CEZ16 v Minister for Immigration
[2017] FCCA 2823
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEZ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2823 |
| Catchwords: MIGRATION – 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: | CEZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2144 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 10 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the First Respondent: | Mr J. Pinder of Minter Ellison |
ORDERS
The applicant’s application for an adjournment is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2144 of 2016
| CEZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This matter is before me today on a show cause hearing. The matter first came before me on a show cause hearing on 19 October 2017. On that date, I adjourned the matter because the applicant claimed that he had not received the court book. The Minister’s lawyer was in a position to tender a file copy of a letter signifying service, but the Minister was not then in a position to strictly prove service. It was for that reason that I adjourned the show cause hearing to today.
At the hearing on 19 October 2017, Mr Pinder, who appeared for the first respondent (Minister), provided to the applicant a copy of the court book, and the issue, therefore, of service of the court book was resolved. The show cause hearing that had been listed before me on 19 October 2017 had been fixed by orders made by Registrar Morgan on 27 October 2016.
In the course of the hearing today, after I had explained to the applicant the nature and purpose of the show cause hearing and the procedure that would be followed, and after I had identified the documents that were relevant to my determining the issues that arise on the show cause hearing, it became apparent that the applicant was seeking an adjournment. That was confirmed by the applicant when he said he wanted further time to obtain legal assistance.
Before I turn to the grounds on which the applicant relies for an adjournment, it will be appropriate if I say something about the principles that apply when a Court is faced with an application for an adjournment of a hearing. Whether or not an adjournment should be granted is a matter within the discretion of the Court. That discretion, however, is regulated by well-established principles, and those principles, at the very least, require the Court to have regard to a number of factors.
The first factor is the reasons the party seeking an adjournment – in this case, the applicant – gives for not being ready to proceed with the hearing. The next factor is the prejudice that the party seeking the adjournment will suffer if an adjournment is not granted. That question largely turns on whether there would be any utility in the adjournment being granted. To the extent that there would be any utility in granting an adjournment, and an adjournment is not granted, the party seeking the adjournment will suffer a prejudice.
The next matter to consider is the prejudice the party opposing the application for an adjournment – and I should have added earlier that the Minister opposes the adjournment sought by the applicant – will suffer if an adjournment is granted. At the very least, if an adjournment is granted over the opposition of the party who opposes the application for an adjournment, that party will at the very least have wasted the costs of appearing at the hearing. That prejudice can be remedied by an order for costs. However, that remedy is only truly a remedy if the party seeking the application is in a position to pay those costs.
These being the principles, I turn to the particular circumstances of this case. From the bar table the applicant said that he had approached a person whom he believed was a lawyer, but he subsequently found out that the person was not a lawyer. The applicant says he paid money to this person and he is expecting a refund. He then said that early this week – and by that I mean Monday 6 or Tuesday 7 November 2017 – the applicant saw a lawyer called Shamser Singh Thapa. Mr Pinder for the Minister informed me that from his own experience Mr Thapa is indeed a lawyer. At any rate, the applicant told me that he did not have any material to provide to Mr Thapa. Mr Thapa told the applicant that if the applicant were to obtain more time from the court, he would review the matter and advise the applicant whether he was of the opinion that the applicant had any grounds for continuing with the proceedings. The last sentence is the effect of what I understood the applicant said Mr Thapa said to the applicant.
The applicant further said that, only yesterday, he collected the court book, which he had left with the person he initially consulted. This was not given under oath, but having asked the applicant whether he had any evidence of his dealings with, at least, the person he thought was a lawyer, the applicant said he had text messages. I asked to see the text messages, and although much of it was not written in English, there was sufficient there for me to proceed on this application for an adjournment on the assumption that what the applicant said to me from the bar table was true.
The one thing I noticed from the text messages is that it appeared that the applicant’s dealings with the person he thought was a lawyer started no earlier than 7 August 2017. I asked the applicant why he had not sought legal assistance, at least before 7 August 2017, given that the matter was set down for hearing on 27 October 2016. The applicant’s immediate response was that his financial condition did not allow him to do that. When I put to the applicant that he was able to raise money to pay to the person he thought was a lawyer, the applicant said that his friends were able to assist him with money. When I asked the applicant why he did not arrange for money earlier than he did, the answer, as I understood him, was that it was only after this person whom he believed was a lawyer said that there was something in his case – it was only at that point in time - that the applicant decided to muster the money. When I put to the applicant that, had he been informed of this months before, whether he would then have been able to raise the money, the applicant said he would have, albeit slowly.
The question therefore is whether this explanation is an adequate explanation for the applicant’s not being in a position to proceed today. In my opinion, it is not an adequate explanation. The proceeding was commenced by the applicant on 9 August 2016 – that is, 16 months ago - and the matter was set down for a show cause hearing on 19 October 2017. The applicant therefore had sufficient time, and from what the applicant has told me, had capacity within that time to muster a sum of money to retain a lawyer to provide him with legal advice. There’s no adequate explanation why the applicant waited until after 7 August of this year to do that. The applicant mentioned in passing that his migration agent said that nothing would happen for a while. I did not ask the applicant any further questions about that, and I do not propose to say anything further about that, other than if that was the case, that is to say, if the applicant did nothing because the agent told him nothing would happen, that by itself would be no excuse, because the applicant knew that at some stage something would happen, namely, that the show cause hearing would take place. So that deals with the first matter I need to consider.
The next matter I need to consider is whether there would be any utility in granting the adjournment. I do not want to say much about the merits of the case, because submissions have not been made about the merits of the case and I do not want to deal with that before I receive submissions on it, but nothing has been put before the Court that the applicant’s prospects in this case will improve if an adjournment is granted. At its highest, the applicant says that a lawyer, Mr Thapa, said he would look at his matter to see whether he has any grounds. There is no basis, merely, from that evidence, to infer that there would be any prospect of the applicant amending his case to raise something that is arguable. So on the face of what has been said to me, and on the material before me, I am not satisfied that there would be any utility in granting an adjournment. An applicant who seeks an adjournment – particularly, in relation to a matter that has been set down for such a long time, cannot expect to obtain an adjournment on the grounds that there would be utility, simply by saying that some lawyer is going to look at it. So the end result of that is that there is no demonstrated possibility of utility in the granting of an adjournment. Thus, if an adjournment is not granted, there would be no prejudice suffered by the applicant.
I then turn to prejudice to the Minister if an adjournment is granted. There will be costs thrown away. As I said before, a costs order can be made to compensate the Minister. Although the applicant has indicated that he has some capacity to raise money from friends, there is a very real risk that if a costs order is made, the applicant’s desire and motivation or, indeed, his friends’ desire to provide to the applicant the money necessary to pay the Minister’s costs will not be great. In other words, I am not sufficiently satisfied that any order for costs that may be made, if an adjournment is granted, will in fact be paid by the applicant.
And then, finally, there is a more general issue. There is a public interest in cases being disposed of on the date fixed by the Court. That applies generally, but it applies with greater force in this jurisdiction, which deals with hundreds if not thousands of migration cases, where the lists are overflowing, and where an applicant is given a great amount of time between the filing of an application and the hearing of an application to prepare himself or herself for the hearing. In those circumstances, an applicant should not have the expectation of turning up to a hearing, one year after the proceeding has been commenced, and simply and casually tell the Court that the applicant requires more time to go and see a lawyer. If that were a sufficient basis for obtaining an adjournment, cases would be adjourned endlessly, and the already long time it takes to dispose of cases would increase and bring about not only inefficiencies in the Court, but almost scandal.
But in any event, in my opinion, the most important factors and the ones on which I will rely are what I have held to be an inadequate explanation for the applicant’s not being ready today, to proceed with this case, and the lack of utility if I were to adjourn the case. In those circumstances, I propose to order that the applicant’s application for an adjournment be refused.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 17 November 2017
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