AJR24 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1237

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AJR24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1237

File number:	PEG 33 of 2024
Judgment of:	JUDGE LADHAMS
Date of judgment:	14 November 2024
Catchwords:	PRACTICE AND PROCEDURE – oral application for a hearing to be adjourned – application granted.
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Division:	Division 2 General Federal Law
Number of paragraphs:	10
Date of hearing:	14 November 2024
Place:	Perth
Applicants:	The first applicant and the second applicant appeared in person
Counsel for the First Respondent:	Ms M Woollett
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

PEG 33 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AJR24

First Applicant

AJS24

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	14 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to ‘Minister for Immigration and Multicultural Affairs’. 

2.The applicants’ oral application for an adjournment is granted.

3.The hearing is adjourned to 21 February 2025 at 10:00am AWST.

4.By 24 January 2025, the applicants are to file and serve the following documents: 

a.   any amended application;

b.   any further evidence; and

c.   written submissions.

5.The Minister is to file and serve any further written submissions by 7 February 2025.

6.The applicants are to pay the first respondent’s costs thrown away in relation to the hearing today and the adjournment.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

(Delivered ex tempore and revised from the transcript)

JUDGE LADHAMS:

1. This matter is listed before the Court today for hearing in relation to the applicants’ application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed decisions made by a delegate of the Minister refusing to grant the applicants protection visas.  The applicants were advised that the hearing would be listed on 25 October 2024 on 9 May 2024.  That hearing was originally listed before Judge Kendall, but the matter has since been reallocated to me for hearing today. 

2. At the commencement of the hearing, the applicants made an oral application for the hearing to be adjourned. The reason for the adjournment was because the applicants have been informed this week that a request for community legal counsel has been accepted and Estrin Saul Lawyers (Estrin Saul) will be able to consider the merits of the application if additional time is granted to allow them to review the transcript of the hearing before the Tribunal.

3. The Minister opposes the request for an adjournment. The reasons for the Minister opposing the adjournment application are as follows:

   (a)There is no right to legal representation in migration proceedings.

   (b)The application was filed 11 months ago and the applicants have not raised their recent contact with a lawyer until today. The matter is ready to be heard today, and the parties were advised of the listing in May. An interpreter has been booked, and there will be a loss of the Court’s time and resources if the case is not heard today.

   (c)The application lacks merit and, therefore, an adjournment is not in the interests of the administration of justice.

4. Taking into account the matters raised by both parties and the overarching purpose of the Court’s practice and procedure provisions as set out in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), I have decided that it is appropriate to grant the adjournment. My reasons for doing this are as follows.

5. The applicants have confirmed that they now have access to a lawyer who can review their application for them. Migration matters are complex, and the applicants will benefit from an experienced lawyer reviewing their application. The applicants have written confirmation that Estrin Saul is able to assist them, and that written confirmation has been viewed, in part, by Ms Woollett, who appears for the Minister today. I have not required the applicants to file the email in Court or to otherwise disclose it to Ms Woollett in full because I do not want to put the applicants in a position where they may waive privilege over any legal advice that may be in that document. 

6. In circumstances where it has been confirmed that an experienced lawyer is able to review the application, it seems to me that there is utility in granting the adjournment. That utility may manifest in two ways. First, if Estrin Saul identify reasonable grounds in the application, the applicants will have the benefit of considered grounds argued by an experienced legal practitioner.  Second, if Estrin Saul review the application and determine that it does not have reasonable prospects of success, it is open to the applicants to discontinue their application to the Court. In such a case, a further hearing would not be required. If the applicants discontinue their application in those circumstances, they would be doing so with the benefit of legal advice.

7. I acknowledge that there will be an ineffective use of Court resources if the hearing does not proceed today, and I further acknowledge that there is a lost opportunity for another matter to be heard today. This is a significant consideration in the light of the significant backload of migration cases pending before this Court.

8. Nevertheless, in considering what is appropriate in the interests of the administration of justice, I consider that the interests of justice are better served by granting the applicants the adjournment to allow them to get legal advice than by proceeding with the hearing today.

9. The Minister has indicated that he seeks an order for costs thrown away if the adjournment is granted. I have explained what this means to the applicants and I am satisfied that such an order is appropriate in this case.

10. I will therefore make orders to the effect that the hearing is adjourned to a date that I will shortly fix and that the applicants pay the Minister’s costs thrown away. I will hear from the parties as to whether any further consequential orders would be appropriate.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       22 November 2024