BSY16 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: THAWLEY J
• Judgment Date: 11 February 2019
• Neutral Citation: [2019] FCA 140
• Date: 11 February 2019

FEDERAL COURT OF AUSTRALIA

BSY16 v Minister for Home Affairs [2019] FCA 140

Appeal from:	BSY16 v Minister for Immigration & Anor [2018] FCCA 1283
File number:	WAD 237 of 2018
Judge:	THAWLEY J
Date of judgment:	11 February 2019
Catchwords:	MIGRATION – appeal from the Federal Circuit Court of Australia – where Federal Circuit Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Federal Circuit Court failed to consider all grounds raised by the appellant – whether the appellant was denied procedural fairness – whether the Tribunal failed to give reasons for its reliance on particular country information ; PRACTICE AND PROCEDURE – application for an adjournment – where appellant sought further time to obtain legal representation – where legal representation had not yet been obtained in the eight months since filing the notice of appeal
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Migration Act 1958 (Cth) s 430(1)
Cases cited:	CSJ15 v Minister for Immigration and Border Protection [2017] FCA 1463 MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing:	11 February 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	37
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the Respondents:	Mr D Watson of Australian Government Solicitor

ORDERS

		WAD 237 of 2018
BETWEEN:	BSY16 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	THAWLEY J
DATE OF ORDER:	11 FEBRUARY 2019

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to the Minister for Home Affairs.

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

(Revised from Transcript)

THAWLEY J:

1. The appellant appeals from a decision of the Federal Circuit Court of Australia made on 28 May 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 29 June 2016.

2. The Tribunal had affirmed a decision of the delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) not to grant the appellant a protection visa.

ADJOURNMENT application

3. At the hearing of the appeal, the appellant applied for an adjournment. The relevant factual background was:

1. The appellant was represented by solicitors and counsel before the Federal Circuit Court, which delivered judgment on 28 May 2018. Before that case, his case had been before the Refugee Review Tribunal (whose decision had been set aside by orders of the Federal Circuit Court on 17 June 2013) and then the Administrative Appeals Tribunal.

2. The appellant electronically lodged his notice of appeal on 5 June 2018. It is not clear whether he had assistance in drafting that document, however, as will be seen, the ground of appeal was intelligibly drafted and appropriately focussed attention on the procedure and judgment of the Federal Circuit Court.

3. The appellant was informed by email from this Court sent on 9 October 2018 that his appeal had been listed for hearing in Perth on 15 November 2018.

4. The matter was transferred to Sydney, pursuant to a request made by the appellant after 9 October 2018. The Court later informed the appellant that his matter was allocated today’s hearing date.

5. At the hearing of the appeal, the appellant stated that he had discussed his case with a barrister on 5 February 2019, or perhaps several barristers on that day, but that none were available to appear and that each required further time.

6. There was no evidence that any barrister had agreed to provide assistance, or when such assistance could be provided. There was no particular period of time sought for an adjournment.

4. The discretionary power to grant an adjournment is to be exercised judicially taking into account all relevant circumstances including the proper administration of justice.

5. Whilst there is no absolute entitlement in a party to be legally represented before the Court, 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. The weight to be given to that desire is affected by various matters including what steps the appellant has taken to obtain such representation, and any explanation for delay in that respect, the likelihood of the appellant obtaining legal representation and the time required for the appellant to do so.

6. The application for an adjournment was refused for the following reasons:

1. The appellant engaged the appellate jurisdiction of this Court on 5 June 2018 and has had ample opportunity to secure legal representation.

2. The transfer of the matter from Perth to Sydney also had the effect of transferring the hearing date from the November Full Court Sittings to the February Full Court Sittings. This had the effect of providing a de facto adjournment.

3. The ground advanced in the notice of appeal is intelligible and focusses attention on the events which occurred in the Federal Circuit Court. The Court has had the benefit of reading the Tribunal’s lengthy and detailed reasons and the succinct and considered reasons of the Federal Circuit Court.

4. It did not appear from a review of those decisions and the ground of appeal, that the appellant would be unfairly disadvantaged by the lack of legal representation, particularly having regard to the next matter.

5. The Court is cognisant of difficulties faced by litigants who have not secured legal representation and approaches the hearing of appeals in these circumstances in a way conducive to ensuring appellants are properly heard and that they are not unfairly disadvantaged by their difficult situation – see: MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] (Mortimer J).

background AND REASONS OF THE TRIBUNAL

7. The background was set out by the Federal Circuit Court at J[2] to J[8] of the judgment in terms which were not suggested on appeal to be in any way incorrect (footnotes omitted):

[2] The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 11 May 2012. On the following day he engaged in what is called a “Biodata” interview with an officer of the Department of Immigration. On 23 May 2012, the applicant was again interviewed by an officer of the Department. This interview was called an “Irregular Maritime Arrival Entry Interview”.

[3] On 27 July 2012, the applicant lodged an application for a protection visa. The following summary of his claims is taken from the applicant’s written submissions filed on 30 January 2018 (January submissions), which may be accepted as accurate for present purposes:

12.1. The applicant’s brother in law was shot by the army in 1988.

12.2. The applicant was suspected, interrogated or falsely accused in relation to the death of a senior Singhalese police officer during riots in 2005 because he was an auto-rickshaw driver.

12.3. A colleague of the applicant was killed in January 2006.

12.4. One of the applicant’s distant relatives with a similar name was...