SZJBF v Minister for Immigration

[2016] FCCA 1822

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZJBF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1822

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment of application to extend time – whether the applicant has an adequate reason for not being in a position to proceed with extension of time application – whether there is any utility in granting the adjournment – application for an adjournment dismissed.

Legislation:

Migration Act1958 (Cth), s.477(2)

Applicant: SZJBF

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 206 of 2016

Judgment of: Judge Manousaridis

Hearing date: 1 July 2016

Delivered at: Sydney

Delivered on: 1 July 2016

REPRESENTATION

Applicant in person.

Solicitors for the First Respondent:

Mr R White of

Mills Oakley Lawyers

ORDERS

1. The application for an adjournment of the hearing of the application to extend time is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 206 of 2016

SZJBF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 26 March 2016 this matter came before the Court on a first court date. On that day there was set down for hearing before me on 1 July 2016 an application for an order pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the period within which the applicant may file an application in this Court in relation to a decision made by the Refugee Review Tribunal (Tribunal).The decision of the Tribunal in relation to which an extension of time is sought was made on 9 July 2007.  Yesterday the applicant, who is not legally represented and is in detention, lodged with the Court a document titled “Applicant’s Written Argument”. That document contains matters relevant to the application for an extension of time.  It also contains submissions which I understood to be made in support of an application that today’s hearing be adjourned.

2. When the matter was called I asked the applicant whether, in fact, he was seeking an adjournment.  He indicated to me that he was.  The ground on which he seeks the adjournment and the ground on which he says he is not in a position to proceed with the matter today is that he is in need of legal assistance.  He said from the bar table – and these are matters which, for the purposes of this application, I will accept as being true – that approximately one month ago he made inquiries of Legal Aid to obtain legal representation.  The result of that was no Legal Aid could be obtained, but the applicant became aware of the possibility of obtaining pro bono assistance.

3. As I understood what the applicant said from the bar table, he has not yet sought pro bono assistance, but proposes to do so once he obtains documents.  He initially said that the documents he sought to obtain were documents from Bangladesh, being his country of citizenship.  When asked what the intended relevance of those documents was, he said that they were to support his case that he had a fear of returning to Bangladesh because of his political beliefs. He later said that, in addition to those documents, he wanted to get together the court book. 

4. In applications for an adjournment it is the case that the Court must consider a number of factors, one of which is the reasons why an applicant will not be in a position to proceed.  Other issues relate to whether there would be any utility in the adjournment being granted.  Often that question requires the Court to delve into the merits of the application, but for reasons which will become apparent there is no need for me to look at the merits of the case for the purposes of this application.

5. In my opinion, the reasons given by the applicant are not adequate to lead me to conclude that the applicant should be granted an adjournment.  These proceedings were commenced by the applicant on 3 February 2016, yet no attempt has been made by the applicant until May of this year to seek to obtain legal advice.  The explanation he has given is that he has been in detention.  That explanation carries no weight in my mind because the efforts he says he has made over the last month to obtain legal assistance have been efforts he made while in detention, and there is no reason why he could not have made those efforts earlier.

6. But perhaps more significant is the period that has elapsed between the date the Tribunal rendered its decision, which was in July 2007, and the first occasion on which, as I understand it, the applicant sought to obtain legal advice in relation to that decision, which was in May 2016, almost nine years later.  The explanation the applicant gave was that he was not aware that he could apply to the Federal Circuit Court in relation to the Tribunal’s decision because he had previously successfully applied to this Court for judicial review in relation to an earlier decision of the Tribunal in relation to his application for a protection visa. He simply said from the bar table that he did not know he could apply twice, particularly having regard to the fact that he sought ministerial intervention, he says, in 2008. 

7. The applicant did not state that he did not know that he could apply twice  or thought he could not apply twice to this court under oath, but even if he were to have given that evidence under oath I would not accept it. In any event, even if the applicant truly believed that he could not apply to this Court a second time that discloses no reasonable explanation for his not seeking legal advice for almost nine years in relation to the Tribunal’s decision.

8. I then turn to whether there would be any utility in granting the adjournment.  There’s nothing from what the applicant indicated to me that would suggest he has any reasonable prospect of obtaining pro bono legal assistance.  The basis on which he says he has such prospect is his belief that he has a meritorious claim.  It might well be that part of the applicant’s belief is misconceived because he said that he needs to obtain documents from Bangladesh to establish the contentions he made before the Tribunal that he has a well-founded fear of harm if he were to return to Bangladesh. That misconceives what the role of this Court is when determining applications for judicial review of decisions of the Tribunal.  The task of the Court is not for it to determine whether a person who applies to this court for judicial review has a well-founded fear of persecution.  That is a matter that is within the jurisdiction and only within the jurisdiction of the Tribunal.  The jurisdiction of this Court is limited to determining whether the Tribunal has undertaken its statutory duty of reviewing an application for review according to law, which, in more technical language, means without having made any jurisdictional error. 

9. In the submissions the applicant filed with the court yesterday he said that he needs a couple of thousand of dollars to engage a barrister. He said:

   I asked one of my cousin/brother for financial help.  My cousin promises me he will give me a couple of thousand dollars in July 2016.

10. The applicant went into the witness box and affirmed that what he had stated there was true. He was cross-examined by Mr White, who appeared for the Minister.  In the course of that cross-examination the applicant said that he had, in fact, made no inquiry of any barrister and that the applicant’s assessment that $2,000 would be an amount that would be sufficient to brief a barrister was something that the applicant assessed based on what he believed would be appropriate.

11. The applicant was not cross-examined about the key assertion that he did, in fact, have a cousin who was willing to give the $2,000.  That by itself, however, does not mean I must accept the evidence the applicant gave.  It is of significance that the applicant’s assertion is simply that, an assertion. The cousin referred to in the submissions is not identified.  There is nothing emanating from the cousin, such as a letter or email, indicating that the cousin is willing to give the $2000 to the applicant, and there is nothing which identifies or could establish that the cousin does, in fact, have $2,000. I’m not satisfied that if I were to grant an adjournment there would be any realistic prospect of the applicant securing a barrister in the event that pro bono legal assistance would not be provided.  There’s no material to establish that $2,000 would secure a barrister being briefed to advise the applicant, although I cannot say that $2000 would be insufficient to achieve that purpose.  More significant is the fact that I simply do not accept the applicant will be in a position in July 2016 to obtain money to obtain legal assistance.  

12. I therefore refuse the application for an adjournment, principally because of the extraordinary delay and unexplained  or unsatisfactorily explained delay between the date on which the Tribunal made the decision, which is the subject of this application for review, and the

    time when the applicant first sought to obtain legal assistance in relation to his desire to challenge the Tribunal’s decision in this Court. 

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

Date: 20 July 2016