SZWCA v Minister For Immigration and Anor (No.2)

[2015] FCCA 2681

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCA v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 2681

Catchwords:
MIGRATION – PRACTICE & PROCEDURE – Application for extension of a period within which to bring an application under s.476 of the Migration Act 1958 (Cth) – application for adjournment of hearing – whether an adjournment is in the interests of the administration of justice – adjournment refused.

Legislation:

Migration Act 1958 (Cth), ss.91P, 477, 486I

Applicant: SZWCA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 329 of 2015

Judgment of: Judge Smith

Hearing date: 6 May 2015

Date of Last Submission: 6 May 2015

Delivered at: Sydney

Delivered on: 6 May 2015

REPRESENTATION

Solicitor for the Applicant: Ms A. McIntyre of Goldsmiths Lawyers

Solicitor for the Respondents: Mr A. Markus of Australian Government Solicitor

ORDERS

1. The applicant’s application for an adjournment of today’s hearing be refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 329 of 2015

SZWCA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. This application was filed on 11 February 2015, seeking, in effect, an extension of the period within which to bring an application under s.476 of the Migration Act 1958 (Cth) in order to seek judicial review of a Tribunal decision made some ten months or so earlier, on 24 March 2014. The Tribunal decided that it did not have jurisdiction in the matter because the application was invalid pursuant to the operation of s.91P of the Act. The application for the extension of that period was signed by a lawyer, Norbert Kelvin of Norbert Kelvin Solicitors.

2. That same solicitor also gave a certification under s.486I of the Act to the effect that he certified that there are reasonable grounds for believing that this migration litigation has a reasonable prospect of success. In spite of that certification, the grounds for the extension of time, as set out in the application, as required by s.477 of the Act, appear to have very little, if any, relevance to the basis upon which this Court might grant such an extension. Nevertheless, the point is that when the application came before the Court for the first time on 10 March, the applicant, despite having a lawyer on the record, made no appearance.

3. The solicitor for the first respondent, Mr Markus, at that time, sought that the matter be set down for hearing and orders were made to that effect, setting the matter down for hearing before me today at 10.15am. Other orders were made, including for the filing of evidence including an amended application and written submissions. The applicant has complied with none of those orders. Today, and on very little notice to Mr Markus, an application was made for an adjournment of the application.

4. Filed in Court was a Notice of Acting - Appointment of Lawyer, signed by a Barrie Goldsmith of Goldsmith Lawyers together with an affidavit of Aimee McIntyre. Ms McIntyre was cross-examined on her affidavit, even though she appeared as an advocate in the proceedings. Ms McIntyre gave evidence that on 29 April 2015, that is one week ago, Mr Goldsmith, the principal of her firm, received some material from a person named Edward Kang. That material was related to the matter and included the application and other court documents.  I take it from that, that Mr Goldsmith became aware at that time that the matter was set down for hearing today.

5. Ms McIntyre also gave evidence in response to questions asked by me that her firm, Goldsmith Lawyers, had a relationship with Mr Kang. She said that Mr Kang was not a registered migration agent. Mr Kang has had some previous involvement in these proceedings, having sworn an affidavit on 11 February 2015 that was filed at the same time as the application. That affidavit was witnessed, it seems, by Norbert Kelvin, the solicitor on the record. Mr Goldsmith took no steps to notify anybody, whether that be the Court or the solicitor for the Minister, of his potential involvement in the matter. 

6. The next event that took place was that on 4 May 2015, Mr Goldsmith was paid some money in connection with his proposed involvement in the proceedings. It seems that it was not until 6.36pm the following day, namely 5 May 2015, that notice was given to Mr Markus of the appointment of Mr Goldsmith as lawyer for the applicant.

7. A paralegal employed by his firm sent an email at that time to Mr Markus attaching an affidavit of Ms McIntyre as well as the “Notice of Acting - Appointment of Lawyer”, noting that “We propose to hand up these documents at the hearing tomorrow”.

8. There are a number of real difficulties that arise in connection with this application. First and foremost, as I have adumbrated, is the involvement of Mr Kang. There is no evidence whatsoever that he has any authority to act for the applicant. His involvement seems to have stretched back to participation, at least to some extent, in the review before Refugee Review Tribunal and, as I have said, he has sworn an affidavit in these proceedings.

9. However, not being a migration agent, it is difficult to see whether he is in fact authorised or otherwise prohibited from such involvement. The second is that Mr Goldsmith appears not, himself, to have been in contact at all with the applicant in spite of first being aware of it since 29 April 2015. Further, there is no information before me or indication whatsoever of the possibility that Mr Goldsmith holds a view that there might be further information or grounds that might be raised in this Court in support of the application for an extension of time.

10. Mr Kelvin, despite being solicitor on the record, has never appeared in this Court in this matter. He has never explained to the Court why he has not appeared, he has never complied with any of the Court’s timetables and he is not here today. The Court does not know why that is the case but it suggests, perhaps, that Mr Kelvin was never, in fact, in charge of running this case and it may be, although I do not need to make any finding about this, that Mr Kang is in fact the true actor in this matter. If that be the case, he is breach of the Migration Act and certainly liable, if there were any application made in that respect, to bear the costs of it.

11. Turning then to the issue for determination about the adjournment. The question that arises is whether it is necessary really, in the interests of the administration of justice, that there be an adjournment. In favour of the adjournment is the fact that if the matter were to proceed today and an order made refusing to extend the period under s.477, there is no appeal from that decision to the Federal Court and the only course of review, subject to an application to the High Court, is judicial review in the Federal Court of this Court’s decision. Effectively, because of discretionary matters that might be applied in each of those forums, this decision would be the one that finally dealt with any question of whether or not the Tribunal’s decision was affected by jurisdictional error. Further, in spite of there being a lawyer apparently on the record, the grounds in the application and the evidence in support of it are, on their face, hopeless.

12. An additional factor is that there is always a possibility that further evidence or further grounds may be put forward by somebody who has some idea of what they are doing and in fact is qualified to do so. On the other hand, in light of the background to the application that I have set out, there has been no effort whatsoever by or on behalf of this applicant to bring a properly formed claim to this Court and the issues concerning the propriety of Mr Goldsmith, Mr Kelvin and Mr Kang would, as Mr Markus submitted, take considerable time and effort of this Court to determine.

13. Certainly, it would require an appearance for and on behalf of each of those people as to whether or not they should be paying the costs of these proceedings.

14. In those circumstances and particularly in light of the lack of indication as to what might occur or what further grounds might be raised by Mr Goldsmith, if he were given time, I refuse the adjournment.

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

Associate:

Date:  2 October 2015