WZANZ v Minister for Immigration

[2010] FMCA 194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZANZ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 194

MIGRATION – Refugee Review Tribunal – judicial review application – adjournment.

PRACTICE AND PROCEDURE – Adjournment ‑ application by pro bono Counsel for the applicant for an adjournment of extension of time hearing – application to have the extension of time hearing and the hearing on the substantive application heard together – adjournment granted in particular and unusual circumstances.

Applicant: WZANZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 226 of 2009

Judgment of: Lucev FM

Hearing date: 18 March 2010

Date of Last Submission: 18 March 2010

Delivered at: Perth

Delivered on: 18 March 2010

REPRESENTATION

Counsel for the Applicant: Mr M D Howard SC

Counsel for the Respondents: Mr P Corbould

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Order 3 of the Orders made 22 December 2009 be vacated.

2. The applicant’s extension of time application and his application for review be listed for hearing together at 10:15am on 1 June 2010.

3. The time fixed by Order 2 of the Orders made on 22 December 2009 be extended to on or before 28 April 2010.

4. The applicant file and serve any amended application and affidavits on which he intends to rely at the review hearing on or before 28 April 2010.

5. Costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 226 of 2009

WZANZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons revised and edited from the transcript)

1. This is an application for adjournment, made by the applicant. The relevant factual background is as follows:

   a)on 22 December 2009 the Court made orders for the filing of the court book, affidavit and outline of submissions, in respect of what was then an extension of time hearing, to be heard on 25 March 2010, that is, next week;

   b)on 21 December 2009, the matter was referred by a Registrar of this Court, under the RRT Review Legal Advice Scheme,[1] to Mr Howard SC, for him to advise the applicant with respect to the matter. The Court observes that Mr Howard took that referral and appears today and will appear at the hearing, as presently advised, pro bono without an instructing solicitor;

   c)in the circumstances, the Court is prepared to infer that the letter from the Registrar might not have been received by Mr Howard prior to the directions hearing, which was the next day;

   d)the Court notes that on the day of the directions hearing:

   i)the applicant appeared self-represented, with the assistance of an interpreter; and

   ii)the orders that the Court has outlined above in broad terms, were made;

   e)there followed a series of circumstances which the Court need not deal with in detail, but which might be characterised broadly as administrative difficulties within Senior Counsel’s chambers, the consequence of which appears to be that Senior Counsel did not see the Court’s order of 22 December 2009 until 8 March 2010, and as a consequence of that is in a difficult position in terms of proceeding with the hearing, which is listed for 25 March 2010;

   f)the Court also notes that certain original documents, requested by Senior Counsel on or about 8 March 2010, have not yet been provided by the first respondent, and once again in the circumstances and in the timeframe that non-provision of documents is entirely understandable; and

   g)the Court also notes that the adjournment is not consented to by the first respondent, nor is it opposed by the first respondent.

   [1] “RRT Scheme”.

2. Ordinarily, the Court would be loath to adjourn a matter which had been listed almost three months ago for a hearing, albeit an extension of time hearing, which was to occur next week. However, in this case the Court considers that there are special circumstances warranting the adjournment. They are:

   a)Senior Counsel takes the matter and appears pro bono for a litigant who would otherwise be a self-represented litigant who, as the Court presently understands, speaks no English;

   b)in the circumstances the Court considers that it is in the interests of justice that the applicant be represented by Counsel;

   c)it is also in the interests of the administration of justice, in terms of preparation for the hearing and presentation of argument at hearing, that Counsel appear, bearing in mind, of course, that Counsel appears as a consequence of a referral under the RRT Scheme, run by this Court;

   d)the applicant says there is no prejudice suffered by the first respondent. The first respondent does not point to any prejudice and has indicated that it neither consents to nor opposes the adjournment sought;

   e)significantly, there appears to be consensus about the fact that what was to be an extension of time hearing on 25 March 2010 ought now proceed as both an extension of time, and substantive, hearing of the matter. That obviously will result in there being one hearing rather than possibly two hearings, and although the hearing will be delayed it may save some Court time, expense and resources and probably likewise, in the circumstances, for the parties.

3. So, in those particular and somewhat unusual circumstances, the Court is prepared to grant the adjournment. The Court makes orders substantially in terms of the applicant’s minute of proposed orders, save that order 2 will be amended to provide for a hearing date and time of 1 June 2010, at 10.15 am; order 4 will be amended by inserting the words “any amended application” in between the words “serve” and “any” in the first line of order 4; and, as the Court has already indicated, the question of the costs of today can be reserved for determination, in conjunction with the costs of the hearing proper. So with those amendments those orders will be made.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  S. Dinon

Date:  22 March 2010