EZF17 v Minister for Immigration

[2018] FCCA 2166

FEDERAL CIRCUIT COURT OF AUSTRALIA

EZF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2166

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether there would be any utility in granting an adjournment – whether adequate reasons given for inability to proceed with hearing – adjournment refused.

Applicant: EZF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3480 of 2017

Judgment of: Judge Manousaridis

Hearing date: 1 August 2018

Date of Last Submission: 1 August 2018

Delivered at: Sydney

Delivered on: 1 August 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Ms A Davyskib of MinterEllison

ORDERS

1. The application for an adjournment is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3480 of 2017

EZF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore – revised from transcript)

1. Before me is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister), not to grant the applicant a Protection (subclass 866) visa (Protection visa).

2. The application commencing the proceeding was filed on 14 November 2017.  The matter came before the Court on a First Court Date on 14 December 2017.  The First Court Date was before a Registrar, and on that day the Registrar made orders for the further conduct of the proceeding, and also ordered that the matter be listed for hearing before me today.

3. As is my usual practice, I commenced the hearing by explaining to the applicant, who is not legally represented but who is before me with the assistance of an interpreter, the purpose of the hearing and the procedure that would be followed at the hearing. After I explained to the applicant the procedure to be followed, the applicant informed me that he needed further time.  As the applicant explained what he wanted, it was clear that the applicant is seeking an adjournment.  The reason the applicant has given for wanting an adjournment is that he needs time to work to accumulate money to pay a friend to provide to the applicant certain documents.  The applicant was unclear about the nature of the documents, saying that he believed that the documents might be a cassette or a CD.  He said that the documents, however, contain fabricated stories about the applicant, and by fabricated stories, I mean fabricated by the applicant’s former employer.

4. I asked the applicant why those documents were relevant to anything I needed to decide and I asked that question on a number of occasions, and I had informed the applicant that the Tribunal had accepted the applicant’s claim that his former employer blamed the applicant for a robbery that occurred and had threatened the applicant with his life. The applicant could not give me any sensible explanation of what relevance he attached to those documents so far as this proceeding before me is concerned.  He repeated that his former boss fabricated the story about him. 

5. I asked the applicant why these documents had not been obtained before.  He said he tried, he gave money to his friend, but his friend wanted more money. I also asked the applicant whether there was anything else he wished to say.  He said he was too scared to return to Malaysia and that he is happy to stay here.

6. The application for an adjournment is opposed by the Minister, broadly on the grounds of utility and the absence of an adequate explanation for the applicant not having done previously what he now wishes time to do.

7. When a Court at a final hearing is faced with an application for an adjournment, the Court is called to exercise its discretion.  The overriding consideration is the interests of justice, and here the Court normally looks at three things.  One is whether there is an adequate explanation as to why the party seeking the adjournment is not ready to proceed on the day.  The second is whether there would be any utility in granting the adjournment.  The third is if an adjournment were granted, whether the party opposing the adjournment would suffer any prejudice.

8. In the circumstances of this application for an adjournment, the critical matter is the reason the applicant says he wants the adjournment.  The adjournment is sought on the basis of the applicant obtaining some documents.  In my opinion the documents, even if they are obtained, could have no relevance to the application for judicial review that is before me.  That is so for a number of reasons. It is clear that the documents, if they are obtained, were obviously not before the Tribunal.  Therefore it is difficult to see in those circumstances how those documents could be relevant to my determining whether the Tribunal made any jurisdictional error. The Tribunal itself accepted the applicant’s claims that he feared harm from his former employer.  If therefore, for whatever reason, it were relevant for me to determine whether the applicant did have a well-founded fear of harm by his employer, evidence of that would simply be irrelevant because the Tribunal itself accepted that claim.  For that reason alone there would be no utility in my granting the adjournment that the applicant seeks. 

9. There are other aspects that I need briefly address. The first of these is that the applicant was rather unclear about the time by which the documents would come into his possession.  That is to say, the applicant was unable to give me a definite time for which he wants the matter to be adjourned. Secondly, the explanation given, admittedly from the bar table, was rather vague as to why he was unable to obtain these documents before. There is also the question of prejudice to the Minister. Usually the immediate prejudice is costs thrown away by reason of adjournment, if an adjournment is granted.  Courts deal with such prejudice by making costs orders.  There is nothing before me to indicate that the applicant would be in a position to satisfy any costs order. However, because I did not ask the applicant whether he is in any such position, I do not place any weight on the question whether he will or will be unable to satisfy any costs order that may be made against him if the matter is adjourned.

10. In my opinion, the overriding consideration, and the consideration on which I do rely against granting the application for an adjournment, is that there would be no utility whatsoever in my granting the application for an adjournment sought by the applicant.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 10 August 2018