SZKCE v Minister for Immigration and Citizenship

[2008] FCA 1177

FEDERAL COURT OF AUSTRALIA

SZKCE v Minister for Immigration and Citizenship [2008] FCA 1177

SZKCE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD2410 OF 2007

LOGAN J
4 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2410 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKCE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	4 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be adjourned to a date to be fixed in the November sittings of the Full Court in Sydney.

2.The First Respondent is to prepare and file with the Court, on or before 11 August 2008, an indexed and paginated application book comprising :

(a)the material before the Tribunal,

(b)the First Respondent’s outline of submissions;

(c)the Tribunal’s reasons for decision;

(d)the decision of the Federal Magistrates Court; and

(e)the application for leave to appeal.

3.The First Respondent send copies of the application book so filed to the following persons on or before 17 August 2008:

(a)the Applicant, at her address for service, and

(b)Macarthur Legal Centre Incorporated at 4 Broughton Street, Campbelltown, New South Wales 2560, for the attention of Mr Chris Joyce, solicitor.

4.The Applicant file and serve on the First Respondent each and any affidavit upon which she proposes to rely in support of her application, on or before Friday, 17 October 2008. 

5.The First Respondent file  and serve such affidavit, if any, upon which he proposes to rely in respect of the application, on or before Friday, 24 October 2008.

6.The Applicant is further directed to file any outline of submissions in respect of the application, no later than three clear business days prior to the date upon which the application is listed for hearing in the November sittings.

7.The District Registrar is directed to send a copy of these orders to Macarthur Legal Centre Incorporated at the address specified above, for the attention of Mr Chris Joyce. 

8.The costs of today are reserved.

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	NSD2410 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKCE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	4 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have decided that the interests of justice, in this case, do require that an adjournment be granted.  I should give some brief reasons though for that.  That is particularly so, having regard to points which, with respect, were very well made by Mr Baird on behalf of the Minister for Immigration and Citizenship (“Minister”) in relation to whether an adjournment ought to be granted.  Mr Baird rightly pointed to earlier adjournments that had been offered to the Applicant, to the prospect that further adjournments might be to no end in the final result and to the additional costs that would thereby be entailed.  The submissions which were lodged on behalf of the Minister on 27 February 2008 certainly give one pause for thought about the ultimate prospects of the application in this case.

2. There is no doubt that an adjournment would carry with it the prospect of further costs being incurred by the Minister.  The Applicant was directly appraised by me of the further prospect that in the event that she were ultimately unsuccessful, she may have to bear those additional costs.  Her response was to point to the factual merits of her visa application and to her having “no choice” in relation to the seeking of an adjournment. 

3. The Applicant brought with her to Court today a letter dated 1 August 2008 written by a Mr Joyce, a solicitor with Macarthur Legal Centre and addressed to me.  That letter became exhibit 5 in the proceedings after a copy of it was shown to Mr Baird who, with respect, very properly took no objection to its receipt by the Court.

4. That letter records that the Applicant had again been in contact with the legal centre.  It further records the author’s telephonic attendance on a Ms Miriam Mafessanti, on 21 July 2008 and to his discussing the matter at length with that particular solicitor.  The difficulty which resulted from that conversation between professional colleagues was the inability on the part of Mr Joyce to secure a copy of the transcript of proceedings before the Federal Magistrates Court because the Minister’s present solicitors did not handle the case in the Federal Magistrates Court.  Mr Joyce states in his letter that The Macarthur Legal Centre is not able to carry the costs of getting the necessary transcript of the proceedings in the Federal Magistrates Court and to his having explained this to the Applicant. 

5. She in turn, so Mr Joyce records in his letter, stated to him that she was destitute and living off the charity of friends.  There is some reference also in the letter to the possibility that the delay in the lodgement of the appeal to this Court was the result of the Applicant having placed the matter in the hands of a migration agent rather than a solicitor.  Whilst such an explanation would have to be sworn to, it does seem to me that there may be a factual foundation for an extension of time in it, if it proves that such sworn material is accepted.  I understand that it is possible for the material which would otherwise comprise an appeal book to be prepared in fairly short order.  I also will recall observations of the Applicant from earlier appearances as well as my observation of her today.

6. It was, and remains, quite obvious that the Applicant is illiterate in English.  That is no criticism of her, but it does, in part, explain the difficulties under which she is, and has been, labouring.  To my mind, it stands to her credit notwithstanding that difficulty, that she has, as the letter evidences, taken advantage as best she could in her circumstances of opportunities to have legal advice given to her about the merits or otherwise of her challenge to the Federal Magistrate’s decision.  I am also conscious that the Federal Magistrate’s decision was not one which was directly concerned with the merits of the judicial review application proper, although obviously the Federal Magistrate formed a view about those merits. 

7. Taking all of these matters into account, it seems to me that an adjournment is necessary, but an adjournment with the end of the application being finally determined, one way or the other, in the November sittings of the Full Court.  Having regard to my prior association with the case, it is obviously desirable that in November, the application come back before me.  To that end, the directions which I propose to make are as follows: 

   1.The application be adjourned to a date to be fixed in the November sittings of the Full Court in Sydney.

   2.The First Respondent is to prepare and file with the Court, on or before 11 August 2008, an indexed and paginated application book comprising :

   (a)the material before the Tribunal,

   (b)the First Respondent’s outline of submissions;

   (c)the Tribunal’s reasons for decision;

   (d)the decision of the Federal Magistrates Court; and

   (e)the application for leave to appeal.

   3.The First Respondent send copies of the application book so filed to the following persons on or before 17 August 2008:

   (a)the Applicant, at her address for service, and

   (b)Macarthur Legal Centre Incorporated at 4 Broughton Street, Campbelltown, New South Wales 2560, for the attention of Mr Chris Joyce, solicitor.

   4.The Applicant file and serve on the First Respondent each and any affidavit upon which she proposes to rely in support of her application, on or before Friday, 17 October 2008. 

   5.The First Respondent file and serve such affidavit, if any, upon which he proposes to rely in respect of the application, on or before Friday, 24 October 2008.

   6.The Applicant is further directed to file any outline of submissions in respect of the application, no later than three clear business days prior to the date upon which the application is listed for hearing in the November sittings.

   7.The District Registrar is directed to send a copy of these orders to Macarthur Legal Centre Incorporated at the address specified above, for the attention of Mr Chris Joyce. 

   8.The costs of today are reserved.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:       7 August 2008

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	4 August 2008
Date of Judgment:	4 August 2008