FEDERAL COURT OF AUSTRALIA

DTF17 v Minister for Immigration and Border Protection [2019] FCA 2074

ORDERS

THE COURT ORDERS THAT:

1.    The matter be listed for hearing on 6 March 2020 at 10:15am.

2.    Any application to amend the originating application and written submissions in support of the application to amend the originating application and the amended grounds must be filed and served by 21 February 2020.

3.    The first respondent is to file and serve any submissions in response by 28 February 2020.

4.    The applicant is to pay the costs of the adjournment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE)

STEWART J:

1    This is an application for judicial review, under s 39B of the Judiciary Act 1903 (Cth), of a decision of the Federal Circuit Court. That decision, on 13 September 2018, dismissed the applicant’s application for an extension of time under s 477 of the Migration Act 1958 (Cth). The extension of time was sought for an application for judicial review of a decision of the Immigration Assessment Authority, affirming the decision of a delegate of the Minister for Immigration and Border Protection, refusing to grant the applicant a Temporary Protection (Class XD) visa.

2    The originating application was filed on 15 November 2018, together with an affidavit. At that time, the applicant was represented by Revelman Legal. By orders of the original docket judge, on 13 December 2018 the application was set down for hearing on 5 April 2019. The matter was thereafter re-docketed to me. The application raised two grounds of review, one of which turned on the Circuit Court judge’s failure to publish written reasons for his decision. The other turned on a failure by the Authority to disclose the fact of a certificate issued under s 473GB of the Act. The legal consequences of such a failure were pending for consideration in a different case in respect of which special leave to appeal had been sought to the High Court. That case was BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196 which was ultimately decided on 9 October 2019.

3    In March 2019, the Minister’s solicitors, with the consent of the applicant, sought that the present matter be adjourned pending a decision by the High Court in BVD17. It was then listed for today, pending publication of that judgment. After the judgment in BVD17 was published the parties were advised by the Registrar that the matter would proceed today.

4    At that time, the applicant was represented by a barrister, apparently on a direct access basis. On 5 November 2019, the barrister wrote to the Registrar informing the Court that having considered the BVD17 decision, the applicant would withdraw the sole ground of review in the application. It was thereby assumed that the other ground had been abandoned because the judge of the Circuit Court had by then published written reasons. Counsel advised that an amended application advancing new grounds would be filed by close of business on 12 November 2019.

5    On 18 November 2019, the applicant’s Counsel wrote to the Court advising that she would be withdrawing from the matter as she had no instructions from the applicant. The parties were thereafter advised by the Registrar that the matter would nevertheless proceed today.

6    When the matter was called this morning for final hearing, the applicant appeared self-represented. He made an application that the matter be adjourned for a period of several months. He explained from the bar table with the assistance of a Tamil-English interpreter that he had raised approximately half the barrister’s required funds, but that he still had to raise the other half.

7    The applicant explained that the barrister had withdrawn because he had been unable to pay her what she had required. The applicant explained that he had lost his source of work during the winter, but now that the summer is upon us he is able to get work again and he anticipates being able to raise the necessary remaining funds within the period already mentioned. As with the Court, Counsel for the Minister was taken by surprise by the adjournment application. As a consequence he did not have instructions from the Minister as to the Minister’s attitude to the application.

8    Counsel nevertheless fairly drew my attention to various relevant matters that might weigh both for and against an adjournment being granted. In particular, the matter has been in the Court for quite some time, and in view of the decision of the High Court in BVD17 it would appear to have little merit. Counsel also drew attention to the fact that there are grounds of review, which appear to have been prepared by lawyers, presently before the Court in the applicant’s originating process and supporting affidavit – so there are grounds that can be heard and decided today. Counsel did not draw attention to any particular prejudice that the Minister would face in the event that an adjournment is granted. I do, however, note that if the matter is adjourned the Minister would have expended time and cost, which may be unrecoverable, in preparing for and appearing today.

9    I also note that this is not a matter where there has been any decision adverse to the applicant with respect to his character and it is therefore not suggested that there may be any prejudice to the wider community if the applicant is granted an adjournment and he remains in the community on a bridging visa in the meantime.

10    Counting against granting the applicant an adjournment is the fact that this matter has been before the Court for more than a year now, albeit that a considerable part of that time period has passed on account of waiting for the decision in BVD17. The current grounds of review as set out in the originating process would also appear, on their face, to have little merit. Further, the Minister may face expenses that may be unrecoverable. It is obviously in the Minister’s interests, and indeed in the interest of the broader administration of justice, if matters such as this proceed efficiently and expeditiously.

11    Against those considerations, I take into account that the applicant is of Tamil ethnicity from eastern Sri Lanka. The Authority accepted the applicant’s claims that he was involved with the Tamil National Alliance and was threatened by a rival group, referred to as the TMVP.

12    The Authority also accepted that there is a real chance that the applicant will be targeted for serious harm by the TMVP if he returns to eastern Sri Lanka. The Authority found, however, that the applicant would not face a serious risk of harm outside of eastern Sri Lanka and so would be able to relocate to another part of Sri Lanka. These matters are relevant because if I refuse the adjournment, proceed with the matter today and conclude that there is no merit in the application, then I infer that the likely consequence is that the applicant will have to return to Sri Lanka.

13    Contrary to the finding of the Authority, the applicant told the Court today that he will be in danger in other parts of Sri Lanka, not only in eastern Sri Lanka. He draws attention to the fact that Sri Lanka is a small country, and he points to recent changes in the political circumstances in Sri Lanka which he says heightens the danger to him. I am not able to evaluate whether what he says is correct, or whether indeed he will be in danger if he is returned to Sri Lanka. Nevertheless, if what he says is correct, the consequences of refusing an adjournment may be very grave for him, and I weigh that against the other factors including that on the face of it, at least at this stage, his application would appear to have little merit. However, I also take into account that the barrister formerly representing him indicated that she had the intention of formulating new grounds of review, from which I infer that she had identified reasonably arguable grounds to be advanced.

14    I consider the safer, and correct, course is to grant the applicant the adjournment that he seeks. In that regard, I will put the applicant on terms as to the period within which any proposed amended originating process must be filed and served, and also submissions in support of the amendments and any new grounds of review.

15    Given the time that has passed, and the length of time I am prepared to give for an adjournment on this occasion, it would seem unlikely that any further adjournment would be granted unless there was a marked change in circumstance and different grounds for an application for such an adjournment.

Associate:

Dated:    9 December 2019