Consideration
29 An application for an extension of time in which to file an appeal challenges a respondent's vested right to retain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [4]; see also per Kirby J at 539-543 [66]. The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary for the Home Department; Ex parte Metha [1975] 1 WLR 1087 at 1091, namely:
We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. (emphasis added)
30 I appreciate the difficulties that the applicant, as a person for whom English is not a first language, and who is not, by profession, a lawyer, let alone a lawyer trained in the intricacies of Australian principles for judicial review, faces in seeking to challenge an administrative decision, such as that of the Tribunal, when bringing proceedings such as the present. Therefore, I have had regard not only to the only basis upon which the applicant has articulated in his affidavit in support of the extension of time he seeks, but also to whether, having read the Tribunal's decision, anything appears that a lawyer acting for him might be able to raise for the purposes of putting forward an intelligible ground of review that could have any prospect of success. The Minister's counsel was unable to identify any such ground when I asked him.
31 A trial judge has a substantive discretion whether to grant or refuse an adjournment. An appellate court will seldom feel justified in reviewing such a decision of a trial judge, as Wilson J said, with whom Gibbs CJ, Murphy, Aickin and Brennan JJ agreed on this point in Bloch v Bloch (1981) 180 CLR 390 at 395. Wilson J adopted the formulation of Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at 653 (see 180 CLR at 395-396) as follows:
I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do what which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so.
32 I am not satisfied that the trial judge's order or decision to proceed on 10 July 2015, without granting an adjournment, would or could create an injustice to the applicant in all of the circumstances. The applicant had been aware, from the first directions hearing on 14 May 2015, that he had the opportunity first, to obtain legal advice to the extent he had not already done so, and, secondly, to put together a case, including an amended application and submissions that advanced what he could say to the trial judge might be wrong with the decision of the Tribunal. The applicant's explanation of his failure to do anything in the two month period between the first directions hearing on 14 May 2015 and the final hearing on 10 July 2015 before he applied on that day, and without any prior notice, for an adjournment, were matters that the trial judge was entitled to reject as being of no substance or basis.
33 Moreover, the only ground which the applicant had advanced in his application before the Court below was hopeless, having been overruled by both a Full Court of this Court, and, more recently, by the High Court in WZAPN 254 CLR 610.
34 As I said in SZRIF v Minister for Immigration and Border Protection [2015] FCA 680 at [26]-[28], there is no common law right for persons to have a lawyer represent them at public expense in administrative proceedings such as those before the Tribunal, or in claims for judicial review arising from administrative decisions.
35 The applicant had four months, between the decision of the Tribunal and the final hearing before his Honour, to seek legal representation. All that he did, on his account, was to talk to a friend about it. That was to treat the Court's role in hearing and deciding his case in a way that was not appropriate. His Honour's reasons for rejecting the application for an adjournment of the trial were well open to him, and disclosed no error or the occasioning of any injustice.
36 Moreover, the applicant's application for an adjournment before me today is, in my opinion, utterly without foundation, and an abuse of the process of the Court. The applicant has known about the need to persuade this Court that some injustice had been done to him by the trial judge refusing him an adjournment for about ten months, or, at least, eight months since he filed his application for an extension of time, and affirmed that allegation in his affidavit in support of his application. Yet, he has done nothing to advance matters, apart from telling me, from the well of the Court this morning, that his brother-in-law had spoken to a lawyer last week.
37 In my opinion, the applicant was well aware, from the very moment it was filed on 25 August 2015, of the critical importance of preparing this application properly to the assertion of whatever the rights that he may have to challenge the Tribunal's or the trial judge's decisions. He has done nothing, to advance that case, apart from having taken the step of obtaining and filing his brief written submission, to which I have referred, that attached the material about the village officer's death.
38 In my opinion, it would be contrary to the interests of justice, rather than to advance them, were I to grant any adjournment. The cost to the Minister and the community of having the Court sit today with no prior communication of the adjournment application, or of any steps which the applicant had been seeking to take to obtain legal representation demonstrate that there is no substance in his application.
39 Moreover, having read the Tribunal's decision, I can see no basis for challenging its credibility based findings rejecting the foundation of any claim that the applicant is entitled to either protection under the Refugees Convention, or the complementary protection ground in s 36(2)(a) or (aa). In my opinion, the application below for constitutional writ relief was devoid of any merit or substance, as were both his applications for an adjournment to his Honour and me.