AQX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 13 September 2022
• Neutral Citation: [2022] FCA 1075
• Date: 13 September 2022
• Court: Federal Court

Federal Court of Australia

AQX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1075

Appeal from:	AQX18 v Minister for Immigration, Citizenship, Migrant SErvices and Multicultural Affairs & Anor [2019] FCCA 3331
File number(s):	NSD 2095 of 2019
Judgment of:	GOODMAN J
Date of judgment:	13 September 2022
Catchwords:	MIGRATION – appeal from decision of the (then) Federal Circuit Court of Australia on judicial review of a decision of the Immigration Assessment Authority to refuse a protection visa – application for an adjournment to obtain legal representation dismissed – grounds of appeal raising matters not the subject of grounds of review before the primary judge – grounds lacking sufficient merit to grant leave for their inclusion – irrelevance of matters subsequent to the decision to the task of judicial review – appeal dismissed
Legislation:	Federal Court of Australia Act 1976, s 37M Migration Act 1958 (Cth), s 473CC
Cases cited:	AQX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3331 EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 FOH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1525 Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	37
Date of hearing:	8 April 2022
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Mr A Gardner of Minter Ellison
Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs

ORDERS

		NSD 2095 of 2019
BETWEEN:	AQX18 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	GOODMAN J
DATE OF ORDER:	13 September 2022

THE COURT ORDERS THAT:

1. The application for an adjournment be refused.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GOODMAN J

INTRODUCTION

1. The appellant is a citizen of Sri Lanka who arrived in Australia on 26 May 2013 as an unauthorised maritime arrival. On 16 September 2016, the appellant lodged an application for a Safe Haven Enterprise (Class XE) (subclass 790) visa.

2. On 23 March 2017, following an interview with the appellant on 16 February 2017, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made a decision to refuse to grant the appellant a visa. On 28 March 2017, that decision was referred to the Immigration Assessment Authority for review. On 19 January 2018, the Authority affirmed the delegate’s decision. On 14 February 2018, the appellant filed an application for judicial review with the then Federal Circuit Court of Australia.

3. On 11 November 2019, the primary judge heard the application for judicial review and on 21 November 2019, she dismissed it with costs: AQX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3331.

4. The appellant appeals from the decision of the primary judge. The appellant does not seek to advance in this appeal the grounds of review that he advanced before the primary judge. Instead, he seeks to advance different grounds. The Minister did not seek a dismissal of the appeal on this basis and, fairly, submitted that the Court should treat the appellant’s Notice of Appeal as in effect an application for leave to advance the new grounds.

5. During the course of the hearing, the appellant sought an adjournment of the hearing to allow him the opportunity to obtain legal representation. For the reasons set out below, the application for an adjournment and the appeal are each dismissed.

adjournment application

6. The appellant sought an adjournment on the bases that: he was a layperson and needed more time so that a lawyer could represent him; he had previously lost his job but had very recently re-commenced employment; and he had been admitted to hospital for three weeks earlier this year for COVID-19 and recently was required to self-isolate following a re-infection.

7. The principles relevant to an application for an adjournment so that a party may obtain legal representation were summarised by Jackson J in WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2]:

(1) Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19].

(2) Other than in the case of persons appearing before a court for a serious criminal offence, there is no absolute ‘right’ to legal representation in this country, in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]; Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6]; and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)].

(3) Nevertheless, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5].

(4) Matters that will be relevant in determining the weight to be given to that wish may include:

(a) the amount of time the party has had to obtain legal representation;

(b) the steps the party has taken to obtain such representation during that time;

(c) the explanation for any delay in that respect;

(d) the utility of any adjournment, including the likelihood of the appellant obtaining...