GVC18 v Minister for Home Affairs

[2019] FCCA 1934

FEDERAL CIRCUIT COURT OF AUSTRALIA

GVC18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1934

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment – whether prejudice to first respondent if adjournment granted – application for adjournment dismissed.

Applicant: GVC18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3647 of 2018

Judgment of: Judge Manousaridis

Hearing date: 11 June 2019

Date of Last Submission: 11 June 2019

Delivered at: Sydney

Delivered on: 11 June 2019

REPRESENTATION

Applicant in person, assisted by an interpreter

ORDERS

1. The applicant’s application for an adjournment be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3647 of 2018

GVC18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. There was listed before me today a final hearing of an application for judicial review brought by the applicant in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection (subclass 866) visa.  The applicant appeared without legal representation, although assisted by an interpreter.

2. In the course of my identifying with the applicant the documents on which he relied, it became apparent that the applicant applied or was seeking to apply for an adjournment of the hearing.  In broad terms, he asked for more time so that he can properly prepare his case.  After engaging with the applicant about the particular reasons why he wanted the adjournment, it became apparent that he wanted the adjournment for two broad purposes.  One was to obtain legal representation, and the other purpose was to obtain further evidence.

3. There were three items of evidence the applicant said he wanted an opportunity to provide.  One was evidence relevant to whether he would be able to secure protection if he were returned to his country of nationality, Korea.  The second item of evidence was the audio recording of the hearing before the Tribunal. Here the applicant said he wanted to listen to the audio recording for two reasons.  One was that he said he recalled telling the Tribunal that he suffered physical injury at the hands of a creditor. The second purpose was for him to see whether the Tribunal made any legal error.  The third item of evidence was medical records of the injury he says he told the Tribunal he had sustained at the hands of a creditor.  The Minister opposes the application for an adjournment. 

4. Whether or not a court will grant an adjournment of a final hearing depends on whether such adjournment would be in the interests of the administration of justice.  In determining that question, courts usually take into account a number of matters.  One is the reasons why the party seeking the adjournment is not in a position to proceed with the hearing.  A second matter is the prejudice the applicant seeking the adjournment will suffer if no adjournment is granted.  Whether or not the person seeking an adjournment will suffer prejudice normally turns on the purpose for which the adjournment is sought, and the probability of that purpose being fulfilled if an adjournment is granted.  A third factor a court considers is the prejudice the party opposing the application for an adjournment will suffer if an adjournment is granted.

5. I first turn to the reasons why the applicant says he is not in a position to proceed with the hearing today.  One reason is a broad reason, namely, his inability to obtain legal representation.  From the bar table the applicant said that he has sought to obtain legal assistance from Legal Aid, and he attempted to obtain that on two occasions, and he was refused Legal Aid on both occasions.  He also referred to more specific reasons in relation to the specific items of evidence he said he wanted time to obtain.  He referred to his not having thought about seeking the audio recording until he had a conversation with a Chinese interpreter before he came to Court this morning. In relation to his seeking medical records, I understood that the applicant said he had not earlier sought such records because he had been in detention, and after he was released from detention around 17 April 2019, he was devoted to seeking to obtain evidence of his identity, and also the general difficulties of getting by. 

6. None of these explanations is a satisfactory explanation for the applicant not being in a position to proceed with the hearing today.  It is indeed unfortunate that the applicant has been unable to secure legal assistance, but an inability to obtain legal assistance by itself is not usually a sufficient reason for not being ready to conduct a hearing.

7. When assessing the reasonableness of the applicant’s explanation for delay, it is relevant to briefly note the history of this matter.  The applicant lodged the application in this Court on 24 December 2018, almost six months ago.  The matter came before the Registrar on a first Court date on 4 February 2019. On that day the applicant signed a document titled “Information for Applicants” where the applicant acknowledged that he had read the information contained in that document with the assistance of an interpreter.  The document included the following: 

   Power of the Court – The Court has only limited power in reviewing the decision of the Tribunal. The Court cannot just have a new look at the facts about whether you should receive a visa. It can only look at certain legal issues. You should discuss this with a lawyer.

   . . .

   Recording of Hearing – You can obtain from the Refugee Review Tribunal or the Migration Review Tribunal or the Administrative Review Tribunal a recording of the hearing in the Tribunal. If you do not have a copy, speak to the Minister’s solicitor who is in the Court today. If you intend to use the recording as part of your application to the Court, a written transcript of the hearing should be obtained and verified by way of affidavit.

   Hearing – Once the matter is given a date for the hearing, if you have NO lawyer to represent you, you will need to be ready to tell the Court about your legal case (with an interpreter if required).

8. This document ought to have brought to the applicant’s attention the matters stated in it. 

9. On the first Court date directions were made and the matter was set down for final hearing on 10 April 2019.  By letter dated 12 February 2019, the applicant requested for a postponement of the hearing.  In response to that request, I made orders by consent vacating the hearing date of 10 April 2019 and setting down 11 June 2019 as the hearing date.  In these circumstances the applicant, acknowledging he was not legally represented, had ample opportunity to prepare for the hearing today. 

10. I then turn to the prejudice the applicant will suffer or may suffer if an adjournment is not granted.  I first turn to the prospects of the applicant obtaining legal advice if an adjournment is granted.  Given what the applicant has told me, namely that he has unsuccessfully applied twice for legal aid and also the applicant informed me that he had no money to afford legal representation, and given the time that has passed since he filed the application with this Court, there appears to be no prospect, or at least realistic prospect, that, if an adjournment is granted, the applicant will be able to secure legal representation. 

11. In relation to the evidence the applicant claims he would seek if an adjournment were granted, I note the following.  In relation to evidence of the absence of protection in the Republic of Korea, such evidence, if obtained, would be evidence that would not have been before the Tribunal and its existence could not arguably, or at all, ground any claim of jurisdictional error by the Tribunal not accepting or not considering any such evidence.  As for the audio recording, I need to distinguish between that part which deals with an asserted statement of physical injury and the more general purposes for which the applicant wants the audio recording. 

12. In relation to any asserted claim of physical violence, Ms Lloyd, who appears for the Minister, referred me to paragraph 19 of the Tribunal’s reasons which indicates that the applicant did not, at the hearing, claim that he had been the subject of any physical violence by any creditor.  While what a Tribunal says in its reasons for decision occurred at a hearing is evidence of what occurred at the hearing, it is not the same thing as a transcript of what occurred before the hearing.  There is, therefore, some prospect that evidence of the audio recording may reveal that the applicant did, in fact, claim that he was the subject of physical violence.  There is, therefore, a potential prejudice to the applicant if an adjournment is not granted, at least for the limited purpose of permitting the applicant to hear the audio recording for the purpose of identifying in that recording the occasion or occasions on which, if any, the applicant claimed he was the subject of physical violence by a creditor.  I defer consideration of this matter to when I come to assess and balance all of these factors in determining whether I should grant an adjournment. 

13. I do not otherwise consider that the applicant will suffer any prejudice if I do not permit him time to go through the audio recording for a purpose other than identifying his making a claim of physical violence.  The applicant told me he wanted to go through the audio recording to see if the Tribunal made any error, but he was not in a position to tell me what sort of error he believed the Tribunal may have made.  In these circumstances, whether the applicant will suffer any prejudice if he is not permitted to do that is entirely speculative.

14. That, then, leaves the applicant’s applying for an adjournment to obtain medical evidence of his injury that he says he sustained at the hands of a creditor.  It is not entirely clear whether he would be able to obtain any such evidence from what the applicant told me from the bar table.  However, it appears from the evidence that is before me that the applicant did not provide to the Tribunal any document evidencing his injury.  I base this observation from a post-hearing submission the applicant provided to the Tribunal, and that is at Court Book page 80, where he refers to having a few stitches “at the Korean hospital in the city”, and he further states that “he has not left any pictures or evidence of what happened” but “I think the above mentioned hospital record will remain”.  So it appears that, even if the applicant were to obtain medical records of his injury, they would be records that were not given to the Tribunal before it made its decision, and there could be no arguable basis for claiming that the Tribunal made any jurisdictional error because it failed to consider documents that had not been provided to it by the applicant. 

15. I should then mention the prejudice the Minister will suffer if an adjournment is granted.  The prejudice will be costs thrown away of today.  There is nothing to suggest that an order requiring the applicant to pay costs thrown away would be meaningful because it is not apparent that the applicant would have the money to pay such a costs order. 

16. I then return to whether, having regard to all these factors, an adjournment should be granted.  The only prejudice I have identified if an adjournment is not granted to the applicant is the loss of an opportunity to obtain evidence that he did, indeed, claim before the Tribunal at the hearing that he was the subject of physical violence by a creditor. This prejudice can be avoided without my granting an adjournment of the hearing, and that is by my directing that, after the hearing of the substantive matter, the Minister provide an audio recording to the applicant within a certain time and that the applicant be given an opportunity to identify in the recording any place or places where he says he claimed to the Tribunal that he was the victim of physical violence by a creditor, and to inform the Court and the Minister of where that occasion or occasions occur.  The intention will be that, if the applicant does not identify any such occasion or occasions, his application will be dealt with on the basis that no claim of physical injury was made by him during the hearing.  If, on the other hand, the applicant claims he has identified such occasion or occasions, I will consider the audio recording to determine whether such claim was made and, if I am satisfied such claim has been made, I will give the parties an opportunity to make submissions about it. 

17. For these reasons, therefore, given what I propose to do in relation to the prejudice I have identified, I propose to order that the applicant’s application for an adjournment be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  17 July 2019