SZQVI v Minister for Immigration and Citizenship

[2012] FCA 802

FEDERAL COURT OF AUSTRALIA

SZQVI v Minister for Immigration and Citizenship [2012] FCA 802

Citation:		SZQVI v Minister for Immigration and Citizenship [2012] FCA 802
Appeal from:		SZQVI v Minister for Immigration and Citizenship [2012] FMCA 222
Parties:		SZQVI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and PETER TYLER IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER
File number:		NSD 462 of 2012
Judge:		FOSTER J
Date of judgment:		27 July 2012
Date of hearing:	27 July 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	12
Counsel for the Appellant:	Mr LD Robison
Solicitor for the Appellant:	Turner Coulson Immigration Lawyers
Solicitor for the First Respondent:	Mr O Jones of Clayton Utz
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 462 of 2012

BETWEEN:

SZQVI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

PETER TYLER IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	27 JULY 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Interlocutory Application filed by the appellant on 24 July 2012 be dismissed. 

2.The costs of that Interlocutory Application be costs in the appeal.  

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 462 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQVI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

PETER TYLER IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	FOSTER J
DATE:	27 JULY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant has applied for an adjournment of his appeal, which is fixed for hearing before a Judge of this Court on Monday next (30 July 2012).  The application for an adjournment was made on Tuesday of this week (24 July 2012). 

2. The application for an adjournment is supported by the affidavit of Mr Turner, who is the professional partner of the solicitor for the appellant.  Apparently, the solicitor for the appellant is unwell at the moment and has been ill for some time. 

3. The ground upon which the adjournment is sought is made clear from the affidavit of Mr Turner.  In that affidavit, he refers to ground 1 of the appellant’s Notice of Appeal, which is in the following terms:

   The learned Federal Magistrate erred as follows:

   1.Refused to allow an adjournment of the proceedings to obtain a legal aid grant with the result that funding was not available to properly prosecute the appellant’s case below.

   …

4. In his affidavit, Mr Turner states that, in order properly to argue this ground, a transcript of the hearing before the Federal Magistrates Court was required.  Mr Turner goes on to say that, as the matter was eventually funded by Legal Aid, an extension of the grant of aid was required in order to obtain that transcript and that the necessary extension was not obtained until this week.  The precise chronology in respect of that matter appears to be that, on 13 July 2012, the appellant applied for the extension of Legal Aid for the purpose indicated and received the transcript some time this week, but after 24 July 2012. 

5. Counsel for the appellant has informed me that he now has the transcript, has read it and is in a position to make use of it in such manner as he may desire.  

6. When the matter was called on before me today, Counsel for the appellant submitted that, in addition to the grounds of appeal currently contained in the appellant’s Notice of Appeal, the appellant wishes to argue that errors were committed by the interpreter in interpreting material conveyed by the appellant (via the interpreter) to the Independent Merits Reviewer at the hearing which took place before that Reviewer.  The proposition apparently is that, in some way, remarks made by the appellant were misinterpreted and that, in some way, the misinterpretation is material.  Just exactly which part or parts, if any, of the interaction between the appellant and the Reviewer suffers from this defect was not made clear.  According to Counsel for the appellant, the reason for this is that he requires the assistance of a linguistics expert in order to listen to the recording of the hearing before the Reviewer for the purpose of ascertaining which particular statements made by the appellant suffered from the defect to which I have referred.

7. It seems to me that the existing Notice of Appeal does not raise as a ground any issue about incorrect interpretation of answers given to the Reviewer by the appellant so that, if this argument which was raised for the first time today is going to be agitated before the Judge on Monday, leave to amend the Notice of Appeal will have to be sought and granted before any of the material which is now being sought by the appellant would become relevant. 

8. It is quite clear that the appellant has had the English transcript of the hearing before the Reviewer since about 5 April this year, a period of almost four months.  It is also clear that, at all relevant times, he has been legally represented.  On 1 May this year, the appeal was fixed for hearing on 30 July 2012.  That is, the appellant has been aware of next Monday’s hearing for almost three months.  

9. It seems to me that, for a number of reasons, I should refuse the application.  First, there has been no explanation as to why whatever it is that the appellant thinks he needs was not obtained long ago.  He has known of next Monday’s hearing for several months and has had the English version of the transcript of the hearing before the Independent Merits Reviewer for many months.  For some time now, he has also been in possession of the CD recording of the hearing before the Interviewer.  Second, insofar as the transcript of the hearing before the Federal Magistrate is concerned, although that transcript was obtained only very recently, the fault, if any, insofar as that is concerned, rests very squarely with the appellant.  In any event, notwithstanding that it has only recently been obtained, both parties agree that there is sufficient time available to them to enable that transcript to be read, considered and used in such manner as each of them thinks fit.  Third, the matter which is of most concern to the appellant, being the misinterpretation of material conveyed to the Reviewer, is simply not in the ring at the moment and may never be.  Fourth, the appellant has been legally represented at all material times.  Fifth, the appellant has not filed and served any Written Submissions, as he was directed to do.  He should not be permitted to gain an advantage (viz postponement of his case) by reason of his own default.  

10. It seems to me that if, as Counsel for the appellant submits, some late submissions or other material are sought to be brought into the case on Monday next and that circumstance occasions some difficulty for the Minister, then the Minister has his options at that point in time.  It may be, for example, that an adjournment may be necessary on Monday, depending upon the circumstances that obtain at that time.  I do not think it would be a proper exercise of the Court’s discretion to pre-empt what might occur on Monday by granting an adjournment today.  The case really does need to be dealt with as soon as possible and the appellant needs to do whatever is necessary in order to ensure that his legal representatives are properly prepared on Monday.

11. It does not seem to me that, were I to refuse the adjournment application, there is any real risk of any substantial injustice being visited upon the appellant.  

12. Accordingly, I refuse the appellant’s adjournment application.  I will dismiss the Interlocutory Application filed by the appellant on 24 July 2012.  I will make the costs of that Interlocutory Application costs in the appeal.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate: 

Dated:       31 July 2012