MZAPK and Ors v Minister For Immigration and Anor (No.2)

[2017] FCCA 3340

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAPK & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 3340

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – adjournment application – matter previously adjourned for applicants to obtain legal representation – they did not do so – no reasonable prospect that first applicant will be able to work to pay for legal representation in the reasonably foreseeable future.

First Applicant: MZAPK

Second Applicant: MZAPL

Third Applicant:

MZAPM

BY HIS LITIGATION GUARDIAN, THE FIRST APPLICANT

Fourth Applicant:

MZAPN

BY HER LITIGATION GUARDIAN, THE FIRST APPLICANT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 2589 of 2014

Judgment of: Judge Riley

Hearing date: 22 December 2017

Date of last submission: 22 December 2017

Delivered at: Melbourne

Delivered on: 22 December 2017

REPRESENTATION

Advocate for the first applicant: In person by telephone

Solicitors for the first applicant: None

Advocate for the second applicant: In person by telephone

Solicitors for the second applicant: None

Advocate for the third applicant: First applicant

Solicitors for the applicant: None

Advocate for the fourth applicant: First applicant

Solicitors for the fourth applicant: None

Counsel for the first respondent: Xuelin Tao

Solicitors for the first respondent: Clayton Utz Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second respondent: Clayton Utz Lawyers

ORDERS

1. The applicants’ application for an adjournment be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2589 of 2014

MZAPK

First Applicant

MZAPL

Second Applicant

MZAPM

Third Applicant, by his litigation guardian, the First Applicant

MZAPN

Fourth Applicant, by her litigation guardian, the First Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. There is before the court an application for an adjournment of an application to reinstate an application to review a decision of the Refugee Review Tribunal.  The substantive application to this court was made on 19 December 2014.  That is just over three years ago.  The matter has been adjourned numerous times due to the first applicant’s ill health.  It was dismissed for non-appearance on 23 October 2017.

2. The applicants filed an application for reinstatement on 3 November 2017.  That application was listed for hearing on 16 November 2017.  The applicants appeared by telephone on that date.  They asked for an adjournment on the basis that they wished to obtain legal representation.  The court adjourned the matter until today.  The applicants do not have legal representation today. 

3. The first applicant said that the applicants’ financial position did not permit them to obtain legal representation.  He said that they were sent a letter by the school their children attend, saying that, if the outstanding fees of about $3,000 are not paid, the children will not be able to attend the school at the beginning of next year.

4. The first applicant said that he was embarrassed to ask for another adjournment.  However, he said he will be starting work in January 2018.  He said that he wanted to start driving for Uber and said that he will be able to work three-hour shifts and otherwise have flexibility.  That claim is somewhat inconsistent with the most recent medical certificate provided by the first applicant.  It is dated 29 October 2017 and recommends that the applicant not attend court until his condition stabilises after six months.

5. The applicants have been permitted to attend court by telephone today because of the first applicant’s medical condition.  It does not seem to me to be credible that the first applicant will be able to commence work in January 2018 and obtain sufficient money to pay for a lawyer in the reasonably foreseeable future.  In addition, litigants do not have an absolute right to have endless adjournments to enable them to obtain legal representation.

6. In all the circumstances, it seems to me that it is appropriate to refuse the application for the adjournment.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:       22 January 2018