SZSLF v Minister for Immigration & Border Protection & Anor (No.1)

[2013] FCCA 1521

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLF v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR (No.1) [2013] FCCA 1521

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Applicant’s application for adjournment – whether utility in granting adjournment – whether interests of justice required adjournment – application for adjournment refused.

Applicant: SZSLF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3079 of 2012

Judgment of: Judge Emmett

Hearing date: 2 October 2013

Date of Last Submission: 2 October 2013

Delivered at: Sydney

Delivered on: 2 October 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter in the Nepalese language

Solicitors for the Respondent: Ms Sharon Burnett
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3079 of 2012

SZSLF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant seeks an adjournment of today’s scheduled hearing on the basis that he approached lawyers two weeks ago to seek legal advice and those lawyers have not been able to provide advice in that time. I note that a letter was received by my chambers on 2 October 2013 at 10.07 am  from Elee Georges, solicitor, in the following terms:

   “Dear Associate,

   We have been retained by the Applicant in this matter and we understand that the hearing of this matter has been moved to 2 October 2013. Due the date been moved our client has been unable to find alternate lawyers or Counsel to act in his matters on short notice and our firm is unavailable to appear tomorrow. We advised our client when he first came to us two week ago that we could not appear on 2.10.2013 and recommended he seek alternate representation, which he has been was unable to do.

   Further, given the two days of transcript we have been unable to finalise the preparation of this case in order to brief Counsel and will require another two weeks to able to brief Counsel, advise our client and file an Appearance.

   We seek an adjournment of the hearing date on behalf of the Applicant as he has limited English and this case is very important to his life given that if he is unsuccessful he may be returned to the Country that he seek refuge from. Ms. Burnett for the Minster advised our firm yesterday that she has carriage of this matter and that the Minster does not consent to an adjournment.

   We note that this email was sent yesterday to the worng [sic] address.

   Regards,

   Elee Luke Georges

   Solicitor – Director”

2. The letter, marked Exhibit 1A does not give any indication of what grounds the applicant may rely upon to establish jurisdictional error in the decision of the Refugee Review Tribunal (“the RRT”), dated 19 November 2012. The letter does not make any mention of any application to rely upon an amended application and no draft documents are provided.

3. The applicant says that he approached the solicitor after he received a letter from my Chambers, dated 10 September 2013, listing his matter for hearing today in circumstances where it had been originally listed for final hearing on 24 October 2013. The application for adjournment is opposed by the solicitor for the first respondent, Ms Burnett, on the basis that the applicant has had ample time to seek any legal advice; and, that there is no utility in granting an adjournment because the RRT’s decision is not affected by jurisdictional error and that none is particularised.

4. The applicant appeared before me at a directions hearing on 15 March 2013. On that occasion, I explained to the applicant that the grounds of his application made bare assertions of error that were not particularised. I explained to the applicant the cost consequences that may flow to him if he was unsuccessful, and I confirmed with him that he wished to continue with his application. Upon his confirmation, the applicant was given leave to file and serve an amended application giving complete particulars of each ground he relied upon by 10 May 2013.

5. The applicant was directed to file and serve any evidence by way of affidavit upon which he intended to rely, including any transcript of the RRT hearing by 10 May 2013. The applicant was directed to file and serve written submissions within 14 days before the hearing in support of his application. At that directions hearing, the applicant was also provided by the Court with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.

6. At that directions hearing, the applicant also elected to participate in the New South Wales RRT Legal Advice Scheme. He confirmed to the court this morning that he has received free legal advice in accordance with that scheme on 9 May 2013.

7. The applicant was unrepresented this morning, although had the assistance of a Nepali interpreter, as he had had at the directions hearing.

8. The applicant confirmed to the court at the commencement of the hearing this morning that he had no further documents to provide to the court in support of his application. I explained to the applicant that relevant to the Court’s consideration of whether to grant an adjournment was the utility to the court in doing so. To that end, each of the grounds of the applicant’s initiating application was translated for him and he was invited to say whatever he wished in support of those grounds. Those grounds are as follows:

   “1. The Tribunal made Jurisdictional error by not providing me an opportunity to comment on the information which were used adversely. No particulars were given during the hearing. The Tribunal breached section 425 of the Migration Act.

   2. The Tribunal decision was infected by bias because the way the hearing was conducted can not be justified. I felt that the Tribunal was trying to my answers inconsistent anyhow.”

9. The applicant said he was unable to pinpoint any particular information in relation to Ground 1 and I understand that to be the basis of his allegation of Bias.

10. In the circumstances, the grounds of the application make bare assertions that are unsupported by particulars and do not by themselves disclose an error capable of review by this Court.

11. The applicant has had more than ample time to seek legal advice, has had the tools to do so and has, in fact, received free legal advice in accordance with the RRT Legal Advice Scheme.

12. Exhibit 1A makes clear that the applicant’s solicitor was instructed two weeks ago by the applicant and the letter does not identify any further ground to be relied upon or any draft amended application.

13. There is a public interest in having administrative decisions finalised. I am satisfied that the overall interests of justice are best served by the applicant’s application for an adjournment being refused.

14. For the above reasons, the applicant’s application for an adjournment of today’s scheduled hearing is refused.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  19 November 2013