SZLNX v Minister for Immigration

[2008] FMCA 494

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLNX v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 494

MIGRATION – Application for adjournment of final hearing – application refused.

Applicant: SZLNX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3309 of 2007

Judgment of: Nicholls FM

Hearing date: 16 April 2008

Date of Last Submission: 16 April 2008

Delivered at: Sydney

Delivered on: 16 April 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr M P Cleary

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Leave is granted to the applicant to file written submissions by 30 April 2008.

2. Leave is granted to the first respondent to file any further submissions in reply by 7 May 2008.

3. Leave is granted to the applicant to seek further directions on three (3) days notice up until 30 April 2008.

4. Leave is granted to the first respondent to seek further directions on three (3) days notice up until 7 May 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3309 of 2007

SZLNX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. [The applicant applied for an adjournment of the final hearing date in this matter.  This application was made before the Court at the scheduled final hearing date.  The basis for the application was said to be that the applicant has been in immigration detention during the last 14 months and that he required the assistance of a lawyer in presenting his case to the Court.  In particular, the applicant stated that now that he has been released from detention, he believes that he will get “strong support from the community” and that as a result he would “accumulate enough money to get a lawyer and also the community people will help me to get a good lawyer”.  The applicant requested an adjournment for three months.  The applicant stated that he had an appointment to see a lawyer in Sydney (“Chris in Kent Street”) this afternoon at 3pm.

2. Mr M P Cleary of Counsel who appeared for the first respondent opposed the application for an adjournment.  In particular, an adjournment of three months was opposed on the basis that that length of time was excessive in the circumstances.]

3. The hearing was set down for this week in April and that has been known since November 2007.  The onus is on an applicant to get ready for a hearing; there is an onus on an applicant to organise their legal advice if that is what they want to do.  While I understand that the applicant has been in immigration detention at Villawood, I have some difficulty in accepting his evidence that the mere fact of being detained made it “impossible” to obtain further legal advice.  The applicant later indicated that what he meant by “impossible” is that it is impossible for him because he does not have sufficient funds.  I do not accept the applicant’s evidence in that regard.

4. As to the applicant’s claim that he requires an adjournment of three months, his evidence has been, with respect, unsatisfactory and unclear.  As Mr Cleary correctly, in my view, submitted this is not a matter where (the colloquial term used was “way out there”, which I understood to mean an implausible length of time with no firm basis), three months is going to deliver us a situation where the applicant will have a lawyer in three months time.  I was attracted to the applicant’s evidence however that he is going to see a lawyer at 3pm this afternoon, albeit I have some concerns about that inability to provide details, because it had certainty to it; it is something certain on which a Court can base an adjournment. 

5. I agree with Mr Cleary that it is not appropriate that I give the applicant a three month adjournment.  I reject the applicant’s application for a three month adjournment on the basis that I am not satisfied on the evidence presented to this Court that there is sufficient certainty that the applicant’s objective will be obtained within three months.  I also take into account that, despite the applicant’s evidence that it is “impossible” to arrange legal advice from inside Villawood, the applicant was in fact able to obtain some legal contact while in Villawood and I have difficulty in accepting the applicant’s evidence.  The applicant has obtained some legal advice, relevantly on the matters that are at issue before this Court, and in particular, the lawyer who has seen the Court Book and has given the applicant advice.  The applicant has had sufficient time to obtain legal advice.  I have heard the applicant about matters such as cost, but there is nothing that I have heard to give me confidence that if I gave the applicant three months that he would have a paid lawyer appear for him.  I am prepared, however, to give him some leeway in relation to the lawyer whom the applicant is seeing this afternoon because that, with all the reservations that I have indicated, has some certainty to it.

6. To the extent that the applicant indicated that what he meant by “impossible” was that he did not have sufficient funds, I note that there is no right of legal representation before this Court.  The fact that the applicant does not have sufficient funds is a sad situation but, at the end of the day, there is no right of legal representation.  

7. I have formally refused the applicant’s request for an adjournment for the reasons given.  The hearing will proceed today in a limited way in that I will hear from the first respondent’s Counsel and if the applicant wishes to respond today he may do so, but in addition, the applicant and his lawyer have two weeks to file further written submissions if the applicant so desires.  I will also make an order that either side may apply to have the hearing resumed on three days notice within the two weeks. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  22 April 2008