Waensila v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal against the judgment of the Federal Circuit Court of Australia (FCCA) delivered ex tempore on 21 August 2015. The FCCA proceeding involved a judicial review of a decision of the former Migration Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) which affirmed the Minister's delegate's decision to refuse the appellant a Partner (Temporary) (Class UK) visa (the partner visa). 2 One of the grounds raised in the judicial review application related to the Tribunal's view that, in determining whether or not to waive certain criteria which had to be satisfied at the time of the visa application for a partner visa to be granted (see cl 820.21 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations)). The question is whether the decision-maker's satisfaction that there were compelling reasons for not applying some of those criteria, as provided in cl 820.211(2)(d)(ii), could only be determined by reference to events which existed as at the date of the visa application and not some subsequent date, including the date that the decision was made. In support of this construction of the waiver provision, the Tribunal referred several times to the decision of Wilcox J in Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438; (2002) 116 FCR 557. In that decision, his Honour held that the question of whether the decision-maker was satisfied that there were compelling reasons to justify a waiver of the relevant criteria was limited to events which existed as at the date of the visa application. In reaching that conclusion, Wilcox J rejected the position which was then advanced on behalf of the Minister that it was open to the decision-maker to take into account events which existed not only at the time of the visa application, but also as at the date of the decision on that application. To support this position, the Minister relied on extracts from the Explanatory Statement to the relevant amendments to Sch 2 of the Regulations (which, relevantly, commenced on 1 August 1996). The relevant discussion by Wilcox J is to be found in [30]-[39] of his Honour's reasons for judgment. 3 In the FCCA proceeding below, the appellant was represented by Mr Kumar of Counsel, who contended that the Tribunal erred in confining the question of waiver to events as at the date of the visa application. The primary judge rejected that contention. His Honour stated at [11] that he did not regard Wilcox J's reasoning as determinative of the construction of the relevant provision, but that the view taken by the Tribunal was also supported by the text and context of the relevant provision, "taking into account the headings and the work done by the respective provisions so as to give a harmonious reading". 4 It is evident from the notice of appeal that the appellant wishes to challenge the correctness of the primary judge's reasoning on this issue, as well as reagitate ground 2 of his judicial review application below, which was also unsuccessful. 5 On 14 September 2015, directions were made by a Registrar of this Court with a view to the appeal being heard in the November Full Court sittings. On 15 October 2015, the appeal was subsequently listed to be heard today. The appellant was directed to file an outline of his written submissions in early November. He failed to be so. In contrast, the respondent filed his outline of written submissions in accordance with the Court's directions. 6 On Monday, 9 November 2015, the appellant emailed the Court Registry and requested that the hearing be postponed. He said that he was unemployed and had failed to arrange his lawyer's fees. He added, however, that a lawyer (whom he later identified as Mr Kumar) had now agreed to represent him but was unable to appear today. He said that Mr Kumar would be available to represent him on the hearing of his appeal on any of the following dates: 9-11 February; 17-19 February or 22-29 February 2016. 7 The Minister did not consent to the hearing being adjourned. 8 The Registry informed the appellant that he should file and serve a formal application for an adjournment as well as a supporting affidavit and that he should be prepared to argue his appeal today if his adjournment application was unsuccessful. 9 When the matter was called this morning, the appellant appeared for himself and sought and was granted leave to file in Court an interlocutory application seeking an adjournment, as well as a supporting affidavit sworn by him on 16 November 2016. Mr Waensila explained in his affidavit that Mr Kumar could not appear for him today but was willing to appear for him at the hearing on a "suitable date". 10 The question whether or not to grant an adjournment involves exercise of a discretion, which must be exercised judicially. There is a wide range of circumstances in which such an application is made, as is illustrated by cases such as Jafari v Minister for Immigration and Multicultural Affairs [2000] FCA 847; SZOIG v Minister for Immigration and Citizenship [2012] FCA 1250; SZTUL v Minister for Immigration and Border Protection [2014] FCA 1427 and MZZGY v Minister for Immigration and Border Protection [2014] FCA 488. The Court must weigh the competing considerations in favour and against granting the application, always bearing in mind that the overarching objective is the due administration of justice and the interests of justice. 11 Factors which weigh against the application here were identified by Ms Burnett, who appeared for the Minister, and are: (a) the hearing has been set down for some time and the respondent has appeared today and is prepared to argue the appeal; (b) the appellant has left it very late to file a formal application and supporting affidavit; (c) the appellant failed to comply with the Court's directions for filing his written outline of submissions etc; and (d) Ms Burnett submitted that the appeal had no merit. 12 Factors which weigh in favour of the application include: (a) the appellant has apparently been without legal representation for several weeks and represented himself today; (b) although no formal application was made, the appellant did not leave it to the last moment to request an adjournment - it was made a little over a week ago; (c) the appellant has offered an explanation in his email and in his affidavit that he has been able to retain legal representation only recently, that Mr Kumar cannot appear today but is available on several days in February; (d) the appellant was represented in the FCCA proceeding by Mr Kumar. The issues raised in the notice of appeal are not lacking in complexity and it is highly desirable that the appellant have the benefit of legal representation. I should add that, without expressing at this early stage any final view as to the prospect of the appeal, I do not accept Ms Burnett's submission that the appeal is lacking in merit; and (e) adjourning the hearing of the appeal to February 2016 constitutes a relatively short delay, particularly when compared with the lengthy delay in the Department determining the appellant's partner visa application, as is reflected in the fact that it took almost three and a quarter years after the application was lodged before the appellant was informed that his application had been refused. 13 On balance, I consider that it is in the interests of the due administration of justice in the circumstances here that the adjournment be granted, however, the appellant must bear the costs of the Minister thrown away. 14 I will make orders accordingly and also give directions to ensure that the hearing proceeds in February 2016. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.