FOH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 22 October 2020
• Neutral Citation: [2020] FCA 1525
• Court: Federal Court
• Date: 22 October 2020

Federal Court of Australia

FOH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1525

Appeal from:	FOH18 v Minister for Home Affairs [2020] FCCA 173
File number:	WAD 54 of 2020
Judgment of:	JACKSON J
Date of judgment:	22 October 2020
Catchwords:	PRACTICE AND PROCEDURE - interlocutory application for adjournment of hearing of appeal- appellant claimed to need more time to obtain legal representation - adjournment unlikely to result in any useful outcome - interlocutory application dismissed ; MIGRATION - appeal from decision of the Federal Circuit Court of Australia - primary judge dismissed application for judicial review of a decision of the Administrative Appeals Tribunal - Tribunal had affirmed decision of a delegate of the Minister not to grant appellant a protection visa - unparticularised grounds of appeal - no error in reasons of the primary judge identified - appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 5H, 5J, 36 Federal Court Rules 2011 (Cth) Schedule 3, item 15
Cases cited:	Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 235 FCR 593 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 11
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	30
Date of hearing:	20 October 2020
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Ms EL Tattersall
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs

ORDERS

		WAD 54 of 2020
BETWEEN:	FOH18 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	JACKSON J
DATE OF ORDER:	22 OCTOBER 2020

THE COURT ORDERS THAT:

1. The appellant's interlocutory application filed 14 October 2020 is dismissed.

2. The appeal is dismissed.

3. The appellant must pay the first respondent's costs of the appeal, fixed at $4,000.

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

REASONS FOR JUDGMENT

JACKSON J:

1. The appellant is a citizen of India. He came to Australia on 22 November 2015 on a visitor's visa. He overstayed that visa, and on 18 April 2018 he was placed in immigration detention. On 27 April 2018 he applied for a protection visa. A delegate of the first respondent (Minister) decided not to grant that visa and the Administrative Appeals Tribunal affirmed that decision. The appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court. On 3 February 2020 that court dismissed the application. The appellant now appeals to this court.

2. The appellant was unrepresented in the Federal Circuit Court and in this court. As will appear below, both his grounds of review and his grounds of appeal were generic in nature and did not identify any specific error on the part of the Tribunal or the primary judge. For the reasons that follow I have concluded that the primary judge did not fall into error, so the appeal must be dismissed.

Adjournment application

3. The appellant had representation until shortly before his hearing in the Tribunal, and has been unrepresented since then. He appeared at the hearing of the appeal with the assistance of a Punjabi interpreter. I also permitted the appellant's cousin to sit with the appellant to provide support at the hearing of the appeal.

4. By an interlocutory application filed on 14 October 2020, the appellant applied for the adjournment of the hearing. The basis of the application was that he needed more time to try to obtain legal representation. The Minister opposed the application. At the hearing I refused the application, for the following reasons.

5. In WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2] I summarised the principles applicable to such applications as follows:

(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 legal representation; and

(e) the time required for the appellant to do so,

see BSY16 at [5]; and Pallas at [42].

(5) In the end, the decision whether to adjourn is a discretionary decision for the court hearing the matter, which must be exercised judicially and will depend on the individual circumstances that are relevant: EPH17 at [18]-[19]; Jarrett at [78].

6. The appellant swore an affidavit dated 13 October 2020 which he filed in support of the adjournment application. It says that he has recently been employed with Menulog. The affidavit also says he has been trying to obtain legal representation on a pro bono or legal aid basis from the Asylum Seeker Resource Centre, Legal Aid and other unspecified organisations. It appeared that he had been told that due to the limited time until the hearing, the organisations could not provide him with a lawyer, because they would not have enough time to prepare.

7. The main submission which the appellant put through his interpreter at the hearing was that he now had a job with Menulog, so he would be able to save the money to pay for a lawyer. This submission was repeated by the appellant's cousin (who was fluent in English and articulate) when I gave him leave to speak briefly on the appellant's behalf, albeit at the end of the hearing after I had refused the adjournment application. The cousin also said other things which can only be characterised as evidence from the bar table and which the court has not taken into account.

8. The appellant's main submission was not entirely consistent with his affidavit in support of the adjournment application. While the affidavit did say that he 'recently got employed with menulog limited financial support' [sic], the rest of it referred to efforts to obtain legal representation on a pro bono or legal aid...