BMU15 v Minister for Immigration and Border Protection
[2016] FCA 512
•9 May 2016
FEDERAL COURT OF AUSTRALIA
BMU15 v Minister for Immigration and Border Protection [2016] FCA 512
Appeal from: BMU15 v Minister for Immigration & Anor [2015] FCCA 3253 File number: NSD 1717 of 2015 Judge: LOGAN J Date of judgment: 9 May 2016 Catchwords: MIGRATION – application for protection visa - application for adjournment of appeal – application for adjournment granted
PRACTICE AND PROCEDURE – application for adjournment of appeal – relevant considerations – application for adjournment granted
Date of hearing: 9 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 15 Counsel for the Appellant: Mr J Lipp Solicitor for the Appellant: Mathews Lawrence Legal Pty Ltd Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: The second respondent entered a submitting appearance save as to costs ORDERS
NSD 1717 of 2015 BETWEEN: BMU15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
9 MAY 2016
THE COURT ORDERS THAT:
1.The hearing of this matter set down for Thursday 12 May 2016 be vacated.
2.The appellant pay the costs of the preparation of the respondents’ filed written submissions.
3.The appellant serve upon the respondents his amended Notice of Appeal by Wednesday 25 May 2016.
4.The case be listed for directions on Wednesday 1 June 2016 or such later date as the Registrar may fix after consultation with the parties.
5.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
An application has been made on behalf of the appellant for the adjournment of the hearing of this appeal. The appeal is presently listed for hearing before me on Thursday, 12 May 2016.
In support of the application for the adjournment, an affidavit from the appellant’s solicitor, Mr Pathinather, has been read without objection. That discloses that, on 29 April 2016, the appellant’s solicitor received a telephone call from a friend who, in turn, asked, although pleaded is probably the better descriptor, with him to see if legal assistance might be given to the appellant.
The appellant’s solicitor acted promptly. Later that same day and in circumstances of some difficulty, given that the appellant’s English is limited and his primary language is Tamil, he took telephonic instructions from the appellant. On 1 May 2016, the appellant’s solicitor’s father, who speaks Tamil well, obtained a copy of the appeal book.
The appellant’s solicitor moved diligently thereafter to take up with counsel who appears today. A result of that was the provision in Court, on 6 May 2016, of the affidavit deposing to the circumstances of the engagement and the signification both to the solicitor for the Minister and the Court that an application for adjournment would be made.
The Minister was initially disposed to oppose the application, but on further reflection has decided not to. Instead, the Minister has joined with the appellant in promoting orders for the vacation of the hearing of the appeal on terms that the appellant pay the costs of the preparation of the Minister’s written submissions and serve on the respondents an amended notice of appeal by 25 May 2016.
That the Minister is disposed to join with the appellant in promoting the making of these orders is, to say the least, relevant, but not determinative. To grant an adjournment entails the exercise of a judicial discretion.
The Court file discloses, and the appellant’s solicitor’s affidavit confirms, that as long ago as 29 December 2015, a registrar of the Court made orders in the usual form providing for the hearing of the appeal on a date to be fixed in the present sittings and prior to 27 May 2016.
The Court’s listing practices are such that the consequential listing of the appeal on a precise date was drawn to the attention of the parties, at the latest, in the last week of March this year.
There is always an opportunity cost in relation to the adjournment of appeals in respect of cases in the Federal Circuit Court concerning Tribunal decisions in respect of protection visa applications. Given the sheer volume of such appeals presently in the Court list, the opportunity cost is measured not only by reference to a hearing of an appeal which does not occur on the date fixed, but also the loss of the potentiality of hearing another appeal on the date to which a particular appeal is adjourned. That is a cost which is not met by an agreement between the parties in relation to costs. It is a cost in the administration of justice. It is to be remembered, though, that, in the administration of justice, it can sometimes be a necessary cost when a particular case is adjourned in order at least to ensure that justice is seen to be done.
The case management of appeals is always, in my view, a relevant consideration in relation to whether to grant an adjournment in the same way as that can be a consideration in relation to whether, for example, to allow amendment of a pleading or adjournment of a civil trial, the date for trial having been fixed earlier via case management procedures.
The merits, if only in a prospective way, of an appeal are also a relevant consideration. Here, the grounds of appeal are not particularly encouraging in that regard, but the purpose for which the adjournment is sought is to allow something of an agonising reappraisal by those trained in the law of the merits, if any, of the appeal.
The Court expects that all of these considerations would inform, in the ordinary course, the Minister in deciding whether or not to take the stance of either not opposing or opposing or, as here, joining with an appellant in relation to an adjournment application.
It would be a strong thing indeed, in the face of a stance taken by represented parties, each with a duty not just to a client but also to the Court, to depart from that stance in the absence of some good reason. Whilst it does appear as if the appellant has left his run for legal advice rather late, I can equally well understand that there can be circumstances where one is not fluent, particularly, in English, in a strange land and without legal training, where to secure any representation at all is a very difficult task indeed. I do also bear in mind the possibility that there may, even though on merits review views have been reached to the contrary, just be some substance in the claim made by the appellant for a protection visa. If there is, then the consequences for him on return may not be pleasant.
Taking all of these considerations into account, I am disposed to grant the adjournment sought.
The parties envisage that it is desirable that the case be brought back for directions. They have nominated 1 June 2016, in this regard, but that date is not selected on the basis that it is the only possible date. It is certainly desirable that early attention be given to the question of whether there be any amendment and that the case be under active review by a registrar. That can be achieved consistently with the sentiments in the orders proposed by the parties by ordering that the case be listed for directions on 1 June 2016, or such later date as the registrar may fix after consultation with the parties. With that modification, the order will be in the terms proposed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 20 May 2016
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