AYU15 v Minister for Immigration

[2016] FCCA 2310

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2310

Catchwords:
MIGRATION – Application for adjournment on ground that applicant was not served with court book – whether applicant served with court book – whether there would be any utility in applicant being granted adjournment – adjournment refused.

Applicant: AYU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1550 of 2015

Judgment of: Judge Manousaridis

Hearing date: 25 August 2016

Delivered at: Sydney

Delivered on: 25 August 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Mr J Pinder of Minter Ellison

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1550 of 2015

AYU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter was set down for hearing before me today.  As is my usual practice, I explained to the applicant the procedure that would be followed, namely, first, my identifying the documents I needed to consider and then the parties each making submissions. After I identified the documents the applicant had filed, and after I also identified the court book which the lawyers for the first respondent (Minister) prepared (as is usually the case in applications for judicial review of decisions of the Refugee Review Tribunal), the applicant, who is not represented, claimed he had not received the court book and he sought an adjournment of six months to give him an opportunity to come to grips with the documents that are within the court book. 

2. I adjourned the matter for a little while to afford Mr Pinder, who appeared on behalf of the Minister, to provide evidence about the service of the court book.  Mr Pinder, in the period of the short adjournment, arranged for an affidavit to be made by Ms Faron, a secretary employed at Minter Ellison, the lawyers for the Minister.  That affidavit was read. In her affidavit, Ms Faron said that, on 15 July 2015, she caused a letter dated 15 July 2015 to be sent to the applicant at the address specified as the address for service in the application filed by the applicant.  The letter that Ms Faron deposes she caused to be sent was to the following effect:

   We enclose by way of service a copy of the court book filed on behalf of the first respondent on 14 July 2015.

   We note that this matter is listed for final hearing before Judge Manousaridis in Court 8.1, Level 8, Terrace Tower, 80 William Street, Sydney (subject to change by the Court) on 25 August 2016 at 10.15 am. Please be aware that if you do not appear on that occasion, the first respondent may apply to have the matter dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), with costs.

3. The applicant said he did not wish to cross-examine Ms Faron.  At my invitation, however, Ms Faron gave evidence to questions that I asked in relation to her affidavit.  My questions were directed to obtaining further information about what Ms Faron meant by the words “caused the letter to be sent”.  Ms Faron gave evidence that there is a usual procedure within the offices of Minter Ellison concerning the service of court books.  She said that it is her usual practice that she writes letters which refer to court books being enclosed with the letter and places that letter and the court book in an envelope, and the envelope is then left in the mailroom. She further said there are persons in that mailroom who regularly take the mail left there to be posted. Ms Faron was not cross-examined on that evidence. 

4. I am satisfied that, as at 15 July 2015, there was in place at the offices of Minter Ellison a system whereby mail was sent, that system being one where persons who wish to send mail arrange for the contents of that which is intended to be sent by mail to be placed into an envelope with the address of the intended recipient; the envelope is left in a mailroom; and persons who have the responsibility for that task arrange for the mail from the mailroom to be taken to the post office for delivery by post.  I am satisfied that that practice was followed in connection with the letter dated 15 July 2015 to which Ms Faron refers and which is annexed to her affidavit.

5. The applicant gave evidence.  He confirmed from the witness box that he had not received the court book.  He also gave evidence that he had not seen the letter dated 15 July 2015 until today when it was translated to him.  It was not specifically put to the applicant that he did not, in fact, receive the letter dated 15 July 2015 but it was not, however, necessary for Mr Pinder to directly put that because there is no question that there is an issue about whether the applicant did receive the court book.

6. I do not accept the applicant’s evidence that he had not received the letter dated 15 July 2015.  I do that for two reasons.  First, I have already found that the letter was posted and the probabilities are that the letter did end up where it was intended to end up.  It is, of course, always possible that mail does not get delivered on occasions but the probability is that, on most occasions, letters that go through the post end up at their intended place.  Secondly, however, I cannot accept that the applicant is a witness of truth.  My opinion in that regard arose from questions I asked of the applicant about his claimed need to require further time.  I initially asked him whether he had retained a lawyer.  He did mention obtaining legal advice from an organisation called RACS, which is an acronym, but when I asked him whether he had received advice about his application before the Court, he said “no”.  I then asked him then why should I believe him when he said that he would seek the assistance of a lawyer to help him understand the court book.  It was at that point in time that the applicant said he, in fact, did have a lawyer, but his lawyer told him he, the lawyer, did not need to turn up. When I asked the applicant what the name of the lawyer was, he gave me a single name, “Vrodie”, but he said he did not know the lawyer’s full name.  The applicant said he had not consulted the lawyer at the lawyer’s offices but instead consulted him at a club. 

7. I find the inconsistent evidence the applicant gave about whether he had retained a lawyer leads me to doubt anything the applicant might say in support of his interests as he perceives them. I also find the evidence he gave about seeing a lawyer to be incredible. Had he, in fact, sought the assistance of a lawyer, and if that lawyer was still willing to provide assistance to the applicant, that lawyer would have made some attempt either to be here or to communicate to the Court that lawyer’s willingness to provide assistance to the applicant or, at the very least, would have contacted the lawyer for the Minister. 

8. In these circumstances, I find that the court book was sent to the applicant and that the applicant did receive the court book.

9. In the course of submissions about whether the applicant had received the court book, the applicant said that he wanted further time, that is to say, he wanted an adjournment for the purpose of his obtaining advice.  I am not prepared to grant that adjournment.  First, I have already found that the applicant did receive the court book.  Second, I find unconvincing his submission that he needs to consult a lawyer when it appears he has not sought at least serious legal advice about his application. Stated another way, in my opinion, there would be no utility in granting the applicant any further time.  It does not appear that he has obtained legal advice to date and it is unlikely that he will seek or be in a position to obtain legal advice in the future. 

10. Therefore, to the extent that the applicant has applied for an adjournment, that adjournment is refused.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 September 2016