NAOZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 818

FEDERAL COURT OF AUSTRALIA

NAOZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 818

NAOZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 518 OF 2003

SACKVILLE J
SYDNEY
29 JULY 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N518 OF 2003

BETWEEN:	NAOZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J.
DATE OF ORDER:	29 JULY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for adjournment be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N518 OF 2003

BETWEEN:	NAOZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J.
DATE:	29 JULY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant in this matter has applied for an adjournment of these proceedings.  The principal basis for his application is that he says that he understood that a "government lawyer" would be appearing for him today.  The government lawyer to whom the applicant refers is the barrister to whom he was referred under the Federal Court’s pilot scheme for legal advice in immigration matters.

2. The objective circumstances surrounding the application for an adjournment may be stated shortly.  A directions hearing was held by me on 15 May 2003.  The applicant appeared on that occasion and was assisted by an interpreter in the Hindi language.  I pronounced a number of orders on that day relating to preparation of the proceedings for hearing.  Those directions included an order for the filing of an amended application and any additional evidence by 19 June 2003.  I indicated to the applicant, and this was translated on the day, that the application that he had filed did not identify any ground that would justify setting aside the decision of the Tribunal.

3. On 15 May 2003 the applicant was given a copy of the short minutes of order made on that day (written in English).  On 20 May 2003 the Australian Government Solicitor sent the applicant a letter enclosing a further copy of the short minutes of order.  On 26 May 2003 the applicant was sent a letter by the Federal Court of Australia acknowledging receipt of his advice that he had chosen to take part in the legal advice scheme.  The letter contains the following passage:

   “I confirm that the lawyer will not be charging you for the advice given on your application to the Federal Court as these costs are being met under the advice scheme.  This scheme, however, does not cover the costs of any other legal representation.  For example, if you decide to have someone appear in Court for you at the hearing, you will need to organise to pay a lawyer yourself, or seek Legal Aid or the assistance of a Pro Bono scheme.  You may decide to use the written advice the panel lawyer will give you when seeking representation for the hearing.”

4. At some time prior to 20 June 2003 the applicant had an interview with the barrister. He was not accompanied by an interpreter.  Subsequently the applicant received a letter from the barrister.  The applicant claimed in his evidence that he was unable to read the letter from the barrister.  He also claimed that he had not sought to have the letter translated by anybody for his benefit. 

5. The applicant gave evidence that he believed that the government lawyer, in the form of the barrister, would appear for him today.  He also gave evidence that he had not understood the terms of the short minutes of order, copies of which he was provided with on 15 May and shortly after 20 May 2003.

6. Mr Markus invited me to reject the applicant's evidence as to his belief concerning legal representation.  I think there is force in that submission.  I am not satisfied, having seen the applicant in the witness-box and giving evidence, that he had the belief that he claims to have had concerning the appearance of the barrister today.  I am afraid that I found his explanation as to why he made no attempt to translate any of the documents he received quite unconvincing.

7. The applicant acknowledged that he has friends who speak both Hindi and English and who could have translated the documentation for him yet he says he chose to await the return of a friend who was overseas.  The evidence that he gave concerning the date of return of his friend was not consistent.  While I can readily accept that the terms of short minutes of order and similar legal documents may be quite confusing for people who do not speak English and are not familiar with legal proceedings I do not accept that the applicant simply made no attempt to understand what was in the correspondence that was sent to him.  Moreover, on the applicant's own evidence there was nothing that the barrister conveyed to him to suggest that the barrister would appear today.  The letter of 26 May 2003 from the court made it quite clear that the person giving advice would not appear at the expense of the scheme at the hearing. I find that the applicant was aware of that qualification to the scheme.

8. In these circumstances I do not accept that the basis of the applicant's application for an adjournment, namely that he assumed or believed that a lawyer would appear for him at the hearing today.  In any event, as Mr Markus has pointed out, the applicant's evidence was that if the "government lawyer" was not to appear then he would accept the decision of the government.  I understand the applicant to have meant that if no government lawyer was provided then he did not intend to secure his own legal representation for the case.  There is no suggestion that the scheme provides for legal representation at the hearing.

9. In these circumstances the applicant's contention that he requires an adjournment because of his belief that a legal representative would appear for him today is not a basis for adjourning the proceeding. 

10. The applicant also said in his evidence that he was waiting for documents from India.  There has, however, been no indication as to the nature or contents of those documents.  There is nothing in the material before me that suggests that they could have any relevance to the application for judicial review under the Judiciary Act1903 (Cth). I do not regard that as a basis for adjourning proceedings.

11. Accordingly, I reject the application for an adjournment.

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

Associate:

Dated:             29 July 2003

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 July 2003
Date of Judgment:	29 July 2003