CHAHIN v Minister for Immigration

[2017] FCCA 2096

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAHIN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2096

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.

Legislation:

Migration Act 1958 (Cth), ss.477(1), 477(2)

First Applicant: HELENE CHAHIN

Second Applicant: YOUSSEF NASSIF SAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1456 of 2016

Judgment of: Judge Manousaridis

Hearing date: 10 August 2017

Delivered at: Sydney

Delivered on: 10 August 2017

REPRESENTATION

Applicants in person assisted by an interpreter.

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The applicants’ application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1456 of 2016

HELEN CHAHIN

First Applicant

YOUSSEF NASSIF SAM

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed before me today for the hearing of an application under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the time prescribed by s.477(2) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal).

2. In the course of my identifying what evidence should be tendered on the hearing of that application, the applicants applied for the hearing today to be adjourned. I invited separate submissions from each of the applicants as to the reasons why I should grant an adjournment. 

3. The first applicant initially said that she was psychologically extremely distressed. I asked her whether she had medical evidence. She said she had something at home and she said that she had her daughter pay for her consulting a psychiatrist. When I asked her what she meant by being extremely distressed, the first applicant said that she needed to know what to do now. She said she needed to consult a lawyer. I asked her why she had not consulted a lawyer since the decision of the Tribunal or since the time at which she and the second applicant commenced the proceedings. The first applicant claimed that she really did not know what was happening and what was expected of her. She said she did not know what to do.

4. When I asked the first applicant how long an adjournment she needed, she was unable to give me a precise time or period. That is not surprising. The first applicant and the second applicant have stated that they did not have financial means. In those circumstances, it is difficult for them to suggest any period of an adjournment to obtain legal advice, given that they do not appear to have any money to obtain such advice or assistance.

5. The second applicant said he wanted an adjournment to obtain legal assistance. He informed me that he is not earning any income. He said he would try and obtain a loan. To that end he said he wanted to approach the church. I asked him why he had not done that before. He said that an approach had been made to the church on various occasions, but the bishop had too many commitments and could not meet with the applicants. I asked the applicant how long an adjournment he sought. He said he did not know, and that he would leave it to the discretion of the Court.

6. The Court has undoubted power to grant an adjournment of a hearing.  The exercise of that power is discretionary.  That does not mean, of course, that the Court is free to do as it likes.  The exercise of that discretionary power is regulated by well-known and consistently applied principles.  It requires the Court to consider a number of factors.  One is the reason why the adjournment is sought – more particularly, why the party seeking the adjournment is not in a position to proceed with the hearing.  The second factor is what prejudice the party seeking the adjournment will suffer if an adjournment is not granted.  Usually, that question requires a court to look into the utility of granting an adjournment.  And the third matter to consider is any prejudice that the party opposing the adjournment will suffer if an adjournment is granted.

7. I first turn, then, to the reasons given why the matter is not ready to proceed today. Three reasons were advanced, as I understood the submissions. One was the claim that the first applicant was psychologically extremely distressed.  There was no medical evidence to support that claim. That is not to say I do not accept that the first applicant is suffering from psychological distress. It is plain that the first applicant, as you would expect, is in a degree of distress, having regard to the issues that I have to decide today. The application, if it is decided against her, may have consequences of her being required to leave the country. I am not satisfied, however, that the distress that the applicant suffers is such as to prevent her from meaningfully participating in today’s hearing. The first applicant has appeared to understand questions I have asked of her as interpreted by the interpreter, and has been able to respond to those questions.

8. The second reason that was advanced, and this was advanced by the first applicant, was the bland statement that she did not know what she had to do. Even if I accept that is true, that affords no reasonable ground for her not being in a position to proceed with the hearing today.  The application that is before me today is one that she and the second applicant have initiated. They are both adults. It is true they do not have the benefit of legal assistance, but at the very least they have the responsibility to ensure that they identify what it is they should do in order to be in a position to prosecute their case.

9. The third matter advanced as to why the applicants are not ready to proceed today is the inability of the applicants to obtain legal assistance.  The mere fact that a litigant is unable to obtain legal assistance does not by itself constitute a reason for a matter not proceeding.  This proceeding was commenced in June 2016, over a year ago.  It relates to a decision made by the Tribunal in February 2016, being a decision made 18 months ago, and the matter was set down for hearing on 28 July 2016, just over one year ago. The applicants, in my opinion, had more than a reasonable opportunity to obtain legal assistance if they were in a position to obtain such assistance. 

10. I then turn to the question of what prejudice the applicants will suffer if I do not grant the adjournment. That question largely turns on what benefit will accrue to the applicants if an adjournment were granted.  The only potential benefit identified is the prospect of obtaining a loan to afford legal representation. Although I may accept, although not given under oath, the intention to seek a loan is one genuinely held by the applicants, whether or not any loan would be able to be obtained is a matter of sheer speculation.  Further, there is nothing before the Court to indicate that, if a loan were to be obtained, by when such a loan would be obtained.

11. Overall, there is nothing before me on the basis of which I could reasonably be satisfied that there would be any utility in granting an adjournment. The likelihood is that, if an adjournment were granted, then the applicants will appear before me again without the benefit of any legal representation and they will be in the same position as they are now.

12. Another relevant factor is whether, if the applicants were to secure legal representation, their prospects of obtaining an order for extension of time will be increased. That is a matter which is purely speculative. If the matters relevant to the application for an adjournment were more finely balanced, it might have been appropriate for me also to consider the merits of the applicants’ application for an extension of time. However, as it should be apparent by now, the matters are not finely balanced, and I propose to say nothing at this stage about the merits of the applicants’ application for an extension of time.

13. Finally, I turn to the question of whether the Minister will suffer any prejudice if I were to grant the adjournment. If an adjournment is granted, the Minister will have incurred unnecessary costs, which would at the very least have included the costs of the Minister’s barrister and instructing solicitor appearing today. Usually, such prejudice can be cured by the Court granting an adjournment on the basis that the parties seeking the adjournment pay the other side’s costs. Given what the applicants have told me about their financial circumstances, the prejudice the Minister will suffer by way of costs thrown away if an adjournment is granted cannot be cured by an order for costs because the applicants will not have the means to pay those costs.

14. Having regard to all the matters which I have just related, I am not satisfied that it is in the interests of the administration of justice to grant the adjournment. I am actually satisfied it is in the interests of the administration of justice that the adjournment not be granted. I will order that the application for an adjournment be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  31 August 2017