AUN15 v Minister for Immigration
[2017] FCCA 888
•21 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUN15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 888 |
| Catchwords: PRACTICE AND PROCEDURE – application for an adjournment – injunction to restrain removal from Australia – where injunction application made by lawyer on behalf of applicant – where lawyer withdraws on day of hearing of injunction application. |
| Legislation: Migration Act 1958 (Cth), ss.197C and 198 |
| Cases cited: ALY15 v Minister for Immigration [2017] FCA 281 Lejmanoski v The University of Western Australia (No 3) [2016] FCCA 154 Myers v Myers [1969] WAR 19 |
| Applicant: | AUN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | INTERNATIONAL TREATIES OBLIGATIONS ASSESSMENT |
| File Number: | PEG 149 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 21 April 2017 |
| Date of Last Submission: | 21 April 2017 |
| Delivered at: | Perth |
| Delivered on: | 21 April 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr PR Macliver |
| Solicitors for the First Respondent: | Australian Government Solicitor |
For the Second Respondent: | No appearance |
ORDERS
That an interim injunction issue restraining the respondents, and their officers, employees, or agents, from removing the applicant from the Commonwealth of Australia until further order of the Court.
That the applicant file and serve:
(a)any further affidavits; and
(b)an outline of submissions,
in support of the application (and any interlocutory application) by 4pm on 10 May 2017.
That the respondents file and serve:
(a)any further affidavits; and
(b)an outline of submissions,
in opposition to the application (and any interlocutory application) by 4pm on 17 May 2017.
That the matter be adjourned for final hearing of the originating application (and any interlocutory application) at not before 3pm on 18 May 2017.
That costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 149 of 2017
| AUN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| INTERNATIONAL TREATIES OBLIGATIONS ASSESSMENT |
Second Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore and revised)
There is an application before for the Court by the applicant, who is self-represented, for an adjournment of these proceedings. That application was made in Court this afternoon during the applicant’s urgent application for an injunction to prevent his deportation from the Commonwealth of Australia next Wednesday.
The circumstances in which the adjournment application was made include the fact that the applicant was represented by a lawyer who made the application in a case for interlocutory injunction to prevent deportation and provided to the Court an address for service by way of email in that regard. It is relevant to note that the lawyer concerned is based in Bankstown in New South Wales.
That application in a case for an interlocutory injunction was made on 4 April 2017. It was made in relation to an originating application made less than three weeks in relation to an International Treaties Obligation Assessment decision unfavourable to the applicant. The originating application was made by the applicant himself. The application for an injunction having been made on 4 April 2017 by a lawyer acting on behalf of the applicant was then the subject of a notice of withdrawal by that lawyer which was filed at 10.52 am Australian Western Standard Time today.
That notice of withdrawal indicates that the lawyer concerned had previously acted for the applicant, hereby withdraws from the record and no longer acts for the applicant in the case, and affirms that the lawyer had served a notice of intention to withdraw as a lawyer on the applicant sent by email to the applicant’s email address on 12 April 2017, and a copy of that notice of intention to withdraw is attached to the notice of withdrawal filed this morning. It was attached to an affidavit filed together with the notice of withdrawal.
That affidavit, filed by Uche Agbugba (“Mr Agbugba”) was sworn today. Mr Agbugba was the lawyer representing the applicant. He indicates that, by way of email, he sent to both the applicant and, it would appear, the applicant’s migration agent, a notice in which he said:
I’ve discussed with both of you I will not be proceeding with this matter for the direction and hearing. I’m forwarding to you AGS correspondence for your attention and action.
The Australian Government Solicitor (“AGS”) correspondence referred to is a letter to Ms Egan, who is a senior legal assistant AGS in Perth, it appears, and in which Mr Agbugba indicates that:
Regrettable, I may not be able to continue as the applicant’s legal representative. I am located in Sydney, New South Wales. The applicant is financially unable to support my appearance in person at Perth, WA for his matter. The alternative option is to seek leave from the judge presiding to appear by video conference. This also involves financial responsibility which the applicant is unable to support. I’ve discussed this matter with the applicant. He would be making alternative arrangements for legal representation from Perth, WA, and will advise you accordingly.
It appears from what was said by the applicant today in Court, while not on affidavit, that discussions in respect to that may have occurred much later in the piece than on Wednesday, 12 April 2017, and certainly, from what has been said today, it appears to the Court the applicant is not personally in a position to present his case, and certainly has no particular awareness of the matters in respect of which he is required to address the Court on an interlocutory application for an injunction to prevent his deportation.
The Court is concerned that the notice of intention to withdraw is not in the proper form. The Court is also concerned that it contains some ambiguity as to whether or not the lawyer concerned intended to continue to represent the applicant, and that the notice of withdrawal did not come seven days after the notice, but rather nine days after the notice, and effectively on the day of today’s injunction application. In these circumstances, the Court – bearing in mind some recent Federal Court authority – makes the observation that one of the Court’s obligations is to ensure that the applicant, as a self-represented person, was able to prepare and argue his case.
It is patently obvious, with respect – the Court makes no criticism of the applicant in this regard as a self-represented litigant in immigration detention – that he personally has had no opportunity to prepare and argue his case, at least until nine days ago, believing that a lawyer was going to do so, and perhaps even until yesterday or today, believing that a lawyer was going to do so.
It is not apparent that the applicant has taken any steps to obtain other legal representation in Perth or otherwise for the purposes of the hearing. That might mean that he simply has not done so or, alternatively, given the late notice of withdraw, he has simply not had time to do so.
The Minister for Immigration and Border Protection (“Minister”) opposes the adjournment. No doubt that is understandable in the circumstances where the application is made late, and the provisions of s.198, read with s.197C, of the Migration Act1958 (Cth) impose an obligation on the Department of Immigration and Border Protection to remove the applicant from Australia, as the Federal Court of Australia (“Federal Court”) observed in ALY15 v Minister for Immigration [2017] FCA 281 at [12] per Jessup J:
12 On the other hand, while not asserting that her client would suffer prejudice in the sense in which the word is often used in conventional civil litigation, counsel for the Minister relied on the public interest involved in the due administration of the Act, particularly where s 198(6) imposed an obligation on departmental officers to remove the appellants from Australia. There being no suggestion that this subsection was not applicable in the circumstances of the appellants, the grant of an interlocutory injunction would have the effect of requiring the Minister to direct his officers to proceed in defiance of it. These were significant discretionary considerations of which I took account.
That, however, does not mean that an applicant should not be in a position to properly prepare and present his case. The Court is cognisant of the fact that a party has no particular right to legal representation in migration proceedings in this Court, and there have been a number of decisions to that effect. But that likewise and more recently the Federal Court has made it apparent that an applicant should be given proper opportunity to prepare and argue his case, and in the circumstances of this case, the Court is left with a feeling of some disquiet as to whether or not, and where advertently or inadvertently, the applicant has been put in a position whereby he is not properly prepared to argue his case.
The Court bears in mind that on an adjournment application the Court exercises a very broad discretion: Myers v Myers [1969] WAR 19 and Lejmanoski v The University of Western Australia (No 3) [2016] FCCA 154. In exercising that discretion the Court bears in mind that it is not satisfied that this is not a matter which should not be adjourned, by reason of the applicant not being able to present his case. The Court also in that regard bears in mind in exercising the discretion that it has indicated to the parties that it will make arrangements for this matter to be heard on 18 May 2017, not just in relation to the injunction application but in relation to the substantive application itself. And thereby there will be a relatively short delay before the hearing and determination of the matter in any event.
The Court is conscious of the fact that there is no doubt some prejudice to the Minister by reason of any delay, the applicant as the Court understands it being in immigration detention, and the applicant also presently being booked (on the affidavit evidence) on a Perth-Doha, Doha-Nairobi flight next Wednesday. Notwithstanding that, the Court considers that the interests of the administration of justice are better served by the applicant being in a position to properly prepare and argue his case, and as the Court has indicated by reason of the circumstances involved, the applicant will be afforded an opportunity not just to argue the injunction against deportation but to argue the case proper within a matter of weeks.
Conclusion
In the above circumstances, the Court proposes to make orders that:
a)an interim injunction issue restraining the respondents, and their officers, employees, or agents, from removing the applicant from the Commonwealth of Australia until further order of the Court;
b)the applicant file and serve:
i)any further affidavits; and
ii)an outline of submissions,
in support of the application (and any interlocutory application) by 4pm on 10 May 2017;
c)the respondents file and serve:
i)any further affidavits; and
ii)an outline of submissions,
in opposition to the application (and any interlocutory application) by 4pm on 17 May 2017;
d)the matter be adjourned for final hearing of the originating application (and any interlocutory application) at not before 3pm on 18 May 2017; and
e)costs be reserved.
The Court wishes to make it apparent to the applicant that whether or not he is represented, those affidavits – if he chooses to file affidavits – but certainly submissions must be filed. And likewise, at any hearing whether or not the applicant is represented will be a matter for him to have arranged or determined in the meantime.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 4 May 2017
0
2
2