SZUCJ v Minister for Immigration

[2014] FCCA 2624

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUCJ & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2624

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment of the final hearing – applicants want opportunity to obtain a better lawyer – whether applicants will be able to obtain sufficient funds for a lawyer – application for an adjournment dismissed.

First Applicant: SZUCJ

Second Applicant: SZUCL

Third Applicant: SZUCM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 775 of 2014

Judgment of: Judge Manousaridis

Hearing date: 29 October 2014

Delivered at: Sydney

Delivered on: 29 October 2014

REPRESENTATION

Applicants in person assisted by an interpreter

Counsel for the Respondent: Mr M. Cleary

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application for an adjournment is dismissed.

2. By 28 January 2015, the applicants have leave to file an application in a case to re-open their case, such application to be accompanied by a draft amended application, together with a statement signed by a lawyer that, in the lawyer’s opinion, the grounds stated in the amended application are reasonably arguable.

3. If no such application is filed by 28 January 2015, the Court will proceed to give judgment in this matter on the basis of the evidence adduced and the submissions made at the hearing of this matter on 29 October 2014.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 775 of 2014

SZUCJ

First Applicant

SZUCL

Second Applicant

SZUCM

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. There came before me today a hearing of an application for judicial review of a decision of the second respondent (Tribunal). After the hearing commenced, the applicants applied for an adjournment. The ground of the application was that the applicants wanted an opportunity to obtain a better lawyer.  It was submitted that efforts had been made to obtain a lawyer, but the applicants were unable to obtain a lawyer and they were unable to obtain a lawyer because they could not afford the cost.

2. The first applicant was then sworn in to give evidence in support of that application and he was cross-examined by counsel for the Minister.  In the course of that cross-examination, evidence was given that the applicants had received some legal assistance in the preparation of the application that was filed with this Court and the two affidavits that had been filed on behalf of the applicant.  The first applicant gave evidence that the lawyer he initially consulted advised him that the applicants should obtain a barrister.  The lawyer said, according to the first applicant, that the matters before the Court were outside his expertise.

3. The first applicant also said that money was requested to retain legal assistance, but the applicants did not have the money.  I am not sure whether the applicant said this in the witness box or only from the bar table, but in any event, he said that one of his brothers will be in a position to provide him with $3,000 for the purpose of the applicants retaining a lawyer.  The first applicant said that he expected that that amount will be available between two to four months.

4. The first applicant said that he had been seeking financial assistance from his brother and other members of his family since the adverse decision of the Tribunal.  I accept that the applicant did seek legal advice and did receive legal assistance in connection with the preparation of the application and affidavits filed in this Court.  I also accept that he was told by his lawyer that he needed to seek the assistance of a barrister to represent the applicants in this case.

5. I also find that the applicants did not and currently do not have sufficient money to engage the services of a barrister.  And I am also satisfied that the first applicant has received at least an indication from one of his brothers that he would be able to provide $3,000 to assist the applicants to obtain legal representation.  However, I was not sufficiently satisfied that the first applicant’s brother would, in fact, be able to provide the applicants with the amount of $3,000.  I am also not sufficiently satisfied that even if such amount was provided by the brother, that would be sufficient to enable the applicants to engage the services of a barrister or any other lawyer.

6. And finally, I am not satisfied to any degree, largely because of my relative ignorance of the case before me, that if the first applicant were to receive financial assistance and that financial assistance would be sufficient to enable the applicants to engage a barrister or another lawyer that that would result in the applicants being in a position to advance a stronger case than they presently have.

7. Further, in May 2014 the matter was set down for hearing and this proceeding commenced on 25 March 2014.  From that, I infer that the applicants had more than sufficient time to obtain money to retain lawyers to assist them.  And the fact that the applicants have not been able to obtain funds since 25 March 2014 is a strong basis for inferring the applicants will never be able to obtain funds.

8. For those reasons, I am not prepared to grant the adjournment sought by the applicants and I refuse the application.  However, in the manner in which I consider does justice to the applicants, I will make two orders which will give the applicants an opportunity to obtain funds and retain a lawyer.  First, the applicants have leave to file by 28 January 2015, an application to re-open the case and that would be conditional on the application being accompanied by a draft amended application and a statement by a lawyer, in effect, certifying that the grounds stated in the amended application are reasonably arguable. Second, if no such application is filed, the Court will proceed to give judgment on the basis of the evidence adduced and the submissions made before me today. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  14 November 2014