EPH17 v Minister for Immigration and Border Protection

Parties' submissions 12 The applicant's written submissions of 23 April 2019 substantially repeated the matters set out in the applicant's affidavit of 30 January 2019. The submissions relevantly added that: 2. The application [in the Federal Circuit Court] was filed under the Applicant's own name on instructions from his then legal representative Antippa Barristers and Solicitors. … 10. The Appellant appeared before the Court explained that his solicitor had withdrawn for representation and that he would not be able to make proper submissions in support of the application. He pleaded with the court to adjourn the matter for him to seek another legal representative to appear for him. … 15. It is quite expected for the Court to hear the respondent submissions supporting dismissal of the application but because the Appellant was not provided an opportunity to present his case, the trial judge should have given the benefit of the doubt to the Appellant and adjourned the matter. … 19. The Appellant seeks an order for the Court to set aside the decision and order for a new hearing in the lower court. 13 The Minister submitted in written submissions of 21 May 2019 that the application for leave to appeal should be dismissed on the basis that the Federal Circuit Court did not deny the applicant procedural fairness by failing to adjourn the hearing on 19 September 2018. 14 The Minister submitted that nothing in the circumstances of the case indicated that it was unreasonable for the primary judge not to adjourn the matter. In written submissions, the Minister supported this submission by reference to the following considerations. (a) The applicant did not have a right to legal representation in the sense that the primary judge was required to adjourn the proceeding if the applicant did not have a lawyer. (b) The applicant had a fair opportunity to obtain legal representation in connection with his application for judicial review. (c) The Federal Circuit Court did not have before it all of the information that is before this Court about the circumstances in which the applicant's former solicitor told the applicant that he would not appear at the hearing. Counsel addressed these matters at the hearing. 15 The Minister further submitted that even if the Federal Circuit Court did act unreasonably in not granting an adjournment, this is not an appropriate case for a grant of leave because, even if the Federal Circuit Court had granted an adjournment, it would inevitably have reached the same conclusion - that the applicant did not have an arguable case for relief. For the reasons stated below, the Minister did not press this submission at the hearing in this Court.

Consideration 16 In Re CSR Ltd [2010] FCAFC 34; 183 FCR 358 at [5], Keane CJ and Jacobson J observed that "[g]enerally speaking, leave to appeal will be granted where there is a reasonably arguable case that the decision below is affected by appellable error, and a grant of leave is necessary to remedy a substantial injustice": see also Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 17 It is well recognised that an adjournment is a means whereby prejudice to a party - especially an unrepresented party - may be avoided: see Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J). As Kirby P said in Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 at 200, "[i]f a serious injustice has been occasioned by a refusal of an adjournment, and particularly one which can and should be readily corrected, th[e] court may provide relief and in the appropriate case should do so". 18 Of course, the courts are not required to ensure that a party takes the best advantage of the opportunity to present his or her case. Further, a party to civil litigation, such as the applicant in this case, has no absolute right to legal representation in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: see, for example, Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6] (Heerey J). It may be accepted that the withdrawal of legal representation shortly before a hearing does not mean that a court will always grant an adjournment in the proper exercise of its discretion. Each case depends on the "individual circumstances": Jarrett at [87] (Mansfield J). It may also be accepted that appellate courts seldom disturb decisions to grant or refuse an adjournment: see Blazevski at 200. Nonetheless, where an adjournment application is made, the Court must exercise its discretion to grant or refuse the application judicially. 19 An appellant's challenge on an appeal to a refusal of an adjournment is a challenge to an exercise of discretion; and, in this circumstance, the appellant needs to establish a discretionary error of the type referred to in House v The King (1936) 55 CLR 499 at 505. In a well-known passage, Dixon, Evatt and McTiernan JJ said, in effect, that in order for an appeal against an exercise of discretion to succeed, it must appear that the judge made some error in exercising the discretion. Thus, their Honours stated (at 505): If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 20 In ALQ17 v Minister for Immigration and Border Protection [2019] FCA 16, for example, Perram J granted an extension of time to appeal and leave to appeal, and allowed the appeal, on the basis that the relevant Federal Circuit Court judge had erred in exercising his discretion to dismiss an appeal from the Administrative Appeals Tribunal under r 13.03C(1)(c) of the Federal Circuit Court Rules, permitting dismissal for want of appearance. His Honour held at [17] that there was relevant error because the Federal Circuit Court arrived at its conclusion "without knowing that the Applicant had sought to attend by telephone by asking the Minister's solicitor how such an application might be made". His Honour explained (also at [17]) that: Although this was, of course, not the fault of the Court below as it was not a formal application to the Court but rather an email to the Minister, it does mean that a relevant matter was excluded from its consideration which is an error within House v The King … and one which had the effect of denying the Applicant a hearing on the merits. 21 The law is clear, moreover, that a refusal to grant an adjournment can constitute a failure to give a party an adequate opportunity to present his or her case: in some circumstances, "a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness": Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [40] (Gaudron and Gummow JJ); see also CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 at [28]-[30] (Flick J). In such circumstances, a decision may be set aside because it involves a breach of the rules of natural justice. The law is also clear that a refusal to grant an adjournment may be set aside where it is shown to be unreasonable in that the refusal was without "an evident and intelligible justification": Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76], [82], [85] (Hayne, Kiefel and Bell JJ). 22 Reference to the transcript of the hearing before the primary judge indicates that in this case the applicant did not expressly make an application for an adjournment. Nonetheless, as Deane J said in Sullivan at 343, the absence of an application for an adjournment does not conclude the matter adversely to the applicant. His Honour there stated: The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment. 23 Deane J also referred to Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506, a case in which the appellant had failed to attend a tribunal hearing owing to an unexpected lack of transport and a snowstorm. A message conveyed to the tribunal indicated that the appellant would not be appearing "owing to the illness of his trade union representative". It contained no request for an adjournment. It was held that the tribunal had, in the circumstances, wrongly exercised the discretion to dispose of an application in the absence of a party. Knowing that the appellant was unable to attend, the tribunal should have adjourned unless it was satisfied that the appellant was inviting the tribunal to continue the hearing in his absence. 24 In other words, in circumstances like the present, the relevant duty of a court (or a tribunal) is to ensure that a party is given a reasonable opportunity to present his case. In the circumstances that unfolded before the primary judge, it seems to me that, notwithstanding an adjournment was not expressly sought, the Court's failure to clarify with the applicant what had in fact happened and whether or not he sought an adjournment, and to adjourn if that was what he sought, was a failure to allow the applicant properly to present his case, and a breach of the rules of natural justice. 25 In order to explain this conclusion, it is necessary to have regard to what happened before the primary judge, as revealed in the transcript. The hearing began at 11:31 am on 19 September 2018. Immediately after counsel for the Minister announced his appearance and a Tamil speaking interpreter was affirmed to interpret, the primary judge said that he would "ask Mr Tran, representing the Minister, to tell us about the case". 26 It must be said at the outset that counsel for the Minister discharged this task fairly. He responded to the primary judge by referring to the fact that the hearing was a "show cause hearing" in which "the relevant question is whether the applicant has identified any arguable case for relief". He noted that the applicant challenged "a decision of the IAA to affirm the decision of the delegate to refuse the applicant a safe haven enterprise visa". He referred to the applicant's citizenship and the documents setting out his claims, before proceeding to summarise those claims and the reasons for the IAA's decision. Lastly, he noted where the applicant's grounds of review were to be found in the Court Book. Counsel concluded shortly before 11:39 am, when the primary judge asked the applicant to "tell [the primary judge] in [his] own words what [he said] the tribunal did wrong in this case". This led to the following exchange between the applicant, through his interpreter, and the primary judge: THE INTERPRETER: They have accepted what happened to my father, but they have refused my claims -- what I faced when I was in Sri Lanka. HIS HONOUR: Anything else? THE INTERPRETER: So in nineties I went back to India, but I was not able to get the documentary evidence from Sri Lanka and India to support my claims. So if a lawyer is involved in this matter in my case, it would be very helpful for me, but suddenly, yesterday, I got a response from my lawyer saying he's not representing me today. HIS HONOUR: Anything else? THE INTERPRETER: I don't have any family members in Sri Lanka. My wife and children are in a detention centre in Indonesia, so if I were to return to Sri Lanka, my safety is at risk. If I were forced to return to Sri Lanka, so what type of guarantee the Government will give for my safety? HIS HONOUR: I'm sorry. I didn't hear that last bit. … THE INTERPRETER: So Australian Government is the one forcing me to return and if something happens at the hands of the Sri Lankan Government, who is going to take care of my family and children who were in Indonesia? HIS HONOUR: Okay. Anything from you, Mr Tran? MR TRAN: No questions. No, your Honour. The applicant had concluded by 11:44 am, some five minutes after he was asked what he said the decision-maker did wrong in his case. 27 At the time the hearing commenced, the documents filed by the applicant in the proceeding would have indicated to the primary judge that the applicant had not sought legal representation in preparing for and presenting his application. This was because: (a) the judicial review application was signed by the applicant personally and did not indicate on its face that it had been prepared with legal assistance; (b) no notice of acting for the applicant had been filed by a lawyer in the proceeding; (c) the applicant had not been represented by a lawyer on any previous occasion in the Federal Circuit Court; and (d) no amended application or written submissions were filed pursuant to court order or before the hearing that might have indicated a lawyer was assisting the applicant. 28 Bearing in mind these matters and the nature of the application before the Court, it cannot be said that the primary judge acted unreasonably in focussing in the first instance on what the parties said about the IAA's decision. The unintended effect of the way his Honour conducted the hearing was, however, to shift the inquiry to the very subject that the applicant's solicitor had been retained to address. What his Honour did not know, although the evidence before this Court clearly shows, is that the applicant had retained a solicitor many months before the hearing to prepare and file the documents needed for his case, including an amended application and written submissions, and to represent him at the hearing. The applicant did, however, manage to tell his Honour that he had only been informed the previous day that his solicitor would not be attending the hearing. 29 Although the applicant did not expressly seek an adjournment, the primary judge should have understood that the applicant was saying that he had retained a lawyer to represent him at the hearing and that the lawyer had withdrawn only the previous day. Particularly having regard to the applicant's clear difficulties in understanding and making any meaningful submissions, it may be accepted that, as his evidence and submissions in this Court indicated, the applicant did not know that it was open to him to request an adjournment in the circumstances that had arisen. 30 It would have been evident to the primary judge that the applicant had little, if any, command of the English language; that he was not a lawyer or otherwise a well-educated person; that he had little, or no, understanding of the legal issues falling for determination and little, or no, familiarity with the practices and procedures of the Australian legal system. It may well be the case that, perhaps because of the matters referred to in [27] above, the primary judge was sceptical about the applicant's assertion about having retained a solicitor. Nonetheless, when his Honour was informed by the applicant that the solicitor had "suddenly" withdrawn from the case the day before, the duty of the primary judge to ensure that applicant was given a reasonable opportunity to present his case required him to clarify with the applicant what had in fact happened and whether or not he sought an adjournment, or wished to proceed without legal representation. If the primary judge had asked the applicant about the circumstances in which his lawyer had ceased to act, then, as counsel for the Minister properly conceded, "the applicant would have said the things that now appear in the affidavit material before this Court" and the primary judge would have known what is now known to this Court, including that the applicant had retained a solicitor many months before and that it was possible (or even likely) that the absence of an amended (particularised) application and supporting written submissions was attributable to the applicant's solicitor, rather than to the applicant personally. Absent that inquiry, as the transcript shows, the applicant was compelled to present his case when he "could not think properly" and was unable to address his application in any meaningful way. 31 It may be that the primary judge failed to recognise the significance of the applicant's statement about his solicitor's late withdrawal. An error of this kind would be understandable, given the matters mentioned in [27] above. The difficulty may have been compounded by the fact that, in the absence of an amended (particularised) application and supporting written submissions, the primary judge may well have come to the tentative view that the applicant had no arguable case, as his Honour subsequently held. These factors and the Federal Circuit Court's workload, do not, however, alter the conclusion that, in this particular case, the Court's failure to clarify with the applicant what had in fact happened and whether or not he sought an adjournment, and to adjourn if the applicant so wished, deprived the applicant of a reasonable opportunity to present his case and resulted in a breach of the rules of natural justice. I have reached this conclusion in view of the following. The applicant clearly informed the primary judge that his solicitor had "suddenly, yesterday", informed the applicant that the solicitor was "not representing [him] today". In response the primary judge merely said "anything else?". In inviting counsel for the Minister first "to tell us about this case" and by commencing his exchange with the applicant with a request to "tell [the primary judge] in [his] own words what [he said] the tribunal did wrong in this case", the applicant was "put on the back foot". The applicant, as his counsel noted, "was unable to express himself", that is, he was clearly struggling to understand what was required of him and to make any meaningful submissions in support of his application. It may be inferred from the applicant's statement about his solicitor that, if true, the applicant would not have had sufficient time to find another solicitor or to prepare his case without a lawyer. The applicant evidently had little English and little, or no, understanding of the legal issues falling for determination and the procedures of the Australian legal system. The primary judge did not subsequently refer in his reasons for judgment to the applicant's statement that his solicitor had withdrawn the previous day. A very great deal depended on the outcome of the applicant's application so far as the applicant was concerned. 32 It is also relevant in this context to bear in mind the duty of the Court to assist a self-represented litigant, which strengthened the need for the primary judge to clarify with the applicant what had in fact happened and whether or not he sought an adjournment. As Mortimer J said in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; 238 FCR 158 at [113] "if a court is or should be put on notice, through the evidence and material before it, of an arguable procedural problem in its own proceeding that may deprive a litigant of an effective choice in the proceeding, or impede the litigant's opportunity to present her or his case and arguments, then in my opinion the Court may have a duty to assist a self-represented person to surmount that procedural problem". See also SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [39]-[46] (Robertson J), [50]-[55] (Allsop CJ); Hamod v State of New South Wales [2011] NSWCA 375 at [311]. 33 As counsel for the Minister observed correctly, the primary judge was clearly cognisant of the applicant's status as a self-represented litigant. This is reflected in his reasons for judgment in so far as he took on himself the task of conscientiously examining the IAA's decision for jurisdictional error, by reference to the unparticularised grounds set out in the applicant's application. It was by reference to these unparticularised grounds that his Honour concluded that "none of the grounds of review raised an arguable case". However, as should be apparent by now, the applicant's difficulty arose at a more fundamental level. His solicitor had failed to file an amended application on receipt of the Court Book (as he had led the applicant to believe he would) or to ensure that written submissions on the applicant's behalf were filed. The applicant's case was not, therefore, ever properly identified. 34 I reject the Minister's submission that the applicant had a fair opportunity to obtain legal representation. The problem here was that the applicant had taken the opportunity to retain a lawyer and apparently did all that the lawyer required of him to facilitate his representation. The evidence showed that the applicant paid his solicitor, the applicant provided the solicitor with a copy of the Court Book filed by the Minister, and the solicitor told him late in the afternoon before the hearing that he would not attend because the application was bound to fail. I accept (as did the Minister) that the late notification meant that the applicant did not have time to seek to engage another solicitor. In substance, through no discernible fault of the applicant, the lawyer withdrew at the last minute, leaving the applicant without the possibility of legal representation the next day. 35 Counsel for the Minister sought to rely on the fact that, on the applicant's account, the solicitor had told him that his case was "bound to fail". The Minister relied on the former solicitor's email to the applicant (set out at [7] above) in which the solicitor stated "[t]he Barrister believes that you will not win tomorrow". As I indicated at the hearing, I would place little weight on these matters, bearing in mind that the identity of the supposed counsel is not stated; there is no evidence (apart from this email) that an advice from a "barrister" was in fact sought and provided; and that this solicitor's conduct was highly questionable. Furthermore, it does not follow that the advice, even if given, was reliable, given that nothing is known about the basis on which it was given. As I have said, the evidence before the Court about the solicitor's conduct means that the significance of such a statement, if made, is open to considerable doubt. Further, given the applicant's evident lack of knowledge of the Australian legal system, and his lack of education and proficiency in English, I would not place any great weight on the Minister's submission that there was no evidence that the applicant took steps to check whether an amended application or written submissions had been filed. 36 It may be accepted that, as the Minister submitted, the fact that the applicant was not represented at the hearing was not the fault of either the Minister or the Court. The concept of fault is not, however, relevant here. Neither the primary judge nor counsel for the Minister at the hearing intended to deprive the applicant of a reasonable opportunity to present his case, but, for the reasons stated, this was the result. It may also be accepted that, as the Minister submitted, the Federal Circuit Court did not have before it all of the information that is before this Court. The fact is, however, that if the primary judge had asked the applicant to explain when he had retained the solicitor and what had subsequently happened, his Honour would have had the gravamen of this information. Further as ALQ17 demonstrates, the fact that the Federal Circuit Court arrived at its conclusion without knowing all the facts does not mean there is no relevant error; rather, it may mean that "a relevant matter was excluded from its consideration which is an error within House v The King", and this may be so even where the error was not the Court's fault. Relevant matters were excluded from consideration in this case, principally because the primary judge failed to ask the applicant to clarify what had happened and whether or not he was seeking an adjournment. 37 Finally, as counsel for the Minister properly accepted, it was not proper in this case for the Minister to press the argument (initially advanced in written submissions) that even if the Federal Circuit Court granted an adjournment, it would inevitably have reached the same conclusion. This was because it emerged at the hearing that counsel for the applicant had not been provided with a copy of the Court Book and was therefore unable to respond on an informed basis to an argument about the underlying merits of the applicant's judicial review application. Further, I too do not have the benefit of a Court Book with the relevant materials it would contain, and I cannot therefore form a view. In any event, the applicant has not yet had a reasonable opportunity to present his case, and in order to do so he may wish to amend his application, with the addition of particulars or even new grounds. 38 The applicant agreed and the Minister did not contest that if leave to appeal were granted, then the appeal should be allowed.

Disposition 39 For the reasons stated, I would order that leave to appeal be granted; and the appeal be allowed. The orders made by the Federal Circuit Court on 19 September 2018 should be set aside and the proceeding remitted for trial in the Federal Circuit Court. The Minister should pay the applicant's costs of the application to this Court. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.