Federal Court of Australia

Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 4) [2024] FCA 675

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 21 February 2023 be dismissed.

2.    The applicants pay the first respondent’s costs of the application, to be taxed if not agreed.

3.    Pursuant to r 39.34 of the Federal Court Rules 2011 (Cth), these orders be entered forthwith.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 21 February 2023 be dismissed.

2.    The applicants pay the first respondent’s costs of the application, to be taxed if not agreed.

3.    Pursuant to r 39.34 of the Federal Court Rules 2011 (Cth), these orders be entered forthwith.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    Two proceedings are before the court. In the first, NSD 589 of 2022, the applicants are Jean-Pierre Tukala Tukala and his wife, Veronique Vela. They sought review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (now Immigration, Citizenship and Multicultural Affairs) refusing to grant a visa to their adult son, Joshua Buma Tukala Tukala, who was born in the Democratic Republic of the Congo. That review was dismissed by the Administrative Appeals Tribunal (AAT) for want of jurisdiction. An application for judicial review of that decision was dismissed by the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA); Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 525(Judge Laing) (Tukala FCFCOA). The applicants then sought an extension of time to file a notice of appeal in this Court, which was dismissed in Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 74 (Katzmann J) (Tukala 1). By his written submissions in the matter before Katzmann J, the Minister made an application for an order pursuant to s 486F of the Migration Act 1958 (Cth) that Vangu Kitoko pay the Minister’s costs of the proceeding on the basis, in short, that he had encouraged the applicants to commence the litigation where it had no reasonable prospects of success and he had not given proper consideration to the applicants’ prospects of success. That application was successful, and Mr Kitoko was ordered to pay the Minister’s costs of the proceeding in a lump sum fixed at $17,853; Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 241 (Katzmann J) (Tukala 2).

2    In the second proceeding, NSD 903 of 2022, the applicants are Mr Tukala, Ms Vela and Mr Kitoko. The proceeding concerns an application made by Mr Kitoko for an extension of time within which to seek leave to appeal from an order of the FCFCOA that he pay the Minister’s costs of the proceedings in that Court pursuant to s 486F of the Migration Act. That application was dismissed on 9 February 2023 and Mr Kitoko was ordered to pay the Minister’s costs of the application; Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs) [2023] FCA 75 (Katzmann J) (Tukala 3).

3    Justice Katzmann decided and made Orders in Tukala 1 and Tukala 3 on 9 February 2023, after conducting a hearing on 24 November 2022 in both matters.

4    On 21 February 2023, Mr Kitoko lodged an interlocutory application seeking orders that those Orders be set aside and that the applications for extensions of time be remitted to a different judge. The Registrar refused to accept the Mr Kitoko’s documents for filing on the ground that they were an abuse of process, pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (FCR), because they sought to challenge the decisions of a single judge of this Court exercising its appellate jurisdiction. The decision of the Registrar was upheld; Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2023] FCA 1056 (Halley J) (Kitoko). However, on appeal, the Full Court found that the newly introduced FCR r 39.32(3) enabled a party 14 days after entry of the orders within which to bring his interlocutory application. Accordingly, the Kitoko decision was overturned; Kitoko v Registrar of the Federal Court of Australia [2024] FCAFC 14 (Thawley, Cheeseman and Shariff JJ) (Kitoko FFC) at [41] – [47]. The effect was that the orders of the primary judge in Kitoko were set aside and the interlocutory application (and associated documents) lodged by Mr Kitoko were taken to have been filed at the time they were sought to be lodged. This interlocutory application was ultimately docketed to me for hearing.

5    The interlocutory application is filed in both proceedings and seeks the following orders:

1.    That the interlocutory application be allowed.

2.    That orders of the Full Court of the Federal Court of Australia made on 09 February 2023 be set aside and, in their place, there be orders that:

a.    the judge of Full Court of Federal Court of Australia to be disqualified, on the ground of a reasonable apprehension of bias arising from the Full Federal Court Judge’s secret meeting or private communications with the Minister’s Barrister on 24 November 2022 inside the court’s room after judgement was reserved, as personally seen by the Applicants and Mr. Kitoko, and also on the ground of procedural unfairness arising from the Full Federal Court Judge’s excessive judicial interference relating to excessive judicial questioning or pejorative comments by the full federal court judge, this conduct was said to give rise to a reasonable apprehension of bias.

b.    Mr. Tukala’s application filed 07 August 2022 for an extension of time under rule 36.05 to file a notice of appeal to the Full Federal Court to challenge order 1 made by Laing J on 01 July 2022 (NSD 589/2022), and Mr. Kitoko’s application filed on 21 October 2022 for an extension of time under rule 36.05 to file a notice of appeal to the Full Federal Court to challenge order 2 made by Laing J on 01 July 2022 (NSD903/2022), be remitted to the Full Court of the Federal Court of Australia for rehearing with different Full Federal Court Judge.

(As written)

6    It will be seen that the orders sought are that the Orders made by the Court in Tukala 1 and 3 (refusing extensions of time) be set aside. By his written submissions, Mr Kitoko seeks that the Orders be set aside under FCR r 39.04.

7    Paragraph 2(a) sets out the basis for the application, which is that the decision of the Court in those cases was, in effect, affected by apprehended bias and a lack of procedural fairness. Paragraph 2(b) addresses the consequence of an affirmative finding in 2(a), namely that the Court proceed to reconsider the applications for an extension of time in each of the proceedings. During the course of managing the proceedings, I determined that paragraph 2(a) should be considered separately and before paragraph 2(b).

8    At the hearing, Mr Kitoko appeared on his own behalf and on behalf of Mr Tukala and Ms Vela. I refer to them collectively below as the applicants. Mr Kitoko is fluent in English, but Mr Tukala and Ms Vela are not. In order to enable them to understand the proceedings, the hearing before me was conducted with the assistance of a French interpreter.

9    The applicants have filed written submissions and rely upon the transcript of the hearing of 24 November 2022, the audio file of that hearing and an affidavit sworn by Mr Kitoko on 2 April 2024. Mr Kitoko made an oral application at the hearing for leave to lead additional oral evidence at the hearing from Mr Tukala and Ms Vela. I refused the grant of leave on the bases that: (a) the evidence they would give would (as Mr Kitoko submitted) be in effect the same as the evidence that he had given in relation to the events of 24 November 2022; (b) the applicants provided no adequate explanation for why their evidence could not have been adduced by affidavit in accordance with directions made on 8 March 2024; and (c) the additional evidence would unduly prolong and delay the resolution of the matter in circumstances where it would be unlikely to assist the applicants in the conduct of their case.

10    The Minister relies on an affidavit affirmed by Hongyi Gao and two affidavits affirmed by Sofia Giannopoulos, both solicitors employed by HWL Ebsworth Lawyers. He has also filed written submissions and was represented by counsel.

11    For the reasons set out below, I dismiss paragraph 2(a) of the interlocutory application, with the consequence that it is not necessary to proceed to consider paragraph 2(b). The applicants must pay the Minister’s costs of the interlocutory application.

2.    THE APPREHENDED BIAS CONTENTION

2.1    Introduction

12    The applicants’ first contention is that the decisions in Tukala 1 and 3 should be set aside because there is a reasonable apprehension of bias arising from the conduct of the judge at the hearing on 24 November 2022. The central allegation is that the judge conducted a secret conference with counsel for the Minister after the conclusion of the hearing.

2.2    The relevant facts

13    The hearing on 24 November 2022 concerned the following applications made to this Court in its appellate jurisdiction:

(1)    By Mr Tukala and Ms Vela for an extension of time within which to appeal from the whole of the reasons for judgment and orders in Tukala FCFCOA; and

(2)    By Mr Kitoko for an extension of time within which to seek leave to appeal from an order made in Tukala FCFCOA that he pay the Minister’s costs of the proceeding before the FCFCOA pursuant to s 486F of the Migration Act.

14    The relevant events took place at the conclusion of the hearing on 24 November 2022, which was conducted by the judge in a physical courtroom with the parties attending by video link.

15    In his affidavit, Mr Kitoko gives evidence that after the hearing was concluded, the judge announced to both parties the conclusion of the hearing and that judgment was reserved. She then left the court room. He contends that after the adjournment the applicants as well as counsel for the Minister, Greg Johnson, remained online in the court together with the judge’s associate. His evidence is that after about 15 seconds the judge “quietly or secretly” returned to the court and sat down to start a meeting with Mr Johnson. He says that the judge looked at the court’s television screen, realised that the applicants were still present online and said: “Mr Kitoko you should leave the court now the court has been adjourned, please click the red button located in right corner of your computer”. His evidence is that the applicants then left the (virtual) court room but that the judge remained in it with Mr Johnson to continue their meeting. The judge delivered reasons on 9 February 2023 but “did not disclose the purposes or substances [sic] of her secret meeting with the respondents’ barrister”.

16    The Court provided the parties with an audio recording of the hearing conducted on 24 November 2022. Ms Giannopoulos annexes to her affidavit affirmed on 19 April 2024 the formal transcript of the hearing prepared by Auscript and gives evidence that she listened to the audio recording of the hearing and transcribed those parts of the recording relating to the periods prior to the commencement and after the conclusion of the hearing once it had been adjourned. Ms Giannopoulos was not cross- examined. I have listened to the relevant parts of the audio recording which took place after the hearing was adjourned. It appears to me that the transcription prepared by Ms Giannopoulos is accurate.

17    It is material to set out the evidence of Ms Giannopoulos as to what is to be found on the audio recording following the adjournment of the hearing. In her affidavit, Mr Giannopoulos deposes that she heard the following words and sounds. I understand that the individual identified by Ms Giannopoulos as “woman 2” to be the judge’s associate.

After the conclusion of the hearing

9.    At 6 hours, 47 minutes and 54 second of the recording, Justice Katzmann announced, “Well, we’re now adjourned.”

10.    Between 6 hours, 47 minutes and 55 seconds and 6 hours, 48 minutes and 24 seconds of the recording I heard:

(a)    the person referred to above as ‘woman 2’ state, “All stand. This Court is now adjourned”;

(b)    shuffling noises;

(c)    what I perceived to be sounds made by typing on a computer keyboard and clicking a computer mouse; and

(d)     the sound of a door opening and closing.

11.    At 6 hours 48 minutes 25 seconds of the recording, I heard a female voice, which was barely audible, say, “I can’t, I can’t because I am on the computer”. I then heard further speech which I could not make out, although the words uttered sounded like, “are the orders up”.

12.    At 6 hours 48 minutes 36 seconds of the recording, Justice Katzmann said, “Mr Kitoko, you should leave the meeting now. Court’s adjourned. Just press the red button at the top right hand of your computer that says leave”. I did not hear any response.

13.    At 6 hours and 49 minutes, I heard a female voice, again barely audible, say, “okay”. This was followed by the sound of a door opening and closing between 6 hours, 49 minutes and 5 seconds and 6 hours, 49 minutes and 9 seconds.

14.    From 6 hours, 49 minutes and 12 seconds to 6 hours, 59 minutes and 30 seconds, I heard what I perceived to be sounds made by typing on a computer keyboard and clicking a computer mouse, shuffling and footsteps. I also heard the sound of a door opening and closing.

15.    At about 6 hours, 59 minutes and 30 seconds, I again heard the sound of a door opening and closing.

16.    From 6 hours, 59 minutes and 31 seconds to 11 hours 57 minutes and 20 seconds, I did not hear any words uttered. At 11 hours 57 minutes and 21 seconds, I heard a male voice say “This is an automated announcement. All Auscript recordings will now be ceased. Please contact 1800 133 578 if you wish recordings to continue. That number, 1800 133 578 if you wish recordings to”. No words are uttered after this until the end of the recording.

18    At the hearing before me on 12 June 2024, at the request of the applicants the audio recording of the hearing was played in Court from 6 hours 43 minutes until 6 hours 49 minutes. The applicants rely on this passage.

19    The Minister also relies on the affidavit of Mr Gao, who gives evidence that he instructed Mr Johnson on 24 November 2022 and was with him in his chambers during the (online) hearing. He gives evidence that he arrived at Mr Johnson’s chambers before the hearing commenced and remained for its entire duration (save for the lunch adjournment) and conferred with Mr Johnson after the hearing was concluded and was subsequently walked by Mr Johnson to the elevator. He gives evidence that he did not observe Mr Johnson to have any conversation with the judge following the conclusion of the hearing.

20    In cross examination, Mr Gao elaborated that after the video hearing was adjourned, Mr Johnson turned to face him, and they conversed for less than 10 minutes before they walked together out of chambers. He did not hear the judge return to the court room nor does he recall the judge instructing Mr Kitoko to leave the court room following the adjournment of the hearing.

2.3    Consideration

21    The applicants base their application on principles of apprehended bias as set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 and which may be summarised by reference to the decision in Charisteas at [11]:

…The apprehension of bias principle is that "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

(Footnotes omitted)

22    The applicants contend that a fair-minded lay observer would reasonably apprehend that the judge in the present case might not bring an impartial mind to the resolution of the questions that her Honour was required to decide because they perceived that there was a secret meeting between the judge and counsel for the Minister, emphasising Charisteas at [13] – [14].

23    The interlocutory application was filed after judgment had been delivered in Tukala 1 and Tukala 3. For the reasons explained in Kitoko FFC that course was not considered to be an abuse of process by reason of the operation of FCR r 39.04, which provides:

39.04    Varying or setting aside a judgment or order before it has been entered

The Court may vary or set aside a judgment or order before it has been entered.

24    As the Full Court noted at [27], the FCR r 39.04 provides a general power to vary or set aside orders before they have been “entered”, ‘entry’ being part of a process of finalising orders made that involves settling, authentication and then entry as set out in FCR rr 39.33, 39.35 and 39.32 respectively.

25    FCR r 39.32(3) was, by amendment to the FCR commencing on 13 January 2023, introduced to provide the parties a short time (14 days) to consider the orders made, and any reasons given, before orders are entered in order to facilitate drawing matters to the Court’s attention if necessary or the making of a considered and appropriate application. The effect of providing the parties with a short time is that there is a narrow window of time before entry of the orders during which the court’s jurisdiction can be invoked, to put to put right a plain mistake on the part of the Court; to draw the Court’s attention to a fact or point of law that was plainly relevant but was omitted or overlooked; where new facts were discovered after judgment which could not have been uncovered before; or where a party did not have a fair opportunity to consider a matter when it was raised for the first time during proceedings or in the reasons for judgment; Kitoko FFC at [36].

26    The Full Court concluded that Mr Kitoko sought to re-open the matter to raise an allegation of apprehended bias and breach of procedural fairness based on what he perceived to have occurred after the hearing and after the judge had reserved judgment. This not being a matter that he could have addressed in the hearing itself, and making allowances for the fact that Mr Kitoko was self-represented, if he had been permitted to come before the judge, it would have been an available exercise of power to permit Mr Kitoko to re-open the matter and it would have been possible to vary or set aside the orders made on 9 February under r 39.04 if some appropriate basis for relief had been established; Kitoko FFC at [47].

27    In the present case there is no dispute that such a power can be exercised where a judgment is attended by an apprehension of bias or a denial of procedural fairness.

28    It has been noted that the power conferred by FCR 39.04 should be exercised sparingly. As the Full Court noted in Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 (Finn, Stone, Perram JJ) at [772], the procedure contemplated by that provision must not be permitted to become an avenue whereby disappointed litigants or their advisors are permitted, in effect, a second chance before the Court. This is soundly based on principles of finality of litigation, efficient use of resources and also the recognition that any second chance must, in the case of a litigant, come in the form of an appeal.

29    In my view the facts do not support the conclusion that the circumstances that arose at the conclusion of the hearing would give rise to a reasonable apprehension of bias.

30    The allegation is that the judge adjourned the Court, requested the applicants to leave the video conference and then conducted the “secret meeting”. However, whilst it is apparent (from the audio recording) that the judge requested the applicants leave the video conference after the hearing was adjourned, no evidence supports the allegation of any “secret meeting”. Rather, the audio recording in the court room ran continuously from before the hearing until many hours after it was adjourned. I find that the audio recording captured any conversation that was reasonably audible due to the sensitivity of the microphones used. During that time, there was no communication recorded between the judge and Mr Johnson. The mechanical evidence of the recording (which I have heard in part) is supported by the affidavit of Ms Giannopoulos affirmed 19 April 2024, whose transcript demonstrates the same. I infer, having regard to the evident sensitivity of the microphones and the fact that the microphones remained active for a number of hours before and after the adjournment of the hearing, that had there been any such conference, the microphone would have detected it. That conclusion is also independently supported by the affidavit of Mr Gao, who accompanied Mr Johnson at all material times and saw no such “secret meeting”. Mr Gao did not give evidence as to when the video connection between the court room and Mr Johnson was disconnected. No doubt that is because Mr Johnson performed that task. However, I accept as truthful his evidence that he and Mr Johnson had a conversation after the conclusion of the hearing. The fact that it was not picked up on the microphone leads to the inference, which I make, that by the time of that conversation, the video connection had been severed. That may well explain why Mr Gao could not recall the judge asking the applicants to leave the video conference, although it is not necessary for me to decide this point. I accept the evidence of Mr Gao that no conference was conducted between Mr Johnson and the judge.

31    On the basis of these materials, I do not consider that the applicants have established that there was any meeting between the judge and Mr Johnson following the adjournment of the hearing on 24 November 2022.

32    Nor do I consider that a basis has been established for a fair-minded observer to reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the proceeding on the basis of the events relied upon by the applicants. I accept that the transcript created by Ms Giannopoulos is an accurate account of what happened, and that the applicants were asked by the judge to sever their video connection with the court room. However, nowhere in Ms Giannopoulos' transcript is there evidence to support the inference that there was the appearance of a conference conducted between the judge and Mr Johnson. The hearing was adjourned, and the judge left the court room. Her Honour returned shortly after. Upon noticing that the applicants had not severed the video connection, she reminded them of the adjournment (which had occurred some 40 seconds earlier) and asked them to leave by pressing the red button on the top right-hand side of their screen. The applicants, seeing that Mr Johnson was still on the screen, assumed that a conference or “secret meeting” was to take place. However, that assumption was simply speculation. In my view a lay observer would likely conclude that the video connection was to be terminated with all parties. I note, from my review of the transcript of the hearing, that Mr Kitoko had had technical difficulties joining the video link at the commencement of the hearing. The judge, noticing that he had not left the meeting, provided assistance by reminding him how to do so. Mr Johnson, as counsel experienced in video hearings, was not likely to have needed such assistance. Nothing that was said or done prior to their departure from the meeting supports the view that the judge’s return was for any purpose connected to the hearing. Indeed, no issue was raised by the applicants about these matters until after a decision was published that was adverse to their interests. In this regard, any allowance for the fact that the applicants are self-represented is balanced against their history of repeated applications to the Court and, to my observation, Mr Kitoko’s obvious familiarity with and understanding of court processes.

33    Having regard to these matters, I do not consider that a fair-minded lay observer of these events might reasonably have apprehended that the judge might not bring an impartial mind to the resolution of the matters before the Court.

34    Finally, I note that Mr Kitoko submitted that an inference should be drawn on the basis of the principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 to the effect that in the absence of evidence from Mr Johnson, his evidence would not support the case advanced by the Minister. The rule in Jones v Dunkel provides that an unexplained failure by a party to, inter alia, call witnesses may in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party's case; JD Heydon and R Cross, Cross on Evidence, 7 ed, LexisNexis Butterworths, NSW, 2004 at [1215]; Fabre v Arenales (1992) 27 NSWLR 437. The rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference; Cross on Evidence at [1215]; Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2009] FCA 1495; (2009) 84 IPR 22 at [250]-[259]. In the present case, the evidence to which I have referred above positively persuades me that the alleged secret meeting did not take place. No inference under Jones v Dunkel can displace that finding.

35    Accordingly, I reject the argument advanced by the applicants on the basis of apprehended bias.

3.    PROCEDURAL FAIRNESS

36    In the second aspect of paragraph 2(a) of the interlocutory application, the applicants contend that the judge excessively interfered by judicial questioning or pejorative comments, which is also said to give rise to procedural unfairness and also a reasonable apprehension of bias. Neither was pressed by the applicants, who focus their complaint on two other points under the umbrella of an alleged procedural unfairness. The first is that that Mr Kitoko was not given an opportunity personally to present arguments in support of the applicant’s case. The second that the judge permitted the Minister to file further material after the conclusion of the hearing without seeking any input from the applicants or permitting them an opportunity to respond. The Minister responded to this changed case with no objection and I deal with it below on this basis.

37    In relation to the first, the applicants contend that the judge failed to exercise procedural fairness by denying Mr Kitoko an opportunity to be heard in the hearing on 24 November 2022 concerning the substance of the grounds of review advanced before the Court arising in Tukala 1 or in relation to the costs finding against him in Tukala 3. As a result, the applicants submit that they were denied natural justice.

38    In my view this contention is misplaced. In relation to Tukala 1, the judge heard submissions from each of Mr Tukala, Ms Vela and Mr Kitoko on the question of whether or not he should be granted leave to appear on their behalf before giving an ex tempore judgment refusing leave. The outcome of Mr Kitoko’s application for leave to represent Mr Tukala and Ms Vela is recorded in Tukala 1 at [44]. There was no denial of procedural fairness in relation to that application. Both he and they were heard on the application. The transcript of the hearing on 24 November 2022 reveals that Mr Kitoko had the written submissions of the Minister opposing his appearance and made oral submissions in answer. Mr Kitoko had no right to appear on behalf of the applicants. Nor was he an admitted legal practitioner. Neither he nor Mr Tukala and Ms Vela were denied procedural fairness by virtue of Mr Kitoko being declined leave to appear.

39    In any event, in my view no substantial injustice arises from the asserted failure to afford the applicants procedural fairness arising from Mr Kitoko not presenting oral submissions. Mr Kitoko filed detailed written submissions in advance of the hearing. During the hearing. the judge assured Mr Tukala and Mr Vela that she would have regard to those written submissions in determining whether there is any merit in the proposed appeal. In Tukala 1 the judge records their request that she do so (at [44]) and refers to Mr Kitoko’s written submissions in terms in several parts of the reasons including at [47], [49], [51], [52] and [56]. It is evident that the judge took into account the written submissions provided by Mr Kitoko.

40    Nor can the contention of a denial of procedural fairness be substantiated in relation to the matters the subject of Tukala 3. That application concerned an order of the FCFCOA requiring Mr Kitoko to pay the Minister’s costs of an application for review advanced by Mr Tukala and Ms Vela. In that regard, Mr Kitoko was permitted to and did advance oral and written submissions (being those he had prepared and relied upon by Mr Tukala and Ms Vela for the purpose of the matters raised in Tukala 1) in support of his arguments.

41    In relation to the second, the applicants contend that there was a breach of procedural fairness when the primary judge gave leave to the Minister to file an affidavit addressing the status of the visa applications of Emmanuel Nsiku Tukala and Daniel Nsiku Tukala (siblings of Joshua) and a supplementary appeal book but did not give the applicants an opportunity to file material or submissions in response. The applicants rely on NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 in support of their arguments.

42    In relation to the supplementary appeal book, at the commencement of the hearing on 24 November 2022, the Court heard argument about whether Mr Kitoko should be permitted to represent Mr Tukala and Ms Vela. During the hearing reference was made to how the matter was dealt with before the FCFCOA, including an affidavit of Claire Dunn, a solicitor, who had given evidence before the FCFCOA about whether Mr Kitoko was legally qualified, and which was relied upon by the judge in the FCFCOA in making the personal costs order against Mr Kitoko in that Court. The judge thus asked the Minister to prepare a supplementary appeal book which included those materials and any others put before the FCFCOA, but which were not included in the materials currently before the judge. Her Honour returned to that subject at the conclusion of the hearing. There, Mr Johnson confirmed that the Minister would file a supplementary bundle of materials within a week and the judge made an order requiring that to happen.

43    During the course of the hearing her Honour noted that there were refences in the documentation before the Court about the handling by the Minister of the visa applications of siblings of Joshua. Those applications were not before the Court and her Honour noted during the course of submissions that the decision of the AAT only concerned the visa application relating to Joshua, although his brothers were members of the same family unit. Mr Kitoko, who had not been granted leave to address on that subject, then intervened to submit that separate applications had been made to the AAT in respect of each sibling but that the court book had been “manipulated” by the Minister in an unspecified way in relation to information about those applications. Her Honour observed that it was clear that the only tribunal decision before her was that concerning Joshua, but that for abundant caution the Minister should put on an affidavit to confirm that this was the correct position. She returned to that subject shortly before adjourning, and Mr Johnson informed the court that evidence would be supplied to clarify that position also.

44    The following exchange took place immediately before the Court was adjourned:

HER HONOUR: All right. Mr Kitoko – thank you very much, Mr Johnson, for your assistance and, Mr Kitoko, I will consider that material when it arrives and I will be in touch with the parties when I’m in a position to deliver judgment. All right?

MR KITOKO: Yes, I agree – yes I agree with you, your Honour. In this case, ….. is not true. I have different evidence. Can the applicant put a response in the case? Can the applicant reply?

HER HONOUR: Can you reply? Let me consider the material and I will determine what I should do at that point. All right?

MR KITOKO: Okay. Yes, okay. Thank you.

HER HONOUR: I have to say that you had your opportunity to put material on in support of your case, and if it’s not before the court now, then I’m concerned that this case will be unnecessarily protracted. Be that as it may, I will wait and see what the Minister has to say, and you should examine carefully what material the Minister serves on you, as well. All right?

MR KITOKO: Okay. Okay, thank you.

HER HONOUR: Well, we will now adjourn.

45    On 1 December 2022 the Minister filed a supplementary appeal book that included the applicant’s and the Minister’s submissions in the proceeding before the FCFCOA and an affidavit from Ms Dunn that was read before the FCFCOA concerning whether Mr Kitoko was an admitted solicitor (it yielded no results). The Minister also filed an affidavit from Sophie Verity Llyod, solicitor who appeared for the Minister in the FCFCOA proceeding, affirmed on 30 November 2022. Ms Lloyd’s affidavit deposed to the fact that she did not recall that the issue of the status of the visa applications by Joshua’s siblings was raised by any party, Mr Kitoko or the judge during the hearing before the FCFCOA, and also annexes copies of the visa applications in question and the related notifications of refusal to grant the visa and the AAT’s reasons for the decisions.

46    Procedural fairness did not require the judge to obtain the applicants’ submissions as to the appropriateness of receiving this material. Mr Kitoko had already been heard by the judge in in relation to his application to be granted leave to make submissions on behalf of Mr Tukala and Ms Vela. He accepted, before the judge, that he did not have a legal qualification. He had been refused leave to appear on behalf of Mr Tukala and Ms Vela. Furthermore, the material included in the supplementary appeal book was material that had been before the FCFCOA, of which the applicants were aware.

47    The affidavit of Ms Lloyd related to the status of visa applications made by Joshua’s siblings, which were dealt with separately to Joshua’s visa application. As noted above, the judge confirmed during argument that their applications were not before the AAT and so were not relevant to the matters before her. The affidavit of Ms Lloyd simply served to confirm the facts upon which her Honour’s understanding was based.

48    Furthermore, nowhere do the applicants in their submissions provide any indication that there was any evidence or submission that they would or could have advanced in relation to the contents of the supplementary appeal book that would have a material bearing on the arguments advanced.

49    Finally, in my view the reasoning in NAFF has no application to the present facts. Unlike in that case, here there was no occasion for responsive material to be sought. This was the view that Her Honour took. The absence of any indication in the case brought by the applicants in this hearing of what they may have brought forward tends to support that view.

50    Accordingly, there is no basis upon which it may be said that there was a denial of procedural fairness, as the applicants contend.

4.    DISPOSITION

51    For the reasons given above, paragraph 2(a) of the interlocutory applications must be dismissed. The consequence is that there is no basis upon which the Orders made by the primary judge on 9 February 2023 may be revisited in the manner sought by paragraph 2(b) of the interlocutory applications.

52    The applicants must pay the Minister’s costs of their applications.

Associate:

Dated:    21 June 2024