Esh19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1061

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ESH19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1061

File number(s):

SYG 3104 of 2019

Judgment of:

JUDGE GOODCHILD

Date of judgment:

17 November 2023

Catchwords:

MIGRATION – PRACTICE AND PROCEDURE –Ex Tempore Reasons for Judgment – Application for adjournment of the interlocutory hearing – Application dismissed

Legislation:

Federal Circuit and Family Court of Australia Act 2021

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Division:

Division 2 General Federal Law

Number of paragraphs:

40

Date of hearing:

17 November 2023

Place:

Sydney

Applicant:

Applicant in Person

Solicitor for the First Respondent:

HWL Ebsworth Lawyers

ORDERS

SYG 3104 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ESH19
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE GOODCHILD
DATE OF ORDER:	17 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The matter is adjourned for hearing to 2.15pm on 22 February 2024.

2.The Applicant has leave to file and serve any amended application, affidavit evidence and written submissions by 25 January 2024.

3.The Respondent has leave to file and serve any amended response, affidavit evidence and written submissions in reply by 8 February 2024.

4.The costs of the court event today are reserved.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE GOODCHILD:

INTRODUCTION

1. The applicant who is a citizen of Malaysia applied for a protection visa in 2019 on the basis of his religion and sexual orientation. In August 2019, a delegate of the first respondent refused to grant the applicant that visa, and shortly after the applicant applied to have that refusal decision reviewed by the Administrative Appeals Tribunal. Following a hearing in late 2019, the Tribunal affirmed the delegate’s refusal decision. This led the applicant to institute proceedings in this Court for judicial review.

2. As the applicant’s judicial review application was made outside of the statutory timeframe, there is an interlocutory application on foot to extend the time to file those proceedings.

3. Today, the applicant seeks that the hearing scheduled for his extension of time application – today’s date, 17 November 2023 – be adjourned to a date in February next year.

   RELEVANT PRINCIPLES

4. In considering whether to adjourn the interlocutory hearing listed before me today, the Court must have regard to the overarching purpose of the civil practice and procedure provisions contained in the Federal Circuit and Family Court of Australia Act 2021 (“the FCFCOA Act”), particularly s 190.

5. Section 190 provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

   (a)according to law; and

   (b)as quickly, inexpensively and efficiently as possible.

6. Similarly, r 1.04(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 provides that the overarching purpose of the Rules as provided in s 190 of the FCFCOA Act is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

7. Sub-section (2)(a) of r 1.04 further provides that to assist the Court, the parties must “avoid undue delay, expense and technicality”.

8. It flows from the above that the factors for consideration in relation to whether to grant an adjournment are whether that adjournment might:

   ·facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and

   ·avoid undue delay, expense and technicality.

9. Whether an adjournment of the hearing should be granted is a matter for the discretion of the Court. The overriding consideration is the interests of justice.

10. Although the circumstances that may be relevant to granting an adjournment may vary from case to case, there are usually three factors that must be considered.

11. The first is why the party seeking the adjournment is not in a position to proceed on the day the matter has been set down for hearing.

12. The second is whether there would be any utility in granting the adjournment.

13. The third is whether the party resisting the application for an adjournment will suffer prejudice if an adjournment is granted, and the extent to which such prejudice can be compensated by an order for costs.

14. I will now deal with those matters in turn.

    CONSIDERATION

    Why the party seeking the adjournment is not in a position to proceed on the day the matter has been set down for hearing

15. The reason why the applicant is seeking an adjournment of these proceedings is because he has not been able to obtain legal assistance for the hearing. This is the second time the applicant is seeking an adjournment on this basis.

    The first adjournment request

16. On 22 June 2023, I made orders listing the matter for an interlocutory hearing before me at 10.15am on 13 September 2023. Additional orders were made for the applicant to file and serve any amended application and any affidavit evidence and any written submissions.

17. On 13 September 2023, the applicant appeared before me unrepresented and at the outset of the hearing indicated to me that he was ready to proceed. The applicant further indicated that he did not have the Court book, or the submissions, however, he understood that his previous lawyers had them.

18. It was noted that on 4 August 2023 the applicant’s lawyers had filed a Notice of Withdrawal as Lawyer.

19. As we were about to start the hearing on 13 September 2023, a close friend of the applicant (“Mr A”) approached the Court and requested to be heard. Mr A indicated that he was providing assistance to the applicant and that in the four weeks prior to the hearing he had accompanied the applicant to his previous lawyer. As it turned out, that lawyer was no longer prepared to act for the applicant.

20. I then provided Mr A an opportunity to speak with the applicant to ascertain what was sought on that day (13 September 2023). Mr A later confirmed on behalf of the applicant that the applicant sought to have the hearing adjourned in order to have the opportunity to obtain legal advice. Mr A also indicated to the Court that the applicant’s brother would assist with the finances for the hearing.

21. At the time, the first respondent, properly and appropriately, indicated that but for the costs of their attendance that day the first respondent would not suffer any real prejudice should the proceedings be adjourned.

22. Accordingly, on 13 September 2023 I adjourned the hearing before me for the first time and made orders allowing the applicant to file and serve any written submissions or any affidavit evidence ahead of the next hearing date. I also ordered him to pay the costs of the first respondent thrown away by his adjournment application.

    The second adjournment request – the present application

23. On 15 November 2023, two days ago, my associate received an email from the applicant requesting a second adjournment. He requested that the interlocutory hearing be adjourned to February 2024, and the reasons given for the adjournment were, again, that he was unable to obtain legal representation.

24. The applicant said in his email to Chambers that he had diligently attempted to engage a barrister but unfortunately their schedules conflicted with the scheduled hearing date, making it challenging to find alternative suitable representation in a short amount of time particularly at this time of year. The applicant also indicated that it had been difficult for him to obtain and retain a solicitor and barrister who specialised in this area of practice.

25. Notwithstanding, the applicant stated that he was in the process of securing alternative legal counsel and indicated that adjourning the proceedings would not only enable him to present his case in a manner consistent with the principles of procedural fairness, but also contribute to a more just and equitable outcome. He further stated that should he be denied the adjournment, he will be unable to present his case as he is not legally qualified and is unaware of how to navigate the justice system. He further emphasised that any adverse judgment would have grave personal consequences on his right to reside lawfully in Australia and maintained that he feared he would face physical harm if he was required to return to his home country.

26. The first respondent opposed the adjournment and gave their reasons why in a response email dated 16 November 2023. Those reasons were enumerated as follows:

    A.     These Proceedings were previously listed for interlocutory hearing on 13 September 2023 at which point in time the Proceedings were adjourned on the basis of the Applicant obtaining legal representation.

    B.   Further to (A), the Applicant has provided no evidence of the steps he has taken (and what steps he may take) to obtain legal representation - noting he has had the opportunity to obtain such representation since at least 4 August 2023 being the date his former solicitor's Notice of Withdrawal of Lawyer was filed in these Proceedings.

    C.   No steps have been taken by the Applicant with our office and the Court (as we understand it) since 13 September 2023 to address the timetable for filing his evidence and submissions.

    D.     No steps have been taken by the Applicant with our office and the Court (as we understand it) until his below email to address tomorrow's hearing.

    E.   The grounds of the Applicant's Application are, in our respectful submission, without merit, such that it would be futile to grant a further adjournment of these Proceedings.

27. The matter remained listed before me today to allow the parties to make oral submissions regarding the applicant’s second adjournment request. Notably, although Mr A was not present to assist the applicant (apparently due to ill-health), the applicant’s brother had come from overseas to assist the applicant and had attended the listing today before me.

28. During the court event today, I asked the applicant various questions relating to the steps he had taken to secure legal representation since the proceedings were last adjourned on 13 September 2023. The first respondent’s solicitor who was present today in Court was also provided the opportunity to ask questions of the applicant.

29. In summary, the applicant explained under oath the effort made by Mr A in the past few weeks to obtain legal assistance, which the applicant said he had to decline due to it being too costly.

30. The applicant also told the Court that his brother had come from overseas to specifically help him arrange a lawyer, and the Court heard from this brother who confirmed that he was actively trying to secure legal representation for the applicant and had offered to be responsible for meeting any legal fees.

31. I heard from the first respondent’s solicitor who maintained that the first respondent opposed the adjournment. It was submitted on the first respondent’s behalf that at common law there is no right to legal representation and that the oral evidence given by the applicant, at its highest, suggested that organising legal representation for a future hearing was possible, not that it was probable. The first respondent’s solicitor otherwise argued that the applicant’s evidence about previous attempts to engage with lawyers was limited.

    Whether there would be any utility in granting the adjournment

32. It is also the first respondent’s case that the grounds of the applicant’s judicial review application are without merit such that it would be futile to grant a further adjournment of the proceedings.

33. The applicant propounds four grounds of judicial review, summarised as follows:

    ·Ground one states that the Tribunal fell into jurisdictional error by confusing the nature of the applicant’s claim that he was homosexual with evidence about when he was first attracted to anybody of the same sex;

    ·Ground two asserts that jurisdictional error arises in the way the Tribunal treated statements made by the delegate as if they were evidence before the Tribunal. I do not understand that ground as currently drafted;

    ·Ground three asserts the Tribunal fell into jurisdictional error by misstating and misunderstanding the evidence of the applicant given before the Tribunal. Under this ground, the applicant says further particulars will be supplied when a transcript of the Tribunal hearing in 2019 becomes available;

    ·By Ground four, the applicant asserts that jurisdictional error arises from [75] of the Tribunal’s decision, when the Tribunal found that a homosexual male being forced into a heterosexual marriage could not amount to serious or significant harm.

34. The authorities are clear that for the purposes of an extension of time application, the merits of the grounds argued for judicial review are to be considered at an impressionistic level. Doing just that, I do not find that the applicant’s judicial review applicant is futile.

    Whether the party resisting the application for an adjournment will suffer prejudice if an adjournment is granted, and the extent to which such prejudice can be compensated by an order for costs.

35. Before me today, the first respondent again, when asked, appropriately conceded that there was no specific prejudice suffered by the first respondent which could not be cured by an order for costs.

36. I do accept, however, that delay in and of itself can have a prejudicial effect upon the first respondent, bearing in mind the procedural rules governing the proper administration and resolution of these disputes. 

    CONCLUSION

37. Having regard to the applicable legal principles and the circumstances of this case, and noting those matters observed by the first respondent in its opposition to the applicant’s application for the adjournment, it is with great reluctance that I grant the applicant’s request to adjourn the proceedings. In coming to this decision and my assessment of what is in the interests of justice, I have also had regard to authorities highlighting the significance of affording self-represented litigants procedural fairness.

38. I accept that, as the courts progress towards the vacation period, it is likely to be difficult to obtain legal advice and assistance given the very busy time of year. I also accept that there is an additional challenge in obtaining specialist legal advice for the purposes of migration matters.

39. I make it clear to the applicant that granting an adjournment in matters of this kind is highly unusual and that there would be no further adjournment of the proceedings, unless in exceptional circumstances only.

40. Against the foregoing background, I order that the proceedings be adjourned for hearing on 22 February 2024, and that leave be granted to each party for the filing of further material. The costs for the court event today are otherwise reserved.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild.

Associate:

Dated:       21 November 2023