Syed v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1071
•23 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Syed v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1071
File number: MLG 1468 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 23 October 2024 Catchwords: PRACTICE AND PROCEDURE – oral application for a hearing to be adjourned – application granted. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Migration Act 1958 (Cth) s 360
Migration Regulations 1994 (Cth) Sch 2 cl 500.214
Division: Division 2 General Federal Law Number of paragraphs: 16 Date of hearing: 9 October 2024 Place: Perth (via Microsoft Teams) Solicitor for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms N Bosnjak Solicitor for the Respondents: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1468 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUSTAFA IMRAN SYED
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
9 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration and Multicultural Affairs’.
2.The applicant’s oral application for the hearing to be adjourned is granted and the hearing is adjourned to 11:00am AWST / 2:00pm AEDT on 20 January 2025.
3.By 4:30pm on 6 November 2024 the applicant is to file and serve an amended application and written submissions.
4.By 4:30pm on 4 December 2024 the first respondent is to file and serve further submissions addressing the amended application.
5.The parties have liberty to apply.
6.The applicant is to pay the first respondent’s costs thrown away and costs of and in relation to the hearing today.
7.The Court will publish reasons for these orders from chambers at a later date.
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).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
This matter came before me on 9 October 2024 for the final hearing of an application made by the applicant for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed an earlier decision made by a delegate of the Minister, refusing to grant the applicant a student visa.
At the hearing the applicant made an oral application for the hearing to be adjourned. After hearing from both parties, I made the following orders:
1.The name of the first respondent is changed to ‘Minister for Immigration and Multicultural Affairs’.
2. The applicant’s oral application for the hearing to be adjourned is granted and the hearing is adjourned to 11:00am AWST / 2:00pm AEDT on 20 January 2025.
3. By 4:30pm on 6 November 2024 the applicant is to file and serve an amended application and written submissions.
4. By 4:30pm on 4 December 2024 the first respondent is to file and serve further submissions addressing the amended application.
5. The parties have liberty to apply.
6. The applicant is to pay the first respondent’s costs thrown away and costs of and in relation to the hearing today.
7. The Court will publish reasons for these orders from chambers at a later date.
These are the reasons referred to in order 7.
THE APPLICATION FOR AN ADJOURNMENT
The applicant has never had a lawyer on the record in this matter. At the hearing, the applicant said that he was being assisted by a migration agent, who has now departed Australia. The applicant claimed that he was relying on his migration agent to find him a lawyer, but the migration agent did not do anything and the applicant found his own lawyer the previous week. The applicant confirmed that he had met with a lawyer, who he named in Court, had paid the lawyer to represent him and the lawyer was willing to act for the applicant in this matter, but needed at least two weeks to prepare the case. The applicant indicated that the lawyer had already reviewed the matter and identified grounds of application. The applicant was unable to give any meaningful indication of what the identified grounds are, stating that some included legal jargon that he did not understand and another was based on the applicant stating to the member at the Tribunal hearing that he could obtain a confirmation of enrolment the following day and the member not giving him that opportunity. The applicant did not have any evidence to support the assertions he made in Court, although he indicated he could get evidence if I gave him the opportunity.
I would pause at this juncture to note that, even though, for the reasons explained below, I ultimately granted the adjournment, the absence of evidence is most unsatisfactory. The applicant sought an adjournment with no prior notice to the Court or the Minister and his request for an opportunity to gather relevant evidence to support the adjournment application could not have been granted in this case without adjourning the hearing in any event. In many cases, the failure to have any documentary evidence from a lawyer confirming their availability and willingness to act in a matter, and confirmation that they had identified arguable grounds of application, would be fatal to an application for an adjournment of the hearing sought on the basis that an applicant has recently obtained legal representation.
Counsel for the Minister opposed the application for an adjournment. She submitted that the application has been on foot for considerable time and there is no evidence that the applicant has ever been represented in this matter or that the applicant had contacted a lawyer. The Minister also submitted that the applicant attended a callover on 31 August 2023 and there is a note on the Order made at the callover to indicate that the applicant intended to discontinue his application to apply for a partner visa instead. Counsel for the Minister also submitted that there is no jurisdictional error in the Tribunal decision, and the issue relating to the absence of a confirmation of enrolment that the applicant addressed was a side issue before the Tribunal and not the reason for affirming the decision. Counsel for the Minister submitted that when these things are taken together, the application for an adjournment should be refused.
REASONS FOR GRANTING THE ADJOURNMENT
In considering whether to grant the adjournment in this matter, I am required by s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) to have regard to the overarching purpose of the Court’s civil practice and procedure provisions.
Section 190 of the FCFCOA Act provides:
(1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Many of the considerations to which I have had regard in the present matter weigh against the grant of an adjournment. For example, this proceeding has been on foot since 2018 and the grant of the adjournment will necessarily result in further delay and is likely to increase the costs of both parties. Further, there is a significant backlog of migration cases in this Court and adjourning the hearing has meant that the hearing date originally allocated for this matter was not effectively utilised and the matter has now been allocated a new hearing date that might otherwise have been allocated to another matter awaiting hearing.
Despite these concerns, I determined that the just resolution of this particular case meant that it was in the interests of the administration of justice to grant the adjournment.
That is largely because of a particular feature of this case which I consider warrants further consideration. The delegate in this matter refused to grant the applicant a student visa on 9 December 2016 because the delegate was not satisfied that the applicant met the financial capacity criterion in cl 500.214 in Sch 2 to the Migration Regulations 1994 (Cth). The delegate calculated that the amount that the applicant would need to show he could access to meet travel expenses, living costs and annual course fees for himself and travel expenses and living costs for his spouse was $10,833.51. The Tribunal, in its decision made on 1 May 2018, also found that the applicant did not meet the financial capacity criterion, but calculated that the applicant would need to demonstrate access to an amount ‘in excess of $30,000’, almost three times more than the amount referred to in the delegate’s decision. My concern in the present case relates to whether (and if so, when) the applicant was advised that he would need to show access to a much higher amount than that indicated by the delegate, or otherwise given information that would have enabled him to understand for himself the factors that the Tribunal would take into account in determining the amount he would need to demonstrate he could access. It is not immediately apparent to me from the evidence before the Court whether, how and when the relevant information was communicated to the applicant.
This is not to say that there is necessarily any jurisdictional error in the Tribunal decision. Rather, I have simply identified a feature of this case that I believe warrants further consideration. When I raised this with Counsel for the Minister at the hearing, she was able to make submissions in response to the issue I raised, interpreting it as relating to the Tribunal’s obligations under s 360 of the Migration Act 1958 (Cth). In circumstances where the applicant indicated to the Court that he would definitely be represented by a lawyer if I were to grant the adjournment, the fairer course appeared to be to allow the applicant an opportunity to consider this issue with the benefit of his lawyer, rather than inviting him to address it at a hearing at which he represented himself.
I therefore determined that the just resolution of this matter was better served by adjourning the hearing to allow the applicant to be represented by the lawyer he has engaged, despite the significant concerns that I have about the applicant’s failure to engage a lawyer in a timely manner, the delay in the resolution of this proceeding, the impact on the efficient disposal of the Court’s overall caseload, and the absence of evidence to support the representations made by the applicant in Court.
There is one further matter raised in the submissions made by Counsel for the Minister that I address very briefly. I do not place any weight one way or the other on the notation to the Order made at the callover on 31 August 2023 to the effect that the applicant intended to discontinue the application to the Court. While the applicant may have contemplated discontinuing the application at one stage, he did not do so. There is nothing before the Court to indicate that his previous intention to withdraw the application had any impact on the application for an adjournment.
REASONS FOR THE OTHER ORDERS MADE BY THE COURT
Having decided to grant the adjournment, I also made further orders to progress the matter to a hearing. While the applicant had indicated that he only required a two-week adjournment to give his lawyer an opportunity to prepare, this does not take into account the need to afford the Minister an opportunity to respond, particularly if, as anticipated, the applicant files an amended application. Unfortunately, I was unable to relist the matter this year and therefore listed it on my first available date in the new year. The orders I made give both parties an opportunity to file further documents before the matter next comes before the Court, and the time frames for compliance with those orders are more generous than they might otherwise have been, had I been able to accommodate relisting the matter this year.
I also made an order that the applicant pay the Minister’s costs thrown away as a result of the adjournment. The Minister was not on notice that the applicant intended to seek an adjournment of the hearing. The applicant failed to progress his case in a timely manner, whereas the Minister filed submissions in accordance with an order made by the Court, prepared for the hearing on 9 October 2024 and was ready to proceed at that hearing. As a result of the adjournment granted to the applicant, which the applicant requested because he failed to engage a lawyer and prepare for the hearing in a timely way, the Minister has incurred costs that are now wasted. It is appropriate that the applicant pay the Minister’s costs thrown away in relation to the hearing on 9 October 2024.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 23 October 2024
1
0
3