GEQ18 v Minister for Home Affairs
[2019] FCCA 3338
•11 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GEQ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3338 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a Case seeking transfer of proceeding from the Sydney Registry to the Melbourne Registry of this Court – applicant claims she has a better chance to obtain the services of a lawyer in Melbourne – applicant has had adequate time to obtain legal representation since the first court date in this Court – no good reason to transfer proceeding to Melbourne Registry – Application in a Case dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Applicant: | GEQ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3306 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 11 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2019 |
REPRESENTATION
| The Applicant appeared in person by video-link from Melbourne. |
| Counsel for the First Respondent: | Mr J. Tsaousidis |
| Solicitors for the First Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application in a Case filed on 6 November 2019 seeking a transfer of the proceeding under r.8.01 of the Federal Circuit Court Rules 2001 (Cth) from the Sydney Registry to the Melbourne Registry is dismissed.
The Applicant is to pay the First Respondent’s costs of the Application in a Case in the sum of $610.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3306 of 2018
| GEQ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant in this proceeding is a female citizen of China aged 25 years, having been born on 19 April 1994.
By Application in a Case filed on 6 November 2019 she seeks transfer of the case to the Melbourne Registry of this Court. The Court has a power allowing for a proceeding to be heard in another Registry of the Court under r.8.01 of the Federal Circuit Court Rules 2001 (Cth) (Rules). In particular, r.8.01(2) directs that I should have regard to the following:
8.01Change of venue
(1) A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2) In considering an application, the Court must have regard to:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.
(emphasis added)
Background
The Applicant arrived in Australia on 9 June 2016 and made a Protection (Class XA) (Subclass 866) visa (Protection visa) application on 6 September 2016. On 31 October 2018 the Administrative Appeals Tribunal (Tribunal) affirmed the decision of the Delegate of the First Respondent, the Minister for Home Affairs, dated 29 November 2016 not to grant the Applicant a Protection visa.
The Applicant applied to this Court on 28 November 2018 to set aside the Tribunal’s decision for jurisdictional error, with her Application having had a first court date before me on 15 February 2019, when I set the matter down for final hearing on 3 December 2019. On that occasion the following exchange occurred:
…
THE INTERPRETER: Can you give me more time?
HIS HONOUR: She was questioning when she would get a hearing date. I’m now giving her a hearing date. The case is going to be heard on 3 December this year at 10:15 am in court 9.2. Otherwise she has got a copy of these orders that the Minister’s lawyer will give her, and she needs to comply with them. Does she understand all that? She’s happy with all that?
THE INTERPRETER: I have financial difficulties and I need time to look for a lawyer.
HIS HONOUR: She has got about nine months. She’s under an obligation as an applica[nt] in this court to bring her case on as soon as reasonably possible, and I regard an adjournment of nine months to enable her – it gives her more than sufficient time to prepare for the hearing and obtain the services of a lawyer if she wishes to do so. That will be the hearing date. Can I have the orders?
THE INTERPRETER: Okay. Thank you.
…
Grounds for Transfer Application
The Applicant relies on her affidavit sworn on 4 November 2019 which annexes a statement and states verbatim, as follows:
…
I currently live in Melbourne. My residential address is [omitted].
My case is in Sydney now, but I am in Melbourne, so I have to travel back and forth between these two cities. Because of financial hardship, it is already hard for me to pay the court fees. My burden will be heavier if I have to pay the travel fee. It’s really difficult for me to cover these expenses.
I always sought for legal assistance in Sydney due to my financial hardship, but organizations in Sydney cannot provide legal assistance for me. Then I heard that Vitoria Legal Aid can help me with my case in current stage, but their staff told me I need to transferred my case to Melbourne before they can provide further help for me, and they cannot help me if my case is in Sydney. Therefore, I apply for transferring my case from Sydney to Melbourne, so that I can get help from Vitoria Legal Aid. My next hearing is on 3rd December 2019, which is very urgent. Hope you can approve of the transfer of my case.
Consideration
The simple fact of the matter is that the Applicant has had more than adequate time since the case commenced to obtain legal advice. She has made the personal choice to go to Melbourne, having commenced the case while residing in Sydney. She concedes this morning that the cost of her travelling to Sydney would be from 50 to 200 dollars and that seems correct to me, because there are a number of ways she can travel: either by air, by commercial bus or by train. She works as a cleaner and has income, and on any basis this case, in which she is seeking to have the Tribunal reconsider her merits review application from the refusal of the Protection visa, ought to be a very important matter to her.
The Application in a Case for transfer is made late and I will be unable to list another matter at such short notice for hearing in Sydney on 3 December 2019. The Minister would incur extra costs by having to transfer the carriage of the matter to a new solicitor in Melbourne. The delays in the Melbourne Registry of this Court are even greater than here in Sydney, which would mean that it would be likely that the Application would not be heard in Melbourne for some two to three years if it was transferred, whereas on the other hand I can hear the matter within a few weeks’ time here in Sydney.
In these circumstances, having regard to the fact that I will offer the opportunity to the Applicant of attending the hearing on 3 December 2019 by video-link from Melbourne, and also having regard to the fact that while she asserts in her affidavit and orally to me this morning that she has, in effect, a better chance of getting legal advice in Melbourne than she has had to date in Sydney, the simple fact of the matter is that she appears not to have the funds to engage a lawyer. The Applicant has not provided any evidence that would satisfy me that there was any possibility, let alone probability, that she would be able to get legal advice because it would certainly seem out of the question that she can afford, on her own admission, to pay a lawyer and there is no evidence other than her mere assertion that she could get free legal aid in Victoria. However, she has had more than ample time, if she could engage a lawyer and did have sufficient funds, to have done so.
Conclusion
Accordingly, I do not consider it to be in the interests of justice for the matter to be transferred under r.8.01 of the Rules to the Melbourne Registry of this Court and the Application in a Case is to be dismissed. Further, I confirm the final hearing date of 3 December 2019 at 10:15am in Court 9.2, 80 William Street, Sydney.
Postscript
After oral delivery of the above Reasons for Judgment and the making of the above orders the Applicant asked for an adjournment of the hearing scheduled for 3 December 2019 on the basis that she wanted more time to seek legal assistance. I refused that adjournment application on the basis that she had already received ample time to engage the services of a lawyer if she had the finds and wished to do so.
The Applicant then advised that she would come to Sydney to attend the Court hearing on 3 December 2019.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 19 November 2019
13
0
3