SZUUM v Minister for Immigration and Border Protection (No 1)
[2016] FCA 519
•9 May 2016
FEDERAL COURT OF AUSTRALIA
SZUUM v Minister for Immigration and Border Protection (No 1) [2016] FCA 519
Appeal from: SZUUM & Anor v Minister for Immigration & Anor [2015] FCCA 3549 File number: NSD 1745 of 2015 Judge: LOGAN J Date of judgment: 9 May 2016 Catchwords: MIGRATION – application for protection visa – application for adjournment of appeal – application for adjournment refused
PRACTICE AND PROCEDURE – application for adjournment of appeal – relevant considerations – application for adjournment refused
Legislation: Migration Act 1958 (Cth) Cases cited: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407
SZVAP v Minister for Immigration and Border Protection [2015] 233 FCR 451
Date of hearing: 9 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Solicitor for the Appellants: Weighbridge Lawyers Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The second respondent entered a submitting appearance save as to costs ORDERS
NSD 1745 of 2015 BETWEEN: SZUUM
First Appellant
SZUUN
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
9 MAY 2016
THE COURT ORDERS THAT:
1.Application for adjournment is refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
Very shortly after the appeal was called on for hearing this morning, in circumstances where the appellants personally had not appeared at the time appointed for the hearing of the appeal, a solicitor sought leave to appear on their behalf and to file in Court a notice of acting for them. I granted leave for that notice to be filed in Court and then the solicitor concerned made an application for an adjournment of the hearing of the appeal. I stood the appeal down for the purpose of enabling the Minister’s solicitor to obtain instructions in respect of that application. Upon resuming the proceeding, I was informed by the solicitor for the Minister that the Minister opposed the adjournment application.
The basis for the opposition of the adjournment being granted has a factual foundation in the particular circumstances of this case, as revealed by three letters which were tendered by the Minister. Two of these, that dated 6 April 2016 and that dated 2 May 2016, take the form of correspondence from the Australian Government Solicitor to the appellants at an address in Campsie, New South Wales. The letters are in English, which is the language of public administration and general discourse both private and commercial in Australia. In each of those two letters reference is made to the listing of the case for hearing today, 9 May 2016 at 10.15 am. In each of them also the statement is made:
Please note, should you or a lawyer acting on your behalf fail to appear on the above date, orders may be sought that your appeal be dismissed with costs, without further notice.
The earlier of the letters enclosed a copy of the Appeal Book. The latter enclosed a copy of the Minister’s submissions. Those letters collectively are Exhibit 1. Earlier in time is the Court’s listing advice to the parties of 18 March 2016. That was also sent, so far as the appellants are concerned, to an address in Campsie in New South Wales. It was not received by the Australian Government Solicitor until 24 March 2016. Even allowing for the diminished standards of service provided by Australia Post in current times in relation to documents sent in the ordinary course of the post, it seems inherently likely that the letter of 18 March 2016 from the Court was received about a week later at the address in Campsie.
So the position is that the appellants have had something approaching six weeks’ notice of their appeal being listed for hearing today. They have also been in possession of the Appeal Book, inferentially on that same basis, about a month. The letter enclosing the Minister’s submissions was apparently sent by express post. It seems inherently likely in light of that, that the appellants have had a few days’ opportunity but no longer, to consider the Minister’s written submissions.
I was informed, without objection by the solicitor for the appellants, that his firm was retained by the appellants last Friday, that is, on 6 May 2016. His firm is acting pro bono. That course is to be commended in the practice of a learned profession, particularly in cases entailing asylum seekers. The purpose of the adjournment application is to enable the appellants to seek via their solicitor advice from counsel, also pro bono, as to the merits or otherwise of the appeal.
I note that the appellants’ first language is not English. I do so on the basis that an interpreter was retained for the purpose of today’s appeal in the apprehension by the Court that the appellants would seek to appear in their own right to give their appeal. That the appellants’ first language is not English is, naturally, a consideration which bears upon the ease with which they can understand and pursue issues by way of challenge to the judgment of the Federal Circuit Court.
The adjournment application necessarily requires the balancing of the desirability of persons seeking asylum who are not literate in English having the benefit of legal advice against countervailing considerations. The end always is, what is the procedurally fair course in the circumstances? As to that, and as I have already mentioned, the appellants have been put on notice for some six weeks that today was the appointed hearing date. It is further the case that there are some thousands of cases of this kind which will fall to the Court to hear and determine over the course of the next couple of years. An adjournment of this appeal would, necessarily, in the ordinary course of the Court’s administration of the appellate jurisdiction list, entail an adjournment until the August sittings of the Court. The adjourned case would then displace a case which might otherwise have been heard in those sittings.
The appellants did not, by their solicitor, point to any particular feature of the judgment of the Federal Circuit Court which might provide a basis for apprehending that there was a case to argue on appeal. In fairness though, that is very much a reflection of the lateness with which the appellants retained the firm. Again without objection, I was informed that the retainer came about by word of mouth in the Australian Nepalese community. I do take that into account. Even so, it behoves those who have instituted a proceeding to conform with the date of listing of the proceeding for hearing. That is not an aspirational date and should not be approached by appellants as if it were. As it is, the appellants have left it until the last business day prior to the listed hearing date to seek to retain solicitors.
The Minister has, in relation to the merits of granting an adjournment, also submitted that the decision of the Tribunal is very much based on findings as to the female appellant’s credit with the subsequent disposition of the judicial review application by the Federal Circuit Court being an unremarkable application of well-settled authority concerning findings of credit logically made by administrative tribunals. That is an apt way to characterise the proceedings in the Tribunal and the Federal Circuit Court. That is not to prejudge the appeal, but rather to acknowledge the accuracy of the characterisation.
In short then, when one weighs these considerations in balance, this strikes me as a case where the appellants have rested on their rights and done so even taking into account the particular difficulties of language and lack of legal training, and for that matter also, lack of means. For these reasons the application for adjournment is refused.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 20 May 2016
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