BZY16 v Minister for Immigration

[2017] FCCA 2390

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZY16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2390

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment – adjournment refused.

Applicant: BZY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1991 of 2016

Judgment of: Judge Manousaridis

Hearing date: 21 September 2017

Date of Last Submission: 21 September 2017

Delivered at: Sydney

Delivered on: 21 September 2017

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Ms C Hillary of DLA Piper Australia

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1991 of 2016

BZY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 6 October 2016 this matter came before the Court on a first court date. On that day directions were made by Registrar Morgan that the first respondent would file and serve a bundle of relevant documents (Court Book) by 20 October 2016, and the matter would be listed for hearing of the application for an extension of time.  That application came before me this morning.

2. In the course of my identifying the documents that would be necessary for me to consider when considering the application for an extension of time the applicant informed me that he had not received the Court Book. He informed me that a “Ms Kirwan” had been representing his interests in this matter, and that the address for service that he had given to the Court for the purposes of these proceedings was the address of the office of Ms Kirwan.  The applicant informed me that Ms Kirwan’s office was no longer in existence.

3. Although the applicant was vague about when he became aware of Ms Kirwan’s office being closed, I understood him to say that he became aware of its closure in the last three months.  It became apparent that the applicant wished to apply for an adjournment for him to have an opportunity to consult a lawyer.  I then heard submissions as to why I should grant an adjournment. 

4. I asked the applicant why it is that he had taken no action to represent his interests by engaging a lawyer or seeking to engage a lawyer after he became aware that the office of Ms Kirwan had closed.  He was unable to give me an answer. For reasons that will be made clear, that response is understandable, because, when I asked the applicant whether he had any money to engage a lawyer, he informed me that he would have to obtain work rights in order to obtain money to engage a lawyer.  The applicant confirmed that he had no such rights.  The applicant said that he promised he would look for a lawyer and do his best to obtain one.

5. When faced with an application for an adjournment of a hearing, the Court is required to exercise its discretion.  That discretion is exercised in accordance with well-established principles and requires the Court to have regard to a number of factors. One is the reason why the party seeking the adjournment claims not to be ready to proceed with the hearing.    Here, the reason given is that the applicant, at least initially, said that he would like an opportunity to read the Court Book.  As discussion proceeded, the reason I understood the applicant said he was not ready to proceed was that he had not had the assistance of a lawyer, because he had entrusted his interests in this litigation to Ms Kirwan.

6. That an applicant has been unable to access legal advice or legal assistance by itself is not a reason for that party legitimately being able to say he or she is not in a position to conduct a hearing.  In the circumstances of this case, the applicant has had sufficient time to engage a lawyer if he were able to do so.  The fact that he had entrusted his affairs to a person of the calibre of Ms Kirwan, rather than engage a lawyer, indicates that the applicant is in no position to engage a lawyer.  Thus, however unfortunate it is that the applicant, like many applicants that appear in this Court, has been unable to access legal assistance, his inability to do so does not constitute a reason to support an adjournment being granted.

7. I might add that Ms Hillary has tendered a file copy of a letter, which purports to show the service of the Court Book on Ms Kirwan.  The file copy of the letter is not strict proof of the service of the Court Book, but I do not have any doubt that the Court Book was served on Ms Kirwan.  My decision that I am about to give on the application for an adjournment is not dependant on my making a positive finding that the Court Book was served.  I do find, however, that even if it had been served on Ms Kirwan, having regard to the manner in which the applicant entrusted his affairs to Ms Kirwan, the applicant would have been in no different position than what he finds himself.  That is to say, he would have received no assistance whatsoever, by going through the material in the Court Book.

8. The next factor that a court considers when considering an application for an adjournment is whether there would be any utility in granting the adjournment.  That is to say, would the applicant’s position materially improve or would there be any prospect of it materially improving if I were to grant an adjournment?  Nothing that the applicant has said to me would indicate that that question could be answered in the affirmative.  As I have said before, the purpose for which the applicant seeks an adjournment is said to be to enable him to seek legal advice.  Nothing that the applicant said to me indicates that he has any prospect of being able to secure legal advice.  As I have said before, that finding is amply supported by the applicant’s inability to obtain legal assistance to date.

9. The third matter that one must look at is the interests of the party who opposes the adjournment. Here, the other party is, of course, the Minister for Immigration and Border Protection.  If an adjournment were granted, the Minister will incur, unnecessarily, the costs of appearing at the hearing today.  Quite often such prejudice can be dealt with by the Court ordering the party seeking the adjournment to pay the other party’s costs that would be thrown away if an adjournment were granted.  There is nothing before me to suggest that if an adjournment were granted and if I were to make an order for costs against the applicant, that the applicant would be able to meet such an order for costs.  So, if an adjournment were granted, the Minister would suffer a prejudice in the form of costs he will incur, but which he would be unable to recover. 

10. For all these reasons, I am not satisfied it is in the interests of the administration of justice that I should grant any adjournment of today’s hearing. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  29 September 2017