Wing-Yuen Sui, Steven v Minister for Immigration & Ethnic Affairs

[1996] FCA 803

IN THE FEDERAL COURT OF AUSTRALIA )  
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 345 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:STEVEN WING-YUEN SUI

Applicant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:    Burchett, Hill & Merkel JJ.
PLACE:    Sydney
DATE:     9 September 1996

REASONS FOR JUDGMENT

BURCHETT J:

In this matter, an application has been made, at an extremely late stage, for an adjournment to enable an appeal against a refusal of legal aid to be dealt with under the procedures applicable to the Legal Aid Commission of New South Wales. Reference was made to s. 57 of the Legal Aid Commission Act 1979 which, of course, is legislation of the State of New South Wales, and cannot apply so as to bind the Federal Court: see the recent as yet unreported decision in Woodlands and Bass v Permanent Trustee Company Limited delivered on 25 July 1996 by a Full Court consisting of Wilcox, Burchett and Olney JJ.

However, another Full Court, in Bourke v Beneficial Finance Corporation Limited (1993) 47 FCR 264 at 282 - 283,

has considered how this Court should treat s.57, and the Court said in a joint judgment:

"[I]n our opinion, it will usually be appropriate, as a matter of discretion, for this Court, in considering whether or not to grant an adjournment of a particular matter, to apply the provisions of the section, where it is otherwise applicable, to the circumstances of the case in question."

In the present matter, no sound basis appears for us to reach a conclusion that the provisos in the section would apply which refer to cases where there are frivolous or vexatious applications, or applications intended improperly to hinder or improperly to delay the conduct of the proceedings.  What does appear is that the application has been made at a much later stage than it should have been.  But, on the other hand, we have to balance against that the extreme seriousness of the matter for the applicant, facing, as he does, deportation to, it would appear, China, whence he came at the age of seven, going firstly to Malaysia and subsequently to Australia.  We must also bear in mind that the case does appear to involve issues requiring, at the least, exploration, concerning the extent to which it can be said that the decision of the Administrative Appeals Tribunal conforms to what the Full Court of this court held was necessary in Minister for Immigration, Local Government and Ethnic Affairs v. Gray (1994) 50 FCR 189 at 210-211, and as to the question of the application under the policy announced by the Minister in respect of criminal deportation, of the international convention dealing with stateless persons. In particular, there is a question of the proper interpretation of "public order" in that convention. It must be considered whether this expression applies to offences not involving anything of the nature of rebellion or rioting, but criminal behaviour of the kind involved in the present case, which seems to have involved, to a large extent, serious dealing in drugs.

Balancing these matters, it seems plain that, in the interests of justice, the case of the applicant ought to be presented with the advantage of legal aid, so as to enable him to obtain counsel's assistance in such a manner as would enable the issues to be properly advanced in this Court.  Accordingly, the application for adjournment ought to be granted.

HILL J:   I agree and have nothing further to add.

MERKEL J:   I also agree and have nothing further to add.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 10 September 1996

Solicitor for the Applicant:     Martin Churchill

Counsel for the Respondent:      Mr R.T. Beech-Jones

Solicitors for the Respondent:    Australian Government Solicitor

Date of hearing:                 9 September 1996