SZTOV v Minister for Immigration & Border Protection & Anor (No.1)
[2014] FCCA 708
•8 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTOV v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR (No.1) | [2014] FCCA 708 |
| Catchwords: PRACTICE & PROCEDURE – Application for adjournment to seek legal advice – show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – adjournment application refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| Cases cited: Re Commonwealth of Australia; Ex Parte Marks[2000] HCA 67; (2000) 177 ALR 491 |
| Applicant: | SZTOV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3003 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 8 April 2014 |
| Date of Last Submission: | 8 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2014 |
REPRESENTATION
The applicant appeared in person with the assistance of a Tamil interpreter
| Solicitors for the Respondents: | Ms Lauren Stewart (Clayton Utz Lawyers) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3003 of 2013
| SZTOV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The applicant seeks an adjournment of today’s hearing on the basis that he has an appointment with a lawyer on 23 April 2014. The applicant informed the Court that he approached this lawyer on or around 20 March 2014 and that this date was the first available appointment.
There has been no Notice of Appearance or Notice of Address for Service filed by any lawyer on behalf of the applicant. Nor has the applicant filed any document in accordance with my Orders, made on 12 March 2014. Those directions gave leave to the applicant to file and serve an amended application, any evidence, and submissions by 28 March 2014.
Also, at the directions hearing, the applicant was provided contact details of legal services provided and translating and interpreting services in documents headed in his own language.
This matter was set down for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the grounds of the application filed on 3 December 2013 do not raise an arguable case for the relief claimed.
In my view, the applicant has had a reasonable amount of time to seek legal advice. There has been no Notice of Appearance filed on behalf of the applicant, nor an amended application. I am mindful that there is a public interest in ensuring that administrative decisions are finalised (see Re Commonwealth of Australia; Ex Parte Marks[2000] HCA 67; (2000) 177 ALR 491, in which McHugh J stated at [15]). Further, as McHugh J stated at [17]:
“An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari.”
The applicant’s wholly unparticularised grounds contained within his application, filed 3 December 2013, are as follows:
“1. The Tribunal failed to indicate to me it was suspicious about the credibility of my claims in clear words and therefore the Tribunal confused itself regarding the facts of my case.
2. The Tribunal did not comply with its obligations pursuant to s.424A and 424AA and thereby made jurisdictional error. Full particulars will be provided.
3. I fear going back to Sri Lanka because my life is in danger by the authorities and paramilitaries. I am currently seeking advice and the full particulars will be provided.” (emphasis added)
Ground 3 states that full particulars would be provided in respect of that ground. None have been.
It is of concern to the Court that matters set down for hearing on the basis they do not raise an arguable case can be delayed by an applicant making an appointment with a lawyer some time after the date of the scheduled hearing. As stated above, the lawyer identified by the applicant has not filed a Notice of Appearance and no other document has been filed by or on behalf of the applicant in circumstances where directions were made on 12 March 2014, today being 8 April 2014 and in respect of which the applicant said he told the lawyer.
In considering the overall interests of justice, in view of all of the circumstances, the applicant’s application for an adjournment should be refused.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 16 April 2014
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