Hui v Minister for Immigration and Citizenship

[2011] FCA 1353

FEDERAL COURT OF AUSTRALIA

Hui v Minister for Immigration and Citizenship [2011] FCA 1353

Citation:		Hui v Minister for Immigration and Citizenship [2011] FCA 1353
Appeal from:		Xing Hui v Minister for Immigration and Citizenship & Anor [2011] FMCA 486
Parties:		XING HUI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:		NSD 1395 of 2011
Judge:		COLLIER J
Date of judgment:		24 November 2011
Catchwords:		PRACTICE AND PROCEDURE – application for adjournment of hearing of appeal – previous adjournment for medical reasons – fresh application on basis that appellant seeking Legal Aid – whether evidence before Court that application for Legal Aid would be successful – no evidence that appellant medically unfit
Cases cited:		Kerr v American Express Australia Ltd (2009) FCA 1219 cited
Date of hearing:	24 November 2011
Place:	Brisbane (Heard in Perth)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Ms S Sirtes
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1395 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

XING HUI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	24 NOVEMBER 2011
WHERE MADE:	BRISBANE (HEARD IN PERTH)

THE COURT ORDERS THAT:

The application to adjourn today’s hearing is refused.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1395 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

XING HUI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	24 NOVEMBER 2011
PLACE:	BRISBANE (HEARD IN PERTH)

REASONS FOR JUDGMENT

1. Today there is listed before me an appeal from the decision of a Federal Magistrate. The appeal was originally listed to be heard before me on 8 November 2011. On that day, however, the appellant wrote to the Court annexing a medical certificate and an x-ray report (exhibit 2(a)). In the letter, the appellant asked for the hearing date of the appeal to be “delayed”. There was no appearance by the appellant on that date.

2. Also before the Court on that date was a letter from the appellant to Deputy District Registrar Morgan of the New South Wales Registry dated 31 October 2011 (exhibit 1(a)). In that letter the appellant wrote as follows:

   First of all, I greatly appreciate to your help and your Direction for guiding me very well. At the same time, I say sorry that I cannot attend the hearing on 8^th November 2011, would mind please do me a favour by changing this hearing date? The reason is following:
   I have appealed Legal Aid NSW. Now I haven’t get answer. Legal Aid NSW officer answer me as below:
   We will let you know within 14 days that the redetermination is complete and your appeal has been successful……
   What if you’re going to court soon? If you have appealed you can apply to the court or tribunal to adjourn the proceedings under section 57 of the Legal Aid Commission Act 1979.
   Would do you mind please help me adjourn the hearing date from 8^th November 2011 three weeks late at least for special consideration my situation due to suffering from serious illness and financial hardship as well as waiting for Legal Aid result.

   I’m looking forward to your responding as soon as possible.
   (Errors in original.)

3. With reservations, but in light of the existence of the medical certificates annexed to exhibit 2(a), I adjourned the hearing of the appeal until today.

4. Before me this morning the appellant sought “special consideration” by the Court and a further delay in the hearing. I explained to the appellant that I was not prepared to delay the hearing in the absence of a formal application by her for an adjournment.

5. The appellant applied orally for an adjournment. Grounds upon which the appellant sought an adjournment of today’s hearing were in summary as follows:

   1.She has very serious health issues.

   2.She is not able to work as normal.

   3.She wants special consideration.

   4.She has a broken rib and a hurt leg.

   5.She has heart problems and is now sick and can’t work.

   6.She can’t prepare submissions.

   7.She has a special situation.

   8.She is currently still awaiting a second review of the denial of her original application for Legal Aid.

6. I understand from exhibit 1(a) as well as evidence given by the appellant from the Bar Table that she had applied for Legal Aid but had been unsuccessful. The appellant also said that she had had the decision of Legal Aid (NSW) rejecting her application for Legal Aid reviewed by internal management at Legal Aid (NSW), and that she was currently awaiting a second review by another senior manager of the decision to refuse her Legal Aid. The appellant stated that she had received a second letter from Legal Aid (NSW) on or about 8 November 2011 which stated that the second review would be completed in “another four to six weeks”. The Minister called for production of this letter. The appellant was initially unable to produce it although she claimed that the letter might be in her email account.

7. The appellant also stated that if she were unsuccessful in obtaining a lawyer from Legal Aid she would engage a lawyer herself.

8. The application for adjournment was opposed by the Minister. Ms Sirtes, for the Minister, submitted in summary as follows:

   1.There was no evidence to support the appellant’s claims concerning her health problems or her issues with obtaining Legal Aid.

   2.The appellant was seeking an adjournment to an undetermined date.

   3.There was nothing before the Court to support the appellant’s claim that any pre-existing condition precluded her from participating in a meaningful way at today’s hearing.

9. Further, Ms Sirtes submitted that to the extent that Ms Hui sought liberty to file further written submissions after today the Court ought not make any such order. In Kerr v American Express Australia Ltd (2009) FCA 1219 I summarised principles relevant to adjournment as follows:

   ·The decision of a judge to adjourn a hearing is not only an interlocutory decision it is a discretionary decision.

   ·There is authority that the discretion in respect of ordering or refusing an adjournment miscarries where the refusal results in one of the parties being unable adequately to present his case.

   ·Where there is a proper basis for an application for an adjournment and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party there is authority that an adjournment should ordinarily be granted.

10. In this case, however, I am satisfied that the application for an adjournment ought be refused. I have formed this view for the following reasons:

    1.First there is no evidence before me supporting the appellant’s claim in respect of her Legal Aid application. There is nothing to support a finding that the appellant will be successful in receiving Legal Aid or that the second review will make any difference to her current situation in respect of Legal Aid. I am not satisfied that the fact that there is a second review of the appellant’s application for Legal Aid means that she will receive it.

    2.The appellant indicated to me from the Bar Table that, notwithstanding her claimed inability to work, if she is unsuccessful in obtaining Legal Aid she will engage a lawyer herself. The fact that the appellant appears to be in a position to engage a lawyer of her own raises the question why she did not take such steps to engage legal representation for today’s hearing. As Ms Sirtes submitted, the appellant appears to be seeking the indulgence of the Court to suit her own convenience: in this case, free legal representation.

    3.Notwithstanding the claim of the appellant as to her medical condition there is no evidence before the Court to support a finding the appellant is unable to continue with today’s proceeding. Indeed, the appellant ably represented herself in Court this morning. In my view the appellant is simply seeking to delay, to an indeterminate time, the inevitability of the hearing of this appeal to suit herself. This is not acceptable in the absence of a proper foundation for adjournment in light of continuing costs incurred by the Minister, and in light of the fact that this is the second occasion on which the appellant has sought adjournment of the hearing at the last minute.

11. The appellant has subsequently submitted that she has located the letter from Legal Aid (NSW) dated 8 November 2011 in relation to the second internal review. In my view the existence of this letter is not material to the outcome of this application for reasons I have already given.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        5 December 2011