Federal Court: the Federal Circuit Court (FCCA) made an interlocutory decision to dismiss the Applicant's judicial review application, despite the fact that the Applicant had informed the FCCA that his lawyer had withdrawn from his case the day before the FCCA hearing. Did the Applicant constructively apply for the FCCA hearing to be adjourned by informing it about the claimed lawyer withdrawal? If so, does the same principle apply to AAT hearings?
Summary and discussion
The Applicant applied for a protection visa. That application was refused and later on that refusal was affirmed by the Immigration Assessment Authority (IAA). The Applicant applied to the Federal Circuit Court (FCCA) for judicial review of the IAA's decision. The FCCA dismissed the judicial review application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), which read as follows:
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application
The Applicant applied to the Federal Court (FCA) for leave to appeal the FCCA's decision. The FCA said the following at [26]:
26 ... [the FCCA] judge asked the applicant to “tell [the FCCA judge] in [his] own words what [he said] the tribunal did wrong in this case”. This led to the following exchange between the applicant, through his interpreter, and the primary judge:
THE INTERPRETER: They have accepted what happened to my father, but they have refused my claims -- what I faced when I was in Sri Lanka.
HIS HONOUR: Anything else?
THE INTERPRETER: So in nineties I went back to India, but I was not able to get the documentary evidence from Sri Lanka and India to support my claims. So if a lawyer is involved in this matter in my case, it would be very helpful for me, but suddenly, yesterday, I got a response from my lawyer saying he’s not representing me today.
HIS HONOUR: Anything else?
THE INTERPRETER: I don’t have any family members in Sri Lanka. My wife and children are in a detention centre in Indonesia, so if I were to return to Sri Lanka, my safety is at risk. If I were forced to return to Sri Lanka, so what type of guarantee the Government will give for my safety?
HIS HONOUR: I’m sorry. I didn’t hear that last bit.
…
THE INTERPRETER: So Australian Government is the one forcing me to return and if something happens at the hands of the Sri Lankan Government, who is going to take care of my family and children who were in Indonesia?
HIS HONOUR: Okay. Anything from you, Mr Tran?
MR TRAN: No questions. No, your Honour.
Before the FCA, there was additional evidence of the Applicant's claim that his previous lawyer had withdrawn from the matter the day before, but that evidence was not before the FCCA.
Questions to the FCA:
Question 1: should the Applicant have been taken by the FCCA to have made a request for its hearing to be adjourned?
Question 2: if so, does the same principle apply to Tribunal hearings?
The FCA answered the above questions as follows ...