ABH16 v Minister for Immigration

[2017] FCCA 364

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABH16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 364

Catchwords:
MIGRATION – Judicial review – application for adjournment – applicants tendered letter from Legal Aid who indicate they are still assessing the application.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Aon Risk Services Limited v Australian National University [2009] HCA 27

First Applicant: ABH16

Second Applicant ABI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 37 of 2016

Judgment of: Judge Harland

Hearing date: 16 February 2017

Date of Last Submission: 16 February 2017

Delivered at: Melbourne

Delivered on: 16 February 2017

REPRESENTATION

The First Applicant: In Person

The Second Applicant: In Person

Counsel for the Respondents: Ms Tan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The proceeding be adjourned for final hearing on 18 May 2018 at 2.15pm before Judge Kelly with an estimated hearing time of 1 day.

2. That chambers send a copy of these reasons to Ms Fisher, Acting Program Manager for Migration of Legal Aid.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 37 of 2016

ABH16

First Applicant

ABI16
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter is listed for final hearing of an application for judicial review of a decision by the Tribunal, affirming the delegate’s decision to refuse the applicants a protection visa.  The hearing was initially listed to take place before me last week on 9 February 2017, and the listing was made at the directions hearing on 8 June 2016.  The hearing, due to judicial unavailability, had to be shifted to today.  The applicants appear, today, unrepresented, with the assistance of an interpreter.

3. The applicants have tendered to the Court, and I will mark it as exhibit A, a letter from Victoria Legal Aid (“Legal Aid”), dated 9 February 2017, addressed to my associate, indicating that Victoria Legal Aid have been approached by the primary applicant, with the request that Legal Aid assess the merits of her judicial review application.  It goes on to say that unfortunately, they have not finalised the assessment and that they need more time to determine whether or not she is eligible for a grant of aid, and that they undertake to complete the assessment of a matter of priority, and request an adjournment for a short period.

4. The applicants say that they approached Legal Aid many months ago and were waiting for Legal Aid to contact them further.  The counsel for the Minister has confirmed that the applicants were assisted by Legal Aid on a duty basis that the directions hearing, on 8 June 2016.  The first respondent opposed the application for the adjournment, on the basis that the matter has been before the Court for over a year, the application having been filed initially on 8 January 2016, and that the matter had been listed for hearing well over six months ago and that, therefore, the applicants have had ample opportunity to obtain legal advice and representation.

5. I am mindful of the principles set out by the High Court of Australia in Aon Risk Services Limited v Australian National University [2009] HCA 27, when considering adjournments and the importance of being mindful of the case management principles, particularly in a busy trial court such as this, where the lists are long and the delays are significant in bringing matters to hearing, and that one of the consequences of adjourning an application at a hearing is that an opportunity is lost for another case to take that hearing slot. Those are factors that weigh heavily against an adjournment being granted at this late stage. However, the applicants are in a position of disadvantage, particularly when Legal Aid has only advised, as late as 8 February 2017 – that is, a day before the initial listing for the hearing – that they are still undertaking the assessment as to whether or not they have merit, and needed further time.

6. It is most unfortunate indeed, that Legal Aid has left it to that very late stage to advise the applicants of this, without giving them any real opportunity to seek alternatives.  Representatives from Legal Aid attend every directions hearing providing assistance to applicants. They would be well aware of the delays in this Court in being able to list cases for final hearing in migration matters. Additionally, the very heavy workload and pressure on this Court, due to the high volume of applications filed. There is no capacity to provide for a short adjournment.

7. It is not a case where the applicants have only approached Legal Aid a few weeks ago.  If that was the case, then I would not be minded to accede to their request, but given that they approached Legal Aid in June 2016, and that Legal Aid has left it to shortly before the hearing to inform them that they would not be appearing at the hearing and were still assessing their claim, my view is not giving the applicants a meaningful opportunity to present their case today, and in those circumstances, I will grant the adjournment. 

8. The date for the hearing will appear in the orders.  I am going to have to make enquiries as to when it can be listed, and I will request that my associate send a copy of these reasons to Victoria Legal Aid, to Ms Fisher, the Acting Program Manager for Migration, who is the author of the letter of 9 February 2017.

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

Associate: 

Date:  1 March 2017