BUP24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 785

1. The applicant is a male citizen of the Republic of India who first arrived in Australia in May 2014 on a Student (Subclass 573) Visa.
2. The applicant departed Australia in January 2016 and returned to Australia in March 2016.
3. On 30 August 2017, the applicant's Subclass 573 Visa expired. On 3 October 2017, the applicant was refused a Higher Education (Subclass 500) Visa.
4. On 17 October 2017, the applicant applied for a protection visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (the Act).
5. On 21 February 2019, a delegate of the Minister refused to grant the protection visa to the applicant. The delegate did not consider that the applicant was owed protection obligations under the refugee criterion in s. 36(2)(a) or under the complimentary protection criterion under s. 36(2)(aa) of the Act.
6. On 11 March 2019, the applicant sought review of the decision of the delegate by the then Administrative Appeals Tribunal (the Tribunal).
7. On 8 March 2024, the Tribunal affirmed the decision of the delegate.
8. On 13 April 2024, one day out of time for the filing of an application for review, the applicant filed an Originating Application for Review of the decision of the Tribunal. It was conceded by the first respondent that the Minister had not suffered any prejudice by reason of the late filing of the review application.

1. The Grounds of Review in the Originating Application for Review were as follows:
   1. Meets the legal definition of a refugee as outlined in international law and domestic immigration statutes. This involves demonstrating a well-founded fear of persecution based on race, religion, nationality.
   2. Risk of harm I would face while returning to country.
   3. Also, I feel that there is misapplication of the law, failure to consider relevant legal precedents, or errors in interpreting the eligibility criteria for protection visas.
2. As to the late filing of the Originating Application for Review, the Court is nonetheless required to consider the Grounds of Review and assess whether any application for extension of time ought to be granted in the interests of the due administration of justice. [1]
3. First, the grounds of review are so lacking in particularity as to be meaningless. On 16 September 2024 and 20 December 2024, orders were made by Registrars of this Court allowing the applicant to file any amended application for review. The applicant failed to take the opportunity given to him to do so. In such circumstances, it was not for the Court to act as an advocate on behalf of the applicant in the prosecution of his application for review.
4. In the case of Hamod v New South Wales [2011] NSWCA 375 at [309] - [316] inclusive, Beazley JA (with whom Giles and Whealy JJA agreed) said as follows:

[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

"A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'."

[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154.

[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.

[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:

"But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant."

[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.

[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:

"A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey [1995] NSWSC 149; (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6."

[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness."

1. In DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, Flick J, sitting on appeal, was there dealing with a contention that a Federal Circuit Court Judge had, in that matter, failed to ensure that the hearing was fair, and that the appellant (applicant) did not "suffer a disadvantage from exercising his or her right to be self-represented". It was further contended that the primary judge "failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court". The contention was that it was a requirement imposed upon the primary judge to "explain in plain terms to unrepresented litigants that they must identify why the Tribunal's decision was not made lawfully and by a fair process" and that it is "not enough to merely say that they must demonstrate jurisdictional error".
2. In DEZ16 at [37] Flick J noted the undesirability of a judge imposing himself upon the proceedings, as an advisor or advocate for an unrepresented party, when His Honour said:

[37] Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party "why the Tribunal's decision was not made lawfully". The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected.

1. In WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35], Gilmour J held as follows:

[35] ... an un-particularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

1. In SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389, when considering an unparticularised ground of review, Farrel J, at [22] of his reasons, said as follows:

[22] The second ground of appeal should be rejected. It is well established that the fact that an appeal ground is put with a high degree of generality and lack of specificity or any real particulars is itself a sufficient basis for dismissing that ground: see WZAVW at [35] followed in BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]- [13] (Bromwich J); CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] (Perry J); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20] and [24] (Reeves J); ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] (Derrington J); DIF17 v Minister for Immigration and Border Protection [2019] FCA 1055 at [29] (Abraham J); and GSQ18 v Minister for Home Affairs [2019] FCA 2057 at [14] (Lee J).

1. The Court is not prepared to undertake a hypothetical review of unparticularised and meaningless grounds of review. It is contrary to public policy for any Court to be put in the position where it is required to frame reasons for judgment based upon its own apprehension of what the applicant's claims might be. That is particularly so in circumstances where an applicant who did not require the assistance of an interpreter at the time of the hearing before the Court had twice previously failed to take up the opportunity of amending the grounds of review.
2. The grounds of review are without merit.
3. The applicant has failed to establish jurisdictional error on the part of the Tribunal and the application for review ought to be dismissed on such bases. And it is so ordered.
4. Second, an applicant for extension of the relevant time limit for the bringing of an application for review must, in addition to making the application in writing, specify why the applicant considers that it is in the interests of the administration of justice that an order extending time ought to be made pursuant to the provisions of s. 477(2) of the Act.
5. In the present review application, the applicant has failed to specify why an order extending time ought to be made in the interests of the due administration of justice. It is again contrary to public policy for Courts to be called upon to exercise jurisdiction in a matter where an applicant's non-compliance with legislative provisions constitutes a gross irreverence to the concept of the due administration of justice.
6. The applicant's failure to provide any specificity is another basis on which the application for extension of time ought to be dismissed.
7. The Court will hear the parties as to costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

[1] BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022]

FCAFC 49 at [40] per Jagot and Halley JJ and Tu'uta Katoa v Minister for Immigration, Citizenship,

Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ.