ANA18 v Minister for Home Affairs - [2018] FCCA 1372

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANA18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 1372

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.

Applicant:

ANA18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 273 of 2018

Judgment of:

Judge Manousaridis

Hearing date:

9 May 2018

Date of Last Submission:

9 May 2018

Delivered at:

Sydney

Delivered on:

9 May 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Counsel for the First Respondent:

Mr J Kay-Hoyle

Solicitors for the First Respondent:

Clayton Utz Lawyers

ORDERS

The applicant’s application for an adjournment of the hearing is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 273 of 2018

ANA18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

On 5 February 2018 the applicant filed an application in this Court for judicial review of a decision made by the Immigration Assessment Authority on 4 January 2018. By that decision the Immigration Assessment Authority affirmed a decision made by a delegate of the first respondent not to grant the applicant a Protection visa.
The matter came on for a first court date before a Registrar of this Court on 26 February 2018. Because the applicant is in detention the matter was listed for hearing more quickly than applications of this sort are usually listed in this Court. The hearing of the application was listed before me at 10.15 am on 9 May 2018.
As is my usual practice I explained to the applicant, who is not legally represented, the purpose of the hearing before me and the procedure that would be followed. After I had identified and admitted into evidence the relevant materials on which the parties intend to rely, and I invited the applicant to make submissions in support of his case, the applicant said he wished to have more time; in other words, he applied for an adjournment of today’s hearing. The reason for his applying for an adjournment was that he said he wanted time to obtain legal representation.
He said to me from the bar table, and I have no reason for not accepting what he said, that he had sought the assistance of the Refugee Advice and Casework Service (RACS); and he said that although RACS initially indicated they would assist him they informed the applicant that they could not. The applicant could not be more specific than informing me that it was last month that he was informed that RACS would not be able to assist him.
In the course of his application for an adjournment I asked the applicant how long he wanted the matter to be adjourned. He said he wanted two months. I asked him what he expected he would do in order to obtain a lawyer. He said that he would try his level best to obtain one. When I asked the applicant what it is that he expected to do to obtain a lawyer the applicant again said that he would do his level best. He referred to his having made a call to a lawyer unsuccessfully, stating that the lawyer was overseas. I asked the applicant when it was that he attempted to call that lawyer. He said it was last month, but he could not be more precise about when it was last month that he attempted to call the lawyer. I also asked the applicant whether he knew the name of the lawyer, but he could not tell me the name of the lawyer. I also asked the applicant how it was that he believed that this lawyer was overseas. The applicant said that he had made some inquiries of his friends.
The application for an adjournment is opposed by the Minister. It is opposed on the basis that the applicant was aware, at least of the advisability of securing legal representation if he could. The Minister submitted that, in effect, the applicant was seeking an open ended, albeit limited by time, opportunity to obtain legal representation.
Before I consider the application further I need only note that what the applicant has said about his communications with RACS is supported by a document which the Minister tendered on the application for an adjournment. That document contains a series of emails. The first is one sent by an officer from RACS to the Minister’s lawyers on 3 April 2018 in which the author of that email said the email was being sent in relation to the applicant, and in relation to the matter that is before me today, stating that the applicant had approached RACS for assistance. There is no need to say anything further about that email other than to record that the author said that RACS was acting strictly as a referral service rather than acting for the applicant, and sought a copy of the court book in PDF form. The other email in that document, or one of the other emails in that document, is an email sent on 4 April 2018 to the officer from RACS attaching an electronic copy of the Court Book and Supplementary Court Book, both of which have already been tendered at the hearing that is before me today.
I then turn to the application for an adjournment. Whether or not a court grants an adjournment of a hearing is a matter within the discretion of the court. But that discretion is exercised according to well-settled principles. The overall question is whether it is in the interest of the administration of justice that the adjournment be granted. And here there are at least three things that a court looks at. One is why the applicant for the adjournment is not ready to proceed with the hearing at the appointed day. The second is whether there would be any prejudice to the applicant if an adjournment is not granted. That question usually turns on whether there would be any utility in granting an adjournment. And the third matter the court normally looks at is the prejudice that will be suffered by the party opposing the application for an adjournment, if an adjournment is granted.
If I turn to the first matter, the reason the applicant says he is not ready to proceed today is that he needs legal representation. And I can readily accept that the applicant has attempted to obtain representation, but he has been unable to secure such representation. The second matter I need to consider is whether there would be prejudice if the applicant were not granted an adjournment. And this turns on whether there would be any utility in granting the adjournment. And this turns, really, on whether there’s any prospect that the applicant will be able to obtain any legal representation. Even on the matters that the applicant has put to me today, I cannot be satisfied that there is any prospect that the applicant would be able to secure any legal representation over the next two months or at all. The applicant filed his application on 5 February 2018, which is three months ago. And he has been unable, in that time, to obtain any legal representation. That is a basis for doubting whether, in the future, the applicant will be able to obtain legal representation. But that, of course, is not the only matter that is relevant. What is also relevant is what the applicant said he would do to seek to pay legal representation. The only thing the applicant was able to tell me is that he would try his level best, because it is in his interest to try his level best. In the circumstances of this case that affords no basis upon which I could form the view that there is any prospect that his trying his best would result in his securing legal representation.
Even if the applicant were to obtain legal representation there is nothing to indicate that such legal representation would result in any benefit to the applicant. I do not lay any great stress on that factor because that would require me to go into the merits of the applicant’s case, and, indeed, to speculate on whether a suitably qualified lawyer might cast the applicant’s case in some different way. The principal point of this part of my reasons for decision is that I cannot be satisfied there is any prospect that if an adjournment were granted the applicant would secure any legal representation. That means that I am not satisfied that there would be any utility in granting the adjournment sought, which, in turn, means that if I were not to grant the adjournment I am not satisfied there would be any prejudice to the applicant.
Finally, I turn to the prejudice to the Minister. If a matter is adjourned that usually results in costs being thrown away at the very least that includes the costs of appearing at the hearing. The usual means by which that prejudice is remedied if an adjournment is granted is by the court making an order for costs. In the circumstances of this case, making an order for costs would appear to be an empty gesture, because I think it is safe to assume that any order for costs would not be met by the applicant because he would not have the capacity to meet such order.
Bearing all these matters in mind, I am not satisfied that it is in the interests of the administration of justice that I grant the application for an adjournment sought by the applicant, and such application is refused.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 1 June 2018