Remely v Minister for Immigration and Border Protection [2014] FCA 619 | Case summary

REASONS FOR JUDGMENT 1 As long ago as 12 August 2010, Mr Arun Nepal applied to the Minister for Immigration and Citizenship, as the first respondent's office was then known (Minister), under the Migration Act 1958 (Cth) (the Act), for a visa known as a Partner (Temporary) (Class UK) visa. On 2 February 2011, a delegate of the Minister refused Mr Nepal's application. Mr Nepal then sought the review of that decision by the Migration Review Tribunal (Tribunal). 2 It was not until 26 April 2013 that the Tribunal finally decided the outcome of the review application. On that date, the Tribunal decided to affirm the decision of the Minister's delegate not to grant Mr Nepal a Partner (Temporary) (Class UK) visa. There are numerous criteria which must be satisfied in relation to that particular visa. Of those specified in the Migration Regulations 1994 (Cth) (Regulations) made under the Act, the critical one, so it proved in the proceedings before the Tribunal, was that specified in clause 820.211(2), which requires, materially, that, at the time of the visa application, the visa applicant be the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The Regulations require that the visa applicant be sponsored by that spouse or de facto partner. 3 The sponsoring person and the person advanced in the visa application as the de facto partner of Mr Nepal was Mr Otto Remely. In deciding to affirm the decision of the Minister's delegate, the Tribunal, after an elaborate detailing and consideration of the material before it, stated (at paragraph 97) that it was not satisfied that, at the time of the application, Mr Nepal was Mr Remely's de facto partner. That, so the Tribunal considered, was fatal to the setting aside of the Minister's delegate's decision. 4 On 20 May 2013, an application naming Mr Remely only as applicant and the Minister and the Migration Review Tribunal as first and second respondents respectively was filed in the Federal Circuit Court. By that application, Mr Remely sought the judicial review of the Tribunal's decision on six grounds specified in the application. 5 A first directions hearing date in respect of the judicial review application was fixed by the Court for 24 July 2013. Before then, by a letter of 18 July 2013, sent by Express Post to the post office box address in Bundaberg nominated by Mr Remely on the judicial review application as his address for service, the solicitors for the Minister drew attention to two sections of the Act, namely s 479 and s 486C. Materially, the effect of s 479 was that, as the applicant in the review by the Tribunal, only Mr Nepal was competent to be an applicant for judicial review of the Tribunal's decision in that court: see s 479(a). Were there any doubt about that position, that was put to rest by s 486C(2)(a) of the Act, the effect of which in the circumstances was also that it was only Mr Nepal, not Mr Remely who was competent to be an applicant for judicial review. 6 Having drawn attention by their letter of 18 July 2013 to these sections and to related pertinent authority in this Court, the Minister's solicitors stated: If Mr Nepal wishes to continue these proceedings, he should apply to the court to amend the title of the proceedings to substitute the name "Arun Nepal" for the name "Otto Remely" as the name of the applicant in the proceeding. In that letter the Minister's solicitors also advised that they held instructions to apply to the court to dismiss the proceeding at the first court date in the event there was no application for substitution of the applicant. 7 On 24 July 2013, the Federal Circuit Court (Judge Burnett) ordered, materially, that the application be adjourned, pending an application being made by Mr Arun Nepal to be joined as a party to this application. His Honour ordered that the matter be adjourned for mention at 9.30 am on 7 August 2013. 8 On 31 July 2013, Mr Remely filed an application in the Federal Circuit Court for an order that "the visa applicant, Mr Arun Nepal, be joined as party to the application". Filed in support of that application was an affidavit affirmed by Mr Nepal in which he stated the following: 1. I am partner of Otto and we live in unit of Queensland Housing. We are now living together over four years. We are happy together and need each other. I do not understand legal stuff and could not do like Otto. 2. I work as picker on local farm and last year my income was $12,043. Otto has government pension and all our money is used up for living. We worry very much that I will not be able to stay with Otto because we have no lawyer. 3. Law requires that I become party in application and I want to do that and I want Otto to speak for us both. 9 By a letter dated 2 August 2013 addressed and sent to Mr Remely, the Minister's solicitors put to him that the application filed on 30 July 2013 did not comply with the court's order made on 24 July 2013 in relation to an application made by Mr Nepal to be joined as a party to the application. The Minister's solicitors continued: It is not sufficient to file an affidavit of Mr Nepal saying he wants to become a party to the proceeding and that he wants you to speak for you both. If Mr Nepal wants to become a party to the proceeding he must make an application to be joined. The Minister's solicitors requested that this be rectified and, if not, that they would ask the court on 7 August 2013 that the interlocutory application filed on 31 July 2013 and the originating application filed on 28 May 2013 be dismissed with costs. 10 On 7 August 2013, the Federal Circuit Court (Judge Burnett) ordered that the application be adjourned for mention on 27 August 2013 before another judge of the court (Judge Coates), sitting at Bundaberg. On its face the order recites that the applicant on his own behalf and a practitioner for the Minister and the Tribunal were heard. It is not clear whether Mr Remely was on that date heard in person or via telephone. 11 In the result, there was no substantive dealing with the originating application or, it seems, the earlier interlocutory application at Bundaberg on 27 August 2013, but rather a further adjournment. Thereafter, on 19 September 2013, a further interlocutory application was filed in the Federal Circuit Court. On this occasion the application stated that it was made by Mr Remely and Mr Nepal. In the orders sought, the following appears: To amend original application under Migration Act as follows: That the applicant's name Mr Otto Remely be amended to: Mr Otto Remely representing Mr Arun Nepal or in the alternative Mr. Arun Nepal applies in the person of his Power of attorney Mr. Otto Remely or in the alternative Mr Arun Nepal AND Dismiss the application for summary dismissal if validly made by the respondents. [sic] [emphasis in original] 12 In support of that application a further affidavit of Mr Nepal and an affidavit of Mr Remely, each made on 17 September 2013, were filed on 19 September 2013. In his affidavit of 17 September 2013, Mr Nepal stated: 1. I have made similar affidavit before and say these things extra. When we first applied for my visa we fill in form for Otto to be my agent. Now with new court I sign additional form and make Otto power of attorney. 2. I was with Otto at hearing on 7 August 2013 at TAFE College. When hearing begin Otto ask man to make phone louder. Then he also ask judge but he said was okay and he will make one-way only and list for summary dismissal. I do not understand what that means but Otto was very upset. 3. On phone judge was not very loud and we could almost not hear. We could not hear anybody else in the room. At the end judge said for Otto to get legal advice. We have no money for lawyer. Otto tried but didn't do any good. 13 Attached to that affidavit was a document entitled "Particulars to the Application to Amend Originating Application and to Summarily Dismiss the Originating Application". The document was signed by both Mr Remely and Mr Nepal. Interestingly, in the penultimate paragraph of this document, Mr Remely and Mr Nepal draw attention to a judgment of the Full Court of this Court in Yong v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 155 in which in turn reference is made to this passage in the judgment of Griffith CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342: The point is a purely technical point of pleading, and I cannot refrain from expressing my surprise that it should be taken on behalf of the Crown. It used to be regarded as axiomatic that the Crown never takes technical points, even in civil proceedings, and a fortiori not in criminal proceedings. I am sometimes inclined to think that in some parts - not all - of the Commonwealth, the old fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken. [emphasis in original] 14 Having set out that passage, Mr Remely and Mr Nepal conclude the document in this way: It is respectfully submitted that, if indeed it is justifiable, the name or description of the applicant on the application be amended in a way that the court considers appropriate and that the application for an order to show cause is dismissed. [sic] 15 This interlocutory application filed on 19 September 2013, though originally fixed for hearing on 27 September 2013, came in the result to be heard by the court below (Judge Coates) on 17 October 2013. It seems that the hearing that day entailed an appearance by telephone by Mr Remely. It is not apparent from his Honour's later reasons for judgment whether Mr Nepal appeared that day or spoke via Mr Remely with the court's permission. In any event, on 11 March 2014, for reasons which his Honour then published, the following orders were made by the Federal Circuit Court: 1. That the title of the proceeding be amended by deleting the description of the first respondent as the Minister for Immigration and Citizenship and inserting the description as the Minister for Immigration and Border Protection. 2. That the Application in a Case filed 7 August 2013 be dismissed. 3. That the Application in a Case filed 19 September 2013 be dismissed. 4. That the Application - Migration Act filed 28 May 2013 be dismissed. 5. That the Applicant pay the Respondent's costs fixed in the amount of $4,636. [sic] 16 The reference in that order to an application filed 7 August 2013 would appear to be in error, and instead intended to be a reference to the application filed on 31 July 2013. 17 On 28 March 2014, a notice of appeal against the orders made on 11 March 2014 was filed in this Court. There are two named appellants, Mr Remely and Mr Nepal. Each has signed a notice of appeal. 18 Apart from taking issue as to whether there had been, truly, an application for summary dismissal in the Federal Circuit Court, and also with respect to the efficacy, for the purposes of the subject litigation, of a power of attorney, the grounds specified in the notice included this as ground 2: Application to substitute the name was validly made by Mr Nepal. [sic] 19 The proceeding so instituted was, in accordance with the Court's usual practices in respect of the exercise of its appellate jurisdiction, listed for hearing today in Brisbane. 20 After the notice of appeal was filed, the solicitors for the Minister filed an objection to competency. The objection to competency was grounded upon the proposition that the judgment of the Federal Circuit Court of 11 March 2014 was an interlocutory judgment and that, because leave to appeal was thereby required and none had been sought and none granted, the appeal was incompetent. This in turn drew an application by Messrs Nepal and Remely for leave to appeal and a related extension of time within which to seek leave. These applications, also, are listed for hearing today. 21 In the meantime, Mr Remely and, reading the correspondence concerned fairly, also Mr Nepal made interlocutory application for the hearing today to be conducted by telephone insofar as they were concerned. I heard that interlocutory application on 14 May 2014. On that day, I permitted Mr Remely to appear for the purposes of that application by telephone. I also permitted him, in response to his request in that regard, to speak, not only on his own behalf but also on behalf of Mr Nepal. I made it plain to him that day that that permission was solely for the purposes of the proceeding that day. In the result, I decided not to permit an appearance by telephone today. I did, though, by order pronounced orally at the time, vary the listing time for today from 10.15 am to 10.30 am. I shall elaborate on why I did that shortly. 22 When the proceedings were called on this morning at 10.30, there was not appearance by or on behalf of either Mr Nepal or Mr Remely. 23 That absence of appearance confirmed a position communicated by telephone earlier in the morning by Mr Remely to the Court's District Registrar, in which he advised that he and Mr Nepal would not be appearing. Mr Remely also made reference in that telephone call to an affidavit and medical certificate which he said had been sent by post to the Court. He was advised by the District Registrar that no such affidavit or certificate had been received in the morning's mail. A search which the District Registrar caused to be conducted of the registry has not unearthed such correspondence as yet having been received in the registry. 24 This communication from Mr Remely and that position was communicated to counsel for the Minister at the commencement of the hearing. On behalf of the Minister, the submission was made that the hearing should nonetheless proceed, with the question of whether or not to grant any extension of time and related leave to appeal being dealt with substantively, along with the question of the appeal's competency. Particularly, for reasons which I shall shortly set out, this seemed to me the most convenient and appropriate way to proceed. 25 Before turning to the merits of the question as to whether there should be an extension of time and grant of leave to appeal to either or each of Messrs Nepal and Remely, a brief summary should be given of the reasons why the Federal Circuit Court made the orders on 14 March 2014. 26 Having referred to Mr Nepal's affidavit of 31 July 2013 and in particular, to the passage in that affidavit wherein he stated: Law requires that I become a party in application and I want to do that and I want Otto to speak for us both. The primary judge stated (at paragraph 17): I note he states he wants to become a party, not an applicant. 27 Having accepted that a change in the title of the respondent Minister, was a "technical amendment", his Honour observed (at paragraph 25): The applicant's case for a change in title and effectively, the applicant, is of a very different nature. 28 It will be noted that his Honour has used the singular, rather than the plural in his reference to what he described as a "case for a change in title and effectively, the applicant". His Honour then stated that at reasons (at paragraph 26): For an unknown reason and despite everything that has been said in court which would allow Mr Nepal personally to file an application, the applicant seeks to add Mr Nepal as a party. 29 His Honour then devoted considerable attention to the question of whether or not s 8 of the Powers of Attorney Act 1998 (Qld), had the effect of authorising the donee of a power of attorney to institute a legal proceeding, such as an application for judicial review under the Migration Act on behalf of another. His Honour concluded (paragraph 50): The applicant cannot simply sidestep the restriction by relying on a mishmash of other provisions and his interpretation of meaning is to overcome the plainly stated powers available under section 8 of the Powers of Attorney Act. 30 Having regard to s 479 and s 486C of the Act and to this Court's judgment in Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1602, his Honour concluded that Mr Remely had no power himself to challenge the decision of the Tribunal and further, that the power of attorney which he purported to exercise was, "incapable of rectifying the standing issue". For these reasons, his Honour concluded that the interlocutory application filed on 19 September 2013 should be dismissed and further, that the originating application filed on 28 May 2013 should be dismissed. 31 Before the Federal Circuit Court, the Minister's position was, so I was informed and do not doubt, was that there had never been any question before that court of the Minister's opposing the granting of such extension of time as was necessary to Mr Nepal to become an applicant for judicial review. Section 477 of the Act specifies a 35 day time limit but grants to the Federal Circuit Court a power to extend that period if the court considers that is appropriate in the interests of the administration of justice. The position adopted on behalf of the Minister in relation to an extension of time nicely exemplified the sense of fair play to which Griffith CJ referred in the passage set out above and quoted by Messrs Nepal and Remely in their document of 17 September 2013. 32 In deciding that the proceeding should be heard today in Brisbane, notwithstanding the application made by Messrs Remely and Nepal, I particularly took into account my experience in the course of the hearing of that application of on 14 May 2014 in dealing over the telephone with Mr Remely. Even in respect of an application narrow in its focus, it became evermore apparent to me that Mr Remely was inclined to be garrulous and found difficulty in focusing upon the particular issue for the day, namely, whether there should be an adjournment. 33 The material upon which Mr Remely relied at the time made it plain that he was suffering from a number of medical difficulties. He also was expecting to take up an offer for some remedial surgery in Brisbane the next month (June). Taking into account his medical difficulties and in the course of the hearing on 14 May 2014, I offered to Mr Remely that the appeal and related applications could be heard in Bundaberg probably in the week starting 26 May 2014. The Minister, again exemplifying that sense of fairness to which Griffith CJ referred, indicated that there would be no objection to that course, rather the reverse. 34 Mr Remely declined that offer in the course of the hearing on the basis that it presented no advantages to him. That was because he had, so he said, the documents concerned set up on his computer at home and that he was thereby able to enlarge them to a larger font (16 point). In the course of the hearing, the Minister signified that he would provide 16 point expanded versions of the bundle of relevant documents and other documents at a hearing if it were to be conducted in Brisbane. 35 I was on 14 May 2014, and remain, of the view that it would have been quite impossible, having regard to the myriad of issues and related documents entailed in hearing the appeal, the objection to its competency and the application for an extension of time and related leave to appeal application to have conducted the proceeding with Mr Remely being heard by telephone. I was and remain of that view particularly having regard to the way in which Mr Remely conducted himself on 14 May 2014. 36 Lest it be thought that there is an adversely critical element to my observation of garrulousness, I should record that Mr Remely has, for reasons which I will set out shortly, every reason to be upset with the administration of justice in the court below in terms of the result which ultimately occurred. Further, there is an abundance of evidence to support the existence of a strong bond between him and Mr Nepal. Mr Nepal, too, has every reason to be upset with the administration of justice as it transpired in the court below. Even so, there is still a necessary degree of difference to the orderly conduct of a judicial proceeding which must attend the making of any submissions. When a proceeding is conducted by telephone and when the issue is one which is so deeply personal even following when one is permitted and not permitted to make submissions and deferring to judicial control of proceedings can be difficult for a litigant in person. That difficulty was on display on 14 May 2014. 37 The choice then on 14 May 2014 was a difficult one indeed. A hearing by telephone was not appropriate for today. A hearing locally was declined. All that remained was the usual position of an exercise of jurisdiction here in Brisbane. In deciding to retain that hearing but amend slightly the commencement time, I took into account the availability of rail travel between Bundaberg and Brisbane and, in particular, that the Roma Street Railway Station is but a short distance from the Commonwealth Law Courts. I also took into account that there is, if need be, ready access to taxis at that railway station. 38 The Minister's submissions in respect of the notice of appeal, objection to competency and application for leave entailed an endeavour to defend the decision below, albeit, as the hearing today evolved, increasingly faintly. The difficulty, with the very greatest respect to the primary judge, is that his Honour has failed to appreciate that the joinder application before him was not just that of Mr Remely or even Mr Remely on behalf of Mr Nepal, but of Mr Nepal in his own right. In making that observation I am, to say the least in light of my own experience with this case, fully conscious of the difficulties that attend, not only dealing with litigants in person generally, but with these litigants in particular. 39 As will be apparent from the portions of his affidavits which I have quoted, Mr Nepal has only limited English literacy. There is nothing, though, which would suggest he is incapable of communicating in English, quite the reverse. If one does read his affidavits and the related interlocutory applications, his desire to challenge the Tribunal's decision in the Federal Circuit Court is patent. That absence of recognition of the nature of the application before the court is fatal to the Minister's submission that an extension of time and related grant of leave to appeal should be refused. 40 It was raised on behalf of the Minister that, even if there were that particular flaw in the way in which the Court below dealt with so much of the application as entailed an application for Mr Nepal to become the applicant party, an extension of time and related grant of leave to appeal should nonetheless be refused because, when one had regard to the ground of review, the conclusion would be reached that the application for review had no reasonable prospect of success. I accept fully that prospects can be considered on an application for an extension of time and related grant of leave to appeal. The difficulty here is that neither Mr Remely nor, even more particularly, Mr Nepal has never been squarely been put on notice that an alternative basis upon which an application for a grant of an extension of time and related grant of leave to appeal would be opposed was that it was futile. There is some passing reference to this subject in the Minister's submissions, but that particular question is raised no higher than that. Upon reflection and, again, exhibiting that same sense of fairness referred to Griffith CJ, counsel on behalf of the Minister quite properly observed that she would feel "uncomfortable" in the event that the application for an extension of time and related grant of leave to appeal were dealt with on that basis. 41 In Tinkler v Elliott (2012) All ER 94, (2012) EWCA Civ 1289 at [32], the Vice President or Kay LJ, with whom Munby and Lewison LJJ agreed, made the following observations in respect of an attempt, well out of time, by a litigant-in-person to challenge a judgment given in the original jurisdiction: I accept there may be facts and circumstances in relation to a litigant-in-person which may go to an assessment of promptness, but in my judgment they will only operate close to the margins. An opponent of a litigant-in-person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant-in-person. A number of judges of this Court, myself included, have expressed agreement with the sentiments voiced in the Court of Appeal: see Ejueyitsi v Bond University [2012] FCA 1514; Ioannou v Commonwealth of Australia [2012] FCA 1228, McKerracher J; O'Donoghue v Australian Information Commissioner [2012] FCA 1219, McKerracher J; Singh v Owners Strata Plan No. 11723 (No. 4) [2012] FCA 1180, Griffiths J; Huang v Abayawickrama [2012] FCA 1504, Rares J; and Dobson v Australian Postal Corporation [2013] FCA 320. Excessive indulgence is one thing; a miscarriage of justice is another. 42 Further, in relation to prospects below, it is important to recall that, at the very least, an exercise of judicial power must entail an affording of procedural fairness in the circumstances of the particular case. The Full Court offered a recent reminder of that in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 (SZRUR). 43 The primary judge in the present case notably referred to SZRUR in observing (at paragraph 87): Procedural fairness has been extended to the applicant and to a possible applicant party. 44 Procedural fairness entailed, amongst other things, dealing with the joinder application as made. As I have observed, it was patent, when one reads the application of 19 September 2013, that Mr Nepal wanted to be an applicant. That application was never dealt with on its merits as it should have been. Instead, and doubtless reacting to the course that proceedings took on 13 October 2013, the primary judge was, unfortunately, diverted into the interesting but ultimately irrelevant question as to whether Mr Remely could, as the holder of a power of attorney, institute the judicial review proceeding in his own name on behalf of Mr Nepal. There is no need to consider that point. That is because Mr Nepal always sought, at least in the alternative, to be an applicant himself and in his own name. Further, there was nothing before the court below to suggest that Mr Nepal required even a next friend to conduct litigation. 45 There is no point to be served by a separate, later hearing of an appeal. Instead, the argument in respect of the application for an extension of time and leave should be treated as that in respect of the appeal proper with the appeal being determined instanter. 46 Mr Nepal and Mr Remely each should be granted an extension of time and leave to appeal, but on a limited basis. That limited basis must reflect the effect of s 477 and s 486C of the Act and also the nature of the interests respectively affected by the orders made in the court below on 11 March 2014. Mr Remely cannot be an applicant for judicial review. To the extent that the orders made below dismissed so much of the application of 19 September 2013 as sought to make him an applicant, they should not be disturbed. His Honour, though, has proceeded on the basis that Mr Remely only was the applicant and has made a costs order against him. Given the misapprehended basis upon which the case came to be dealt with below, Mr Remely's challenge should be confined by leave to that costs order. Further, that costs order should be set aside. 47 Mr Nepal's interests are more pervasive, particularly in light of the commendably benign stance adopted by the Minister below in relation to any grant of an extension of time under s 477. Mr Nepal, had the nature of the interlocutory application truly been understood, should have been granted an extension of time within which to bring a judicial review application and his name ought to have been substituted on the existing application as applicant. No costs order was made against him. So much of the orders made on 19 September as dismissed his application to become an applicant party should be set aside with the requisite grant, insofar as the same may be needed, of an extension of time within which to bring a judicial review application. 48 The other order under challenge, that of 7 August 2013, was but an adjournment order. It should not be disturbed. It had no effect substantively adverse either to Mr Remely or to Mr Nepal. 49 Because Mr Nepal has not been given an opportunity to be heard in relation to the merits of the judicial review application, it would be inappropriate for me deal with those merits in these reasons for judgment. That is so even though I fully accept that there is at least pause for thought about Mr Nepal's prospects of success. The merits of the application are, as they always should have been, with the very greatest of respect, for the Federal Circuit Court to hear and determine according to law. There must be an order of remitter to enable that to occur. 50 Mr Remely also filed an application on 6 April 2014 dealing with the subject of Mr Nepal's temporary bridging visa. That application is, with respect, misconceived. Further, having regard to the orders which I propose to make today, it is in any event unnecessary, because the Act will have a particular effect given the regularising of the challenge to the Tribunal's decision with respect to a bridging visa by Mr Nepal. 51 Mr Remely also filed a further, separate application but this really is in substance no more than a submission concerning the adequacy of service of the objection to competency. I am satisfied that the Minister employed a means authorised under the rules to serve that notice. Further, it has, in any event, come to Mr Remely and, for that matter, Mr Nepal's attention well in advance of the hearing today such that no injustice was entailed in by a hearing of the objection to competency today. It is just that, having regard to the orders which I have otherwise made, the objection to competency must fail. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Remely v Minister for Immigration and Border Protection

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