SZUVM v Minister for Immigration and Border Protection

[2017] FCA 742

FEDERAL COURT OF AUSTRALIA

SZUVM v Minister for Immigration and Border Protection [2017] FCA 742

Appeal from:	SZUVM v Minister for Immigration & Anor [2016] FCCA 3298
File number:	NSD 2123 of 2016
Judge:	LOGAN J
Date of judgment:	24 May 2017
Date of hearing:	24 May 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	5
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the Respondent:	Sparke Helmore

ORDERS

NSD 2123 of 2016

BETWEEN:

SZUVM

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	24 MAY 2017

THE COURT ORDERS THAT:

1.The 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:

1. An application has been made this morning by the appellant for the adjournment of the hearing of the appeal listed for hearing today.  The asserted basis which is not challenged, even though made from the bar table, is that the appellant has been looking for and wishes to obtain the services of a lawyer so as to assist and represent him in respect of the hearing of his appeal.  The appellant is not legally trained and his first language is not English.  These are always relevant but far from determinative considerations.  Subject to particular exceptions created by statute, there is no right to legal representation in a civil proceeding in this court.  The notice of appeal was filed on 12 December 2016.  On 3 January 2017, the court, by a registrar, made standard form pre-appeal hearing orders which notably, for present purposes, included an order that the appeal be listed for hearing on a date to be fixed between 1 and 26 May 2017.

2. A precise date was identified by an email communication by the registry to each of the parties on 15 March 2017.  That this would be the date for hearing is also apparent from a further email sent to the parties by the registry on 15 May 2017.  In short then, the appellant acknowledged frankly that he had received a copy of the order and the email correspondence to which I have referred.  It necessarily follows that the appellant has known for some four months that his appeal would be heard in May.  He has known for over two months of the precise date in May in which the appeal would be heard.  The Minister opposes the granting of an adjournment on the basis that the appellant has had more than adequate time to seek and obtain, if available at all, legal representation.

3. It is obviously desirable that persons have the benefit of legal representation, especially in an appeal of this nature which can involve questions of legal complexity.  For all that, and as I have observed, there is no right to legal representation.  I am very mindful of the difficulties which a stranger to Australia, whose language is other than English, can face in seeking to obtain the benefit of legal representation.  There is no evidence before me as to the appellants means but I am prepared to infer from the circumstances revealed in the appeal book that he is not able readily, if at all, to afford to pay for legal representation.  There are some lawyers who are willing to appear pro bono, in other words, without fee, and for public benefit in cases such as this.  It is also a matter of public record that there are particular charitable organisations which have as their purpose the provision of assistance to asylum seekers.

4. Again, accessing or even becoming aware of the existence of such organisations always can be difficult for someone in the appellant’s circumstances.  Taking all that into account, it remains the case that many months have elapsed since the appellant made his decision to challenge the Federal Circuit Court’s judgment.  A competing consideration is the opportunity cost in respect of scarce judicial resources if I adjourn the hearing of this appeal.  The ability to list another case today at this time will be lost because of the lateness of the adjournment application.  Further, if I grant the adjournment a case that would otherwise be heard by me at a later time will be displaced.  There is the further consideration of the cost that will be visited on the Minister by having to appear again on the adjourned hearing date.  There is also the further cost of the attendance on that adjourned hearing date of the interpreter.  Of course, it might be said that the Minister or, alternatively, the Australia Government is well able to afford such costs.  That does not detract from the fact that they are costs in respect of public money which might otherwise be spent.

5. Balancing these considerations, the view I have is that the appellant has had sufficient time.  Certain indulgences can be granted to those who appear in person but it is important, nonetheless, that parties approach cases with due diligence.  Each party is entitled to expect that a case will be heard in the ordinary course on the day it is listed.  I am not persuaded, in the circumstances of this case, that an adjournment is warranted.  Accordingly, the adjournment application is refused.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:        

Dated:        5 July 2017