Federal Court of Australia

Broad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 840

ORDERS

THE COURT ORDERS THAT:

1.    On or before 4pm on 30 August 2021 the applicant is to file and serve written submissions, limited to 10 pages, in support of his application for judicial review of the decision of the Administrative Appeals Tribunal made on 12 November 2020.

2.    If written submissions are filed in accordance with Order 1 of these orders, the proceeding will be listed for final hearing at a date to be fixed, subject to the making of further appropriate orders in preparation for that final hearing.

3.    If no written submissions are filed in compliance with Order 1 of these orders, the proceeding is dismissed by operation of this order.

4.    If the proceeding is dismissed in accordance with Order 3, the applicant is to pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

5.    The first respondent is to take all reasonable steps to ensure that a copy of these orders, together with the Court’s reasons for judgment, are personally served on Mr Broad in New Zealand.

6.    If the first respondent wishes to make submissions about the appropriateness of Order 5 and, or alternatively, its terms, leave is granted to the first respondent to file and serve submissions of no more than three pages on or before 4pm on 2 August 2021.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The Minister has applied for orders pursuant to s 20(5)(c) and (d)(i) of the Federal Court of Australia Act 1976 (Cth) to dismiss the applicant’s application for judicial review for want of prosecution, and by reason of the applicant’s failure to comply with a direction of the Court.

2    In support of the application, the Minister relies on two affidavits of Georgina Roberta Ellis affirmed on 5 May 2021 and 24 May 2021. Orders were made providing the applicant with an opportunity to file any responsive material and submissions, but none have been received. No communications at all have been received by the Court from the applicant since he left Australia on 9 March 2021.

3    For the reasons set out below the Court has ordered that Mr Broad have a limited further opportunity to engage in this proceeding. In the absence of any engagement by him, the application will be dismissed with costs.

Background

4    The underlying judicial review proceeding concerns a challenge to a decision of the Administrative Appeals Tribunal made on 12 November 2020. The applicant is a citizen of New Zealand and is not an Australian citizen. As a New Zealand citizen, he holds a visa by operation of law. In its decision, the Tribunal affirmed a decision of the Minister’s delegate made on 20 August 2020 not to revoke the cancellation of the applicant’s visa. The cancellation was based upon the applicant’s criminal offending and was a mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth). This series of decisions was not the first time Mr Broad had had a visa cancelled. An earlier visa held by him had been cancelled in January 2017 for previous criminal offending, but in February 2017 a delegate decided to revoke the cancellation.

5    Mr Broad was in detention when he filed his judicial review application in November 2020, and in accordance with the Court’s policy, a pro bono referral was made under r 4.12 of the Federal Court Rules 2011 (Cth). On 9 December 2020, counsel accepted the brief in accordance with the referral, with the assistance of an instructing solicitor who filed a notice of acting on 21 December 2020. The proceeding was listed for case management on 28 January 2021. On that date, however, Judicial Registrar Haag received correspondence from the applicant’s representatives to the effect that they agreed to appear at the listed case management hearing, but following the conclusion of that hearing sought to be relieved of the pro bono referral. Judicial Registrar Haag granted leave for the return of the brief under r 4.16 of the Federal Court Rules for the reasons contained in the representatives’ letter. In accordance with the Court’s usual practice in these circumstances, the contents of that letter were not communicated to the Court.

6    Thereafter, Mr Broad remained unrepresented. Given Mr Broad was in detention, the Court listed the matter on an expedited basis for final hearing, on 18 March 2021. Orders were made providing for Mr Broad to file any amended application and affidavit evidence, and written submissions, and these orders were provided directly to the applicant by email from Chambers. The communication from Chambers reiterated that the practitioners who had previously accepted the pro bono brief to represent Mr Broad had returned the brief, and that Mr Broad would therefore be self-represented from that point on. The email set out the contents of the orders in summary and provided a contact email for the Court’s Western Australian registry in the event that the applicant required assistance with the Court’s electronic filing system. No communications were received from Mr Broad and no documents were filed.

7    In the course of arranging for Mr Broad to appear at the final hearing from Yongah Hill Detention Centre in Western Australia, the Court was informed by officers at the detention centre that the applicant had been removed to New Zealand. Upon further inquiry, the Court was informed by the Minister’s legal representatives that the applicant had requested removal to New Zealand. A copy of the removal request was provided. It is also annexed to Ms Ellis’ 5 May 2021 affidavit.

8    Notwithstanding the explanation given on behalf of the Minister, I consider the fact that Mr Broad was removed from Australia without the Court being informed that this was scheduled to occur, is unsatisfactory.

9    Similar circumstances have been the subject of observations by the Full Court: see SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; 233 FCR 279. The Minister relied on this decision. In that case, an applicant for judicial review was involuntarily removed from Australia to Sri Lanka, and an email informing the Court of this event was sent to a generic email address at the NSW Registry of the Court. The Court initiated a process to ascertain how and why the applicant had been removed, which included a direction that the Minister file evidence about the circumstances of the applicant’s involuntary removal. A hearing was scheduled, with a three member Court constituted because of the importance of the issues surrounding removal of a litigant while they had a case pending before the Court. Despite attempts to contact the applicant in Sri Lanka, there was no appearance at the hearing on behalf of the applicant and the Minister moved for the proceeding to be dismissed.

10    At [20] the Court (Allsop CJ, Besanko and Mansfield JJ) held that it would be too wide a proposition to say that no removal of a party can take place “whilesoever any application remains pending in the Court”. At [25] the Court noted the (then) internal policy of the Department that an individual would not be removed while they had merits review on foot, an entitlement to seek judicial review or were seeking judicial review, subject to a range of exceptions where a person needed leave to proceed (eg an extension of time) and subject to assessments in some circumstances about the merits of an existing proceeding (eg indications of vexatiousness). The policy also provided for notice to be given to a person about their removal, in various periods generally extending between 48 hours and 7 days but in some cases of less than 48 hours.

11    The Court referred to the (then) existing practice in the Federal Circuit Court where a person was proposed to be removed, which involved notification being given to the Court. The Court also noted (at [35]) evidence given on behalf of the Minister that

in 2012, the High Court Deputy Registrar told the Department that it was not appropriate to notify the Court of the proposed removal of a plaintiff in a matter in the original jurisdiction of the High Court.

12    The Court held at [37] that the attitude of the High Court Deputy Registrar was appropriate. It continued (at [37]-[39]):

The Court is not an adjunct of the Executive; nor does it act for, nor should it be seen to act for, or in the interests of, the applicant. One might ask rhetorically: What is the purpose of notifying the Court of the impending removal? If the answer is: so that the Court may, in the interests of the applicant, or for the sake of good order, promptly list the applicant’s application and have her or him brought to Court to press the application, there is a danger that the Court is being seen to be directed by the Department as to the time and place for the exercise of judicial power. The function of the Court is to hear and determine controversies in the exercise of judicial power of the Commonwealth, brought before it by the parties. If there is no legal impediment to the person being removed from the country, it will be a matter for the person concerned to bring an application to restrain the Minister from removing the person from Australia. As has already been discussed, there is a duty upon the person holding the applicant in immigration detention to provide reasonable facilities for the obtaining of legal advice and the making of a relevant application. This duty includes the person being given a reasonable time to seek that advice and to make that application.

A further difficulty arises in relation to giving notice to the Court. If, as was done in this case, the person in detention is informed that the Court has been informed, there is a danger that the detainee will be encouraged to think that the Court will list the matter promptly for him or her. What other purpose in the communication to the Court might there be, in that person’s eyes? Further, this is precisely what the Federal Circuit Court has apparently been doing. So if the Court, in the exercise of its administration, does not list the matter in time, and the detainee is removed, perhaps having been of the view that the Court will do something by way of listing her or his matter, the Court can be seen to be to blame for the applicant’s predicament.

Whilst it may be perhaps understandable that Mr Dwyer thought it appropriate to tell the Court, that was no doubt because the action of removing the applicant might be seen as having a tendency to undermine the exercise of judicial power that is sought by the detainee, to the extent that an application was on foot for the making of an order in relation to his status. However, for the reasons given, that step is not appropriate.

13    However, the Court went on to place those views in the context of an assumption that any detained person would have the benefit of s 256 of the Migration Act, which provides:

256 Person in immigration detention may have access to certain advice, facilities etc.

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

14    At [45]-[46], the Court explained:

We are not prepared to conclude positively that this applicant had the full benefit of s 256 of the Act. Whilst he appears to have been informed on a number of occasions of the Department’s unwillingness to regard his application for an extension of time as a matter which would prevent his removal, he was given only three working days to bring an application in relation to the date set for his removal. He did, however, appear to have a lawyer available to him. The assessment of a reasonable time is difficult. Giving seven days (five working days) would have made the assessment easier to make. The case is therefore not without its troubling aspects.

As we said above, where it has been demonstrably shown that a person has had a reasonable opportunity to obtain legal advice and injunctive relief if desired, the removal of an applicant from Australia with a subsisting and pending application, such as an application for an extension of time in which to file a notice of appeal, may not raise either questions of contempt, or Constitutional issues concerning the intersection of judicial and executive power to which we have made reference. Such a conclusion would be able to be reached by a Court if it were demonstrated that the person was aware of her or his ability to approach the Court to prevent deportation until disposition of any application and that the person had been given a reasonable opportunity and reasonable facilities to seek advice about and, if desired, make such an application.

(Emphasis added.)

15    By reference to the views of the Court in SZSPI, the Minister’s legal representatives in Mr Broad’s case explained in correspondence that they did not consider it appropriate to inform the Court of Mr Broad’s impending removal.

16    With the greatest respect, I do not share all of their Honours’ views as expressed. In circumstances where an applicant for judicial review is in executive detention, is not legally represented, and has a final hearing listed in a matter of weeks, in my respectful opinion to recognise a responsibility in the Minister to inform the Court of the situation is consistent with the Court’s need to be able to control its proceedings in a way which is consistent with the exercise of federal judicial power, and which reflects the legislative intention apparent in s 37M of the Federal Court Act. Those objectives were not able to be pursued in the situation of Mr Broad’s removal, because the Court was unaware that he would not be attending the hearing.

17    The Minister is not only the active contradictor in the judicial review application, but also an office holder with control over those directly responsible for the detention of the litigant who is challenging the Minister’s decision. Putting the potential for a conflict of interest to one side, I do not see how it can be appropriate for the Court to remain ignorant of facts so critical to the performance of its judicial function as whether a moving party will be able to be present at a final hearing, and be in a position to present argument in that party’s application. The Minister and the Minister’s legal representatives have the resources, experience, familiarity with judicial practices and procedures to inform the Court. Indeed, it is officers who ultimately are subject to the Minister’s direction which arrange for an individual’s removal. A detained applicant is likely to be less able to notify the Court, for reasons including the characteristics and circumstances of the individual and the circumstances of that person’s detention. Indeed, detainees may well assume the Court has been notified – adopting an understandable mixing of the ways that different branches of government might communicate about what is proposed to happen to the same person. What is second nature, and might seem obvious, to lawyers and courts about how legal and judicial processes work, may well be entirely foreign to individuals held in executive immigration detention, despite the best efforts of the courts to be accessible. What (if anything) the Court might properly determine should be done after being notified, is a different question.

18    Nevertheless, I accept the views as expressed in SZSPI may explain the approach taken by the Minister’s legal representative in this proceeding, and no criticism should be levelled at them for taking that approach. I accept it was reasonable for the Minister’s legal representatives to act in accordance with those views. However, as the case of Moana v Minister for Immigration and Border Protection [2019] FCA 659; 265 FCR 337 shows, in 2019 the Minister’s legal representatives were still informing the Court of a person’s removal. Thus, the practice amongst the Minister’s legal representatives is not necessarily uniform.

19    Mr Moana’s situation resulted in a series of published orders and reasons by the Chief Justice. The initial reasons are presently the most relevant. At [44]-[47], the Chief Justice explained why a period of seven days’ notice to a person about removal will not always be sufficient compliance with the terms of s 256 of the Migration Act:

What must be remembered by all who work in the Department, however, is the seriousness (for them personally) of the possible contempt of the Court by removal from Australia of an applicant in circumstances where the engagement of the protective judicial power of the Commonwealth that has occurred is undermined and stultified by a lack of full and reasonable opportunity to engage the Court. What is a full and reasonable opportunity is not susceptible to rules and simple (or complex) bureaucratic procedures. It will depend on the person and his or her circumstances. Nothing in SZSPI said that 7 days’ notice would always be reasonable. Often the people subject of these powers are of limited education, having restricted or little English language, or suffering other disadvantage, perhaps physical or mental illness.

….

No one in the Department should consider 7 days’ notice to be necessarily adequate to bring on an urgent application, without an understanding of the personal circumstances of the person concerned. Reasonable facilities for the taking of legal proceedings should include clear and correct information as to how to approach the duty judge of the Federal Court of Australia in the relevant Registry, to restrain removal pending the resolution of the case. That matter and any opposition can then be brought on urgently.

….

A person’s background, language, intelligence, state of health, as well as the facilities available including information as to the existence (in the correct Court) of a duty judge are parts of, and are relevant to, that opportunity as circumstances that surround it, and they are relevant to the assessment of whether an opportunity is full and reasonable. The officers of the Department, who themselves face the risk of being in contempt of the court, should be in a position to demonstrate with clarity that this applicant (that is, the particular person to be removed) has been afforded a full and reasonable opportunity to seek an injunction to prevent his removal.

20    Mr Broad’s removal was, on its face, not an involuntary removal, so it might be suggested that some of these observations are inapplicable. Nevertheless, what the situation with Mr Broad highlights is the characteristics mentioned by the Chief Justice in the final extracted paragraph might well be relevant to any assessment of whether a person who agreed to removal (or “requested” it) had a fair and reasonable opportunity to understand how that removal might stultify or adversely affect the continuation of any judicial review proceedings.

21    What has happened after Mr Broad’s removal also casts a somewhat different light on the entire situation.

22    It now emerges from Ms Ellis’ affidavit of 5 May 2021, for the first time, that Mr Broad has been communicating with the Minister’s legal representatives since his removal. He has not been communicating directly with the Court, despite attempts by Chambers to contact him by email and by telephone.

23    Ms Ellis deposes that, in an email chain between the Court and the parties, Mr Broad replied to Ms Tattersall, another of the Minister’s lawyers at Sparke Helmore, just two days after the email sent by the Court on 10 March 2021 asking the Minister to explain why the Court had not been notified of Mr Broad’s removal. It is unclear whether Mr Broad intended to “reply all”, or only to reply to Ms Tattersall. He did not separately respond to the Court’s email. In any event, he stated in the email:

I’m an in nz I am here to raise money for a lawyer for my federal court I am still in quarantine

24    One way to understand this sentence is that Mr Broad decided to request removal back to New Zealand so he could be free of detention and find a way to work and raise money for his judicial review application. On the bare evidence as it stands, that seems to be the clearest inference to draw.

25    Ms Ellis does not depose that any lawyer from Sparke Helmore contacted Mr Broad in the days after receiving this email. The email from Mr Broad was not forwarded to the Court by Sparke Helmore, an omission which in my opinion may not be entirely consistent with the Minister’s model litigant obligations.

26    It also emerges from Ms Ellis’ affidavit that on the same day, 12 March 2021, Ms Tattersall took a telephone call from Mr Broad’s partner. In its substantive parts, Ms Tattersall’s file note of the conversation records:

[partner’s name redacted] – on behalf of Daniel Broad

He cant get hold of me

Wants to get another date

Advised that hearing adjourned – he should keep an eye on his emails

27    The content of this phone call was not brought to the Court’s attention either.

28    It appears Ms Tattersall did send an email to Mr Broad on 30 March 2021, asking for his contact details. Ms Ellis deposes that Sparke Helmore received no response to this email.

29    On 12 April 2021, and after having tried unsuccessfully to contact Mr Broad by the telephone number provided to Chambers by the Minister, the Court sent an email to Mr Broad, copied to the Minister, asking him to contact the Court by reply email and advise the Court of his intentions for the proceeding: that is, whether he intended to withdraw the proceeding or to press it.

30    No response was received from Mr Broad.

31    By a letter dated 27 April 2021, and sent by email only, the Minister informed Mr Broad that the Minister “may” file an interlocutory application seeking dismissal of his judicial review proceeding unless Mr Broad made contact with Sparke Helmore “by 5 pm on 4 May 2020”, which I assume should have read 4 May 2021. The letter also reminded Mr Broad that he had not provided an address for service in Australia, as required by r 11.01(1) of the Federal Court Rules.

32    Ms Ellis deposes that Mr Broad responded to this correspondence. His email is annexed to her affidavit. It was sent on 27 April 2021, the same day as the Sparke Helmore letter was emailed and states:

Wat duz that mean

33    Ms Tattersall responded by email the next day to Mr Broad, informing him that

it appears that you have been failing to engage in the Court proceedings. As a result, unless you confirm your intentions in relation to the proceedings (i.e. confirm whether you wish to continue with the proceedings or withdraw the application) by 5.00pm on 4 May 2021 the Minister may file an interlocutory application seeking that the matter be dismissed.

34    Yet again, Sparke Helmore did not inform the Court that Mr Broad had responded to them, although they knew the Court was itself attempting to contact Mr Broad.

35    It is on the basis of this sequence of events that the Minister moves for the dismissal orders.

Resolution

36    Section 20(5) of the Federal Court Act provides:

(5)    In a matter coming before the Court as mentioned in subsection (1A) or (2), a single Judge (sitting in Chambers or in open court) or a Full Court may:

(a)    join or remove a party; or

(aa)    make an interlocutory order pending, or after, the determination of the matter by a Full Court; or

(b)    make an order (including an order for costs) by consent disposing of the matter; or

(c)    make an order that the matter be dismissed for want of prosecution; or

(d)    make an order that the matter be dismissed for:

(i)    failure to comply with a direction of the Court; or

(ii)    failure of the applicant to attend a hearing relating to the matter; or

(da)    vary or set aside an order under paragraph (aa), (c) or (d); or

(db)    in relation to a civil matter, give directions under subsection 37P(2); or

(e)    give other directions about the conduct of the matter, including directions about:

(i)    the use of written submissions; and

(ii)    limiting the time for oral argument.

37    The Minister relies on paragraphs (c) and (d)(i). There is no expressed reliance on r 5.23 of the Federal Court Rules but that may have been another available power. The authorities concerning r 5.23 are relevant in my opinion, at least insofar as they establish, repeatedly, that the Court should be cautious in exercising a dismissal power of this kind: see for example Wu v Avin Operations Pty Ltd (ACN 076 956 913) [2006] FCA 36, which concerned the closest former equivalent to r 5.23; namely Order 35A of the former Rules. In Wu, Kenny J referred to the Full Court decision in Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 745; 27 FCR 388, and in particular to the Full Court’s observation at 396 that dismissal powers of this kind must be

administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable ... and of the likely serious consequences to [the party in default].

38    Kenny J also referred to the Full Court’s emphasis in Lenijamar on whether the evidence disclosed there was an “inability or unwillingness to co-operate with the Court and the other parties in having the matter ready for trial within an acceptable period”.

39    Her Honour added (at [51]):

When applying these principles, the Court must balance the need for the expeditious conduct of litigation, particularly in a court committed to a case management system, and the “the strong reluctance of courts to prevent litigants having a proper opportunity to present their cases”: KM & A Chadwick Pty Ltd v Yeung [1995] FCA 354 per Tamberlin J.

40    Mr Broad has not been communicative with the Court about his intentions in relation to this proceeding, that much is clear.

41    However, as the evidence outlined above reveals, he has also not been silent. It is just that he has communicated with the Minister’s lawyers rather than the Court. It is not unreasonable to suppose he may have expected the Minister would pass what he said on to the Court.

42    As I have found, an inference from the email he sent which is extracted at [23] above is that at least one reason Mr Broad decided to return to New Zealand voluntarily was so he could seek employment and pay for a lawyer for this proceeding. The file note of the conversation with Mr Broad’s partner also suggests that he wishes to proceed. Finally, and without meaning any disrespect to or criticism of Mr Broad, his response extracted at [32] above would suggest that his literacy levels are not high. I note in the Tribunal’s reasons at [7], it is accepted that he left school in Year 10 aged 15 years old. The lack of communication from him could be explained by many reasons. It is not at all apparent to me that the most obvious explanation is that he does not wish to pursue a review of the Tribunal’s affirmation of the non-revocation decision.

43    It should not be forgotten that this matter was listed for final hearing, and it was only shortly before that hearing that Mr Broad was removed. The Court has little or no evidence about the circumstances in which Mr Broad’s decision to return to New Zealand was made, including who he spoke to about his options, and whether he was able to speak to any person who was independent of the Minister and the Minister’s department. I am not prepared to infer that by requesting to be removed, Mr Broad consciously and in a fully informed way elected to surrender his entitlement to have the Minister’s non-revocation decision judicially reviewed by this Court. Such evidence as there is suggests to the contrary.

44    Nor am I prepared to infer on the current evidence that Mr Broad is unwilling to co-operate with the Court in having his proceeding listed for trial. That said, the evidence does suggest an inability to co-operate, which may be due to a number of factors.

45    While it is important that parties act in accordance with the overarching objective in s 37M of the Federal Court Act, and while it is also important that the Court take that objective into account in exercising its powers under the Federal Court Act (including the power invoked by the Minister, s 20), those objectives are ultimately concerned with the Court exercising its powers in a way which advances the interests of the administration of justice. Unreasonable and prolonged delays in a proceeding coming to trial are not in the interests of the administration of justice. This proceeding has not yet been unreasonably delayed by Mr Broad, given the unusual circumstances of his removal, and given that the Tribunal’s decision was made in November 2020. Resettlement in a new country, and one he has not resided in since he was one year old, is not an easy process for anyone, and in particular not for someone who has come from imprisonment and then executive detention in Australia.

46    That said, there is a general expectation that the moving party in an application will take responsibility for ensuring it is prosecuted. Mr Broad cannot avoid that responsibility if, while based in New Zealand, he seeks to have the Court determine his judicial review application. It is also plainly the case that he will be at a disadvantage in prosecuting his application if he cannot secure legal representation. He was given pro bono representation, but that representation did not continue, for reasons the Court cannot inquire into.

47    Without revocation of his cancelled visa, Mr Broad cannot travel to and re-enter Australia on that visa. The circumstances of the cancellation and non-revocation of his previous visa mean it is highly unlikely Mr Broad would be granted another visa to enter Australia. It is no longer the case that his liberty is at stake, but his ability to enter and reside in Australia is not an insignificant interest, when it is clear from the Tribunal decision that several members of Mr Broad’s immediate family reside in Australia.

48    Balancing all of the circumstances, and bearing in mind the factors to which Kenny J referred in Wu, in my opinion Mr Broad should be given a limited, but non-extendable opportunity to clearly indicate to the Court that he intends to pursue his judicial review challenge by making written submissions supporting his judicial review application. If he fails to do so, his judicial review application will be dismissed with costs by force of the orders made today. If he files written submissions, whether by himself or through a legal representative, then the proceeding will be listed for final hearing and the Minister will be given an opportunity to file any responsive written submissions.

49    I consider it is appropriate to make an order that the Minister take all reasonable steps to ensure that a copy of the Court’s orders, and its reasons for judgment are personally served on Mr Broad in New Zealand. While that is an unusual order, which I accept imposes costs on the Minister, given the failures of the Minister to pass on to the Court even the fact or gist of Mr Broad’s three communications, I consider it is appropriate to require the Minister to commit some resources to ensuring that, this time, Mr Broad is properly informed of what the Court has decided should be done about his proceeding. It is not dissimilar to the order made by the Chief Justice in Moana.

50    If the Minister considers the order is unfair or inappropriate, the Minister has leave to file and serve short submissions about the order, and/or alternatively to propose any other form of order. If such submissions are filed, the Court will then consider whether the order should be modified, or vacated. In the immediate term, the Court’s orders and reasons for judgment will be forwarded by email to the email address used by Mr Broad in the communications to which I have referred in these reasons.

Associate:

Dated:    26 July 2021