Baroi, Manik v Minister for Immigration and Multicultural Affairs

[1998] FCA 989

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1099 of 1997

BETWEEN:

MANIK BAROI
FIRST APPLICANT

PAMELA BAROI
SECOND APPLICANT

NANCY BAROI
THIRD APPLICANT

LIZA BAROI
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

SACKVILLE J

DATE:

22 JULY 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Mr Goldsmith, who appears for the applicants, has filed a motion in which the applicants seek the following orders:

“3.The hearing of the notice of motion filed on 16 July 1998 by the Refugee Review Tribunal be adjourned to a date convenient to this Honourable Court.

4.The hearing of these proceedings currently fixed for 31 July 1998 be vacated and the proceedings stood over for hearing to a date convenient to this Honourable Court.”

In the principal proceedings, which were commenced on 1 December 1997, the applicants challenge the decision of the Refugee Review Tribunal (“RRT”) made on 24 November 1997, to affirm a decision by the Minister’s delegate not to grant the applicants protection visas.  The reference in par 3 of the applicants’ motion, to a notice of motion filed on 16 July 1998 by the RRT, is to a notice of motion seeking to set aside a subpoena issued to the RRT on 1 July 1998 requiring it to produce certain documents.  The applicants, in effect, seek an adjournment of the hearing of the RRT’s motion and of the hearing in the principal proceedings.

In support of the applicants’ motion, Mr Goldsmith has read an affidavit from Mr Baroi, the first applicant.  In that affidavit, Mr Baroi recounts some of the history of the proceedings.  He instructed Mr Goldsmith to act on behalf of himself and the other applicants in April 1998.  The amended application for an order of review was filed on 5 June 1998, and on 18 June 1998, the matter was listed for hearing on 31 July 1998.

Mr Baroi's affidavit goes on to say that he and the other applicants are anxious to be represented by their present solicitor and by counsel who has provided advice in relation to the case.  They wish to be legally represented on both the hearing of the motion to set aside the subpoena and the hearing of the application for review of the RRT’s decision.  Mr Baroi says that he and the other  applicants are not in a financial position to pay for legal representation.  They have virtually no savings and Mrs Baroi, who is currently pregnant, is not employed.  Mr Baroi is employed, but earns only a modest wage.

Mr Baroi says that he has previously applied for legal aid but has been rejected and that his current solicitor has advised him that any further application for legal aid would also be refused.  Mr Baroi says, as one would expect, that he and the other applicants will be disadvantaged in the conduct of the proceedings if they are not legal represented  That proposition I readily accept.

In his affidavit, Mr Baroi requests that the motion and the hearing both be adjourned for a period of between four to six months.  Mr Baroi says this:

“Such an adjournment will enable me to save some money to pay for legal representation and after about 2 months after the birth of our third child, my wife will also obtain employment so that she will be able to generate some income and which income will be utilised for the purpose of paying for our legal representation.”

Mr Goldsmith frankly acknowledges that Mr Baroi’s assertion that sufficient funds will or may be available in four to six months to pay for legal representation is speculative.  He accepts that there can be no assurance, or even likelihood, that within the period of four to six months the applicants will be able to obtain the funds necessary to engage legal representation for the purposes of these proceedings.  I accept that Mr Baroi will take steps reasonably open to him to obtain the funds necessary for legal representation.  But I am not satisfied that the funds said to be necessary to obtain legal representation will be available within any specific or identifiable period. 

In my view, it is deeply regrettable that so many applicants in this Court, particularly in migration matters, have to appear unrepresented.  There is little doubt that, in the vast majority of those cases, the unrepresented applicants are disadvantaged.  They simply lack the skills necessary to put their cases in the manner most advantageous to them.  Of course, the disadvantage is compounded if the applicants are not proficient in English, even though interpreters are provided in such cases as a matter of course.

The conduct of litigation, where one party is unrepresented, can impose significant burdens on the Court.  As Kirby P said in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at 537, “[u]nrepresented litigants present our courts with significant difficulties”. Those difficulties are especially acute in migration cases. The role of the Court is to diminish, so far as possible, the disadvantage an unrepresented litigant confronts when faced with a legally represented opponent. Yet the Court must not confer a positive advantage on the litigant in person over the represented opponent. See generally the observations made and cited by McLelland J in Tardy v The Secretary of the Department of Community Services and Health (9 October 1994, unreported) at 2-4, quoted in Re Morton, Ex parte Mitchell Products Pty Ltd (18 September 1996, unreported, Sackville J), at 38-39.  To play that role is not easy, especially in a case where an applicant is not fluent in English: see Bellaiche v Minister for Immigration and Ethnic Affairs (7 May 1998, unreported, Sackville J), at 1.  It is for this reason that the courts themselves have an interest in litigants being represented by competent legal practitioners.

In the present case, the applicants are seeking to have the principal proceedings and the interlocutory application adjourned for a period of four to six months in order to give them the opportunity of saving sufficient money to obtain legal representation.  When this matter came before the Court for directions on 9 April 1998, the applicants sought an adjournment because, at that stage, they had an appointment with the Legal Aid Commission.  The proceedings were adjourned until 14 May 1998, in order to give the applicants an opportunity to obtain legal representation. When the matter was again before the Court on 14 May 1998, the applicants were represented.  They were also represented on 18 June 1998 when the case was listed for hearing and an amended timetable for the filing of evidence was ordered.

As I have already said, if the matter were to be adjourned for some four to six months, there is no guarantee or even likelihood that the applicants will be in a position to afford legal representation.  The interests of justice require that consideration be given, not only to the applicants’ position, but to the desirability of concluding the proceedings within a reasonable time.  It is, after all, the applicants who challenge the RRT’s decision.  They have been provided with an opportunity to obtain legal representation and, indeed, they have been represented at all times since 14 May 1998, including today.

As much sympathy as I feel for the applicants’ position in these proceedings, I do not think it would be appropriate to grant the adjournment they have sought.  To delay the proceedings, which have already been on foot for eight months, for a further four to six months is not in the interests of justice.  Especially is this so where there is no certainty or even likelihood that the applicants will be in a better position at the expiration of that period.

One other factor needs to be borne in mind.  This Court has a very heavy workload, not least because of the demands made upon it by an ever increasing number of migration applications.  Court time is scarce.  Vacating hearing dates at late notice, even in matters not expected to take substantial hearing time, can create significant listing problems for the Court.

I also point out, in relation to the application to adjourn the hearing of the RRT’s motion, that the applicants are legally represented today.  There is no obvious reason why the issues raised by the RRT's application cannot be dealt with today, with the assistance of the legal representative presently appearing.

I reject the application to adjourn the motion brought by the RRT.  I also reject the application to vacate the hearing date scheduled for 31 July 1998.  I propose to make no order for costs in relation to the adjournment application brought by the applicants.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:            22 July 1998

Counsel for the Applicant:	Mr B Goldsmith
Solicitor for the Applicant:	Goldsmiths Lawyers
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 July, 1998
Date of Judgment:	22 July, 1998