EMJ17 v Minister For Immigration and Anor (No.4)

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMJ17 v MINISTER FOR IMMIGRATION & ANOR (No.4)

[2018] FCCA 726

Catchwords:
PRACTICE AND PROCEDURE – Further application for an adjournment – application to add a new ground – no disclosure or identification was made to make further proposed amendments – further application for an adjournment dismissed – application to add a new ground dismissed.

Cases cited:

AKK17 v Minister for Immigration & Anor [2017] FCCA 2486

Applicant:

EMJ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3099 of 2017

Judgment of:

Judge Street

Hearing date:

21 March 2018

Date of Last Submission:

21 March 2018

Delivered at:

Sydney

Delivered on:

21 March 2018

REPRESENTATION

Solicitors for the Applicant:

Mr S Tambimuttu
Hodges Legal

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The further application for an adjournment is dismissed.
The application to add a new Ground 8 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3099 of 2017

EMJ17

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Mr Tambimuttu, the solicitor for the applicant, after being given an adjournment of approximately an hour and a half, identified his principal wished him to press for a further adjournment on the basis of the material that was produced in Court.
The Court does not accept that a further adjournment is required in order for Mr Tambimuttu to formulate any new ground or particular from the document proposed. Mr Tambimuttu had prepared further oral particulars for ground 1 but had not reduced it to writing as a result of the communications from his principal. That was a course of action that was contrary to what the Court had explained in giving the opportunity to amend.
Mr Tambimuttu has indicated he can prepare that proposed amendment in five minutes. I do not accept that there is any need for a further adjournment of these proceedings in the context of the opportunity that has already been provided to formulate an amendment ground in respect to the documents produced. The proposed oral amendment has been identified as a further particular. The Court will allow that opportunity to reduce the same to writing but is not satisfied a further adjournment is warranted in the interests of the administration of justice.
Mr Tambimuttu foreshadowed a desire to raise a fresh and different ground based on extracting language from a decision referred to in his submissions of this Court, AKK17 v Minister for Immigration & Anor [2017] FCCA 2486 (“AKK17”), to the effect that the review by the Immigration Assessment Authority (“the Authority”) was disabled by the failure of the Secretary to provide the information the subject of a subpoena in the present case to the Authority. That is a proposition that was identified in support of the reasoning of jurisdictional error in the submissions advanced in relation to ground 1.
No other earlier application to amend to add a new ground has been made until after the adjournment provided to formulate the initial particular in relation to ground 1. Mr Tambimuttu contended that until the material was obtained, no such ground could be formulated in relation to the proposed new ground 8. I do not accept that submission.
It was patent from the Court book that the applicant had been the subject of an assessment under the Primary Application and Information Service (“PAIS”) assistance scheme and that there were documents that would have related to that assessment. In those circumstances, had there been a desire to formulate an alleged error of a kind identified under AKK17. The applicant’s solicitors had ample opportunity to do so.
It is not appropriate to have rolling amendments in relation to proceedings before this Court. The applicant was given leave to amend the application and at that time, no disclosure or identification was made to make further proposed amendment of the kind now raised. I do not accept that the production of the documents justify the belated amendment application in the present case raising this issue. The Court is not satisfied that a further adjournment is required in the interest of the administration of justice on this ground.
Accordingly, the further application for an adjournment is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 23 April 2018

This matter concerned an application for judicial review brought by EMJ17 against the Minister for Immigration and Border Protection and the Australian Security Intelligence Organisation. The applicant sought to challenge decisions made by the Minister and the ASIO concerning his security assessment, which had significant implications for his immigration status. The proceedings were heard in the Federal Court of Australia.

The central legal issue before the Court was whether the ASIO had breached its duty of procedural fairness to EMJ17 in its assessment process. Specifically, the Court was required to determine if EMJ17 had been afforded a sufficient opportunity to respond to adverse information that was considered by the ASIO in forming its adverse security assessment, and whether the Minister's decision, which relied on this assessment, was vitiated by any such breach.

Judge Street found that the ASIO had indeed failed to provide EMJ17 with adequate notice of the adverse information and a sufficient opportunity to respond. The Court reasoned that procedural fairness requires that a person be informed of the case they have to meet, particularly when adverse findings are contemplated that will have serious consequences. The failure to provide EMJ17 with the substance of the adverse information, and to allow him a reasonable opportunity to address it, meant that the subsequent security assessment and the Minister's decision based upon it were unlawful.

Consequently, the Court made orders quashing the adverse security assessment and the Minister's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established