Dirckze v Minster for Immigration

[2007] FMCA 742

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DIRCKZE & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 742

MIGRATION – Subclass 435 temporary vis application.

PRACTICE AND PROCEDURE – Adjournment – whether appropriate to allow for legal representation – legal aid application allegedly pending – no evidence – delay of six months since application filed – adjournment refused.

First Applicant: MAXWELL KENNETH DIRCKZE

Second Applicant: JEAN SUZANNE PATRICIA DIRCKZE

Third Applicant: CASSANDRA SHANNEN DIRCKZE

Fourth Applicant: CRAIG KEEGAN PHILLIP DIRCKZE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 1547 of 2006

Judgment of: McInnis FM

Hearing date: 4 May 2007

Delivered at: Melbourne

Delivered on: 4 May 2007

REPRESENTATION

First Applicant: In Person

Second Applicant: No appearance

Third Applicant: No appearance

Fourth  Applicant: No appearance

Solicitor for the Respondent: Mr T. Mosby

Solicitors for the Respondent: Clayton Utz

ORDERS

The application for an adjournment is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1547 of 2006

MAXWELL KENNETH DIRCKZE

First Applicant

JEAN SUZANNE PATRICIA DIRCKZE

Second Applicant

CASSANDRA SHANNEN DIRCKZE

Third Applicant

CRAIG KEEGAN DIRCKZE

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application the First Applicant for and on behalf of the other Applicants has sought an adjournment of this hearing.  The adjournment sought is for a period of up to eight weeks, pending consideration of what is claimed to be an application for legal aid.  Orders were made by His Honour Federal Magistrate Burchardt on 16 February 2007. 

2. On that day the orders included orders requiring the Applicants to file and serve an Amended Application with proper particulars, if any, by 12 March 2007.  In addition, orders were made that the Applicants file and serve a Supplementary Court Book and Contentions of Fact and Law by 19 March 2007.  The Applicants have not complied with those orders. 

3. On this day, however, the First Applicant has sought an adjournment of the application, for the reasons referred to earlier in this ruling.  Essentially, it is claimed that approximately eight weeks ago an application was made for legal aid.  The Court does not have any direct evidence that an application was in fact made but is prepared for the present purposes to accept that an application was made by the Applicants for legal aid at the time suggested.  However, it would appear that no response was provided to that application.

4. Normally in circumstances of this kind where parties are self‑represented and seek an adjournment in order to obtain legal representation, the Court will place great weight on the need for parties to be properly and adequately represented.  These applications often involve difficult concepts of law and the Court recognises and accepts that for self‑represented Applicants in applications of this kind the task of demonstrating jurisdictional error is extremely difficult. 

5. However, the Court must also take into account the period of time that has elapsed since orders were made by the Court on 16 February 2007.  The Court also takes into account the fact that the application was filed on 7 December 2006 and that it relates to a decision sought to be reviewed of the Migration Review Tribunal which was made clearly at an earlier time, namely 25 October 2006.  In my view, where a somewhat vague assertion is made that an application was presented to the appropriate legal aid body some eight weeks ago and no response has been received, it would not be in the interests of justice to further delay the application by granting the adjournment.

6. One of the factors the court is entitled to take into account is the nature of the application, and, in doing so, it is my view that in these circumstances it would not be appropriate to grant the adjournment for the reasons advanced for and on behalf of the Applicants.  It is noted in passing that the Court has been advised that apparently the Fourth Applicant has been granted citizenship.  That fact of itself does not, in my view, assist the application for adjournment. 

7. I have also noted that the First Applicant who is self‑represented has prepared two typewritten documents which purport to be submissions in support of the application and, subject to any objections which may be taken to part or all of that material by the First Respondent, I am prepared to permit the Applicants to rely upon that material and to otherwise make submissions in support of the application, notwithstanding the failure of the Applicants to comply with the orders made by the Court referred to in earlier in this judgment. 

8. In my view, in the exercise of the Court's discretion, this is not a case, given the considerable time that has elapsed since the date of the orders and the date of the application being filed, to permit any further delay to enable the application for legal aid to be further considered and nor is it a matter where, in my view, a delay is warranted.  For those reasons, it follows that the application for the adjournment is refused.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date: 4 May 2007