Chen v Minister for Immigration, Citizenship and Multicultural Affairs

THE COURT ORDERS BY CONSENT THAT:

1. The name of the first respondent be amended to the Minister for Immigration, Citizenship and Multicultural Affairs.
2. The appeal be allowed.
3. The orders of the Federal Circuit and Family Court of Australia (Division 2) (court below) made on 20 February 2023 be set aside.
4. The application to the court below be remitted to that court differently constituted for rehearing and redetermination according to law.
5. The first respondent pay the appellant's costs of the appeal, to be assessed or agreed.
6. Costs in the application in the court below be costs in the cause of the remitted proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Section 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides: A single Judge (sitting in Chambers or in open court) or a Full Court may: make an order by consent disposing of an appeal to the Court (including an order for costs) 2 The parties to this appeal which is listed for hearing before a Full Court constituted by me and Meagher and McEvoy JJ on Monday 14 August 2023 have, by consent, promoted that the following orders should be made pursuant to that provision: (1) The name of the first respondent be amended to the Minister for Immigration, Citizenship and Multicultural Affairs. (2) The appeal be allowed. (3) The orders of the Federal Circuit and Family Court of Australia (Division 2) (court below) made on 20 February 2023 be set aside. (4) The application to the court below be remitted to that court differently constituted for rehearing and redetermination according to law. (5) The first respondent pay the appellant's costs of the appeal, to be assessed or agreed. (6) Costs in the application in the court below be costs in the cause of the remitted proceeding. 3 They have done so, by consent, for the following reasons: 4 The parties are agreed that there is a basis for the Court to be satisfied of arguable appealable error in the decision below, having regard to PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 304, at [14] per Rangiah, SC Derrington and Banks-Smith JJ. The first respondent concedes that, in the circumstances of the present case, the Court below erred in denying the appellant procedural fairness in the hearing of the application for judicial review. This was in circumstances where, by reason of the denial of the application for an adjournment of the hearing, the appellant did not have the opportunity to adduce evidence with the assistance of his newly appointed legal representative in support of his judicial review application, and where the hearing thereafter proceeded instanter with the appellant being self-represented. Specifically, it is conceded that the primary judge erred by failing to inform the now self-represented appellant that it was open to him to give evidence orally at the hearing from the witness box in support of the appellant's allegation of migration agent fraud, in order to address the identified lack of documentary evidence to support that allegation: SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [39]-[40], [43] per Robertson J; [53] per Allsop CJ; [59] per Mortimer J. The first respondent concedes that this error was material, in terms of deprived the appellant the opportunity to adduce evidence that may have been relevant to his application. 5 The parties are agreed that there is a reasonable apprehension that the primary judge may lack the appearance of neutrality to re-hear the application. They are agreed that the remitted application ought to be heard by a differently constituted Court. 6 The parties submit, by consent, that s 25(2B)(b) of the FCA Act empowers a single judge to make the order which they promote. I agree. Moreover, I agree that the reasons which they have, by consent, offered provide a foundation for the exercise of appellant jurisdiction in the terms which they promote. In particular, I agree that the court below should in the circumstances be differently constituted on the rehearing. Accordingly, there will be orders in the terms the parties have promoted by consent. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.