SZUPL v Minister for Immigration and Anor (No.1)

[2015] FCCA 1523

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPL v MINISTER FOR IMMIGRATION & ANOR (No.1) [2015] FCCA 1523

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether the applicant has an adequate reason for not proceeding with the show cause hearing – whether there is any utility in granting the adjournment – whether the parties will suffer any prejudice if the adjournment is granted or not – application for an adjournment dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: SZUPL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1782 of 2014

Judgment of: Judge Manousaridis

Hearing date: 27 May 2015

Delivered at: Sydney

Delivered on: 27 May 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the First Respondent: Ms B Rayment of Mills Oakley Lawyers

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1782 of 2014

SZUPL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Before the Court is a show cause hearing.  At that hearing, the applicant, who is not represented, applied for an adjournment.  He gave two reasons for that application.  The first was to submit evidence.  The evidence, as I understood he wished to submit, related to the current situation of Sri Lanka, being the applicant’s country of nationality. 

2. The second reason is that the applicant said he was expecting a lawyer to attend today to represent him.  The basis of that expectation was what was said to him at a meeting the applicant had with a Mr Sweeney from the Edmund Rice Centre.  The applicant gave evidence that Mr Sweeney at that meeting said that there will be a lawyer at the hearing to represent him. 

3. When faced with an application for an adjournment of a hearing, the Court usually considers two broad matters.  The first is whether the applicant moving for the adjournment has given an adequate reason for his or her not being in a position to proceed with the hearing. The second matter is whether there would be any utility in the Court’s granting the adjournment.  Also relevant, of course, is the respective prejudice that the parties will suffer, depending on whether the adjournment is given or not.  So I first then turn to the reasons the applicant has given for his not being in a position to proceed today. 

4. If I accept the applicant’s evidence – that is, that he was told that there would be a lawyer to represent him today – that, on its face, would provide an adequate explanation for the applicant’s not being in a position to proceed. That evidence – again, on the assumption that I do accept it – however, must be seen in context.  The relevant context includes the following.  The applicant commenced these proceedings by filing an application with the Court on 30 June 2014.  Shortly after 9 July 2014, the applicant received a letter dated 9 July 2014 from the solicitors for the first respondent (Minister) enclosing the Minister’s notice of address for service, which the Minister filed.  The letter states:

   As you are currently unrepresented, we have provided you with a list of organisations that may be able to provide free or low cost legal advice or assistance.

5. The letter then specified the three such organisations, these being the Legal Aid Commission of New South Wales, the Immigration Advice and Rights Centre Inc, and the Refugee Advice and Casework Service.  The letter also provided the websites of these organisations, as well as the contact telephone numbers. 

6. Second, the applicant appeared at the first court date of this matter, which took place on 12 August 2014.  The applicant appeared without any legal representation, but, as is the usual practice, there was an interpreter present to assist the applicant to navigate his way through that first court date.  Part of the process that is followed on first court dates involves an applicant being provided with what is referred to as a “first court date information sheet”.  That is a form which is given to applicants and requires that the applicants provide the information set out in that document.  That document was interpreted to the applicant, after which the applicant signed it. 

7. The document contains the following statement:

   Hearing – Once the matter is given a date for the (final) hearing, if you have NO lawyer to represent you, you will need to be ready to tell the Court about your legal case (with an interpreter if required).

8. On the first court date, directions were made, and the directions were recorded in the document titled “Short Minutes of Order”. Under those directions, the applicant was entitled to file an amended application by 9 September 2014. Also on the first court date, the matter was listed for a show cause hearing, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), at 10.15 am on 27 May 2015.

9. Third, the applicant did have a lawyer representing him before the Tribunal.  At around the time he filed the application, the applicant made inquiries of his former lawyers as to whether they would be able to represent him in these proceedings, but they were unable to do so. 

10. Fourth, the applicant did meet with Mr Sweeney.  He provided to Mr Sweeney a copy of the short minutes of order.  The applicant met Mr Sweeney on two occasions.  The applicant gave evidence that on neither of those two occasions was the name of any lawyer given or discussed. 

11. If I accept the applicant’s evidence that he was told in the second meeting with Mr Sweeney that there would be a lawyer here, I would not accept that as an adequate explanation for his not being ready to proceed today.  The evidence shows that the applicant made no attempt to determine who the lawyer was, or whether, in fact, a lawyer had been retained, or whether, in fact, the lawyer would appear before the Court. 

12. In any event, I am not inclined to accept that the applicant was told, in unqualified terms, that there would be a lawyer who would be representing him at the hearing.  If that were, in fact, said to the applicant, one would have expected the applicant to do that which the evidence shows he plainly failed to do – that is to say, make inquiries about who the lawyer was, and make contact with the lawyer with a view to determining what would, in fact, happen, and what would be said on his behalf by the lawyer at the hearing that had been fixed for today. 

13. I next turn to utility.  It was slightly unclear to me what it was that the applicant expected would occur if I were to grant an adjournment.  The first matter on which I understood the applicant relied was that he would have an opportunity to put together documents.  The only documents the applicant seemed to refer to are documents which relate to the situation in Sri Lanka.  The relevance of those documents was whether the applicant would face harm if he were to return to Sri Lanka.  The applicant confirmed that the documents he wished to put before the Court were documents that were not put before the Tribunal. 

14. On its face, the documents that the applicant, therefore, wishes to have the opportunity of putting before the Court are most likely to be irrelevant to the question that this Court must inquire into when its jurisdiction for judicial review is engaged, and that is, whether the Tribunal made a jurisdictional error.  The intended relevance of the documents is to seek to persuade the Court that, contrary to the findings the Tribunal made, the applicant does have a well-founded fear of persecution or the suffering of other harm. It is not the role of this Court to determine whether the applicant does have any such well-founded fear.  That is and, in this case was, a matter for the Tribunal.  The only function of this Court is to determine whether the Tribunal undertook its review of the applicant’s case according to law.

15. The second thing which I understood the applicant said would occur if an adjournment were granted was that he would make greater efforts to be in a position to deal with the application, and obtain a lawyer.  Given that, over the past 10 months or so, the applicant has been unable to obtain the assistance of a lawyer, the applicant has put nothing before me which would lead me to find that he would have any reasonable prospect of being able to obtain a lawyer.  One available inference to me is that, because he had made contact with Mr Sweeney, some attempts must have been made about whether a lawyer would be willing to take on this case.  A further inference that is available is that those efforts have failed, and that there is no prospect that any further efforts could reasonably alter the position the applicant finds himself in, in terms of his not having any legal representation. 

16. A third matter that is relevant is the reasons of the Tribunal, which is the subject of the application for judicial review.  On their face, the Tribunal seems to have thoroughly engaged with the application for review that was made to it on behalf of the applicant. 

17. Given that I have found that there would be no utility in granting an adjournment, I also find that there would be no prejudice suffered to the applicant if I were to refuse to grant the adjournment. 

18. For these reasons, I propose to refuse the application for an adjournment:

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  4 June 2015