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

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: JACKSON J
• Judgment Date: 10 February 2020
• Neutral Citation: [2020] FCA 114
• Date: 10 February 2020

FEDERAL COURT OF AUSTRALIA

WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114

Appeal from:	WZAVK v Minister for Immigration and Border Protection [2019] FCCA 2272
File number:	WAD 447 of 2019
Judge:	JACKSON J
Date of judgment:	10 February 2020
Catchwords:	PRACTICE AND PROCEDURE - application for adjournment - where appellant sought further time to obtain legal representation - discretion to grant adjournment - application to adjourn dismissed
Cases cited:	BSY16 v Minister for Home Affairs [2019] FCA 140 EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 Jarrett v Westpac Banking Corporation [1999] FCA 425 Pallas v Minister for Home Affairs [2019] FCAFC 149 Timu v Minister for Immigration and Border Protection [2018] FCAFC 161
Date of hearing:	10 February 2020
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	16
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 447 of 2019
BETWEEN:	WZAVK Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	JACKSON J
DATE OF ORDER:	10 FEBRUARY 2020

THE COURT ORDERS THAT:

1. The application to adjourn the hearing of the appeal is dismissed.

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

REASONS FOR JUDGMENT

(edited from transcript)

JACKSON J:

1. At the commencement of the hearing of this appeal, the appellant made an application to adjourn the hearing for 12 weeks in order that he may be represented by a lawyer at the reconvened hearing. The Minister has opposed the application. These are my reasons for dismissing the application.

2. The principles governing an application for an adjournment to obtain legal representation in circumstances such as the present are well established and can be summarised 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:

   1. the amount of time the party has had to obtain legal representation;

   2. the steps the party has taken to obtain such representation during that time;

   3. the explanation for any delay in that respect;

   4. the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and

   5. 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].

The evidence

3. An affidavit of Ms Ramanathan sworn on 6 February 2020 was received into evidence. She has recently been helping the appellant in relation to the appeal. She is a business coach who sits on the State Public Housing Tribunal and holds a Master in Taxation Law and a Bachelor of Commerce.

4. Ms Ramanathan and her husband have known the appellant for two years. She says he speaks basic colloquial Tamil and limited English. He approached her on 31 January 2020 to ask her to come to the hearing of the appeal as his support person. He met her on 4 February 2020 with the appeal book, and told her he did not fully comprehend the documents contained in it. She agreed to accompany him to court as his support person. She realised that he had no understanding of the court processes and did not appreciate the implications of the documents in the appeal book, other than a few documents he had submitted in relation to his application for a protection visa. She is concerned that as an unrepresented appellant, he may not be able to put forward his case properly.

5. Ms Ramanathan's affidavit says that the appellant was unable to obtain legal representation because the visa he presently holds prevents him from obtaining paid employment. Ms Ramanathan, along with two other people she names in the affidavit, have pledged $3,000 for the appellant to obtain legal representation. She says that a lawyer has advised that 'this amounts to procedural unfairness' (presumably a reference to proceeding with the appeal without legal representation) and the lawyer has 'suggested' that he seek an adjournment to secure legal representation. One of the people who has pledged money was, at the time of the swearing of the affidavit on 6 February 2020, in discussion with two named lawyers for their firm to represent him. It may be that one of those lawyers is the one who gave the advice referred to, but that is not clear.

6. Ms Ramanathan was sworn in so that she could give evidence of further developments in the witness box in the hearing. The additional development on which she gave evidence was that Mr Jeyendran Ramachandran has agreed to take on the appellant's case. Ms Ramanathan does not know the name of his practice but says that he is a 'registered solicitor'. She says that Mr Ramachandran has identified some errors in the decision of the Federal Circuit Court and is willing to take the matter on. It appears, therefore, that he has expressed willingness to represent the appellant up to and at any adjourned hearing of the appeal.

7. Ms Ramanathan frankly acknowledged that her evidence about Mr Ramachandran's intentions is hearsay. That is, she has only heard it from her brother, Mr Subramanian, and she is relaying what Mr Subramanian has told her to the court.

8. Mr Ramachandran has given no estimate of how much he will charge to take the matter all the way to the end of any adjourned hearing. It appears that the pledged figure of $3,000 has been arrived at in discussions between Ms Ramanathan and the friends who have...