AGI18 v Minister for Home Affairs (No 2)

[2019] FCA 127

FEDERAL COURT OF AUSTRALIA

AGI18 v Minister for Home Affairs (No 2) [2019] FCA 127

Appeal from:	AGI18 v Minister for Home Affairs & Anor [2018] FCCA 1836
File number:	NSD 1313 of 2018
Judge:	ROBERTSON  J
Date of judgment:	13 February 2019
Cases cited:	Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Date of hearing:	13 February 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	18
Counsel for the Appellant:	The Appellant appeared in person with the aid of an interpreter
Solicitor for the First Respondent:	Ms C Saunders of DLA Piper Australia
Counsel for the Second Respondent:	The second respondent submitted to any order of the Court, save as to costs

ORDERS

NSD 1313 of 2018

BETWEEN:

AGI18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ROBERTSON  J
DATE OF ORDER:	13 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The appellant’s application for an adjournment be refused.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1. When this appeal was called on for hearing the appellant applied for an adjournment.  The Minister, by his legal representative, opposed that application.

2. The appellant submitted that he needed some time to look for a lawyer who could look into his case.  He said that in the Federal Circuit Court he also wanted to look for a lawyer but he was not given permission by the judge of that court.

3. The relevant sequence of events is that in the course of the hearing before the Federal Circuit Court, on 6 July 2018, at the conclusion of the evidence, the applicant applied for an adjournment because he had not been able to find a lawyer.  According to the judgment at [15], the appellant said he had been to different places, including Legal Aid, and had been unable to obtain representation.  As I have indicated, that application for an adjournment was refused

4. The appellant’s application for judicial review was dismissed by the judge of the Federal Circuit Court on 6 July 2018 with reasons been given orally.  A written judgment was published on 31 August 2018.

5. The appellant said that a migration agent had helped him a little bit in drafting his notice of appeal to this Court and his affidavit in support filed on 24 July 2018.

6. Thereafter, the appellant said he had got hold of a Nepali lawyer from his community and sent to him all the emails that he had been receiving from the Court.

7. He said that he was notified in the first week of January 2019 that his appeal was to be heard today.

8. He said that on 7 or 8 February 2019 the Nepali lawyer sent him an email to see Mr Elee Georges, solicitor.

9. He said he was depending on this Nepali lawyer to take care but “he responded last minute that this case can be taken last minute.  And that is why another lawyer has to be referred last minute.”

10. The appellant also said that he needed time to get the CD of the hearing in the Administrative Appeals Tribunal and for a lawyer to go through it.

11. He said he did not know what might be on the CD but the lawyer, Mr Georges, said that he would need to go through it to see if there was anything in it and that was why he was waiting for the CD.

12. When the appeal was called on for hearing Mr Bodisco of counsel sought leave to withdraw from the matter as he said he was without instructions and he understood that his client wished to represent himself this morning.  Mr Bodisco made the same application on behalf of Mr Georges.

13. Mr Georges had, on 12 February 2019, affirmed an affidavit in the matter which the legal representative of the Minister read in opposing the application for an adjournment.  From that affidavit it appears that Mr Georges was contacted by the appellant on 8 February 2019 requesting that he act as the appellant’s solicitor and that on 11 February 2019 Mr Bodisco provided a preliminary view that the appellant had reasonable prospects of success on his appeal.

14. I was also taken to related written submissions which were filed yesterday and made reference to the judgments to be handed down this morning by the High Court, being Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3. However, the submissions proceeded on the basis that the appellant had a ground of review relating to a certificate issued under s 438 of the Migration Act 1958 (Cth). This was on the mistaken factual basis that the Tribunal in the present case made no reference to that certificate and no disclosure of the documents referred to in that certificate.

15. In these circumstances I am not persuaded that the basis for an adjournment is made out.  Although I accept that the appellant relied to some extent on the Nepali lawyer from his community, there is no persuasive detail of the appellant’s activity in terms of obtaining a lawyer for the appeal, particularly in light of his unsuccessful application before the Federal Circuit Court for more time to obtain a lawyer.  I am also not persuaded that he did not have enough time to obtain advice apart from the Nepali lawyer.  He did obtain advice, although recently, and then the lawyers acting for him sought to be excused on the basis that the appellant wished to represent himself at the hearing of the appeal.

16. Furthermore, the foreshadowed obtaining of the CD of the hearing in the Tribunal rests entirely in the abstract.

17. The existing grounds of appeal are very general and the ground foreshadowed in relation to s 438 has no substance as the s 438 certificate was, according to the Tribunal’s reasons, disclosed to the appellant, treated by the Tribunal as invalid and the documents the subject of the certificate discussed with the appellant.

18. For these reasons I refuse the appellant’s application for an adjournment of the hearing of the appeal.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:       13 February 2019