Shing Chu v Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 1086

10 86 72

JUDGMENT No. .......,........ . I .,.,

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)	NO NG 448 of 1992
GENERU DIVISION	1

BETWEEN:  SHING C m
First Applicant
KIT LAN MA

OF AUSTRALIA Second Applicant

\ LIBRARY 1 -

EX TEMPORE JUDGMENT

EINFELD J SYDNEY 6 OCTOBER 1992

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When the matter came before the Court for directions on 6 August, orders were made by consent by way of a timetable for the filing of evidence. The respondent was represented by a

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member of the Australian Government Solicitor's office. The last date for the filing of the applicants' evidence was 20 August. In fact the applicants' solicitor had already filed an affidavit of 2 July which annexed the decision and such reasons of the respondent as there were, and an exchange of correspondence the effect of which was that the respondent refused to supply a statement of reasons under section 13 of the ADJR Act. The applicants were a day late with their evidence in that Mr Turner filed an affidavit on 21 August

annexing relevant documentation.

The respondent filed no evidence until today but did supply under the Freedom of Information Act some documentation from his department's file. Provision was made in the orders and directions given on 6 August for the applicant to file

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affidavits in reply on or before 10 September. As there was no evidence and no material from the respondent by that date, it is obvious that the applicants could not have complied with that requirement. But on 1 October, shortly after the file
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was made available under the Freedom of Information Act and Mr Turner returned from vacation, an affidavit from him of 1 October was filed which set out documentation made available from the file.
id	This morning when the case was called, the respondent sought to file in Court two affidavits of the officer of the Australian Government Solicitor now conducting this matter. These affidavits, respectively dated 2 and 6 October, somewhat
ii	changed the case, at least in terms of what matters became relevant for consideration. The affidavit of 2 October annexes a considerable number of documents and copy letters.
2 October and he says frankly to me today that nothing in it It was apparently served on counsel for the applicant late on
caused him any embarrassment or surprise. So far as the Court is concerned, it contained quite a deal of information that was not before the Court at all previously. The Court was completely unaware of the existence of this material until reading the affidavit.
This occurrence is not a matter of personal offence or disrespect to the Court as a whole, but it makes the efficient conduct of court cases extremely difficult. In order to save time in hearings I, at least, make the practice of reading the
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evidence before I come to court and making notes of what appear to be relevant facts contained in the material. That practice greatly assists in my understanding the written submissions of the parties, which were in this case ordered to
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be supplied on 17 September. In the case of the applicant they were received on 29 September. In the case of the respondent they were faxed at 6.04 pm on Friday 2 October, by which time, I regret to say, I had left the Court for the day. I therefore did not see them until this morning.
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All of the material attached to the affidavit of 2 October is of quite long standing and no explanation has been given as to how and why this material was not supplied long ago in
ii	accordance with the orders made on 6 August. The affidavit of
6 October was apparently supplied to counsel for the applicant
this morning after the actual time listed for the commencement
of this hearing. Fortunately, the commencement was delayed by other matters in the list because otherwise it would have been
first seen by counsel for the applicant after he had already launched his case.
The affidavit of this morning annexes certain sections of the Migrant Entry Handbook (4th Edition) April 1989. The affidavit says that there were no amendments to this publication between the time of that publication and 19 December 1989 when the rules which govern this particular case were significantly changed. It is perfectly clear that these guidelines bear down heavily on the facts of this particular
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case because it is suggested that they are inimical, almost definitively so, to the applicantsf contentions. No explanation is given as to why they were not supplied before. More importantly, because of the refusal of the decision-maker
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in the case to give reasons, claiming a provision of the ADJR Act as supporting authority, it is not at all clear whether these guidelines were taken into account in the decision concerned. The case raises matters of significant principle apart from breaches of court orders and directions.
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If the guidelines were taken into account and the applicants' case suffered significant disadvantage as a consequence, then the failure to supply them previously or to mention that they
ii	were taken into account in the making of the decision, has major consequences for the whole of this litigation, not to mention its cost. If they were not taken into account but
because it would surely be unlikely that the Court could should have been, then serious questions of discretion arise,
uphold this application for review on the grounds that procedures and requirements set down in the guidelines were not taken into account when the effect of taking them into account would be deleterious to the applicants' chances of success. If that be the case - and I am making no decision on it now - then the wisdom of launching the litigation at all, or its persistence up to the hearing date, must have been thrown into considerable doubt.
Ld	The applicants now ask for an adjournment to consider the consequences of this new material and to make such further investigations and receive such further instructions as may be appropriate. If the adjournment is granted, they seek an adjournment until after 12 November, on which date the High
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Court has, I am informed, listed for hearing an application for special leave to appeal from the decision of a Full Court of this Court in Delacruz v The Minister for Immiaration, Local Government & Ethnic Affairs. Delacruz, although not on all fours with this case in terms of fact, may well have an
'v	important impact on its determination.
In my opinion the adjournment should be granted. This material is new and significant and there is no explanation
'v	given as to why it was not supplied before, as it should have been.
costs should be awarded. The Court does not list matters for The applicants ask for the costs of today. In my opinion
directions and make orders and give directions, especially not by consent, for something better to do or because it wants to be interventionist in terms of making the parties' tasks of presenting and preparing litigation more difficult. It does so in the course of efficient case management and its actions and activities in this field have always met with the approval of the profession.
In this Court these matters are dealt with by judges in order
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to ensure that every reasonable opportunity is given to the parties to prepare and present their cases in the most expeditious and efficient way possible and so as to avoid any arguments or problems that might arise if they were dealt with
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at some other level of the administration. This is a time- consuming and quite difficult operation in a Court which is already heavily overloaded with work and it is not possible that the parties can treat cavalierly directions and orders which are made in this regard, at any rate not without adverse

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This case was given an early hearing because it seemed to me that immigration matters should not be permitted to be delayed

W	by applicants whose status in the country is illegal at the time of their application. A good deal of public criticism is levelled at the legal profession, especially in relation to
administration of the immigration program and make the job of immigration cases, that professional delays hinder the
the department in this difficult area even more difficult. The Court should certainly not be party to any such failings on the part of lawyers, if they exist, and should make itself available as far as possible for the resolution of issues which arise in relation to these types of matters as speedily and as efficiently as possible. That is why in this particular case an early hearing was given and why the 6 August directions were made.
It turns out that this hearing has been aborted in a way that
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would not otherwise have been remotely possible because the respondent has filed important evidence very late. As a consequence it is not possible to resist the applicants' desire for an opportunity to consider the new material and in
L.	particular to consider the consequences, which are not simple, of the material on the determination of the issues raised by the application for review.
This case involves the lives of ordinary human beings and may
W	raise significant discretionary issues concerning families. I do not believe it appropriate that when issues concerning the future lives, including the future places of living and perhaps safety, of human beings and families are at stake, it
'v	is appropriate to try to bludgeon them through a hearing when information has come to the notice of their legal representatives as late and as significantly as has occurred
calm and dispassionate consideration of the new material so in this particular case. Opportunity should be given for a
that the applicants may be given the best available advice in the light of the factual situation and the evidence available.
The adjournment has therefore been brought about by the late supply of information by the respondent and the respondent should therefore bear the costs of the adjournment. I will
accede to the request of the applicants for a further mention of the matter after the High Court has determined the special leave application in Delacruz. For this purpose I fix 9.30 am on 24 November for a directions hearing in the matter. In the
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event that the High Court grants special leave or otherwise deals with Delacruz inconsistently with the Full Court's judgment, the parties may notify my associate, by telephone to 230 8405 or fax to 221 3238, of any agreement for the further
ii	adjournment of this hearing pending a clarification of the law applicable to matters arising under section 20 of the Migration Act. In that event, there will be no need for anyone to attend the directions hearing.
L+	In the event that the High Court dismisses the application for special leave and there is no other matter outstanding preparatory to the hearing of the case, there will be no need for anyone to attend the directions hearing on 24 November but
ii	the parties may advise my associate by telephone or fax that the matter is ready for hearing. To meet this possible eventuality, I fix the matter for hearing at 10.15 am on
whether any particular circumstances have arisen which should Tuesday December 15. If the parties are in doubt as to
require them to attend the directions hearing, they may make inquiries by telephone to my associate but unless there are any particular reasons for attendance such as the need to resolve any dispute between the parties, I will excuse the parties from any attendance in person on the next directions date as so fixed.
Nothing I have said concerning the defaults by the respondent in relation to this matter is to be taken as any criticism at all of the present counsel for the respondent or her instructing solicitor. As I am informed from the bar table,
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and have every reason to accept, the solicitor presently instructing has only come into the matter in very recent times and counsel's entry into the matter has been even more recent. The relevant defaults all predate those events and I therefore
L	level no criticism at, and find nothing defective in the attention to duty of, those two persons specifically.

Reasons for Judgment herein of his H,,,,~,,~

Associate