EPH17 v Minister for Immigration and Border Protection

1. Leave to appeal from the orders of the Federal Circuit Court of Australia made on 19 September 2018 be granted.
2. The appeal be allowed.
3. The orders made by the Federal Circuit Court of Australia on 19 September 2018 be set aside.
4. The proceeding be remitted for trial in the Federal Circuit Court of Australia.
5. The first respondent pay the applicant's costs of the proceeding in this Court, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNY J: 1 The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 8 June 2013. He applies for leave to appeal from the judgment of the Federal Circuit Court of Australia delivered on 19 September 2018: see EPH17 v Minister for Immigration & Anor [2018] FCCA 2809. The Federal Circuit Court dismissed the applicant's application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 11 October 2017. The IAA decided to affirm the decision of a delegate of the respondent Minister to refuse to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) Visa (SHEV). The applicant applied for a SHEV on 27 February 2017. 2 Both the applicant and the Minister filed written submissions and were represented at the hearing by counsel. 3 The applicant requires leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), because the Federal Circuit Court dismissed his application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), and a dismissal under that rule is interlocutory in nature: see r 44.12(2) of the Federal Circuit Court Rules. 4 An amended draft notice of appeal advances a single proposed ground of appeal. In substance, the applicant seeks leave to appeal against the judgment of the Federal Circuit Court because the primary judge failed to adjourn the hearing when informed by the applicant that his solicitor had withdrawn from his case the previous day. 5 In his application for leave to appeal, under the heading "Grounds of application", the applicant stated that: Application for protection visa has been rejected by Immigration Department Delegate and by the Tribunal as well as Federal Circuit Court and hence, the Applicant was very depressed and could not think properly. As a consequence, the Applicant is suffering from serious mental health problems. Migration Law and applications are complex, requiring specialised skills. The Applicant is a foreign national and a person applying for protection as a refugee. The Applicant has little or limited understanding of court proceedings in Australia. It was difficult for the Applicant to identify the next course of action. The lawyer, who agreed to represent the applicant in Federal Circuit Court; notified the applicant that he would not be attending the court, just the previous day. The Applicant has been disadvantaged such that he could not engage another lawyer to represent him in the court. 6 The applicant supported his application with two affidavits. In an affidavit sworn on 2 October 2018 the applicant deposed that he had retained a solicitor for the Federal Circuit Court proceeding, who had informed him in the late afternoon of 18 September 2018 that he would not attend the hearing before the Federal Circuit Court on 19 September 2018. The applicant deposed that if he had been informed earlier he would have engaged another lawyer, and his lack of legal representation meant he could not present his case properly. A letter sent by the applicant to the Victorian Legal Services Board (VLSB) dated 26 September 2018 reporting his former solicitor's behaviour was annexed to his affidavit. 7 The applicant's letter to the VLSB provides a clear and contemporaneous account of the applicant's plight, as viewed from the applicant's perspective. This letter, omitting formal parts, relevantly read: I am a refugee of Sri Lankan origin. I applied for Safe haven Enterprise Visa … on 27th February, 2017. Immigration Department rejected my application on 10th July, 2017 and referred the matter to the Immigration Assessment Authority (IAA). I received the information by email on 13th July, 2017 from the migration agent, VM Migration Australia. Within 10 days, after receiving the email from VM Australia; I met with Mr. Peter G Antippa, Antippa Lawyers, Room 3, Level 5, 2 Collins Street, Melbourne, Vic - 300, Phone: (03) 9650 2115 to make submission to IAA. I gave him the "Decision Record" of Immigration Department. This decision record provides all the details. I paid Mr Peter Antippa fees, as specified by him. When I met him with the Decision Record of Immigration Department, he told me that it may be harder to win at IAA. But, there is a good chance to win the case at the court. I paid him a Consultation Fee of $350/-. Later, I paid him a fee to act on my behalf with IAA $2750/-. IAA confirmed the decision of Immigration Dept. My application for Protection Visa was rejected. As I remember that Peter told me that there is a good chance to win at the courts, I decided to engage him to represent me in the court. Peter advised me that I can appeal to Federal Circuit Court. He recommended me to contact another person at Glen Waverley, who completed the application for appeal to Federal Circuit Court. I paid him $250/-. As advised, I lodged the appeal at Federal Circuit Court at Melbourne in person. Peter advised me that his fee to act on my behalf in Federal Circuit Court is $2750.00. I met with Mr Peter Antippa and paid him the fees in instalments. I met Peter Antippa again, to handover the court book and paid the balance amount. Peter advised me to send him Country Information about Sri Lanka, after I handed over the court book to him. I sent Sri Lanka country information by email. There was no further meeting or discussion about my case, either in person or over phone. I received one phone call, advising me to attend the court on 19th September, 2018 at 11:30am from his office. On 18th September, 2018, 4.23 pm; I received an email from Mr. Peter Antippa. The contents of the email is given below. "I asked a senior Barrister to look at this whole case. I wanted to try to find a way of being able to help you. I tried everything that I could to find a way for you to succeed. The Barrister believes that you will not win tomorrow. I do not want you to pay any more money for legal fees as a result. This is why I suggest that you may go to the hearing on your own, if you want to. I will not be going to the hearing because I do not want to incur you any more legal costs. [The Minister's] lawyers will ask you to pay for the government's lawyers. You have a right to negotiate with [those lawyers] as to the amount of its legal fees." I was shocked to receive this email just 30 minutes, before the office closes. I contacted Mr. Peter Antippa immediately. He told me over the phone, that "he can not help me, your case will not win, you attend the court tomorrow". When I understood that he would not be coming to the court, I was very much distressed. I could not contact any one who can advise me in this matter, as the offices are closed by 5 pm. I was mentally upset, very distressed and could not sleep. I went to court totally confused. I was afraid about my future. I could not concentrate. I did not know what to say to the court. I told the judge that the lawyer told me yesterday at 4:30 pm, that he would not come to the court. As Peter told me that he can win the case at the court, I engaged him and paid him the fees. If Peter told me that he can not represent me much earlier, I would have engaged another lawyer to take over my case. … Only now, I learnt that I could have requested postponement of the hearing. Also, I learnt now that the court will not allow any new information. Hence, I do not understand the reason for Peter's request for country information. As a consequence of Peter's actions, my mental health is affected. I have enclosed the report from the psychologist. (Emphasis in original.) 8 The applicant subsequently filed a further affidavit sworn by him on 30 January 2019, in which he relevantly deposed that: 2. I filed an application with the Federal Circuit Court in Melbourne for a judicial review of the decision of the IAA which dismissed my application for a protection visa. 3. The IAA application was made by the same solicitor who promised me to represent me in the application for judicial review. I expect my solicitor to understand the whole object of my application as he knew all the details in the application of the protection visa to the IAA. 4. The solicitor accepted my brief, but advised that I should file the application with the advice of another person whom he recommended. I was asked to pay $250 fees for the same. I filed the application which I understand that it did not include any in each of the grounds made. This I have been told is not unusual, as the actual grounds can only be made out after the studying of the Court Book. 5. The solicitor in question advised me to attend the first Directions hearing and then come back to him with the directions orders and the Court Book which I would receive. He would then proceed with the application. 6. He gave me a contract for accept and sign and to make the fee payment in instalments. I did not sign the agreement initially but I did make the regular payments which would confirm that I agreed to the terms. I signed the agreement some 8 months later just after I received the directions order and the date of the hearing. 7. When the Court Book arrived, I promptly went to the solicitor and forwarded him the Court Book for further progress of the proceeding. 8. I never heard from him until the evening of the day before the hearing. I received an email from him that he had consulted a barrister and have been advised that this application was bound to fail and as such it would be advisable for me to appear before the judge as an unrepresented litigant. 9. I did not have any time to seek the services of the alternate solicitor in the short time and I attended the court on the hearing date. 10. On that date, there was an interpreter to translate the events. I informed the court of what happened to me and that I am unable to make proper representations to support my application. I felt that my application was heard without my having presented my grounds of the appeal and the court could hear only one side of the argument. 11. I understand that the grounds of the appeal in the initial application was very general and no attempts were made to file an amended appeal to amend and particularise each ground so that the Minster would be able to file the appropriate response. While I appreciate, this is not the Minsters fault, but the Minster failed to request or agree to a request an adjournment to provide the appellant the opportunity to substantiate his claims. He is entitled to this fundamental right. 12. I felt that this is a denial of justice and that the best recourse is for the court to adjourn the matter so that I could make out the proper grounds of the appeal. 9 The affidavit of 30 January 2019 annexed a copy of the costs agreement between the applicant and his former solicitor, a receipt from the applicant's former solicitor, a copy of a relevant part of his solicitor's trust ledger, and a copy of the email he received from his solicitor late in the afternoon before the hearing. 10 The costs agreement reflected the contents of the applicant's letter to the VLSB (set out above). Amongst other costs, the agreement mentioned a sum of $1800 to go to court and a sum of about $2750 to obtain an opinion on his prospects of success. The email from his former solicitor was, relevantly, also in the terms set out in that letter. 11 The Minister relied on the affidavit of Isabelle Lulu Minnett affirmed on 21 May 2019, which exhibited a copy of the transcript of the hearing in the Federal Circuit Court on 19 September 2018. I shall refer to this transcript below.