CEC16 v Minister for Immigration

[2017] FCCA 2602

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2602

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.

Legislation:

Migration Act 1958 (Cth), s.477(2)

Applicant: CEC16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2117 of 2016

Judgment of: Judge Manousaridis

Hearing date: 13 October 2017

Delivered at: Sydney

Delivered on: 13 October 2017

REPRESENTATION

Solicitor for the Applicant: Mr N Daawar of
Ariana Defence Lawyers

Solicitor for the First Respondent:

Ms S Given of

HWL Ebsworth Lawyers

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2117 of 2016

CEC16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 27 October 2016 this matter came before a Registrar of the Court. The applicant appeared, representing himself. On that day directions were made, including a direction or an order that the application be fixed for hearing; and by application I mean an application to extend time under s.477(2) of the Migration Act 1958 (Cth) (Act). The hearing date was 2.15 pm on 13 October 2017. 

2. The applicant was not in court at 2.15pm today. As is my usual practice, I was prepared to wait until about 2.30pm just in case the applicant met with some misadventure. Whether or not he met with some misadventure I did not inquire; but the applicant turned up in court at around 2.20pm or 2.25pm. I was told by my associate before I came on the bench that the applicant was seeking to contact his lawyer. He was expecting a lawyer to appear for him. I waited, but came onto the bench at about 2.50pm.

3. The applicant confirmed that he was expecting a lawyer to turn up.  He said his lawyer was held up.  He initially said that his lawyer said he would be here at 1.30pm. I said I would stand the matter down until 3 o'clock and that if the lawyer did not appear at that time I would proceed with the hearing.  I might add that, at the time I came on the bench, I asked the applicant for the name of the lawyer the applicant said he had retained. A telephone number was given and the Court attempted to contact what appears to be the mobile number of the lawyer and the number of the law firm of which the lawyer is a member, both calls went to recorded messages. In any event, at 3 o'clock I was informed that the applicant did have a lawyer, and I came on the bench. There appeared on behalf of the applicant Mr Daawar.

4. It became apparent that Mr Daawar was instructed to apply for an adjournment. From the bar table various assertions were made, in particular that the applicant had not received the green book. After some discussion I indicated that if Mr Daawar wanted to proceed with an application for an adjournment, the applicant had to give evidence.  The applicant was asked some general questions about whether he had received a green book, and the answer to that was no, he had not.  And I think that that was more or less the extent of the examination-in-chief. 

5. I asked the applicant some questions.  I asked him whether he expected to be in a position to pay for lawyers if an adjournment were granted.  As I understood his evidence, the applicant said that he would be able to obtain money from his uncle. The applicant said he was told it would cost approximately $4,000. I asked the applicant why he had not asked his uncle before for money.  The answer was along the lines that his uncle had suffered some financial crisis in the past. Then it emerged that the applicant’s uncle would only be able to give him $2,000. When I asked the applicant where the balance of the money was going to come from, there was a reference to the applicant being able to borrow $2,000 from a person whom the applicant described as a friend.  The friend’s name is “Rayan”. The applicant did not know his friend’s full name. When I asked the applicant why he had not asked his friend for a loan before, the applicant said that his friend had lost $50,000 in relation to a shop.

6. The applicant was cross-examined by Ms Given, who appeared for the first respondent (Minister). The applicant acknowledged signing the form (first court date form) which is, as I understand it, given as a matter of course to unrepresented applicants in migration matters on the first court date.  That contains the postal address, email address, and mobile telephone number of the applicant. The applicant confirmed that the postal address and email address stated in that document were accurate at the time he signed the document and are current as at today’s date. The applicant also acknowledged having signed the short minutes of order.  I marked both of those documents as exhibit A. 

7. Ms Given tendered without objection a file copy of a letter which was put to the applicant (which I marked as exhibit B). On its face it is a letter addressed to the applicant at the postal address specified in the document which is the first court date document to which I have already referred.  That letter refers to an email having been sent on 25 November 2016 serving an electronic sealed copy of the court book, and it also enclosed a hard copy of the court book. The applicant said he had not seen that document.  Although the tender of that document was not objected to, I think I am constrained in not accepting it as evidence of postage because the mere file copy of a letter is usually insufficient proof that it has been posted.

8. Then there is in evidence an email sent from the Minister’s lawyer. As I understood the applicant’s evidence he agreed that he has seen on his computer screen a copy of the email (which I marked as exhibit C). The email of 25 November 2016 says:

   We attach by way of service a sealed copy of our Court book filed on behalf of the first respondent.

9. Part of exhibit C is another email, this time from Ms Given for the Minister sent on 6 October 2017.  It says:

   I refer to your telephone call to me just now.  As we discussed, your Court book was sent to your postal address in November last year.  A copy of the cover letter is attached.  It was only sent to you by email the same day (see email below) and a copy will be available in Court.  However, I attach an electronic version today.

10. There is more to the email, but I need not set it out. I recall the applicant saying he had not seen that email. 

11. In addition, there was tendered an email sent on 3 October 2017 attaching a letter dated 3 October 2017 from the Minister’s solicitors.  The letter attached outline submissions, and the letter also stated that the matter was before me at 2.15pm on 13 October 2017, indicating that if the applicant did not attend, the Minister would be seeking an order that the proceeding be dismissed.

12. Now, my understanding of the evidence and of what was said before me in submissions is that the applicant first contacted Mr Daawar one week ago, but he did not see Mr Daawar until last night.  I think this is in the evidence, but I understood the applicant to say he did not see Mr Daawar until last night because that was the time by which he was able to muster whatever money was required to secure legal representation at least for today.  From the bar table Mr Daawar said to me that the applicant provided to him yesterday $1,800 in cash, which I assume had been given to Mr Daawar to be held in trust on account of the services he was engaged to provide today. 

13. That being the background, I now need to consider whether an adjournment should be granted. The Court has undoubted power to grant an adjournment. It is a matter that calls for the exercise of discretion. That discretion, however, is exercised according to well-established principles. The first matter that needs to be considered is the reason or reasons for which the party who seeks the adjournment is not ready to proceed with the hearing. That is the first matter I will consider. The second matter that is relevant is whether there would be any utility in granting the adjournment. That factor necessarily looks at the prejudice that the person seeking the adjournment will suffer if an adjournment is not granted. And the third matter that must be considered is the prejudice that will be sustained by the party opposing it.  Although it is implicit already in what I have said, and as should be implicit from the fact that I am giving a judgment, the Minister opposes the adjournment.

14. I first turn to the reason why the applicant says he is not ready. There are two reasons given. One is the applicant did not have the financial means to secure legal representation. That a litigant does not have the legal means to obtain legal representation is often a matter of regret, but by itself is not a matter which can be relied on as a reason for a party not being ready to proceed with the hearing.  That observation is especially relevant to matters where the person who says he has no legal representation is the initiating party, which is the case here. And it is also especially so when, as here, the applicant has had what some might regard as a scandalous amount of time to be ready to proceed with the hearing. The proceeding was commenced on 5 August 2016.  The first Court date was on 27 October 2016, and that is almost now one year ago. So the mere fact the applicant does not have legal representation or says he does not have legal representation is not a reason by itself. 

15. I am not prepared, however, to accept that the applicant was unable to obtain legal representation earlier. No explanation was given as to how the applicant was able now to pay $1,800 to a lawyer.  There is just no explanation about that. There is nothing which indicates he could not have done that earlier, and perhaps the $1,800 could have been better spent by securing an advice from a properly qualified lawyer as to whether the applicant has reasonable prospects of success in this case. Instead what the applicant has done is to expend $1,800 to engage a lawyer to appear before this Court to seek an adjournment when that lawyer knows nothing about the case or is not in a position to say anything about the case due to that lawyer’s not having been briefed within a reasonable time. 

16. I am not satisfied that the applicant has gone anywhere near giving a reasonable explanation for his not being ready to proceed today, and the evidence, such as it is, points to an ability by him to have been able to obtain proper advice before today’s hearing.

17. I then turn to the question of whether there would be any utility in granting the adjournment. Subject to what Mr Daawar said from the bar table, the evidence the applicant gave was premised on the assumption that he would need to raise $4,000 to secure legal representation. The evidence the applicant has given goes nowhere near persuading me to find that there is any realistic prospect he will be able to raise $4,000. His uncle, even if one believes his uncle has the capacity to provide $2,000, and I am doubtful about that, has only the capacity to provide $2,000; and I just cannot give any weight to evidence that a person that the applicant describes as a friend and does not know his full name will lend the applicant $2,000. Given there is no evidence that the applicant has any capacity to repay, what the applicant is in effect submitting is that his friend and indeed his uncle are willing to gift money to the applicant. 

18. That leads me to what Mr Daawar said from the bar table. He indicated to me that he is willing to do the matter pro bono. I am afraid that is not something I can accept. The circumstantial evidence is all against it.  The evidence, or at least what was said from the bar table, is that the applicant saw Mr Daawar a week ago. He next saw him when he had $1,800. The inference is available to be drawn that Mr Daawar was not going to do any work without receiving any money. That, of course, is not a criticism. A lawyer is not obliged to provide his or her services for free. But, as I said, I am not prepared to accept that Mr Daawar is willing to do work for free, particularly in circumstances where he has not had an opportunity to review the matter and in circumstances where he has received $1,800 from a person he has repeatedly said to me is a person of some vulnerability. So where that leads me to is that even if I were to grant an adjournment, in order to permit the applicant time to raise money, there is insufficient evidence or grounds that will enable me to say with any confidence that he would have a realistic prospect of obtaining any money. 

19. And that then leads me to the second reason the applicant says he is not ready to proceed, and that is he says that he has not received the court book. Unfortunately, the evidence in relation to that ground is destructive of it. I am satisfied from the material before me that the applicant has been given a copy of the court book.  It was submitted by Mr Daawar that the email system that the applicant had might not permit the transmission of large files. That may be so, but that is not a matter that has been established. But even if it is so, the fact is the applicant, who has some command of English and certainly more than a rudimentary command, would have been aware that a court book was filed and had every opportunity to seek to obtain it had it not, in fact, been filed. The orders that were made on 27 October 2016 required the Minister to file the court book by a certain date and I think it is November of 2016. The applicant, therefore, would have been on notice if he had not, in fact, received the court book in November 2016; and if he had not received it, the applicant ought to have, had he really wanted to obtain the court book, contacted the Minister’s lawyers to obtain it.  The evidence is that he tried to do so only in October of this year, which is perhaps a week or maybe 10 days ago. 

20. There is another aspect about the court book. It is the practice of the Court which started many years ago to require the Minister to prepare a court book. That was done, on my understanding, for the benefit of applicants, not for the benefit of the Minister, so that the applicant would have the opportunity to review the material that was before the Tribunal so that the applicant had available to him or her more than simply the reasons for decision. Whether the applicant, therefore, wishes to take advantage of a court book is entirely a matter for the applicant.  Where it is not the Minister who seeks to rely on anything in the court book, a hearing can go ahead without the court book, and there is nothing before me to suggest that the Minister will be seeking to rely on anything in the court book. 

21. In my opinion, therefore, there is no valid reason why the applicant is not ready to proceed today.

22. Another matter that is often looked at is whether there is any prospect that if an adjournment is granted, the person seeking the adjournment, in this case the applicant, will improve the prospects of his case.  Unfortunately, there is nothing before me other than an earnest submission made by Mr Daawar that if an adjournment is given, the matter would be looked into. Whether or not that will lead in the applicant’s case being improved is a matter of speculation. The reason the applicant is not in a position to even make a submission about that is a matter which is entirely within his camp. He was only able to secure legal representation yesterday evening. 

23. Then I will look to the prejudice that the Minister will suffer if an adjournment is granted. Normally as a minimum, there will be costs thrown away.  In many cases, that disadvantage can be remedied by an order for costs. However, that’s only an effective remedy if the party against whom an order for costs is made actually has the means with which to meet the order for costs. Given that one of the grounds on which the applicant relied for his not being in a position to proceed today was his lack of financial means, I cannot be even closely satisfied that any order for costs that may be made today if an adjournment were granted would be met by the applicant. That means that the prejudice the Minister would suffer if an adjournment were granted, that is to say, costs thrown away, would really not be remedied. 

24. And I finally wish to say something about a submission where an appeal was made to justice. It was put in very broad terms that the applicant needs an opportunity to present his case. As I have said before, the applicant has had an ample opportunity to get his house in order.  The taxpayer has provided the applicant with interpreters, which will enable him to engage with the legal system, and it is to be remembered that the person engaging the legal system in these circumstances is not the Minister, but the applicant; and he bears the responsibility of doing the minimum required to ensure that the system is engaged properly and efficiently. 

25. For those reasons, the application for an adjournment is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 26 October 2017