DRE16 v Minister for Immigration

[2017] FCCA 2004

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRE16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2004

Catchwords:
MIGRATION – Interlocutory hearing – adjournment application – Court is not satisfied that an adjournment is warranted in the interests of the administration of justice – adjournment refused.

Legislation:

Migration Act 1958 (Cth), s.438

Applicant: DRE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3388 of 2016

Judgment of: Judge Street

Hearing date: 22 August 2017

Date of Last Submission: 22 August 2017

Delivered at: Sydney

Delivered on: 22 August 2017

REPRESENTATION

Solicitors for the Applicant:

Mr K Kelly

Jackson & Associates

Counsel for the Respondents: Mr B D Kaplan

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application for an adjournment is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3388 of 2016

DRE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Adjournment application

1. Mr Kelly, the solicitor on behalf of the applicant, has sought an adjournment of the proceedings fixed for hearing by an order of the Registrar made on 13 April 2017.

2. Today, Mr Kelly, the solicitor for the applicant indicated that he received instructions last night and that his firm is desirous of an adjournment in order to brief counsel, to consider the grounds and to review the material. 

3. These proceedings were commenced on 1 December 2016. Mr Kelly was given the opportunity to adduce evidence from his client in support of the adjournment, and the Court adjourned for Mr Kelly to explore that opportunity with his client. 

4. The applicant has not given evidence in support of the adjournment application. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. The applicant, on the material before the Court, has had ample opportunity to obtain representation earlier than 8:00pm last night. Whilst Mr Kelly may not be in a position to advance his client’s interests given the late briefing of Mr Kelly, it is not the case that the applicant has not had ample opportunity to obtain proper legal representation, and to leave the instructing of lawyers until the last minute without evidentiary explanation is entirely unsatisfactory. 

5. Mr Kelly identified that his client was in a position in which he could pay costs. Costs are not the only prejudiced occasion, by a late application for an adjournment. The Court is entitled to take into account the impact on the Court’s time and resources, as well as on other litigants. The hearing date was fixed over four months ago, and the proceedings commenced almost nine months ago. I am not satisfied that the proffering of a consent order to costs warrants an adjournment in the absence of evidence by the applicant, explaining the circumstances giving rise to the steps taken by the applicant to obtain representation and the failure to do so earlier than 8:00pm last night. 

6. Mr Kelly also identified that he had read the submissions for the first respondent and sought to support the adjournment application on the basis of a potential issue arising under s.438 of the Migration Act. I am not satisfied on the material before the Court, at this stage, that there is any basis to grant an adjournment because of a desire to explore the issue under s.438 of the Migration Act.

7. If Mr Kelly remains at the hearing, submissions can be put in relation to any issues under s.438 of the Migration Act when the Court deals with the substantive hearing. The Court is not satisfied that proper grounds have been made out for an adjournment.

8. The Court is not satisfied an adjournment is warranted in the interests of the administration of justice. The application for an adjournment is refused. 

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

Date: 7 September 2017