from lawyer and get appointment with lawyer
(p)Mr Singh’s Affidavit read as follows:
1. I am the applicant.
2. I make this affidavit from my own knowledge
3. I did not receive hearing notice and request hearing be adjourned so that I can get advise from lawyer.
(q)at the directions hearing, the Court heard the Application in a Case seeking an adjournment and made the Orders which immediately precede these Reasons for Judgment.
ADJOURNMENT APPLICATION
Role and mode of operation, discretion and considerations
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 set out 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, namely:
(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 positions and submissions
Mr Singh seeks the adjournment on the basis that:
(a)because the Notice of Relisting sent on 16 June 2021 had been sent to the wrong email address, a significant time for his preparation for the hearing had passed, and he does not have enough time left to prepare arguments for his case; and
(b)he is seeking more legal advice concerning the merits of his case.
The Minister opposes the adjournment on the basis that Mr Singh has had ample time to prepare his case and to seek legal advice if he wished to do so, as the application has been on foot since 2016 and Mr Singh has been in possession of the Minister’s written submissions since May 2017.
CONSIDERATION
As the Chief Judge of this Court observed Chief Judge
8Delay has plagued this case.
on 12 September 2019 before Judge Wilson,
from the Chambers of Judge Kendall relisting the matter for final hearing, just 26 days later, on 12 July 2021
The Court considers it to be unfair that Mr Singh has had to wait four years to have his matter heard, only to have it suddenly brought on with, effectively, two weeks’ notice.
14The unfairness arising from the haste with which the matter has been relisted is compounded by the Court’s unfortunate administrative error in sending the Notice of Relisting to the incorrect email address. Indeed, had Mr Singh paid the Fee Notice by mailing his payment or making it online, rather than going to the Melbourne Registry in person, he might never have known that the matter had been relisted for final hearing.
The Court notes that it does not appear that at any stage during the lengthy delay has Minister enquired about the further listing of the matter or made any request that the matter be brought on for hearing.
The history of the matter, and in particular the manner and timing of its relisting, means that a relatively short adjournment at this stage would not be inappropriate.
Mr Singh seeks the adjournment in part to enable him to obtain legal advice and prepare submissions. The Minister says that Mr Singh’s submissions, due to be filed in accordance with the Registrar’s Orders on 3 May 2017, were not filed, and otherwise that he 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 Singh has taken to obtain legal advice. There is no disputing that what the Minister says in this regard is correct, and Mr Singh has failed to comply with the Registrar’s Orders which is a matter which might ordinarily weigh against the grant of an adjournment.
There is, of course, no right for an applicant to be able to obtain legal advice or representation: 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 arguments, and the lack of a “right” to legal representation, including that :
(a)more than four years have now passed since Mr Singh’s submissions were due, and because of that delay, the Court, at least as presently constituted, would have considered it necessary to invite the parties to file further updated submissions in any event;
(b)Mr Singh has not been legally represented and does not have English as a first language (he utilised a Punjabi interpreter for the directions hearing). It is apparent from the form and content of the Application in a Case and Mr Singh’s Affidavit that he has some, but nevertheless, a quite limited appreciation of the nature of the legal system and the relevant legal issues: ADN15 at [29] per Charlesworth J; and
(c)the obtaining of legal advice is likely to be of assistance to Mr Singh, in that he might have submissions prepared and filed. Alternatively, he might, upon advice, withdraw the Judicial Review Application if, for example, the advice was that there is not an arguable case (the Court does not suggest that that is the case). In either event, it would be of assistance to the Court in the management of the case, and the obtaining of proper legal advice, and the preparation of submissions, is likely to take more than the thirteen days Mr Singh had available when he finally found out about the relisted hearing. Further, if the matter is to proceed to hearing, the usual case is that it would be beneficial to the applicant and the Court for an applicant to be legally represented.
For the reasons set out in the preceding paragraph, and otherwise in the particular circumstances of this case, Mr Singh’s request for an adjournment to seek legal advice is not without merit. In the Court’s view, those reasons at least neutralise the counter-vailing factors of Mr Singh’s failure to comply with the Registrar’s Orders to file submissions and the lack of a right to legal representation.
A further factor that might neutralise Mr Singh’s earlier default by way of failure to comply with the Registrar’s Orders to file submissions is the order the Court proposes to make pursuant to rule 13.03B(1) of the FCC Rules, which 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.
The Court proposes to make an order that Mr Singh must file and serve submissions by the date specified in the orders that precede this judgment, 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. At the hearing, the Court explained to Mr Singh that this meant that he must file submissions by the date specified in the Court’s orders and that he must do so whether or not he had obtained legal advice or representation, and that if he did not file submissions by that date, the Judicial Review Application would be dismissed. Thus the orders made by the Court place Mr Singh on notice that any further non-compliance with an order of the Court, to file and serve an outline of submissions, will result in the Judicial Review Application being dismissed pursuant to r 13.03B(1)(c) of the FCC Rules.
The Minister submitted that an adjournment might prejudice other litigants by denying them a hearing date that would otherwise have been open. The reality is, of course, that this matter has been listed so quickly that the date would, in the ordinary course of events, have been too soon to list another matter, and so an adjournment will not have denied another litigant a hearing date.
At hearing the Minister’s lawyer conceded, quite properly, that there was no prejudice to the Minister in this particular case if there was a short adjournment. To the extent that there is any prejudice to the Minister, the Court considers that that prejudice may be remediable by an appropriate costs order.
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]-[26] 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 12 July 2021, for a short time. Accordingly, the final hearing will be adjourned to 12.00pm AEDST / 9.00am AWST on 5 October 2021.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 8 July 2021
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