Sarkis v Minister for Immigration

[2019] FCCA 3234

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARKIS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3234

Catchwords:
MIGRATION – 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.

Legislation:

Migration Act 1958 (Cth), ss.477(1), 477(2)

Applicant: YOUSSEF YOUNESS SARKIS

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 922 of 2017

Judgment of: Judge Manousaridis

Hearing date: 4 November 2019

Date of Last Submission: 4 November 2019

Delivered at: Sydney

Delivered on: 4 November 2019

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent: Ms E Warner Knight of Australian Government Solicitor

ORDER

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 922 of 2017

YOUSSEF YOUNESS SARKIS

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act), extending the 35 day period provided for by s.477(1) of the Act for applying for a remedy under s.476 of the Act in relation to a decision made by the second respondent, the Administrative Appeals Tribunal, affirming a decision not to grant the applicant a Partner (Residence) (Class BS) (Subclass 801) visa. The applicant requires such order because the Tribunal made its decision on 1 February 2017, but, the applicant filed his application in this Court on 28 March 2017.

2. The matter came before the Court on a first court date on 11 May 2017. On that day the Registrar made a number of orders, including an order that the application for an extension of time be listed before me on 21 September 2018. By letter dated 13 July 2018 my associate, at my direction, wrote to the parties informing them that the hearing had been vacated, and that the parties would be informed by subsequent correspondence of a new hearing date. By letter dated 4 October 2019, my associate, again at my direction, informed the parties that the application for extension of time would be listed at 2.15 pm on 4 November 2019. The applicant obviously received that letter, because the applicant has appeared. He is not legally represented, but he does have the assistance of an interpreter.

3. After I had explained to the applicant the purpose of today’s hearing, that is to say that it was an application for an extension of time, and after I explained to him the matters of which a court would need to be satisfied before an application for an extension of time is granted, it became apparent that the applicant was seeking an adjournment. He initially attempted to tell me the basis upon which he was seeking an adjournment. As best as I could tell, he said that he had been in contact with Legal Aid, and that he had made an appointment to see them. Because it was not clear when and to whom he spoke, and in some of the answers, the applicant pointed his thumb to a gentleman sitting behind him, I invited that gentleman to answer a few questions.

4. That gentleman was Mr Youssef Elbayeh. He described himself as a friend of the applicant. He informed me that in the morning of today, a call was put to Legal Aid, and that as the hearing was progressing this afternoon, or just before the hearing commenced, he had received a telephone call from Legal Aid in Parramatta. The effect of the conversation, as I understood Mr Elbayeh, was that Mr Sarkis, the applicant, should go to the offices of Legal Aid next Monday, 11 November 2019, for the purpose of seeing a lawyer there. That is as far as the making of an appointment with Legal Aid has been put. So the basis on which an adjournment is sought by the applicant is that he requires legal assistance.

5. I asked the applicant why it was that he had not sought legal assistance until last Friday, or at least thought of obtaining legal assistance until last Friday.  Mr Sarkis said it was because it was on that day, 1 November 2019, that he received notice of today’s hearing.  Mr Sarkis handed up what is the original of the letter sent by my associate, dated 4 October 2019, together with an envelope.  I will mark that letter and the envelope as exhibit A on the application for an adjournment.

6. At the very least, Mr Sarkis’ handing, in court, a copy of the letter is proof that he received notice of today’s hearing.  Mr Sarkis, although not on oath (although I assume he would repeat this even if he were put on oath), insisted that he received this letter on 1 November 2019.  I have great difficulty in accepting that, given the date of the letter is 4 October 2019.  The ordinary course of Australia Post in this country is not three and a half weeks.  Be that as it may, I am still going to assume that what Mr Sarkis has told me is correct.

7. When a court is faced with an application for an adjournment of a hearing, the overriding consideration is what the interests of the administration of justice demand; and that requires the Court to consider at least two broad matters.  The first is the reason or reasons why the party seeking the adjournment is not in a position to proceed with the hearing on the appointed day.  The second consideration is the respective prejudices that the parties will suffer if an adjournment is or is not granted. When one considers the prejudice that the party seeking the adjournment will suffer, one must enquire as to the purpose for which the adjournment is sought, and whether that purpose has some prospect of being achieved.  When one considers the prejudice of the party who opposes the application for an adjournment, one considers what loss that party will suffer if an adjournment is granted.  And that, at the very least, is usually costs.  I will now just look at those three elements.

8. The first is the reasons the applicant has given for not being in a position to proceed. Even if I assume to be true, which I do, for the purposes of this application, that the applicant only became aware of the hearing last Friday, the indisputable fact is that the applicant himself filed this application on 28 March 2017, which is some two years and eight months ago. That is obviously a sufficient time for the applicant to have sought legal assistance including the legal assistance from Legal Aid. The applicant says he did not do this because he was not aware of the existence of Legal Aid. And he says he became aware of Legal Aid because of a conversation with the migration agent who had represented him before the Tribunal. That is a state of affairs which I find difficult to accept.

9. But even if I assume it to be true, that which the applicant did last Friday he could have done at any time over the last two and a half years.  In particular, the obvious times when he would have and ought to have considered it would have been the time that he commenced the application, and also the time that the applicant attended the first court date on 11 May 2017.  So the end result of that is that the applicant has given no adequate explanation as to why he has been unable or has not thought until last Friday to seek legal advice or assistance.

10. I then look at what prejudice the applicant will suffer if an adjournment is not granted. And that, really, requires me to make some assessment of the prospect of the applicant obtaining some legal assistance and if he obtains some legal assistance, whether that will be of any benefit to him. The only material that is before the Court, which I will accept as evidence given on oath, is that an appointment has been made for the applicant to visit Legal Aid on Monday with a view to seeing some solicitor at Legal Aid on that day. That, by itself, affords no basis for even speculating that the outcome of such meeting will be that the applicant will obtain any legal assistance. And there is nothing to suggest that the obtaining of any legal assistance, should it be given, would be of any benefit to the applicant. So, in that respect, I am not satisfied there would be any utility in granting the applicant an adjournment; and that he would suffer no prejudice if no adjournment was granted.

11. I then turn to the prejudice to the Minister if an adjournment is granted.  If an adjournment is granted, at the very least there will be costs thrown away by reason of the Minister having been required to retain a lawyer to appear on his behalf today. Often, if not usually, such prejudice may be remedied by the court granting an adjournment on terms that the party seeking the adjournment pay the other side’s costs thrown away.  That is certainly an option available in this case. But it is apparent, if only by the fact the applicant says he has been unable, himself, to afford a lawyer, that any order for costs that will be made against him would be a hollow order.  That is to say, the Minister would have costs thrown away for which he would have no reasonable prospect of recovering.  

12. For these reasons, I am not satisfied it is in the interests of the administration of justice that an adjournment should be granted.  On the contrary, I am satisfied that it is in the interests of the administration of justice that an adjournment not be granted.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  12 November 2019