AZADT v Minister for Immigration

[2013] FCCA 2401

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZADT & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2401

Catchwords:
MIGRATION – Application to adjourn show cause hearing – refused.

Legislation:  

Migration Act 1958

First Applicant: AZADT

Second Applicant: AZADU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 196 of 2013

Judgment of: Judge Lindsay

Hearing date: 9 December 2013

Date of Last Submission: 9 December 2013

Delivered at: Adelaide

Delivered on: 9 December 2013

REPRESENTATION

Counsel for the First Applicant: In person

Solicitors for the First Applicant: Not Applicable

Counsel for the Second Applicant: In person

Solicitors for the Second Applicant: Not Applicable

Counsel for the First Respondent: Ms Briffa

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Not Applicable

ORDERS

1. The name of the first respondent to be changed to “Minister for Immigration and Border Protection”.

2. The Application for adjournment for the hearing this day is refused.

3. The show cause application is reserved to a date and time to be fixed by the Court and advised to the parties.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 196 of 2013

AZADT

First Applicant

AZADU

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before me this afternoon is the show cause application that arises from an application filed by the applicants for a review pursuant to s.476 of the Migration Act1958 of a decision of the Refugee Review Tribunal of 12 June 2013.  The application was filed on 5 July 2013.  It came before a Registrar later in July; the applicants were present.  It was listed for hearing today.

2. Last week, I received in my chambers, signed Minutes of Order in which the Minister’s representatives indicated that they were agreeing to an adjournment sought by the applicants (until March) of the hearing of the application.  That arose from the circumstance that they had recently, within the last few weeks, been able to obtain a legal practitioner by the name of Barataraj. 

3. Mr Barataraj indicated in a letter of 2 December 2013 to his clients (it was implicit in his letter) that he was only prepared to appear if it could be adjourned to March of 2014.  I indicated a willingness to adjourn the matter until late next week and to rearrange the Court’s commitments to facilitate that.  The dates of either 19^th or 20^th December were made available.

4. Ms Briffa, who appears on behalf of the Minister, communicated that to Mr Barataraj during the short adjournment.  He indicated, though, an unwillingness and/or inability to appear then.  He said he was on holidays and he indicated an unwillingness and/or inability to appear any time in January or February and indicated that he could only appear if it was adjourned until March.

5. I asked the female applicant to tell me what she had done between the date of the directions hearing and today, to retain legal representation.  The only other legal practitioner approached was a Mr Kanthan in or about September of this year. 

6. About four weeks ago it appears, from what I have been told, it became clear that Mr Kanthan could not represent the applicants on the terms that they were prepared to retain him and/or they had an inability to meet the terms of his retainer and it looks as if, about a month ago, Mr Barataraj was first approached and about two weeks ago, he was apprised of the matter.

7. He has been sent some papers, but has not, for example, even been able to have a look at the Court Book.  He has been sent it, but as I understand it, has not had the opportunity to read it.  It is on that basis that the application to adjourn is promoted. 

8. I am not prepared to grant the adjournment.  I was certainly prepared to provide some flexibility to take what steps we could take to give the applicants the advantage of legal representation by way of accommodating alternative dates in the near future.

9. The hearing in which we are engaged, is one in which, firstly, the applicants must succeed in seeing off, as it were, the show cause application, and then in promoting their own application.  Their legal obligation is to identify jurisdictional error in the decision of the Tribunal.  The decision of the Tribunal, which I have read, is one that is founded upon credibility findings in relation to both applicants that are quite significant.

10. The Application that was lodged on 5 July 2013 and the proposed Amended Application which now makes its way before the Court, is Exhibit 2, identifies without any explication that the error is said to lie in the way in which the Tribunal dealt with the Complementary Protection Provisions of s.36(2)(aa).

11. And so, that being the case, it would be certainly to the applicants’ advantage to have legal representation.  It is a significant tasking persons have in promoting such an application.  The account given of the attempts of the applicants to retain legal representation since 23 July when the matter was listed today, are not compelling, however, or credible.

12. Only two legal practitioners were identified as having been approached.  It is unclear still why it is that Mr Barataraj was approached so late.  In other words, it is unclear why no clarity emerged in relation to Mr Kanthan’s inability to represent them until a point at which it was getting very late for Mr Barataraj to be able to be briefed to represent them, and that is the first difficulty.

13. The second difficulty is that with the Court indicating an ability to show some flexibility with respect to the listing of the matter next week end to enable Mr Barataraj to appear by video link from Brisbane, where I understand he practices – his attitude of not being prepared to show any degree of flexibility and more than that, his indicating an unpreparedness to appear at all unless and until the matter was adjourned until a date of his choice.

14. It compounds the difficulties the Court has in doing what it can to accommodate the opportunity for the parties to be legally represented.  I do not want to be too critical of Mr Barataraj. As I say, he has been briefed very late, but the circumstances of the matter are such that I am not persuaded on account of the non-compelling nature of the explanation given for the delay in briefing that particular legal practitioner, to grant the adjournment.

15. I should note that the application for adjournment was initially consented to by the Minister’s representatives and as I understand Ms Briffa’s position today, she does not resile from that.  I have taken that into account.  I have taken the Minister’s attitude into account in coming to the conclusion that I have. 

16. So the formal order of the Court is that the application for the adjournment of the hearing this day, is refused.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Lindsay

Associate: 

Date:  26 February 2014