BSB16 v Minister for Immigration

[2017] FCCA 2787

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSB16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2787

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – late application for adjournment made the day before a final hearing which had been set over a year ago – unreasonable consent given by First Respondent – no merit to adjournment application – Applicant had not taken proper steps to prepare himself for the final hearing despite continued availability of Counsel originally retained by him – Minister should not have consented – matter adjourned but no order as to the costs thrown away by the adjournment.

Applicant: BSB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1754 of 2016

Judgment of: Judge Dowdy

Hearing date: 14 November 2017

Delivered at: Sydney

Delivered on: 14 November 2017

REPRESENTATION

Counsel for the Applicant: Mr I. Chatterjee of Counsel

Solicitors for the Applicant: Australian Presence Legal

Counsel for the First Respondent: Ms C. Saunders

Solicitors for the First Respondent: DLA Piper

BY CONSENT THE COURT ORDERS AS FOLLOWS

1. The final hearing listed for 15 November 2017 at 10.15 am is vacated. 

2. The Applicant is to file and serve any Amended Application and any affidavit evidence by 6 December 2017.

3. The First Respondent is to file and serve any affidavit evidence by 20 December 2017. 

4. The matter is stood over generally for a date to be administratively fixed from the Chambers of Judge Dowdy, either for a callover or for a final hearing date.

THE COURT FURTHER ORDERS AS FOLLOWS

1. The costs of the parties of the Application in a Case to vacate the hearing date of 15 November 2017 and the costs thrown away by the vacation of that hearing date are to be borne by the parties.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1754 of 2016

BSB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised From Transcript)

Introduction

1. This matter was commenced by an Application filed in this Court on 7 February 2016.  The First Court Date was 5 August 2016 when Mr Kumar of Counsel appeared for the Applicant and a lawyer appeared for the First Respondent.  Consent orders were entered into, which provided for the matter being ready for hearing and the hearing date was appointed for Wednesday of this week, 15 November 2017.  The consent orders included as follows:

   2   The applicant file and serve any amended application, including full particulars of the grounds on which the applicant intends to rely, by 29 September 2016.

   3   The applicant file and serve any affidavit evidence on which the applicant intends to rely by 29 September 2016.

   4   Other than the Court Book, the first respondent file and serve any affidavit evidence on which the first respondent intends to rely by 27 October 2016.

2. Late yesterday afternoon, 13 November 2017, an Application in a Case was filed by the Applicant seeking the following orders:

   1   Vacation of hearing scheduled for 15 November 2017.

   2   Leave for the Applicant to file and serve an amended application and any evidence on which he relies by 6 December 2017.

   3   Applicant to pay the costs of the respondent thrown away by reason of the adjournment.

3. This Application in a Case was supported by an affidavit of the Applicant affirmed on 13 November 2017.

4. No draft Amended Application was provided by the Applicant nor was there a description or identification of any new evidence to be relied upon by the Applicant.

5. I directed that the Application in a Case be made returnable this morning at 9:15am.

6. Late in the evening of 13 November 2017 the lawyers for the Minister sent an email to my Chambers which provided, by consent, for the vacation of the hearing date in terms of the following proposed orders:

   2.  The hearing listed for 15 November 2017 at 10:15 am is vacated.

   3.  The applicant file and serve any amended application and affidavit evidence by 6 December 2017.

   The Court was invited to make these orders in Chambers, but no reason was proffered as to why the Minister was consenting to the vacation of the hearing date. The parties were advised that the Court would not make the orders in Chambers and that the hearing of the Application in a Case would proceed at 9:15am today and that they should be present in Court.

7. I note at this point that by email of 10 November 2017 addressed to the lawyers for the Minister and copied to my Chambers, Mr Kumar of Counsel had previously advised as follows:

   I note that I appeared for the Applicant for the First Court date.

   The Applicant not instructed me beyond this despite many phone calls and emails seeking instructions many times this year.

   The Applicant commenced the proceedings himself and you can assume that he would run his own case.

Hearing of Application in a Case

1. At 9:15am this morning Mr Chatterjee of Counsel appeared for the Applicant and Ms Saunders appeared for the Minister.

2. Again, no reason was initially offered for the Minister consenting to the adjournment. Only after I suggested that it might be courteous to give to the Court an explanation was there one then proffered, namely that the Minister was consenting because it was considered that any prejudice that the Minister would suffer would be overcome by a costs order. After further debate it was asserted that the Application in a Case was supported by “significant reasons” for the adjournment.

Consideration

1. In my view there are no “significant reasons” for the adjournment. The adjournment application is completely without merit.

2. The substance of Mr Kumar’s email reproduced at [7] above is confirmed by the Applicant’s own affidavit in support of the adjournment application. That affidavit establishes that on 8 November 2017 the Applicant sent a text message to Mr Kumar that asked Mr Kumar to call him, and gave his mobile telephone number. Mr Kumar responded almost immediately:

   I have no reason to call.  Your case is listed for final hearing next week.  You should come and collect your papers.  Ravi [i.e. being a gentleman who had been assisting the Applicant probably from around the beginning of the Application being filed in this Court] and I have been trying to contact you for many months.  Thank you for your instructions.

3. A further text message from Mr Kumar to the Applicant on 8 November 2017 stated:

   You should tell the court what you want to do.  Obviously, you were not interested in your matter till today.  Your case submissions cannot be prepared in one or two days. 

   You can collect your papers tomorrow afternoon and take it to same person who initiated the case.

4. The evidence before me indicates in my view that the Applicant has taken no proper or reasonable steps to ready himself for the final hearing, which was set down over a year ago. The evidence establishes that he has been neglectful of his own interests in a context where he had Counsel, well-known in this Court, available to act for him. Further, there has been no articulation at all of why he wants to amend his Application or put on further evidence, and what that evidence might be. The proposed orders that have been consented to by the parties and which I am asked to make are in effect the same orders that I made over a year ago at the First Court Date. Both the Applicant and the Minister have not had any proper regard to the adverse effect on the proper administration of the heavy lists of this Court. I am myself booked out with migration cases alone until May 2019 and the lists of the other Judges of this Court are in like condition. The hearing date of the 15 November 2017 could have been used for another case.  I regret to have to say that I regard the Minister's consent to the adjournment as utterly unjustified.  There is, in my view, no basis at all for any legal practitioner acting reasonably to think that proper reasons have been given by the Applicant for the adjournment which he is seeking.  The adjournment means, in effect, that a year after the case commenced it starts again, because the orders that are going to be made in a minute by me provide that, once again, the Applicant can file and serve an amended Application and affidavit evidence and, once, again, the First Respondent can respond by putting on further evidence.

5. This matter therefore has not advanced at all.  Bolder Judges would refuse the adjournment.  However, I have come to the view in this instance that because the Minister, being the party responsible for the administration of the migration system in this country, has taken the view that there should be an adjournment, that I will not oppose and contradict that view by refusing the adjournment. 

6. However, I do not propose to order that the Applicant pays the Minister’s costs of the adjournment. The Minister is a model litigant and as such has agreed to deal with claims promptly and without unnecessary delay.  The fact that an order was order for costs was offered by the Applicant as the price of the adjournment sought was no proper reason for the Minister to agree to the adjournment. Orders for costs are not to be regarded as notches on the belt, or a trophy of litigation. The costs of the Application in a Case and the costs thrown away by the vacation of the final hearing should lie where they fall.

7. So these are the orders that the Court will make:

   (1)The final hearing listed for 15 November 2017 at 10.15 am is vacated. 

   (2)The Applicant is to file and serve any Amended Application and any affidavit evidence by 6 December 2017.

   (3)The First Respondent is to file and serve any affidavit evidence by 20 December 2017. 

   (4)The matter is stood over generally for a date to be administratively fixed from the Chambers of Judge Dowdy, either for a callover or for a final hearing date.

   (5)The costs of the parties of the Application in a Case to vacate the hearing date of 15 November 2017 and the costs thrown away by the vacation of that hearing date are to be borne by the parties.

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

Date:  15 November 2017