Cav17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 200
•24 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)CAV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 200
File number(s): SYG 1445 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 24 September 2021 Catchwords: PRACTICE AND PROCEDURE – Migration– application for an adjournment – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment – whether prejudice to first respondent if adjournment granted – application for adjournment dismissed. Legislation: Migration Act 1958 (Cth) s 476 Division: Division 2 General Federal Law Number of paragraphs: 16 Date of hearing: 24 September 2021 Place: Sydney The Applicant: Appeared in person, assisted by an interpreter, by telephone Counsel for the First Respondent: Mr G Johnson, by telephone Solicitor for the First Respondent: Minter Ellison ORDERS
SYG 1445 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CAV17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
24 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s application for an adjournment is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
(Revised from transcript)
There is listed before me today for hearing an application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) refusing to grant the applicant a Temporary Protection (Class XD) visa.
At 9:50 am on 23 September 2021 the applicant sent an email to the Court stating that he would like the Court to adjourn the hearing “[a]s I’m seeking legal advice and I have submitted a Legal Aid application for assistance”. Later on 23 September 2021 the applicant forwarded to the Court a letter dated 23 September 2021 written by a person who describes herself as the “Intensive Support Coordinator” from the Asylum Seekers Centre. The letter states as follows:
This letter serves as confirmation that [the applicant] is a registered client of the Asylum Seekers Centre (ASC). ASC provides assistance to people who have lodged an application for refugee protection and are awaiting the outcome of their claim. We provide a range of support services including casework and advocacy, foodbank, a primary health clinic, nutrition services, education services, employment placement services and a social support program.
ASC provided temporary accommodation assistance to [the applicant] from March 2021 to August 2021, in the form of Hostel payments, following a period where he experienced homelessness. [The applicant] was a close contact to a person who tested positive for COVID in the Hostel where he was living in August 2021, and was then taken to the Quarantine Hotel organised by the NSW Health Department, where he stayed until the beginning of September 2021.
[The applicant] is also engaging with ASC’s Health Clinic, who assisted him to get antidepressants, which he is currently taking. [The applicant’s] mental health has deteriorated in the last months, due to his homelessness and inability to work, as he has no work rights and has been barred from applying for a visa.
As shown above, the last month was extremely challenging for [the applicant], preventing him from getting proper legal advice prior to the AAT [sic] hearing scheduled for 24/09/2021 at 10:15am. [The applicant] was referred to Legal Aid and Refugee Advice & Casework Service, but unfortunately due to capacity none of them will be able to represent him at the upcoming hearing.
As such, and considering what [the applicant] has gone through during the last months, we support his request for this hearing to be adjourned, so that he can have the opportunity to have legal representation.
Should you require further information, please do not hesitate to contact me on . . . .
At the hearing today the applicant appeared without legal representation but with the assistance of an interpreter, and he confirmed that he is applying for an adjournment. The Minister opposes that application.
Whether a court adjourns a hearing is a matter within the discretion of the court; but that discretion is exercised on the basis of well-recognised principles. The overriding question is: what would best serve the interests of the administration of justice? When exercising that discretion a court has regard to a number of factors. The first factor is why the person seeking the adjournment, in this case the applicant, is not in a position to proceed with the hearing. The second factor is whether there will be any benefit to the party applying for the adjournment if an adjournment is granted. The third factor to consider is the prejudice to the party opposing the application for an adjournment. I will consider each of these matters in relation to what the applicant has said today.
In effect, the applicant submits he is not in a position to proceed with today’s hearing because he is not legally represented. The reason he says he is not legally represented is because he has not been in a position to afford a lawyer to represent him; and he is not in a position to afford a lawyer because he has had no work rights in Australia since around April 2019. The applicant says that when he did have work rights in Australia he was able to earn money to pay a lawyer to represent him; and it is the case that in around May 2019 the applicant did retain a lawyer to represent him in this case and the lawyer performed work up to the point of preparing an amended application.
I then turn to the benefit to the applicant if I were to adjourn the hearing; and that leads me to identify the purpose for which the applicant says he wants me to adjourn today’s hearing. The applicant’s purpose is to be given an opportunity for the Department of Home Affairs to process what he says is an application for a bridging visa which, if granted, will entitle him to work; and once he is in a position to work he will be in a position to save money to engage a lawyer. The applicant wishes to engage a lawyer so that the lawyer can express to the Court his case and also (as I understood the applicant) to examine additional documents in relation to the applicant’s claims for protection. So if an adjournment is not granted, the applicant will suffer the potential prejudice of not being able to obtain a bridging visa with work rights.
I then turn to the prejudice to the Minister if an adjournment is granted. Here the principal immediate prejudice is that the Minister will have incurred costs to put himself in the position of proceeding with the hearing today. The usual way of dealing with such prejudice if an adjournment is granted is to order the party who seeks an adjournment to pay costs thrown away in relation to the party who opposes the application for an adjournment. That means of avoiding prejudice is not available in the case before me because, as the applicant tells me, he does not have any money with which to meet an adverse costs order.
I then turn to assess each of these matters to the extent they relate to how I should exercise my discretion whether to adjourn the hearing.
It may be accepted that a person who cannot afford a lawyer is at some disadvantage when that person is before a court; but, in most cases, a person does not have a legal right to be legally represented and the inability of an applicant to obtain legal representation by itself does not constitute an adequate reason for a hearing not to proceed. This is particularly so in the case before me because the proceeding in this Court commenced in May 2017, over four years ago. In any event, in the circumstances of this case, the applicant has had the opportunity to obtain legal advice in relation to his case and, as I have said, that assistance extended up to the preparation of an amended application. Further, when a person appears before a court without any legal representation the court does all that it can to ensure that that unrepresented person understands what the process before the court is. So to conclude this part of my reasons, I am not satisfied there are adequate reasons for this matter not being ready to proceed today.
I then turn to the question of benefit if an adjournment were to be granted. There is nothing that the applicant has said to me today that shows there is any realistic prospect of the applicant being in a position to obtain legal representation in the case. That the applicant has had no work rights since April 2019 by itself suggests that he has no prospects of obtaining work rights in the near or near distant future. So even if I were to grant an adjournment, the adjournment would in effect be an adjournment for an indefinite time and for a purpose which on the matters stated today seems most unlikely to be fulfilled.
Even if I were to grant an adjournment, and even if because of that adjournment the applicant were to retain a lawyer, there is nothing to suggest that the advice the applicant will receive from such a lawyer will improve his prospects in any way. The applicant did refer to the lawyer looking at documents. If the applicant has in mind the lawyer looking at documents that were not before the Tribunal, the likely advice he would be given is that those documents would not be relevant to the application he makes before this Court; and the reason for that is that the purpose of this Court when dealing with applications of the sort the applicant makes is not to consider whether an applicant is entitled to a protection visa or to determine whether the Tribunal was incorrect in deciding that an applicant is not entitled to a protection visa. The purpose of this Court is to determine whether the Tribunal has reviewed an applicant’s case according to law; and the Court usually determines that question by reference to documents and evidence given to or before the Tribunal.
I have also referred to the prejudice the Minister will suffer if an adjournment is granted and I do not need to repeat that.
Given, first, I am not satisfied an adequate reason has been given for this matter not being ready to proceed today; second, there would be no benefit to the applicant even if I were to grant an adjournment; and, third, the Minister would be prejudiced if an adjournment were granted, I am not satisfied that it would be in the interests of justice to grant the applicant the adjournment that he seeks. On the contrary, I am satisfied the interests of justice is in favour of the hearing proceeding today.
What I have said so far responds to what the applicant has said in oral submissions. I have not specifically addressed the contents of the letter dated 23 September 2021 from the Asylum Seekers Centre. The letter does refer to matters which inspire sympathy, but the matters are not matters which would lead me to grant an adjournment because the letter does not address the matters which the Court must address when considering applications for an adjournment.
The letter does refer to the applicant’s mental health having deteriorated. There is nothing, however, in the material before me to suggest that the applicant’s mental health is such as would prevent him from being in a position to meaningfully participate in the hearing. Although this hearing has been conducted by telephone and through an interpreter, there is nothing apparent to me to suggest the applicant is having any difficulty with understanding what is being communicated to him through the interpreter. I also refer to the first of the two emails to which I referred to earlier and, in particular, the applicant’s reference to his submitting a Legal Aid application. The applicant informed me today that no assistance from Legal Aid will be forthcoming, and that is confirmed by the letter from the Asylum Seekers Centre.
For these reasons, therefore, I propose to order that the application for an adjournment be dismissed and I will make an order to that effect in a moment.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 29 October 2021
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