SINGH v Minister for Immigration

[2019] FCCA 2344

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2344

Catchwords:
PRACTICE AND PROCEDURE – Request for an adjournment of final hearing – where the applicant wishes to obtain legal advice – where the matter was commenced in June 2017 – application for an adjournment dismissed.

Cases cited:

AMF15 v Minister for Immigration & Border Protection (2016) 241 FCR 30
Myers v Myers [1969] WAR 19

Applicant: PRABHJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 310 of 2017

Judgment of: Judge Kendall

Hearing date: 21 August 2019

Date of Last Submission: 21 August 2019

Delivered at: Perth

Delivered on: 21 August 2019

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Ms G Ellis

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application in a case filed 7 August 2019 be dismissed.

2. Costs, if any, reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 310 of 2017

PRABHJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-Tempore; Revised from Transcript)

1. The applicant filed an application in this Court on 9 June 2017 seeking judicial review of a decision of the Administrative Appeals Tribunal dated 15 May 2017.

2. In orders made 9 August 2017, the matter was set down for hearing on 23 October 2020. The Court was able to relist the matter for an earlier hearing date on 21 August 2019.

3. In an email dated 11 June 2019, the applicant was advised that his hearing had been re-listed to 21 August 2019.

4. On 30 July 2019, the applicant emailed Chambers stating

   “I am requesting to adjournment of the matter for a little while as I have received the court book on 16 July 2019 and need some time to seek a legal advice. I was expecting the case in Feb 2020.”

5. The applicant was advised that he would be required to obtain consent from the Minister, or file an application in a case.

6. On 7 August 2019, the applicant filed an application in a case and a supporting affidavit seeking the hearing set down for 21 August 2019 be moved to a date after 21 October 2019.

7. The supporting affidavit provides:

   1. I want to seek the legal advice for my case, I know I could have done this earlier but due to the changes in hearing dates and financial circumstances, I failed.

   2. I have also received court sealed book which consists 115 pages on 16 July 2019 and I did not receive the book earlier.

   3. I am approaching different lawyers now, but I just need more time to prepare my case.

   4. I have applied for law access as well, and I am waiting for their decision.

8. Given the limited availability of the Court to hear the adjournment application prior to the substantive hearing, the adjournment application was made returnable on the same day as the hearing.

Oral submissions

1. The Court invited the applicant to make oral submissions as to why he believed it was necessary for him to be provided an adjournment.  In effect, he repeated the comments he had made in his affidavit, which are outlined above. 

2. In opposing the adjournment the Minister noted that no reasonable explanation or evidence had been provided as to legitimate efforts on the part of the applicant to seek and obtain legal advice.  The Minister also highlighted that this case had been on foot for two years and emphasised concerns with further delays generally.

Principles

1. The Court has a wide discretion in relation to whether or not it adjourns a hearing: Myers v Myers [1969] WAR 19 at 21.

2. Factors the Court generally takes into account include:

   a)ensuring that there is a just resolution of the proceeding for both parties and that the applicant and respondent have the opportunity to advance their case; 

   b)principles of case management and the avoidance of undue delay; and

   c)issues in relation to the need to avoid a waste of public resources.

Consideration

1. The Court is not satisfied that the matters that the applicant has raised in his affidavit or orally today are sufficient to warrant an adjournment.

2. The applicant has not provided any concrete evidence of the “financial circumstances” that prevented him from seeking a lawyer prior to now. The applicant has also provided no concrete evidence as to his present financial situation, including evidence that he actually has the funds to retain a lawyer, that he could meet the costs of the proceedings if he were to be unsuccessful or, alternatively, that he could meet the costs thrown away by any adjournment. This weighs against the granting of an adjournment.

3. The applicant has, by his own admission, in effect, “sat on his hands” since the application was on foot. He did so because he believed his matter would not be heard until 2020. While that is undoubtedly true, the applicant could have taken steps to obtain legal advice or assistance during the two years that have passed since he lodged his initial application. The Court does not accept that the hearing date being expedited is a sufficient reason for the applicant to not have previously sought legal representation. This also weighs against granting an adjournment.

4. It is well-accepted that there is no right to legal representation in migration proceedings in this Court. Nor is the fact an applicant is unrepresented a reasonable ground for an application or proceeding to be stayed or adjourned: AMF15 v Minister for Immigration & Border Protection (2016) 241 FCR 30 at [51]. The Court does not accept that the applicant would not have a “fair” hearing without legal representation.

5. The Court accepts that the matter was originally listed in 2020. The Court moved the matter forward, as it did with many other matters in this Court, to address what was seen to be an undue delay that many litigants in this Court are facing.

6. In respect of case management, this Registry currently has several hundred migration matters awaiting to be listed and heard. This Judge, in particular, is now listing well into late 2020.

7. It is not the case that moving the hearing forward is prejudicial to the applicant. The applicant was advised on 11 June 2019 of the change in date. This provided him with at least 8 weeks’ notice.

8. To the extent the applicant argues that he did not receive the Court Book in this matter until 16 July 2019 and he has thus been unable to prepare, the Court notes:

   a)the Minister today submitted a document (marked as Exhibit 1) which indicated that the Court Book was sent via express post (on 4 September 2017) to the address identified in the applicant’s judicial review application;

   b)the Registrar’s orders required the Minister to file and serve the Court Book by 5 September 2017. If it is the case that the applicant has never received it, he has had nearly two years to make enquiries in relation to the failure to do what was required by Court orders. Again, he appears to have done nothing to assist himself; and

   c)finally, even if it is accepted that the applicant did not receive the Court Book until 16 July 2019, the applicant has had over one month to review the materials in the Court Book, many of which he would be familiar with as he himself provided them to the Tribunal.

9. In the circumstances, the court is not satisfied that he did not have adequate opportunity to review the materials in question

10. The Court is satisfied that, overall, there is no prejudice to the applicant if the adjournment is refused. A just resolution of the matter will be achieved by the matter proceeding to final hearing today.

11. Furthermore, if the adjournment is granted, the effect would be that the applicant’s hearing date will now likely not be heard until very late in 2020. There would be additional expense, not only to the Minister, if the matter were to be adjourned and relisted on another day, but also a waste of public resources and expense to the taxpayer by having to have the Court sit again. It is also the case that another litigant could have had their matter heard during the time allocated for the hearings today.

Conclusion

1. For each of these reasons, the Court is not satisfied that an adjournment should be granted. The application in a case filed 7 August 2019 is dismissed. The adjournment the applicant requests is refused.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date:  4 September 2019