SZAOT v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1359

FEDERAL COURT OF AUSTRALIA

SZAOT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1359

SZAOT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 545 of 2004

ALLSOP J
18 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD545 of 2004

BETWEEN:	SZAOT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	18 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal set down for today be vacated.  
2. The respondent is to pay the costs, if any, thrown away by the vacation of the appeal. 
3. The appeal is set down for hearing on Friday, 12 November at 10.15 a.m.
4. Any further submissions of the appellant to be filed and served on or before Monday, 8 November 2004. 

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	NSD545 of 2004

BETWEEN:	SZAOT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	18 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the appellant appeals from orders made by a Federal Magistrate dismissing an application under s 39B of the Judiciary Act 1903 (Cth) in respect of a Refugee Review Tribunal decision.

2. Earlier this year on 25 May I made orders to prepare this appeal for hearing.  Those orders included orders that the appellant file and serve his written submissions by 9 July and that the respondent file her written submissions by 30 July.  The appellant filed his submissions on 6 July together with an amended notice of appeal.  Unfortunately, the amended notice of appeal and the submissions appear to have been stamped with a Federal Magistrates Court stamp and they apparently were not served on the respondent.

3. The respondent filed her submissions through her solicitors on 30 July 2004.  However, through an oversight of the solicitors, the submissions were not served at that time on the appellant.  The respondent’s solicitors say that they were served on the appellant by letter sent by ordinary post and dated 12 October 2004.  The appellant says he did not receive the submissions until Friday the 15th.  He was not cross-examined as to that matter.

4. The appellant is not legally assisted and was not legally assisted for the Federal Magistrates Court.  The respondent's solicitors drew to the appellant's attention, over 18 months ago, five organisations able to assist him with legal advice.  There is no evidence before me as to what steps have been taken by the appellant to avail himself of those organisations.  The submissions of the respondent, which were served last week mirror, almost identically, the submissions made by the respondent before the Federal Magistrate.

5. The appellant requested an adjournment for a number of months so that he may seek legal advice to deal with the matter.  In a sense he has already dealt with the submissions before the Federal Magistrates Court.  The appellant has had an opportunity to obtain legal assistance since May 2003.  I do not propose to grant an adjournment of such length as to allow him, apparently for the first time, to seek legal advice.  In any event, refusal of a two-month adjournment does not prevent him from seeking legal advice. If he does want legal advice he should promptly, that is, today, seek the assistance of the Law Society or the New South Wales Bar Association.  I suggest that the solicitors for the respondent provide another copy of the letter of 20 May 2003 to the appellant.

6. However, I do propose to grant an adjournment.  The appellant is not represented.  If I may respectfully put it without embarrassing him, he is obviously an intelligent man who has some facility with English and though his friend who has assisted him to date has gone overseas, he will be able, on the evidence, to obtain some interpreting and translation assistance. 

7. The directions I made were not matters of form, they were to ensure that the appellant had ample time to acquaint himself with the submissions of the respondent in the English language.  It is as much a matter of the appearance of fairness as the fact of fairness in this Court that I should give the appellant an adjournment to enable him to familiarise himself with the submissions.  However, the submissions raise no new issue as far as I can see and therefore a matter of weeks would, in my view, be ample to enable the appellant to familiarise himself with the submissions and to gather his thoughts about them.

8. The orders that I make are:

   1.        The appeal set down for today be vacated.  

   2.The respondent is to pay the costs, if any, thrown away by the vacation of the appeal. 

   3.        The appeal is set down for hearing on Friday, 12 November at 10.15 a.m.

   4.Any further submissions of the appellant to be filed and served on or before Monday, 8 November 2004. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            25 October 2004

The Appellant appeared in person with assistance of Bengali interpreter.
Counsel for the Respondent:	Ms R Francois
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 October 2004
Date of Judgment:	18 October 2004