Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 726
•15 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726
File number(s): PEG 285 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 15 April 2021 Catchwords: PRACTICE AND PROCEDURE – Application in a case for transfer to Melbourne Registry – factors for consideration – application in a case dismissed. Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss 3, 52
Federal Circuit Court Rules 2001 (Cth), rr 1.03, 8.01, 13.03C, 16.05
Migration Regulations 1994 (Cth), cl 187.233 of Schedule 2
Cases cited: AMV19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 99
Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
GEQ18 v Minister for Home Affairs & Anor [2019] FCCA 3338
National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155
Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472
Number of paragraphs: 68 Date of hearing: 6 April 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr S Valliappan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison Lawyers ORDERS
PEG 285 of 2020 BETWEEN: KARAMJEET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
15 APRIL 2021
THE COURT ORDERS THAT:
1.The application in a case filed 18 February 2021 be dismissed.
2.Orders 3-5 of the orders of Registrar Carlton dated 29 October 2020 be vacated.
3.The applicant have leave to file an amended application and any affidavit evidence by 13 May 2021.
4.The first respondent have leave to file any further affidavit evidence by 20 May 2021.
5.The applicant file and serve an outline of written submissions in support of the application for review 21 days prior to the hearing date.
REASONS FOR JUDGMENT
JUDGE KENDALL
On 5 October 2020, the applicant filed an application in this Court seeking judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 9 September 2020. The application was filed in the Perth registry of this Court.
On 30 October 2020, the parties were advised by registry that the matter was listed for hearing on 17 June 2021 at 10.00am in Perth.
On 15 December 2020, the parties were advised by Chambers that the hearing of the matter had been rescheduled and would take place on 24 June 2021 at 10.00am in Perth.
By way of an application in a case filed 18 February 2021, the applicant seeks the following orders:
1. All future proceedings relating to this case be transferred to the Federal Circuit Court Registry in Victoria and all matters be dealt with by the Victorian Registry.
The first respondent (the “Minister”) opposes the application.
On 30 March 2021, the application in a case was listed for hearing at 10.00am. The applicant did not appear at that time. Correspondence marked as Exhibit 1 showed that the applicant was advised on at least three occasions that the matter was listed for hearing at 10.00am. Having been satisfied that the applicant was notified of the hearing date and time, the Court dismissed the application pursuant to r 13.03C(1)(d) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”).
Following the hearing, at approximately 11.30am that day, the applicant attended at the Court registry and queried why his hearing had been cancelled. He was asked to contact the Minister’s solicitors and indicate that he had, in fact, attended. The applicant did so at approximately 12.10pm that day. The Minister contacted Chambers on 31 March 2021 and indicated that the Minister did not oppose the Court’s earlier orders being set aside pursuant to r 16.05(2)(a) of the Rules.
The matter was relisted for hearing on 6 April 2021. The Court set aside the orders dated 30 March 2021 and heard the application in a case on that day.
For the reasons which follow, the Court dismisses the application in a case. The applicant’s substantive application for judicial review remains listed for a hearing in Perth on 24 June 2021.
BACKGROUND
It is unnecessary to set out in detail the history of this matter. However, some context is helpful.
The applicant’s substantive application seeks judicial review of a decision of the Tribunal to affirm a decision of a delegate of the Minister to refuse a Regional Employer Nomination (subclass 187) visa (the “visa”). The Tribunal refused to grant the visa to the applicant on the basis that the applicant did not meet cl 187.233(3) of the Migration Regulations 1994 (Cth) (as the applicant was not the subject of an approved nomination).
On or around 26 January 2021, the applicant contacted the Perth registry asking that his matter “be transferred to Victoria”. The registry advised the applicant that he needed to obtain consent from the Minister or file an application in a case seeking a transfer.
On 4 February 2021, the Minister responded to correspondence from the applicant as follows:
The Minister does not agree to transferring this matter to the Melbourne Registry for the following reasons:
•the proceeding was commenced in Perth;
•the hearing can be facilitated via videoconference or phone;
•the matter has a hearing date;
•the Minister considers the application is without merit; and
•it is in the interests of justice that matters be dealt with promptly.
On 8 February 2021, the applicant emailed the registry as follows:
I disagree with the Minister’s grounds for refusing to consent to my application for the case to be transferred to Melbourne Registry and be heard in person, instead of via video conference or phone. My reasons are as follows:
My home is the only place that I can use the computer to have the video hearing. There are young children running in the house, whose noise can interrupt the hearing, even with the door closed. It is a rental house which I share with others.
I had the experience when the AAT conducted the hearing via video conference and I was not comfortable at all. I could not express and present my arguments in a coherent manner. The voice does not come through clearly and most of the time, I was not able to respond effectively. Hence, I lost my review application at the AAT. I am afraid this will happen again with the Federal Circuit Court hearing, if conducted via video conference.
When I applied for the judicial review in the Perth registry, I was looking forward to a face-to-face hearing. Now, I am moving to Melbourne for my studies. I do not want to have the hearing conducted via video conference. I want to have a face-to-face hearing in Melbourne Federal Circuit Court.
There is a lot at stake in how this hearing is conducted. I have worked very hard in trying to get an Australian permanent visa. This hearing is, therefore, very important to me. I want to succeed in this appeal. I do not want to lose the appeal because of the manner in which the hearing is conducted.
As stated above, I had a bad experience during the AAT hearing which was conducted via video conference. I do not want a repeat of the same.
This correspondence was forwarded to Chambers who then advised the applicant (on 8 February 2021) that he needed to file an application in a case with supporting affidavit.
All of the above correspondence was marked as Exhibit 2.
APPLICABLE PRINCIPLES
Section 52 of the Federal Circuit Court of Australia Act 1999 (Cth) (the “Act”) states:
(2) The Federal Circuit Court of Australia or a Judge may, at any stage of a proceeding in the Federal Circuit Court of Australia, order that:
(a) the proceeding; or
(b) a part of the proceeding;
be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Federal Circuit Court of Australia or Judge imposes.
Rule 8.01 of the Rules states:
(1) A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2) In considering an application, the Court must have regard to:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.
In National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 164 (“Sentry”), the Full Court of the Federal Court, stated as follows in relation to an application to transfer proceedings from Victoria to New South Wales:
Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
The guidance provided in Sentry is additional to the matters that the Court is required to consider under r 8.01(2). That is, the factors in r 8.01(2) are mandatory and the Court must consider them in order to properly exercise its discretion to transfer, or not transfer, the proceedings.
At the hearing of the application in a case the Court assisted the applicant (who was unrepresented) by outlining each of the matters in r 8.01(2) of the Rules. The Court then invited the applicant to comment and explain to the Court why his matter should be transferred to a different registry.
APPLICANT’S CASE
The applicant’s reasons for requesting a transfer to the Melbourne registry of the Court are set out in his affidavit affirmed 18 February 2021 wherein he states:
3. I wish to inform the Court that I will be moving to Melbourne to continue my studies. I have been offered a place in Australian Centre of Further Education to undertake a course leading to Advanced Diploma in Civil Construction Design. This institute is located at 341 Queen Street Melbourne VIC 3000. This course is offered on the basis that I physically attend the classes on campus in Melbourne.
4. I will be moving to Melbourne to undertake this course. This course was scheduled to start in mid-February 2021, but due to the recent lockdown in Victoria, it has been rescheduled to start on 1 March 2021. As such, I will not be able to attend the hearing in Perth because of the travel restrictions imposed due to COVID19. I am requesting that the case be heard in the Federal Circuit Court in Melbourne so that I will be able to attend the hearing and be heard in person, instead of via video conference or phone. My reasons are as follows.
5. I have had the experience when the AAT conducted the hearing via video conference and I was not comfortable at all. I could not express and present my arguments in a coherent manner. The voice does not come through clearly and most of the time, I was not able to respond effectively. Hence, I lost my review application at the AAT. I am afraid this will happen again with the Federal Circuit Court hearing, if conducted via video conference.
6. When I applied for the judicial review in the Perth registry, I was looking forward to a face-toface hearing. Now, I am moving to Melbourne for my studies. I do not want to have the hearing conducted via video conference. I want to have a face-to-face hearing in Melbourne Federal Circuit Court.
7. There is a lot at stake in how this hearing is conducted. I have worked very hard in trying to get an Australian permanent visa. This hearing is, therefore, very important to me. I want to succeed in this appeal. I do not want to lose the appeal because of the manner in which the hearing is conducted.
8. As stated above, I had a bad experience during the AA T hearing which was conducted via video conference. I do not want a repeat of the same.
9. I have approached the respondent's solicitors to consent to this transfer, but they are not willing to provide the consent.
Attached to the applicant’s affidavit was a letter of offer in an Advanced Diploma of Civil Construction Design. It was signed by the applicant on 21 January 2021. The letter indicated that the course would commence on 15 February 2021 and would be delivered “via online learning platforms” while the “current COVID-19 situation prevails”.
At the hearing, the applicant also handed up a bundle of other documents. This bundle included a new letter of offer in the Advanced Diploma of Civil Construction Design commencing on 10 May 2021 and screenshots and text messages which demonstrated his efforts to obtain employment. This bundle of documents was marked as Exhibit 3.
The Minister cross-examined the applicant at the hearing on 6 April 2021. Three documents were tendered during the course of that cross examination. The first was an email from the Court sent to the applicant and the Minister’s solicitor on 30 October 2020 confirming that the final hearing was then listed on 17 June 2021 (marked as Exhibit 4). The second was an information brochure from the West Australian Government titled “COVID-19 coronavirus: Controlled interstate border (WA)” and dated 1 April 2021 (marked as Exhibit 5). The third was a copy of the Tribunal’s decision dated 9 September 2020 (marked as Exhibit 6).
The applicant’s evidence under cross examination was as follows:
(a)the applicant wants to attend the class physically and not undertake online learning;
(b)the course will be undertaken only online if there are COVID-19 restrictions but the applicant does not believe there are any restrictions at the moment;
(c)the applicant could not start the course in February as planned as he did not have the money for the fees. He has now deferred the start of his course until May (see, Exhibit 3).
(d)when asked why he cannot defer the course until after the hearing, the applicant did not provide a direct response. He did, however, explain the difficulty he has had finding employment in Perth and stressed again that he wishes to undertake studies “in person”;
(e)the applicant accepted that he was aware of the hearing date in October 2020 (by reference to Exhibit 4). However, as he was unable to obtain employment in Perth he decided to undertake further study which is why he enrolled in the course in Melbourne. He also suggested that he knew someone (a friend) in Melbourne;
(f)the COVID-19 situation changes rapidly. Hence, while the applicant could return to Perth under the current circumstances (as noted in Exhibit 5), those circumstances could change rapidly and he may not be able to return; and
(g)the applicant did not raise issues with the video-conference at the time of the hearing before the Tribunal but stressed that it was because of problems with the video-conferencing used by the Tribunal “that [his] case failed”. He also indicated that he “has lots to say at the final hearing, this might take a long time and the hearing before the Court cannot be conducted by video.”
The applicant was a credible and entirely honest witness. He spoke clearly and, despite initially being visibly nervous, conducted himself with confidence and integrity. The Court does not doubt that the applicant intends to study a course and that he has very real concerns about the use of video-technology. This is addressed further below.
Following cross examination, the Court invited the applicant to explain “why the matter should be transferred to Melbourne”.
The applicant submitted as follows:
(a)his father has had a number of struggles and operations and this has caused the applicant a great amount of hardship and mental struggles;
(b)he has “a lot to say”, he “wants to make an impression” and he “cannot do so via video”;
(c)the “complexity of the substantive issue for the final hearing is such that it will be unfair” if the matter occurs by video; and
(d)there “are technological issues which occur”. This will cause disruption and make it difficult for him to present his case.
MINISTER’S CASE
The Minister’s main objections to the matter being transferred are best captured by an email sent to the registry on 4 February 2021 which submitted:
•the proceeding was commenced in Perth;
•the hearing can be facilitated via videoconference or phone;
•the matter has a hearing date;
•the Minister considers the application is without merit; and
•it is in the interests of justice that matters be dealt with promptly.
At the hearing, the Minister further submitted:
(a)as the situation currently stands, the applicant can return to Perth for the final hearing if he wishes to do so;
(b)the matter is suitable for a hearing via video-conferencing as the applicant does not require an interpreter and can put on written submissions to assist in relation to his main arguments;
(c)there is a substantial delay in matters being heard in the Melbourne registry (referencing GEQ18 v Minister for Home Affairs & Anor [2019] FCCA 3338 (“GEQ18”); and
(d)it will not be in the interests of the administration of justice for the matter to be transferred to the Melbourne registry.
CONSIDERATION
There is little evidence confirming that the applicant will, in fact, be living in Melbourne at the time of the substantive hearing scheduled for 24 June 2021. The applicant is currently living in Perth. He has not provided any evidence of travel bookings or evidence about his housing arrangements in Melbourne (which, arguably, would confirm he will be living in Melbourne June 2021).
Despite the lack of evidence, the Court is prepared to accept that the applicant will be living in Melbourne at the time that the matter is listed before the Court in June 2021.
The convenience of the parties
The applicant seems to be of the view that a transfer of the proceedings will be more convenient for him as he could appear “face-to-face”.
The Court has some doubts in this regard.
First, given the rapidly evolving COVID-19 situation, there is medium to high chance that even if the matter is transferred to Melbourne, it will not be heard face-to-face. The Court notes that for the best part of 12 months, matters in the Melbourne registry (and the rest of the Court) have been heard almost exclusively by Microsoft Teams. Second, the Court operates a National Migration Docket. Accordingly, even of the matter is transferred to Melbourne it is at least conceivable that a judge from Brisbane or Sydney will hear the case by video-link.
There is no guarantee that a “face-to-face” hearing will occur if the matter is transferred to Melbourne.
This weighs against transferring the matter to Melbourne.
The limiting of expense and cost in the proceeding
Transferring the matter to Melbourne will not result in additional expense to either the applicant or the Minister. If the matter is not transferred to Melbourne, it is not the case that the applicant will have to incur costs for travel to Perth to appear. As the Minister rightly notes, the hearing can proceed via telephone or video-link. To the extent that the applicant takes issue with proceeding via either of these mediums, for the reasons explained further below, the Court rejects those concerns. The matter can adequately and fairly proceed by video or telephone.
If the applicant wishes to return to Perth for a “face-to-face” hearing, he can do so. However, that is a matter for him and any costs associated with doing so are not costs that the Court has imposed on the applicant.
This weighs against transferring the matter to Melbourne.
Whether the matter has been listed for hearing
As noted, this matter has been listed for hearing on 24 June 2021 since 15 December 2020. Programming directions aimed at programming the matter to a final hearing on 24 June 2021 have been made and the Court has allocated a hearing time.
If the matter is transferred to Melbourne, the hearing date will be “vacated”. That is, the applicant’s matter will not be heard on 24 June 2021. The date would be “lost” and it is unclear when a new date will be allocated. Indeed, it is quite possible that the applicant’s matter will not be listed for hearing until 2022 (if not later). The Melbourne registry of this Court has a significant and regrettable backlog: GEQ18. The applicant will, if a transfer occurs, experience a significant delay in relation to the hearing of his matter. This is particularly relevant when one has regard to the objects and the aims of this Court (as stated in s 3 of the Act and r 1.03 of the Rules) to avoid undue delay where possible.
The fact that the matter has been listed for final hearing and the ambiguity which surrounds when the applicant’s matter would be heard in Melbourne weighs against the matter being transferred.
Any other relevant matter
The applicant’s main argument (as detailed in his affidavit, Exhibit 2 and in his oral submissions) as to why the matter should be transferred to Melbourne focusses on his concern that the matter will not proceed fairly via video-link.
The applicant appeared via video-link before the Tribunal and believes that this “was the reason he lost his case in the Tribunal”. He says he found it difficult to present arguments and respond effectively and that “there were difficulties hearing”. Relevantly, the applicant says that his migration agent could not be seen and there were “connection issues”.
Counsel for the Minister (in cross-examination) took the applicant to the Tribunal’s decision and noted that the applicant had not raised any issues with the fact that the matter proceeded via Microsoft Teams. The applicant responded that he did not think to do so at the time.
The Court is not unsympathetic to the concerns raised by the applicant. Indeed, it is noted that during the course of the interlocutory hearing before this Court some technological issues arose (noting that counsel for the Minister appeared by video link). However, any issues in this regard were easily rectified with minimal disruption.
The Court’s experience with the use of Microsoft Teams throughout the COVID-19 pandemic has been positive. This is echoed by a number of decisions of the Federal Court where, notably, assessment of credibility was an issue: Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486; Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472 at [32]. As those cases note, while there are sometimes “hiccups”, any problems that arise are not insurmountable. There is simply no evidence that a hearing cannot be conducted properly and fairly via Microsoft Teams.
The applicant also stated he cannot “make an impression” if he appears by video. Although not entirely clear, it is arguable that the applicant may be concerned that the Court will make findings as to his demeanour or his character. The Court refers to the authorities cited in the above paragraph which directly considered the issue of “credibility” assessments using Microsoft teams and found the platform entirely adequate.
More critically, the Court notes that in AMV19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 99 at [13] it was stated:
Otherwise, the appellant seeks an adjournment so the matter can be moved to Melbourne and he can appear in person. The appeal is not a matter which turns upon any assessment of evidence to be given by the appellant. It turns only upon submissions as to whether there was error by the primary judge in finding that there was no jurisdictional error in the decision of the Tribunal. It is common for this Court to receive submissions by video-link. There is no evident prejudice that would arise from making those arrangements for the hearing in this case…
The application before this Court is an application for judicial review. No assessment of character is required. The Court’s task is restricted to determining whether there was jurisdictional error in the decision of the Tribunal.
The applicant also stresses that his matter is complex and he has “a lot to say”. He is concerned that the hearing may “take a long time”. While this may well be the case, there is, again, no evidence that lengthy hearings via Microsoft Teams raise any fairness issues. Further, in so far as the applicant wants to address complex issues there is, again, no reason to believe that the applicant will be denied an opportunity to present any and all arguments and evidence via video.
Any negative experience the applicant had at the Tribunal can be ameliorated before this Court in relation to this matter. For example, the Court can make arrangements for the applicant to appear from a court room in Melbourne. This will mean that a member of the Court staff will be present in Court (and with the applicant) to ensure that the connection is working. Court staff can attend to any issues in this regard and advise the Court immediately if any technical issue arise. The applicant will also not be disrupted (by children or otherwise).
The Court can assure the applicant that if, during the hearing of his matter, it has any concerns whatsoever that the video-link is unsatisfactory, it will not hesitate to adjourning the hearing until such time as any concerns in this regard are addressed. However, at this stage, there is no reason to believe that any technological concerns cannot be addressed on the day.
All of the above weighs against transferring the matter to Melbourne.
The Minister referred to what he submits is a lack of merit in the judicial review application. The Court has not considered the merits of the judicial review application when assessing whether the matter should be transferred. Merit has no bearing on whether a transfer of proceedings should be ordered here.
To the extent that the applicant also stressed that he has suffered hardship and mental health difficulties, the Court sympathises. However, the Court is not satisfied that these issues weigh in favour of the matter being transferred.
There are no other relevant matters that the parties have put before the Court. Nor are there any other matters which the Court can identify.
Should the matter be transferred?
Having regard to each of the matters in r 8.01(2), the Court considers it to be in the interests of all the parties (including the applicant) for the matter to remain in the Perth registry. The determination of the issue between the parties (i.e., whether there is jurisdictional error in the Tribunal’s decision) can be fairly and properly attained if the matter remains in Perth. Importantly, the matter can be resolved in a just, efficient and economic manner as required by the Court’s Act and Rules.
Here, the matter will be delayed and protracted if it is transferred and the Court can ensure that the applicant is provided procedural fairness if the matter is heard via video. Further, no extra costs need be incurred by either party if the matters remains in Perth.
Overall, it is in the interests of the administration of justice that the matter remain listed in the Perth registry for final hearing on 24 June 2021.
CONCLUSION
The Court is not satisfied that it is appropriate to transfer this matter to Melbourne.
Accordingly, the application in a case filed 18 February 2021 is dismissed.
The Court notes that during the course of the interlocutory hearing on 6 April 2021, the applicant seemed to indicate that he wanted to obtain and rely on a transcript of the Tribunal hearing and amend his application for judicial review to address the digital technology issues he experienced at the Tribunal.
The applicant was previously given an opportunity to file any amended application and any affidavit evidence (which would include a transcript of the Tribunal’s hearing). He was ordered to do so by 21 January 2021. He did not do so.
In light of the applicant’s submissions to the Court, the Court will now grant the applicant an additional one month to file an amended application and any further affidavits (including a transcript of the Tribunal hearing).
The Court otherwise confirms that the matter will remain listed for hearing 24 June 2021 at 10.00am in Perth.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 15 April 2021
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