AZACA v Minister for Immigration
[2013] FMCA 192
•22 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AZACA v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 192 |
| MIGRATION – Application for refugee status – applicant’s solicitor seeks adjournment of application as applicant unable to fund legal representation at this stage – evidence suggests applicant will be unlikely to ever be in a position to fund representation – application to adjourn refused. |
| Migration Act 1958 (Cth), s.425 |
| Applicant: | AZACA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 101 of 2012 |
| Judgment of: | Simpson FM |
| Hearing date: | 18 March 2013 |
| Date of Last Submission: | 18 March 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 22 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms McGrath |
| Solicitors for the Applicant: | McDonald Steed McGrath |
| Counsel for the Respondents: | Mr Alderton |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
Application to adjourn matter refused.
Application in a Case filed on 7 March 2013 dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 101 of 2012
| AZACA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an Application in a Case seeking an order that the hearing listed for 18 March 2013 be adjourned. The application is supported by an affidavit of Ms Jane McGrath, lawyer for the applicant, she says that she had a meeting with the applicant on 14 November 2012 to take instructions about the applicant’s financial circumstances to support a request for reduction of the court setting down fee. She says that during the course of that meeting, the applicant indicated the following:
“1.He had been working as a casual lawn mower;
2.That it is virtually impossible for him to secure ongoing work and that at best he earns between nothing and $200 per week. He said that the sum was barely sufficient to cover his weekly expenses;
3.He said that he did not have to pay board, as he lives with a friend;
4.He is supposed to contribute to household expenses and food and he does this from monies that he earns as a casual lawn mower;
5.He is not able to produce pay slips;
6.He is not able to produce evidence of his income;
7.He is unable to afford to attend to payment of legal fees associated with the Federal Magistrates Court hearing on 18 March 2013;
8.He is hopeful that his financial situation will improve and that he will be in a position to fund the Federal Magistrates Court hearing if it is adjourned for a period of 6 months at least.”
In putting submissions on her client’s behalf, Ms McGrath stated that the only other source of income might come from the applicant’s parents if they are able to sell certain real estate that they own. No indication was given as to whether they were likely to be able to sell or when it is that they would be likely to be able to put it on the market to sell.
Counsel for the first respondent opposed the application. It was submitted that for a number of reasons, the order sought should be refused.
It was submitted that there is no good evidence that even if the matter is adjourned for 6 months, that the applicant will be able to pay his lawyer’s fees.
It was submitted that it is not unusual for parties to be unrepresented at cases such as these.
It was pointed out that the application was made late and after the respondent had prepared their submissions.
It was further put that there is no merit in the applicant’s case. The only ground relied upon was meaningless.
For all of these reasons, the respondent submitted that the application for adjournment should be refused and the matter should proceed to hearing forthwith.
The ground that the applicant relies upon in his initial application is in the following terms:
“The second respondent committed jurisdictional error in failing to provide the applicant with a hearing as required under section 425 of the Migration Act 1958”.
Section 425 states:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
In this case, it is clear that the Tribunal invited the applicant to appear before it. He attended before it on 10 April 2012 with his representative. The applicant was also assisted at the hearing by an Albanian interpreter. The Tribunal’s summary of its decision records what occurred at the hearing. It indicates that the applicant was given the opportunity to give evidence and present arguments on the issues on the review, namely, the applicant’s credibility and the credibility of his claims. The applicant’s case is not strong. The strength of the applicant’s case is one of many factors that I need to consider in relation to the adjournment application.
For all the reasons put by counsel for the respondent I believe that I should refuse the application to adjourn.
I propose to have the application filed on 28 May 2012 called on immediately following the publication of these reasons. If the applicant happens to appear, I will hear from him. If he has a legal representative, I will hear any further submissions from that legal representative.
I will hear the respondent on the question of costs of the application to adjourn.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Simpson FM
Date: 22 March 2013
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