DGR16 v Minister for Immigration

[2018] FCCA 891

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGR16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 891

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 – whether prejudice to respondent if adjournment granted – application for adjournment dismissed.

First Applicant: DGR16

Second Applicant: DGS16

Third Applicant: DGT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3020 of 2016

Judgment of: Judge Manousaridis

Hearing date: 6 April 2018

Date of Last Submission: 6 April 2018

Delivered at: Sydney

Delivered on: 6 April 2018

REPRESENTATION

First applicant in person and as litigation guardian for the third applicant, assisted by an interpreter

Second applicant in person assisted by an interpreter

Solicitor for the first respondent: Mr L Dennis of Minter Ellison Lawyers

ORDERS

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3020 of 2016

DGR16

First Applicant

DGS16

Second Applicant

DGT16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 2 November 2016 the applicant filed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 25 September 2016 affirming a decision of a delegate of the Minister for Immigration and Border Protection (Minister) not to grant the applicants a protection visa.

2. The application came before a Registrar of this Court on a first court date on 20 April 2017. On that day the Registrar made directions for the conduct of the matter, and one of the orders was that the matter be set down for hearing before me at 2.15 pm on 6 April 2018.

3. The hearing before me commenced on time, that is to say, at 2.15 pm. As is my usual practice, I informed the first applicant (with the second applicant, his wife, sitting behind him) about the purpose of the hearing. Having satisfied myself that the applicant understood what I had said to him about the purpose of the hearing, I then explained to him what the procedure would be. After having informed the applicant of what the procedure will be, the applicant indicated to me he understood what that procedure would be. I then identified the documents that had been filed in the proceeding by the applicant and the Court Book that had been filed by the Minister, and that was tendered into evidence. I then invited submissions from the applicant.

4. The matter continued until approximately 3 pm, at which point the first applicant (applicant) indicated that he wanted to apply for an adjournment. (I omitted to mention that in the meantime, immediately before the applicant commenced to make submissions to me, he said that he would like his wife not to be present because he was embarrassed about some of the matters he was going to address me on. I indicated to the applicant that whether or not his wife wished to remain in court was a matter for her, and I would certainly not direct her not to be in court. In the event the applicant’s wife, who is the second applicant, went outside the courtroom.)

5. If I can then return to the application for an adjournment. As I understood the applicant, he informed me that he had applied to the New South Wales Bar Association for legal assistance. He handed up to me a form. It seems to be a pro forma form issued by the New South Wales Bar Association titled “Legal Assistance Referral Scheme”. It is clear from the document that it is not signed or dated, and it is also clear from what the applicant said, if it is not clear from the document itself, that the document has not been provided to the NSW Bar Association.

6. I understood the applicant to have told me that he first approached the New South Wales Bar Association last week, and that in a telephone call with a person he did not identify the Bar Association told him that no assistance could be provided to him given the pendency of today’s hearing. On further questions from me it became apparent that my understanding of what he told me was incorrect. Whether that is because I misunderstood him or because the applicant told me something which is untrue is not a matter that I need to determine. In any event, what emerged was that the applicant was given this form by Salvos Legal and RACS. And if one looks at the form, which I will now just simply note I will mark as MFI1, next to the printed words, “If yes, please state of provider and outcome,” there are written the words “Salvos Legal and RACS”. In any event, after exploring why the applicant said he wanted an adjournment, he said he needed time to obtain a lawyer.

7. When he completed his submissions I invited him to ask the second applicant to come into court, and I asked her whether she wished to make any submissions about the hearing being adjourned. The second applicant said a number of things which I had difficulty following, but when I sought to obtain from her the reason or reasons why she wanted the matter to be adjourned, the answer she gave was that the applicant was too stressed-out for this hearing and that he could not concentrate.

8. The first respondent, who is represented today by Mr Dennis, opposes the application for an adjournment.

9. Whether or not the Court should grant an adjournment of a hearing is a matter within the discretion of the Court. The overriding question is whether it is in the interests of the administration of justice that an adjournment be granted. That usually requires the Court to consider three things. One is the reasons why the party seeking the adjournment says he or she is not ready to proceed with the hearing. The second is what prejudice the party seeking the adjournment will suffer if an adjournment is not granted. And the third is what prejudice would be suffered by the party opposing the adjournment if an adjournment is granted.

10. If I first turn to the reasons given by the applicant why he is not ready today, it boils down to his not having a lawyer to represent him and his inability to obtain a lawyer since the matter was commenced. That by itself is not a reason for a matter to not proceed at the appointed time. The applicant and countless people in his position who engage with our courts do not have a right to obtain legal representation. I dare say that this is something the applicant would have been aware of at the time he applied for judicial review in this Court. I have taken from what the applicant has said that he has made an attempt, or a number of attempts, to obtain legal representation, but he has been unable to do so.

11. I need to turn then to the prejudice he will suffer, or the applicants will suffer, if an adjournment is not granted, and that requires me to consider the reasons for which an adjournment is sought. The reason is to give the applicant an opportunity to obtain a lawyer to represent him and his wife. There is nothing before me to indicate that the applicant would have any prospects of obtaining legal representation in the near future or at any time; and in fact, the matters that have been put before me today indicate that he has very little prospect of obtaining a lawyer. The applicants have had since at least November 2016 to obtain legal assistance, and in fact, until November 2016 did have the benefit of legal assistance. But since that time they had found none. The inference is almost irresistible that the applicant is unlikely to obtain any legal representative in the near future.

12. I then consider wheat prejudice would flow to the first respondent if an adjournment is granted. The obvious detriment is that costs will be thrown away and those are the costs the Minister will incur at the very least for having appeared at today’s hearing. There is a means by which such prejudice can be overcome, and that is by making an appropriate costs order. But given the applicant’s apparent financial difficulties, any order that the applicant pay costs thrown away would not address the prejudice the Minister would suffer.

13. I then finally address what was said by the second applicant about the applicant being stressed. It goes without saying that appearing in a court is a matter that causes stress. That, however, does not mean that a person who is under the stress is not in a position to participate meaningfully in the hearing. Further, this claim of stress was not asserted by the applicant. There is nothing in my by now rather extensive exchanges with the first applicant to indicate that he is unable to meaningfully participate in the hearing; and I note that for most of what has occurred, the second applicant has been outside of court, and, in any event, does not hold any particular qualifications which would lead me to give her opinion about the applicant’s mental state any consideration or weight.

14. In those circumstances, I am satisfied it is not in the interests of the administration of justice that the hearing be adjourned, and I therefore will dismiss the application for an adjournment.

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

Associate:

Date:  17 April 2018