Singh v Minister for Immigration
[2017] FCCA 250
•16 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 250 |
| Catchwords: PRACTICE AND PROCEDURE – Migration – judicial review – application for adjournment – factors for consideration – delay – lack of finance – unable to afford legal representation – merit of application – offer to pay costs thrown away. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42 |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 |
| Applicant: | SARBJEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 512 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 16 February 2017 |
| Date of Last Submission: | 16 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 16 February 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr E Solana |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the hearing at 10.15am on 23 February 2017 be vacated.
That the hearing be re-listed before Judge Driver at 10.15am on 24 March 2017.
The applicant is to file and serve:
(a)any amended Application;
(b)any further affidavits in support of the amended Application; and
(c)an outline of submissions,
by 14 March 2017;
The first respondent is to file and serve:
(a)any amended Response;
(b)any affidavits in response; and
(c)any submissions in reply,
by 23 March 2017.
The applicant pay the first respondent’s costs thrown away by the adjournment of the hearing on 23 February 2017 and of today in the sum of $3,000 by 24 February 2017.
The Reasons for Judgment in relation to these orders be published from Chambers at a later time.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 512 of 2015
| SARBJEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction - Application in a Case
By an Application in a Case filed on 6 February 2017 the applicant, Sabjeet Singh (“Mr Singh”) seeks orders in the following terms:
1. The hearing listed on 23 February 2017 at 10:15am be vacated.
2. The applicant pays the first respondent’s costs thrown away by the adjournment of the hearing date.
Effectively, Mr Singh seeks the adjournment of his own application.
Procedural chronology of proceedings
In the context of this adjournment application it is relevant to set out the procedural chronology of these proceedings, which is as follows:
a)5 November 2015 – application filed together with supporting affidavit (which did not attach the relevant decision of the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively));
b)19 November 2015 – the first respondent, the Minister for Immigration and Border Protection (“Minister”), filed a Response asserting that there was no jurisdictional error in the AAT Decision;
c)9 December 2015 – a Registrar of this Court made orders (“Registrar’s December 2015 Orders”) in the following terms:
1 The first respondent file and serve a bundle of relevant documents (green book) by 27 January 2016.
2 The applicant file and serve any amended application giving complete particulars of each ground of review relied upon by 10 February 2016.
3 The applicant file and serve any affidavit containing additional evidence (including any transcript of a tribunal hearing), upon which it proposes to rely by 10 February 2016.
4 The first respondent file and serve any affidavit containing additional evidence (including any transcript of a tribunal hearing), upon which it proposes to rely by 24 February 2016.
5 The applicant file and serve written legal submissions 42 days before the hearing.
6 The first respondent file and serve written legal submissions 21 days before the hearing.
7 The matter be listed for final hearing at 10.15am on 22 August 2016 before a Judge.
8 Liberty to either party to apply to the court for a listing for further directions. The other party must be given three days’ clear notice of the time, date and place of that listing.
d)27 January 2016 – the Minister filed the green book, or Court Book (“CB”) in accordance with order 1 of the Registrar’s December 2015 Orders;
e)on 2 February 2017 the Minister filed submissions in accordance with order 6 of the Registrar’s December 2015 Orders (“Minister’s Submissions”);
f)24 June 2016 – the parties were advised by email that for administrative reasons the hearing on 22 August 2016 had been re-listed to 23 February 2017; and
g)on 6 February 2017 Mr Singh filed the Application in a Case seeking the adjournment, supported by his affidavit dated 6 February 2017 (“Mr Singh’s February 2017 Affidavit”).
The basis for the adjournment sought
The basis for the adjournment sought is set out in Mr Singh’s February 2017 Affidavit, and is as follows:
a)on 26 January 2017 Mr Shahid Shakur, a lawyer, sent an email on Mr Singh’s behalf attaching a Draft Minute of Proposed Consent Order to the Minister’s lawyers, and requesting that the hearing date of 23 February 2017 be vacated (“Mr Shakur’s Email”);
b)the Minister’s lawyer’s responded on 1 February 2017 advising Mr Shakur that they were instructed to oppose the request for an adjournment of the hearing date;
c)on or about 2 February 2017 Mr Singh received the Minister’s Submissions from the Minister’s lawyers;
d)Mr Singh could not afford to engage a lawyer until recently due to financial constraints, but caused Mr Shakur to inform the Minister’s lawyers that if they agreed to consent to vacate the hearing date on 23 February 2017 he would agree to pay their reasonable costs thrown away;
e)Mr Singh has not ever been involved in a court case in India or Australia and is unfamiliar with court proceedings in Australia and considers it to be in the interests of justice that he is entitled to have legal representation, and that if the application proceeds on 23 February 2017 he will be severely prejudiced; and
f)Mr Shakur has advised Mr Singh that he is not able to instruct Counsel in a meaningful way in order to obtain an opinion on such short notice, and furthermore, that Mr Shakur is unavailable on 23 February 2017.
In considering the basis for the adjournment it is also relevant to have regard to the terms of Mr Shakur’s Email and the Draft Minute of Proposed Consent Orders attached thereto.
Mr Shakur’s Email:
a)says that Mr Singh has instructed him that he has not been able to comply with the Registrar’s December 2015 Orders as he was not in a position until recently to engage a lawyer given his lack of finances;
b)says that Mr Singh has now addressed his financial constraints, and Mr Shakur is acting on his behalf;
c)says that Mr Shakur’s “initial view” is that Mr Singh’s case “has merits” but he needs to obtain Counsel’s opinion, and that Mr Singh will therefore not be in a position to proceed with the hearing on 23 February 2017 and will be severely prejudiced should it proceed on that date;
d)requests consent to vacation of the hearing date and for new programming orders to be put in place;
e)indicates that if the Minister is agreeable to the suggested adjournment Mr Singh agrees to pay reasonable costs thrown away; and
f)attaches a Draft Minute of Proposed Consent Orders for consideration.
The terms of the Draft Minute of Proposed Consent Order are as follows:
1. The hearing listed on 23 February 2017 at 10.15am be vacated.
2. The applicant shall file and serve on or before 24 March 2017:
2.1. any amended application giving of the grounds of review; and
2.2. any further affidavits upon which he intends to rely at the hearing of the matter, including any affidavits in support of any application for an extension of time.
3. The first respondent file and serve any affidavit containing additional evidence (including any transcript of a tribunal hearing), upon which it proposes to rely by 17 April 2017.
4. The applicant file and serve written legal submissions 42 days before the hearing.
5. The first respondent file and serve written legal submissions 21 days before the hearing.
6. The application be listed for final hearing at on before a Judge.
7. Liberty to either party to apply to the court for a listing for further directions. The other party must be given three days' clear notice of the time, date and place of that listing. a date and time to be advised by the Court.
8. The applicant pays the first respondent's costs thrown away by the adjournment of the hearing listed on 23 February 2017, as agreed or assessed.
(Transcribed from the original without amendment).
It is not apparent why there is a reference to an application for an extension of time in the Draft Minute of Proposed Consent Order. No extension of time has been applied for by Mr Singh, and it does not appear that such an extension is required.
On 1 February 2015 the Minister advised Mr Shakur that the application for adjournment was opposed. This Application in a Case was made five days later.
At hearing Mr Singh was not represented by either Mr Shakur, or any other lawyer. Mr Singh explained this by indicating that his lawyer (whom he did not name) was overseas, and that he had an appointment to see him on 4 March 2017. Mr Singh reiterated the content of his affidavit insofar as it said that he had not been able to find or afford a lawyer to represent him until recently. In relation to the merits, when questioned by the Court, Mr Singh indicated no more than he had been told that his case had good prospects of success, but was not able to indicate what the basis for that advice was.
At hearing the Minister indicated that the adjournment was opposed. The Minister:
a)said that the application had been lodged in November 2015 and had been on foot for some time;
b)said that no evidence had been provided as to what steps the applicant had actually taken to seek to obtain legal advice;
c)tendered Exhibit 1 which was a letter dated 24 November 2015 to Mr Singh from the Minister’s lawyers advising him of at least four organisations which might provide Mr Singh with legal advice in relation to the application;
d)said that there was no evidence as to Mr Singh’s financial difficulties;
e)said that the matter had originally been listed for 22 August 2016 and had been adjourned to today from that date, thereby already giving Mr Singh the benefit of an extension of time from the original hearing date;
f)said that no lawyer had yet filed a notice of address for service in relation to acting on behalf of Mr Singh; and
g)said that there was no jurisdictional error evident in the AAT Decision.
In response to a question from the Court the Minister acknowledged that if the matter were to be adjourned and the adjourned hearing brought on within a very short time by reason of a visiting Judge returning to Perth and having the capacity to hear the matter in the third week of March 2017 there would be only a relatively short further delay in the hearing of the matter. The Minister continued to press for the costs of any adjournment of the hearing on 23 February 2017, and the costs of today, if there was an adjournment for a short time to the third week of March 2017.
Consideration
Any application for adjournment must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss.3 and 42 of the FCCA Act, and the objects in r.1.03 of the FCC Rules, provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
Sandeep v Minister for Immigration & Anor [2016] FCCA 3339 at [23] per Judge Lucev (and cases there cited) (“Sandeep”).
The Court must also take into account the following principles when determining whether or not to grant leave to allow an adjournment:
a)that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ (“Aon Risk Services”).
The Court notes that whether or not an adjournment is granted is a discretionary matter for the Court, and it is a discretion under which the Court is entitled to take into account a broad range of circumstances: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev (“MZZZL”).
The delay in making the adjournment application is considerable. The matter was listed for hearing on 22 August 2016, pursuant to the Registrar’s December 2015 Orders. By email on 24 June 2016 the parties were advised that for administrative reasons the hearing on 22 August 2016 had been re-listed to 23 February 2017.
Mr Singh has also failed to comply with the Registrar’s December 2015 Orders concerning the filing of any amended application, affidavits or submissions. Even if Mr Singh did not have an amended application to file, or any further affidavits, submissions ought to have been filed by him 42 days prior to the hearing listed for 23 February 2017 (that is by 12 January 2017). That was not done and nothing has been filed by Mr Singh in relation to the substance of the application.
Mr Singh’s February 2017 Affidavit asserts that his failure to comply was due to a lack of legal representation caused by a lack of finances.
The submission with respect to a lack of finances presupposes that legal representation is a right or necessity in migration judicial review proceedings in this Court.
In SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 the Federal Court observed as follows at [3]-[4] per Gyles J:
3 The first paragraph of the affidavit in support of the application is:
‘I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.’
4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J the Federal Court observed that:
Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis [1994] HCA 51;(1994) 181 CLR 309 at 329–331; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. Cf. SZNVW [2010] FCAFC 41; 183 FCR 575 at [30].
In MZZZL at [11] per Judge Lucev this Court observed that:
… there is no right to legal representation in migration proceedings in this Court. …
In circumstances where there is no entitlement to legal representation in migration judicial review proceedings in this Court, that Mr Singh says he could not afford a lawyer is irrelevant. There is also no evidence that Mr Singh has taken any steps to ascertain the availability of, or use of, any of the free legal services available in the community which are sometimes used by visa applicants applying for judicial review. Nor is there any evidence of Mr Singh being in contact with any other lawyers until very recently. Although Mr Singh has no right to legal representation it does not follow that now that he seemingly has legal representation he should be denied the opportunity to utilise that representation. Whether that ultimately be so or not must be dependent upon a consideration of all the circumstances.
The Court observes that Mr Singh’s evidence concerning his finances comprises nothing more than bare assertion. Mr Singh gives no evidence of employment, earnings, assets or liabilities, either past, present or anticipated future. The Court cannot make any proper finding as to Mr Singh’s financial position at any relevant time because there is simply no evidence to allow it to do so.
The Court is also concerned about the legal representation that Mr Singh is now said to have. Mr Shakur’s Email (on 26 January 2017) says that he is acting for Mr Singh. The Draft Minute of Proposed Consent Order refers to “Applicant’s solicitor SHAHID SHAKUR”. Mr Shakur has not, however, filed a notice of appearance or of acting for Mr Singh in these proceedings. It is now some three weeks since Mr Shakur’s Email was sent. Furthermore, Mr Shakur did not appear today, on the adjournment application, and nor did anyone else, although Mr Shakur’s non-appearance today might be attributable to what Mr Singh said about his lawyer being overseas.
The Draft Minute of Proposed Consent Order does not evince any sense of urgency. It simply provides (some minor typographical errors aside) for the same orders as were made in the Registrar’s December 2015 Orders with different dates inserted. Save for an exceptional circumstance set out below the consequence of that is that, at the earliest, this matter could not be re-listed before June 2017. In order to be heard at sometime between June and August of 2017 the application would have to be given special treatment. If this does not occur, then in the ordinary course of events, based on the timelines proposed in the Draft Minute of Proposed Consent Order, and the present listing arrangements in the Perth Registry, it is unlikely to get a date for an adjourned hearing until 2019.
In this case it is necessary to have regard to the general objects and principles set out above, and, for the purposes of assessing the paramount consideration of doing justice between the parties, whether or not the substantive application has sufficient merit to warrant it being adjourned, particularly where, bar for an exceptional circumstance set out below, the delay in re-listing arising from the adjournment could be anywhere between four months and in excess of two years.
Obviously an adjournment of these proceedings would cause them to be protracted contrary to the objects of the FCCA Act and FCC Rules. The length of the adjournment sought by Mr Singh is of itself long enough, but in the context of the delay arising from the number of migration cases in the Perth Registry list, it would constitute a significant and undue delay if an adjournment were to be granted.
The Court notes that Mr Shakur asserts that Mr Singh’s application has merit, but has not yet sought the opinion of Counsel in that regard. Mr Shakur’s assertion is, however, unsupported by any rationale as to why Mr Singh’s application has merit, or any indication as to the basis for suggesting that Mr Singh’s case has merit. From Mr Singh’s submissions today it would not appear that any basis for the alleged merit of the application has been conveyed to Mr Singh.
The substance of the grounds of review set out in the application are that:
a)Mr Singh had an offer of enrolment in a Bachelor’s degree course, but a migration agent demanded $5,000 from Mr Singh, in order to secure that offer of enrolment, which Mr Singh could not afford to give to him, and therefore an offer of enrolment that he had was cancelled; and
b)he has since completed a Certificate III in Commercial Cookery at a Perth college, and enrolled in a Certificate IV in Commercial Cookery at a different Perth college, which has also provided him with a confirmation of enrolment in a Bachelor’s degree course.
In an affidavit affirmed 26 October 2015 and filed with the application (“Mr Singh’s October 2015 Affidavit”) Mr Singh asserts that he has been studying continuously without any gap as a consequence of completing the Certificate III in Commercial Cookery, and it is his intention to continue to study, and that he has a confirmation of enrolment for a Bachelor’s degree, and that the AAT Decision is therefore wrong.
The AAT Decision appears at CB 146-151, and, in summary, provides that:
a)Mr Singh’s Subclass 573 Higher Education Sector Visa was subject to Condition 8516 which required that Mr Singh be a person who would satisfy the primary or secondary criteria for the grant of that visa. The AAT found that Mr Singh ceased to be enrolled in his higher education course on 23 August 2014, and that his enrolment was cancelled on 2 September 2014 because he had notified that he had ceased his studies, and as such was a person who ceased to satisfy the primary criteria for the grant of the visa by reason of a breach of Condition 8516: CB 147-148 at [12]-[16]; and
b)having found a breach of Condition 8516 the AAT went on to consider whether it should exercise the discretion that it had which might allow it to not cancel Mr Singh’s visa. The AAT considered the circumstances at length, and appears to have considered all of the matters put to it by Mr Singh as to why the discretion not to cancel might be exercised, including issues in relation to the conduct of a migration agent vis-à-vis Mr Singh: CB 148-151 at [17]-[41]. Significantly, the AAT noted that Mr Singh did not re-enrol in a course leading to a Bachelor’s degree until after he had received a notification of cancellation of his visa, and the AAT concluded that Mr Singh only obtained that confirmation of enrolment for the purpose of his visa application and not because he had a genuine intention of pursuing the course for which he had enrolled: CB 150 at [34]-[38].
It is not obvious what the merit case for Mr Singh might be, and as indicated above, Mr Shakur and Mr Singh have shed no light upon this in the materials filed in the Application in a Case. No jurisdictional error arises in relation to the acts of the migration agent as they do not appear to be a fraud upon the Tribunal. Nor is it obvious that there is a jurisdictional error in the AAT Decision, finding as it appears it was obliged to do that there was a breach of Condition 8516, and then considering the exercise of its discretion in a manner which does not obviously give rise to jurisdictional error.
In Sandeep at [29]-[36] per Judge Lucev this Court observed as follows with respect to the merit of the substantive judicial review application there under consideration:
29. For reasons set out below, the Court is also of the view that the substantive Judicial Review Application, looked at broadly for the purposes of an adjournment application, also lacks merit.
30. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a) identifies a wrong issue;
b) asks the wrong question;
c) ignores relevant material; or
d) relies on irrelevant material,
thereby affecting the Tribunal Decision and resulting in the Tribunal exceeding or failing to exercise the authority or powers given to it under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
31. Section 116(1)(b) of the Migration Act relevantly provided that the Minister may cancel the Student Visa if satisfied that Mr Sandeep has not complied with a condition of the Student Visa. The relevant condition was breached when the education provider certified that Mr Sandeep was no longer enrolled in the Master’s course: Maan v Minister for Immigration & Citizenship [2009] FCAFC 150; (2009) 179 FCR 581; (2009) 112 ALD 25 at [44]-[45] per Dowsett, Greenwood and Collier JJ. The power to cancel the Student Visa was enlivened after the valid NOICC was sent to Mr Sandeep pursuant to s.119: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 at [35] per Hely, Gyles and Allsop JJ.
32. To the extent that Mr Sandeep contends that these matters pleaded in his grounds of review were not considered by the Tribunal, that contention is without basis. The Tribunal expressly referred to the fact that Mr Sandeep:
a) was not aware of the Higher Education Visa condition: CB 103 at [14];
b) enrolled in a Bachelor course after being issued with the NOICC: CB 103 at [14]; and
c) had almost completed a Certificate in Commercial Cookery: CB 103 at [17].
33. It therefore should not be inferred lightly that these matters were not considered by the Tribunal: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593; (2003) 75 ALD 630. If, as appears to be the case, these matters were considered by the Tribunal the contentions relied upon invite the Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
34. It is clear, from a review of the Tribunal Decision, that the Tribunal considered the reasons and explanations advanced by Mr Sandeep in its consideration of whether to exercise its discretion to cancel his Higher Education Visa. In relation to Mr Sandeep's claim that he was unaware of the conditions of his Higher Education Visa, the Tribunal found that it was Mr Sandeep's responsibility to understand and abide by his Higher Education Visa conditions and that he had not taken proper care in relation to the conditions: CB 104 at [18]. Having considered the relevant circumstances for and against cancelling the Higher Education Visa, the Tribunal ultimately exercised its discretion to cancel the Higher Education Visa in a manner that was legally reasonable: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 at [28] per French CJ. The decision to cancel the Higher Education Visa cannot be said to be unreasonable simply because one conclusion has been preferred to another possible conclusion: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [131] per Crennan and Bell JJ.
35. In the Court’s view it cannot be said that the Tribunal Decision is vitiated by jurisdictional error as contended by Mr Sandeep, or at all. This conclusion weighs heavily against the grant of the adjournment sought by Mr Sandeep.
36. For the above reasons, the Court did not grant the adjournment sought by Mr Sandeep at the hearing on 14 December 2016.
On the above basis, the circumstances in relation to the breach of Condition 8516 and the exercise of the discretion in this case appear indistinguishable from Sandeep, and it cannot be said that the AAT Decision is, on its face, vitiated by jurisdictional error: therefore, the application, on its face, lacks merit. Sandeep might be distinguished by reason of the fact that the hearing of the matter there had also previously been adjourned, but, unlike here, that first adjournment was at the specific request of Mr Sandeep’s lawyers.
As indicated above, the delay in applying for the adjournment is considerable. The matter was originally listed for 22 August 2016, and was re-listed to today on 24 June 2016. Until just three weeks ago there was no indication that Mr Singh was seeking an adjournment of the hearing, which at that point in time had been listed on 23 February 2017 for more than seven months. Further, there had simply been no endeavour by Mr Singh to comply with any of the Registrar’s December 2015 Orders. A lack of representation is no excuse for non-compliance, or a failure to make any endeavour to comply, with the Registrar’s December 2015 Orders.
Even when time was critical, there was not an overwhelming sense of urgency on the part of Mr Singh or Mr Shakur. It was at 9.58am on 1 February 2017 that Mr Shakur was advised by the Minister’s lawyers that the Minister intended to oppose the request for an adjournment of the hearing. It took a further five days before the Application in a Case was filed on 6 February 2017 seeking the adjournment of the hearing.
Having regard to the matters set out above in relation to legal representation, finance, merit and delay, the current adjournment proposal and Draft Minute of Proposed Consent Order put forward by Mr Shakur on behalf of Mr Singh are unsatisfactory, and in the Court’s view do not warrant the Court exercising its discretion to grant an adjournment in the terms sought. A delay of the order which would be caused by orders in the terms of the Draft Minute of Proposed Consent Order would, by reason of the delay in any adjourned hearing being held, be an undue delay and a significant prejudice to the Minister. It would also be contrary to the objects of the FCCA Act and FCC Rules referred to above.
The only factor which might favour Mr Singh in relation to the adjournment is his offer to pay the costs thrown away by the adjournment. That, however, does not go near to outweighing the factors which do not support an adjournment, particularly in relation to case management considerations.
The Court is therefore not prepared to make the orders for an adjournment as sought by Mr Singh.
There is however another possibility, and that is that a visiting Judge returning to the Perth Registry for the hearing of part heard matter, might hear this matter in the week commencing 20 March 2017. That exceptional circumstance would allow further time for Mr Singh to prepare any amended application or further affidavits (if necessary) and submissions, as contemplated by the Registrar’s December 2015 Orders, with the benefit of any legal representation that he has. It would also allow some time for the Minister to put in responsive material, if necessary. Whilst the timeframes may be quite short, the Court observes that Mr Singh:
a)has had the benefit of more than 12 months to consider what material he might need to file; and
b)has now had three weeks in which Mr Shakur is said to have been acting for him, and in which time the Court is entitled to assume that appropriate steps have been taken by Mr Shakur to render or obtain proper advice; to seek to, or prepare to, obtain Counsel’s opinion; and to begin preparation of the relevant papers. If, however, Mr Singh or Mr Shakur have “sat on their hands” during the period since seeking the adjournment from the Minister or making the Application in a Case to the Court, that is a risk that they have taken, and in respect of which they must bear any consequences.
The Court is not prepared to grant an adjournment in the terms sought in the Draft Minute of Proposed Consent Order, particularly bearing in mind the very lengthy delay before any adjourned hearing could be re-listed, which is probably a minimum of four months but could be more than two years. Because there is currently a visiting Judge sitting in the Perth Registry with availability in the third week of March 2017, the Court is prepared to make orders for the matter to be heard in that week, and to grant an adjournment and tailor programming orders accordingly. Whilst the existing delay is, as the Court has already observed, considerable, orders for a hearing in the third week of March 2017 would at least be more consistent with the objects of the FCCA Act and FCC Rules referred to above by reason of a shortening of the delay. It would also allow Mr Singh an opportunity to utilise his recently obtained legal representation to make to the Court any merit case which might be discernible to Mr Singh’s legal representatives.
In the Court’s view whilst most of the factors for consideration in relation to an adjournment do not favour an adjournment, a short adjournment in circumstances where Mr Singh is prepared to pay costs thrown away, is, on a very fine balance, not inappropriate. The Court notes that, on the basis of the submissions made to it in the course of the hearing, it considers that $2,000 is an appropriate sum by way of costs thrown away for the adjournment of the hearing plus the costs of today at, say, $1,000. The Court reiterates that were it not for the availability of a visiting Judge in the third week of March 2017 the Court would dismiss the Application in a Case for an adjournment.
In the circumstances there will be orders that:
a)the hearing at 10.15am on 23 February 2017 be vacated;
b)the hearing be re-listed before Judge Driver at 10.15am on 24 March 2017;
c)Mr Singh is to file and serve:
i)any amended application;
ii)any further affidavits in support of the amended application; and
iii)an outline of submissions,
by 14 March 2017;
d)the Minister is to file and serve:
i)any amended response;
ii)any affidavits in response; and
iii)any submissions in reply,
by 23 March 2017;
e)Mr Singh is to pay the Minister’s costs thrown away by the adjournment of the hearing on 23 February 2017, and of today, in the sum of $3,000 by 24 February 2017; and
f)Reasons for Judgment in relation to these orders be published from Chambers at a later time.
These are the Reasons for Judgment referred to at (f) in the immediately preceding paragraph.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 16 February 2017
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