SZWBF v Minister for Immigration and Anor (No.2)

[2016] FCCA 1457

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBF v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 1457

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment to enable applicant to obtain legal representation – whether adequate explanation given for not being in a position to proceed – whether any utility in granting adjournment – adjournment refused.

Legislation:

Migration Act 1958 (Cth), s.477(2)

Applicant: SZWBF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 254 of 2015

Judgment of: Judge Manousaridis

Hearing date: 8 June 2016

Delivered at: Sydney

Delivered on: 8 June 2016

REPRESENTATION

The applicant appeared in person by telephone assisted by an interpreter

Solicitors for the Respondents: Ms A Lucchese of Sparke Helmore

ORDERS

1. The applicant’s application for an adjournment is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 254 of 2015

SZWBF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter came on for hearing today at 2.15 pm. The matter was listed for that hearing on 31 March 2015, being the first court date appointed in this matter. The application that was listed for today was an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act).

2. The need for the making of that application arose from the fact that the decision of the Refugee Review Tribunal (Tribunal) in relation to which the application has been filed was made on 22 October 2014, but the application was filed on 2 February 2015, some 68 days after the expiration of the 35-day period after the Tribunal made its decision.

3. At 11.24 am this morning, the Registry received a doctor’s certificate which related to the applicant.  The medical certificate broadly stated that the applicant was suffering from a “medical condition” and that he was “unfit to attend court from 8 June 2016 till 8 June 2016 inclusive”. The certificate came to my chambers’ attention shortly after the Registry received it, but I arranged for the Registry to inform the applicant by telephone that the current listing would remain, and I requested through my associates that the Registry staff inform the applicant that he could appear by telephone.

4. The matter came before me at 2.15 pm today, and the applicant appeared by telephone.  I asked the applicant what the nature of the medical condition from which he was suffering was, and he informed me it was diarrhoea. Whether or not that is true is not a matter that I need to decide, because I asked the applicant whether he was in a position to conduct the hearing by telephone, and he responded that he was in a position to do so, subject to his having to take a break to go to the toilet if needs be.

5. As is my usual practice when unrepresented applicants appear before me, I proceeded to explain to the applicant the nature of the application that was before me and the matters that I would need to consider. As I have said before, the application before me is for an order under s.477(2) of Act extending the time for making an application in relation to the decision of the Refugee Review Tribunal. After I explained these matters, again, as is my usual practice, I explained to the applicant the procedure that would be followed, that procedure being my first identifying what documents were before the Court that were relevant to the application, and then explaining the order in which submissions would be made. I then proceeded to identify the relevant documents, which included the submissions prepared on behalf of the Minister.

6. When I reached the point of inviting the applicant to make submissions, the applicant said words to the effect that he was not able to do so, because his lawyer was not here.  That submission was a little surprising, because there is nothing in the Court file to indicate that the applicant had, in fact, retained a lawyer to represent him in these proceedings. I asked the applicant, if he had a lawyer, why his lawyer did not appear, even though the applicant says he could not appear.  The applicant gave a response, which it is not necessary for me to repeat here, because, in circumstances I will shortly state, I invited the applicant to tell me on oath matters relevant to retaining a lawyer.

7. In any event, having mentioned the fact that the applicant had a lawyer and had intended to appear with a lawyer and that he felt unable to make any submissions without his having a lawyer here, I asked the applicant whether, in fact, he was seeking an adjournment to give him an opportunity to retain a lawyer.  The applicant indicated that he was seeking such adjournment. That application was opposed by Ms Lucchese, who appeared on behalf of the first respondent (Minister). I indicated that, in light of that opposition, the appropriate way to proceed would be for me to ask the applicant to give evidence in a formal matter and to be cross-examined. Ms Lucchese sought a short adjournment to enable her to obtain instructions, and I granted her that adjournment.  When the matter resumed, Ms Lucchese indicated that she was in a position to cross-examine the applicant.  I then invited the applicant to give evidence. 

8. After the applicant affirmed to tell the truth, I asked him some questions, first relating to the circumstances in which he obtained the medical certificate and also about his retaining a lawyer. I asked him why it was that, although the applicant, claimed he was unable to attend today, his lawyer could not attend today.  The answer the applicant gave was that his lawyer said the lawyer’s name was not on any application that the applicant filed with the Court and for that reason, he could not attend the hearing or, to use the applicant’s words, “go to court” without the applicant. I asked the applicant whether he had retained the lawyer to appear for him, and the applicant said he just talked with his lawyer.  I asked the applicant whether he had received any document from the lawyer, and the answer was he had not.  I also asked the applicant whether he provided any documents to the lawyer.  The applicant’s answer was he had not provided any documents to the lawyer, but he had shown documents to the lawyer.

9. On being cross-examined, the applicant said he first spoke to his lawyer about his being legally represented some two or three days ago and that the last occasion he spoke to his lawyer was this morning.  He was asked whether he had signed any document or contract with the lawyer, and the answer was “not yet”.  The applicant confirmed the evidence he had given in answer to one of my questions, that his lawyer could not come without the applicant.

10. I am not satisfied from the evidence given by the applicant that he has, in fact, retained a lawyer; and I say that for reasons that include the following.  By his own evidence, the applicant has not provided any documents to this lawyer; and it is most unlikely that a lawyer who has, in fact, been retained to appear on behalf of a party would take the view that he could not appear in Court without the presence of his client. That would particularly be so in cases of the nature of the case before me today, namely, the application for an extension of time, where it is most unlikely that any evidence would be required by the party that a lawyer represents. Even where that might be a real possibility, one would expect a lawyer to make submissions about that, including making an application for an adjournment. 

11. When considering whether to grant an adjournment, the Court generally has regard to two matters.  One is why it is that the party seeking the adjournment is not ready to proceed on the appointed day.  The second relevant matter is whether there would be any utility in granting an adjournment.  I first turn to why it is the applicant is unable to proceed today.  The only reason given why the applicant cannot proceed today is that the applicant is without a lawyer.  I cannot accept that as an adequate reason for the applicant not being able to proceed today.

12. The proceedings were commenced on 2 February 2015.  The hearing today was set down for hearing on 31 March 2015.  The applicant has had sufficient time to seek and obtain legal representation.  On my findings, the applicant simply has not sought to retain a lawyer; but even if I were to accept the applicant’s evidence, which I do not, the applicant, first consulted a lawyer about this application only some two or three days ago.  No explanation has been given why the applicant was unable to consult a lawyer before that time.

13. Turning to utility, there is nothing before me to suggest that the applicant will be able to retain a lawyer in any event.  He did say from the bar table that he had money – $3,000 to $4,000 was his estimate – to retain a lawyer.  It is not necessary for me to say whether that is true or not, but again, if the applicant did have that money one would have expected him to retain a lawyer much earlier than he.

14. For those reasons, the application for an adjournment is refused. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  16 June 2016