MZWQY v Minister for Immigration
[2005] FMCA 180
•27 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWQY & Ors v MINISTER FOR IMMIGRATION | [2005] FMCA 180 |
| MIGRATION – Application for adjournment – refusal of application. |
Migration Act 1958 (Cth)
| Applicants: | MZWQY, MZWQZ, MZWRA & MZWRB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1166 of 2004 |
| Delivered on: | 27 January 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 27 January 2005 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | The first named applicant appeared in person |
| Counsel for the Respondent: | Ms MacDonnell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The first named applicant’s oral application for an adjournment be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1166 of 2004
| MZWQY, MZWQZ, MZWRA & MZWRB |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment.
In this case the applicants seek an adjournment of the hearing. The matter has been set for hearing for some time as a result of consent minutes of orders of 15 November 2004. The matter has been called on today for hearing. The first named applicant appears on his own behalf without the assistance of a solicitor or legal practitioner but with the assistance of an interpreter. The first named applicant asked today for the matter to be adjourned so that he may pursue legal aid or pro bono counsel.
The matter has had a lengthy history. The first named applicant and his family arrived in Australia on 17 May 1999 on a three-month visa as visitors. On 7 June 1999, the first named applicant applied for a protection visa, including his wife and children on the application as members of his family unit. On 26 July 1999, a delegate of the minister refused to grant him a protection visa, and in August of 1999 he appealed to the Refugee Review Tribunal (‘the RRT’).
In January 2001, the RRT affirmed the decision of the delegate, and on 20 June 2001, the first named applicant was joined as a party to the Muin litigation in the High Court of Australia. He filed a draft order nisi for review in the High Court on 29 May 2002.
The proceedings of the first named applicant in the High Court were remitted to the Federal Court of Australia on 25 November 2002 and an order nisi was refused by His Honour Emmett J on 20 February 2004. On 27 July 2004, these proceedings were commenced.
The first named applicant says that he had not applied for legal aid for around three years and he says that he has not had money to pay a private lawyer. It does not seem that he has taken any steps in the last six months to attempt to obtain legal aid or legal assistance elsewhere.
On 15 September 2004 the respondents wrote to the first named applicant and in part stated:
We know that you are not legally represented. Proceedings in the Federal Court entail very complex legal issues and you may wish to seek legal assistance with your application. You could contact Victoria Legal Aid on 9269 0234, located at 350 Queen Street, Melbourne to make an appointment for general advice.
The letter goes on to say that the Law Institute of Victoria can provide lists of immigration law specialists. The letter concludes by stating:
We suggest that you make contact with these organisations urgently if you propose to seek legal advice as our clients will not agree to delay the proceedings if you fail to act promptly in this matter.
It appears that the first named applicant did fail to act promptly in the matter and it is only now when the matter is called on for hearing and counsel appears on the hearing for the respondent that he seeks an adjournment.
On the basis of the conduct of the proceedings to date, I am not inclined to grant the applicants an adjournment. However, this is not the end of the appropriate considerations. I should also consider, at least in a preliminary way, the nature of the applicants’ application and the decision to determine the strength of the applicants’ case, its complexity, and whether interests of justice would be served by adjourning the matter in the hope that the applicants would have some legal assistance.
I have taken the opportunity to read the decision of the RRT and I have heard from the first named applicant what he says were the errors made by the RRT. I have also taken the opportunity to read submissions made by the first named applicant in writing and handed up today.
On the material before me, I am not satisfied that a further delay in this case is warranted in that it is difficult to see that there is a significant issue to be litigated. In the circumstances, I therefore refuse the adjournment and proceed to the hearing of the matter.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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