ABF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3326

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3326

File number(s):	SYG 27 of 2017
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	2 December 2020
Catchwords:	PRACTICE AND PROCEDURE – application for an adjournment – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment – whether prejudice to first respondent if adjournment granted – application for adjournment dismissed
Legislation:	Migration Act 1958 (Cth), s 476
Number of paragraphs:	13
Date of hearing:	2 December 2020
Place:	Sydney
Applicant:	Appeared in person, by video, assisted by an interpreter
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	HWL Ebsworth Lawyers

ORDERS

SYG 27 of 2017

BETWEEN:

ABF17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	2 DECEMBER 2020

THE COURT ORDERS THAT:

1.The applicant’s application for an adjournment is dismissed.

REASONS FOR JUDGMENT
(Revised from the transcript)

1. Before me today there was listed a hearing of an application brought by the applicant for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the Immigration Assessment Authority affirming a decision made by a delegate of the first respondent, the Minister, not to grant the applicant a temporary protection visa. The applicant commenced the proceeding by filing an application with this Court on 5 January 2017. The matter came before a Registrar on 18 May 2017 and on that day the Registrar made directions for the further conduct of the application.

2. At today’s hearing the applicant, who is in prison, has applied for an adjournment of the matter until such time as he is released from prison.  The applicant informed me that he will be released from prison in about nine months, and I should add that the applicant has appeared by a video conferencing facility.  The applicant is not legally represented, but he has had the benefit of an interpreter in the Arabic language. 

3. I first turn to the principles that should govern my approach to the applicant’s application for an adjournment. Whether an adjournment should be granted of a hearing is a matter within the discretion of the court, and by discretion I mean it requires a court to look at a number of factors.  The ultimate question is whether the court is of the view it is in the interests of justice that an adjournment should be granted.

4. The factors that a court usually looks at when considering whether to grant an adjournment include, at the very least, two broad factors.  The first is what explanation an applicant for an adjournment gives as to why he or she is not in a position to proceed with the hearing. To the extent an adequate explanation is given then the basis for granting an adjournment is stronger.  Contrariwise if no adequate explanation is given as to why an applicant for an adjournment is not ready to proceed with the hearing the case for an adjournment is less strong. The next factor is usually the most significant factor, and that is whether the granting of an adjournment is likely to produce some tangible benefit to the person applying for the adjournment. Also relevant is whether the party opposing the adjournment will suffer prejudice if an adjournment is granted. I will therefore consider each of these factors as they are engaged by the matters submitted by the applicant and by the Minister who I should have noted opposes my granting the applicant the adjournment. 

5. The principal explanation the applicant has given as to why he is not ready is that he was not aware that this matter had been set down for hearing until relatively recently.  The applicant also referred to the fact that he has been in prison for the past four years.  The consequence of, at least, the first of these explanations is that the applicant has taken no steps to obtain any legal assistance or legal representation, and he has taken no steps to obtain financial or other support from members of a particular community. It may be accepted that being in prison does present difficulties a person not being in prison would not have in seeking to obtain assistance in relation to an application for judicial review.  Those difficulties, however, would not be insurmountable, particularly having regard to the period that has passed between the time the applicant filed his application and the time that has been set down for hearing.  So being in prison, by itself, in these circumstances, is not an adequate reason for the applicant not being ready to proceed with the hearing today.

6. The principal reason why the applicant appears not to have been ready to proceed today, however, is that he was not aware of the hearing date until relatively recently. That is not a reasonable explanation.  Whatever the applicant’s stated knowledge of this proceeding is, or may be, it is nevertheless a proceeding which the applicant on his initiative commenced with this Court almost five years ago.  It is not unreasonable to expect that an applicant, even an unrepresented applicant, should take some interest in an application that has been filed in this Court.  I am therefore not satisfied the applicant has given any adequate explanation for his not being ready to proceed with the hearing today.

7. I then turn to what, if any, utility there would be in my granting the adjournment the applicant seeks.  I asked the applicant what it is that he expected would happen if an adjournment were granted.  I understood him to mention two things.  One is that he wanted to obtain proof about matters that occurred in Iran, or he feared will occur if he returns to Iran. Even if I were satisfied that there was some prospect of the applicant obtaining that sort of proof there would be no utility in adjourning the matter for that reason simply because this Court does not have jurisdiction to determine the merits of the applicant’s claims for protection.

8. Secondly, the applicant said he wants the opportunity to obtain a lawyer.  In response to my question regarding legal representation the applicant said he did not have money to afford a lawyer.  The applicant said that he would seek to obtain such assistance from the community of which he says he is a member.  Given the applicant appears to have made no attempt to obtain such assistance in the past, there is no basis for me being satisfied that there is any tangible prospect that the applicant will be able to obtain such assistance if an adjournment is granted. In any event the statement by the applicant that he would seek such assistance is nothing more than a statement of hope without any rational foundation. 

9. The applicant also referred to hardship and, in particular, the passing away of his father in Iran and the circumstances of his mother.  Although these considerations may induce sympathy they are not capable of rationally explaining the applicant not having done anything in four years since he commenced this proceeding in order to prepare himself for the hearing.

10. The applicant also made a general complaint about the interpreter that was provided in connection with his interview before the delegate. The complaint was expressed in what may be regarded as a rather extreme form, the claim, as I understood it, being that the interpreter would say the opposite of what the applicant intended to say.  The applicant, in response to my question, confirmed that this was not a complaint that was made to the Authority and given the general and rather extreme form in which the complaint is made I am not satisfied that there would be any tangible prospect if the applicant were granted an adjournment he would be in a position, even with the assistance of a lawyer, to formulate some arguable ground justiciable by this Court in relation to any issue of interpretation that arose before the delegate.

11. So the conclusion on this part of the applicant’s application for an adjournment is that, even if I were to grant the applicant an adjournment, I am not satisfied there would be any utility in doing so. 

12. I then turn, very briefly, to the prejudice to the Minister if an adjournment were granted.  The Minister has not submitted there would be any specific prejudice, but at the very least if an adjournment were granted the costs of the Minister of attending today’s hearing would be thrown away.  Such prejudice can often be remedied by an order for costs, but that remedy depends on the person who is ordered to pay the costs being in a position to do so. Given the applicant’s statement that he has no money, an order for costs would not remedy the prejudice the Minister would suffer if the adjournment were granted.

13. For these reasons I am not satisfied it is in the interests of justice that the adjournment the applicant seeks should be granted, and I propose to reject that application. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       11 December 2020