BCS17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 207

Federal Circuit and Family Court of Australia

(DIVISION 2)

BCS17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 207  

File number(s):	MLG 528 of 2017
Judgment of:	JUDGE YOUNG
Date of judgment:	17 March 2023
Catchwords:	MIGRATION - application for judicial review of a decision of the Tribunal to refuse the applicant a protection visa – where the matter has previously been adjourned – where the applicant says he was only notified of the court listing a few days ago – where the applicant says he has not had sufficient time to prepare – the matter is adjourned
Division:	Division 2 General Federal Law
Number of paragraphs:	5
Date of hearing:	20 February 2023
Place:	Darwin
Counsel for the Applicant:	Self- Represented Litigant
Counsel for the Respondent:	Mr Foley
Solicitor for the Respondent:	Clayton Utz

ORDERS

MLG 528 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF BCS17

BETWEEN:

BCS17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

order made by:	JUDGE YOUNG
DATE OF ORDER:	17 March 2023

THE COURT ORDERS THAT:

1.The name of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs be amended to the Minister for Immigration, Citizenship, and Multicultural Affairs.

2.The hearing today be vacated and re-listed on 21 April 2023 at 10.00am (ACST) 10.30am (EST) for hearing.

3.Any new information to be relied upon by the Applicant is to be set out in an affidavit to be filed and served no later than 7 days prior to the hearing.

4.Any written submissions on which the applicant intends to reply on at the hearing be filed and served no later than 14 days before the hearing.

THE COURT NOTES THAT:

A.The applicant informed the Court that he was not aware of the hearing today until Friday 17 February 2023;

B.The Court advised the Applicant that he is to obtain the services of a lawyer immediately if he wishes to be legally represented; and

C.The Applicant confirmed he was aware of the adjourned date.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

Judge Young

1. I previously adjourned this matter on 29 August 2022 because the Tamil interpreter who had been retained to interpret for the applicant was ill and the only interpreter available at short notice was a telephone interpreter. I declined to conduct a hearing with the applicant and the telephone interpreter in different places and me in a different place again.

2. Today the applicant has told me that he was unaware of the adjourned date until he received an email from my associate last week. He said he received this email on Friday of last week.  He said, in substance, that the time for preparation had been too short.  If it is the case that he received the notification on Friday, I agree it was too short; probably even if it was last week, it was too short.

3. I attempted to ascertain whether or not the applicant had been given notice by the court or provided by the court with a copy of the order made on 29 August which made it clear that the matter was adjourned to today for hearing. However, there is apparently, for reasons that I do not understand, no evidence that the applicant was provided with that order.  Whether that was intended to be through a court portal, electronic or other means, I do not know.  I do not know what processes are in place but I will certainly be making inquiries after this.

4. In all the circumstances there is nothing to indicate that I should not accept what the applicant has said, that is, that until very recently he was unaware of today’s court date and had not kept track of the matter or made an inquiry. As he is a non-English speaking applicant of limited education, I consider that I need to take that into account and I consider that if what he has told me is correct, and I have no reason to doubt it, he has been disadvantaged in the way the matter has come on. 

5. I will note on the orders that the applicant confirmed to me that he understood that the matter had been adjourned and he understood that the matter was unlikely to be adjourned again.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated: