Waco v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 521

FEDERAL COURT OF AUSTRALIA

WACO v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 521

WACO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W557 OF 2001

FRENCH J
22 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W557  OF 2001

BETWEEN:	WACO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	22 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The hearing be adjourned to 25 June 2002 at 9.10pm.

2.        Costs be reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W557  OF 2001

BETWEEN:	WACO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	22 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The choice that is before me today is whether to adjourn this matter through to 25 June 2002 or to insist on it proceeding now.  It is a matter on which the Court previously declined to issue a certificate under which the services of a volunteer lawyer could be sought.  However, on 16 April the applicant wrote a letter to the Court from the Curtin Detention Centre.  That letter was received at the Court on 19 April.  In that letter the applicant said he had been in detention for some twenty-two months.  His application has been listed for hearing today, 22 April, and he was sent a letter advising him of that on 27 March.  In his letter he says he has attempted to engage a barrister to defend him.  He says that somebody was ready to do that.  He said in substance that as a layman he cannot advance arguments about the law.  He claims that he told a member of the Refugee Review Tribunal (“the Tribunal”) that he needed more time to explain his case, but the member did not pay attention.  In his letter he says he wants to apply for an extension of his hearing date until one and a half or two months later.

2. My chambers were informed today that there is a barrister, Mr Howard, who was prepared to represent the applicant, but was not available to do so today.  This advice was conveyed to my Chambers by somebody from the detention centre in Sydney.  As to how that happened or the route by which the information came, I do not know.

3. Subsequent inquiries made from my chambers and by the respondent’s solicitors with Mr Howard indicated that he has not yet spoken to the applicant.  He is not available to represent the applicant today and it would seem the earliest convenient date for him to do so on a pro bono or voluntary basis is in June. 

4. The reasons for decision of the Tribunal indicate that its decision was based on the fact that it did not believe the applicant.  Ordinarily it is very difficult for an applicant to overturn a decision of the Tribunal based upon the fact that it did not believe him.  On what I have seen of the papers so far, it does not appear that the applicant has a very strong case.  However, that may change when a legal practitioner with instructions from the applicant has had an opportunity to properly scrutinise the reasons and the procedures surrounding the Tribunal’s hearing.  Understandably counsel for the Minister has not had an opportunity to obtain any instructions on the question of an adjournment.  On the face of it though apart from the delay which means additional time spent maintaining the applicant in detention, there would not appear to be any irrecoverable or any serious prejudice to the respondent.  On the other hand, if the applicants loses a fair chance for legal advice and representation because an adjournment is refused, the prejudice to him could be substantial.

5. I note that this application was lodged on 3 December last year.  I have taken the matter from another judge’s docket because of his workload to try to bring the hearing on earlier.  I am reluctant to delay it and therefore to increase the time spent by the applicant waiting for an outcome in detention.  However, in the circumstances of this case, I think that on balance the interests of justice will be served by allowing this adjournment in order that the applicant has a fair opportunity of proper legal representation.

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

Associate:

Dated:            22 April 2002

WACO appeared in person via video link
Counsel for the Respondent:	Mr JD Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 April 2002
Date of Judgment:	22 April 2002