FYB24 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 980

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FYB24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 980

File number:	PEG 299 of 2024
Judgment of:	JUDGE LADHAMS
Date of judgment:	5 June 2025
Catchwords:	PRACTICE AND PROCEDURE – application in a proceeding seeking an adjournment of a hearing date to enable the applicant to seek legal representation –application for an adjournment dismissed.
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Cases cited:	Timu v Minister for Immigration and Border Protection [2018] FCAFC 161
Division:	Division 2 General Federal Law
Number of paragraphs:	15
Date of hearing:	5 June 2025
Place:	Perth
Applicant:	The applicant appeared in person
Counsel for the First Respondent:	Ms A Tyagi
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	MinterEllison

ORDERS

PEG 299 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FYB24

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	5 JUNE 2025

THE COURT ORDERS THAT:

1.The application in a proceeding filed by the applicant on 27 May 2025 is dismissed.

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).

REASONS FOR JUDGMENT
(Delivered ex tempore and revised from the transcript)

JUDGE LADHAMS:

1. The application presently before me is an application in a proceeding filed by the applicant on 27 May 2025. The applicant seeks an adjournment of the final hearing of his application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) affirming a decision of the Minister not to grant him a protection visa. That judicial review application is listed for final hearing today, 5 June 2025.

2. Upon the applicant filing the application in a proceeding, the parties were advised that the application in a proceeding would be heard on 5 June 2025, immediately before the hearing of the application for judicial review. The parties were advised that if the application in a proceeding was successful and the Court agreed to adjourn the hearing, the hearing would be given a different date, and if the application in a proceeding was not successful and the Court did not adjourn the hearing, the Court would immediately proceed to hear the judicial review application.

3. In the application in a proceeding, the applicant has indicated that he seeks the following orders (reproduced without alteration):

   1.I sincerely and respectfully ask the Honourable Court to consider adjourning the Final Hearing currently listed on 05 June 2025, as I am feeling overwhelmed and completely lost in trying to deal with this process on my own.  I am not represented by a lawyer, and I truly do not know where to begin or how to prepare for the hearing.

   2.I am doing my best to seek help, but I am struggling. I desperately need more time to contact Legal Aid or any other legal service that might be able to assist me. This matter is very important and deeply affects my future, especially because it involves my application for a Protection Visa.

   3.I do not want to miss the chance to explain my case clearly and properly. I am afraid that without time and proper legal help I might lose that opportunity. I am begging the Court to please allow me more time, at least six months, so I can try to find legal assistance and prepare myself to participate in the hearing in a fair and meaningful way.

4. The application for an adjournment is opposed by the Minister.

5. The applicant filed an affidavit in support of his application in a proceeding. In that affidavit the applicant deposed that:

   (a)he is not legally represented and does not know how to deal with this matter on his own;

   (b)he is trying to seek help from Legal Aid or other community legal services but has not yet been successful and he needs more time to seek proper legal advice and assistance;

   (c)he is unfamiliar with court procedures, does not understand how to prepare for a final hearing and feels lost and overwhelmed;

   (d)this matter is very important to him because it relates to his application for a protection visa which affects his safety and future; and

   (e)he does not wish to lose this opportunity to have his case heard properly and believes that without legal help he will not be able to present his case fairly.

6. At the hearing of the application in a proceeding, the applicant was afforded an opportunity to give oral evidence about any further matters that might be relevant. In his oral evidence, the applicant acknowledged that the judicial review application had been on foot for 10 months and gave evidence that he did not do anything because he did not know how to start. The applicant gave evidence that his financial situation is not great. He gave evidence that he is talking to a lawyer now and needs more time to get evidence and to pay the lawyer. He cannot afford to pay the lawyer now. The applicant gave evidence that the reason he asked for more time is because of his financial status and he could not get legal advice or pay for it. He has to pay his father’s medical bill and pay for his kids, and his salary is not high, so he could barely save for a lawyer.

7. In considering whether to grant the adjournment, it is appropriate for the Court to have regard to s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which sets out the overarching purpose of the civil practice and procedure provisions of the Court. The section relevantly provides:

   (1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:

   (a)       according to law; and

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

   (2)Without limiting subsection (1), the overarching purpose includes the following objectives:

   (a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);

   (b)the efficient use of the judicial and administrative resources available for the purposes of the Court;

   (c)       the efficient disposal of the Court’s overall caseload;

   (d)       the disposal of all proceedings in a timely manner;

   (e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

   (3)The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

8. In considering the application in a proceeding, I take into account that the applicant would be assisted if he had a lawyer. As the Full Court of the Federal Court acknowledged in Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19]:

   It is undoubtedly true that a litigant in person who is not a lawyer faces substantial difficulty in prosecuting a claim. Legal representation is plainly highly desirable, both in the interests of Mr Timu and the due administration of justice. However, lack of legal representation is not, of itself, a reason to adjourn a hearing of a long scheduled application or appeal. 

9. In this matter, the application for judicial review was filed on 14 August 2024. It has now been on foot for almost 10 months. There is limited evidence before the Court of steps that the applicant took to seek legal representation in a timely way and when any steps to obtain legal representation were taken. The evidence in the applicant’s affidavit suggests that the applicant is trying to get help from Legal Aid or other community legal services but has not yet been successful but does not indicate when those steps were taken.

10. The applicant’s oral evidence appears to suggest that he did not initially do anything because he did not know where to start and because he was concerned about his finances and ability to pay a lawyer. In his responsive submissions to the Court, after Counsel for the Minister made submissions, the applicant submitted that he had gone to a lawyer but he could not pay and that there is a lawyer who may be willing to act for him as soon as the applicant pays.

11. Despite the absence of any evidence that the applicant has taken steps to obtain a lawyer in a timely way, the applicant now asks the Court to adjourn the hearing at a time that would mean that the Court could not otherwise use the time set aside for the hearing today to hear another matter and that would result in another matter before the Court most likely getting a later hearing date than it otherwise would if a further hearing in this matter had to be accommodated. This would not be an efficient use of the Court’s resources and it would not promote the disposal of all proceedings in a timely manner or the efficient disposal of the Court’s overall case load.

12. I also take into account that there is no right to a lawyer in a civil legal proceeding such as a migration proceeding. I acknowledge the submission made on behalf of the Minister that the Court cannot be confident that, in circumstances where the applicant has raised financial difficulties as a reason for not having a lawyer, the applicant would be represented by a lawyer at any adjourned hearing.

13. There is no proper evidence before the Court that a lawyer is willing to act in this matter and has reviewed the matter and considers that it would be consistent with their ethical obligations to the Court to act in the matter if the applicant pays them. At best there is a submission from the bar table that the lawyer will act as soon as the applicant pays. In these circumstances the Court cannot be confident that the applicant will be represented if the hearing today is adjourned.

14. The Court is mindful of the difficulties that the applicant will face in representing himself at a hearing in a migration matter. The Court has duties to mitigate that disadvantage to the extent that it would be practicable to do so and to that end will make explanations to the applicant about what the Court can and cannot do and about the role of the Court in judicial review proceedings and will give the applicant an opportunity to consider his submissions in light of those explanations.

15. Having regard to the overarching purpose of the Court’s practice and procedure provisions, the limited evidence of steps taken to obtain legal assistance already, and the lack of confidence that the Court has that the applicant will in fact be represented if the hearing is adjourned, the Court does not agree to adjourn the hearing of this proceeding to another date. I therefore make an order that the application in a proceeding filed by the applicant on 27 May 2025 is dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       25 June 2025