DNN17 v Minister for Immigration and Border Protection

1. On the conditions identified below, the matter be stood over to a date to be fixed for judgment or further hearing.
2. On or before 12 September 2018, the appellant file and serve any submissions upon which he seeks to rely in support of the appeal and any evidence upon which he seeks to rely in the appeal in answer to the affidavit of Mr Fisher affirmed on 24 July 2018.
3. The Minister is not to undertake steps that will result in any substantive legal costs until his representatives are advised by the Associate to the Chief Justice that there is a matter to answer. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an appeal from orders of the Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority which affirmed the decision of a delegate of the Minister not to grant a protection visa to the appellant. The appellant appeared for himself before the Federal Circuit Court and appears before me on appeal today unrepresented. A notice of appeal has been filed on his behalf that plainly had the assistance of an English speaker. 2 The appellant has had since March of this year to organise legal assistance in relation to this appeal. He indicated to me from the bar table today that he took no steps to arrange any assistance until he got the full appeal book from the Minister. The contents of the appeal book were, of course, within the power and possession of the appellant himself, given his participation in the proceedings since the Immigration Assessment Authority's decision. 3 He effectively asked for an adjournment to obtain legal representation. Ordinarily, this would not have been legitimate grounds for any adjournment in the circumstances which I have identified. However, I am prepared to grant an adjournment on the condition that I have explained and had interpreted to the appellant. That condition is that he has three weeks to file and serve any submissions upon which he will seek to rely in the appeal, including any submissions in answer to those of the Minister. 4 His notice of appeal (though there are no submissions in support or affidavit evidence in support) claim a denial of procedural fairness in the Federal Circuit Court. To meet that case, the Minister read an affidavit of his instructing solicitor, Mr Fisher. I propose to allow the appellant three weeks to file any evidence in response. This affidavit was, Mr Johnson says, served on the appellant. It raises this difficulty: that, if the appellant wishes to read evidence, I will need to have the matter brought back. However, I will assess the contents of any written submissions and any affidavit. If the submissions and the affidavit raise matters for concern, I will have the matter called back. 5 If the submissions do not persuade me that there is any serious issue to be tried, then, subject to the contents of the affidavit, I may deal with the matter on the papers or I may have the matter re-listed. In either case, I will seek to balance the entitlement of the appellant to put that which he wishes to put, notwithstanding the unsatisfactory delay and any unnecessary cost to the Minister. Therefore, I will make orders that the matter be stood over to a date to be fixed for judgment or further hearing, depending upon the contents of the submissions and any affidavit. 6 On or before 12 September 2018, the appellant should file and serve any submissions upon which he seeks to rely in support of the appeal and any evidence upon which he seeks to rely in the appeal in answer to the affidavit of Mr Asaf Fisher affirmed on 24 July 2018. I will also order that the Minister should not undertake steps that will result in any substantive legal costs until his representatives are advised by my chambers that there is a matter to answer. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.