Pennie v Minister for Home Affairs

1. The appellant's application for an adjournment be dismissed with costs to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Paul Pennie is an Irish citizen who moved to Australia with his parents when he was 6 years of age. He says that Australia is the only home that he has known. In January 2016, a delegate of the Minister cancelled Mr Pennie's visa on the basis that he was serving a term of imprisonment and he did not pass the relevant character test because of his criminal record. In June 2018, the Minister decided not to exercise his power to revoke the cancellation. In April 2019, Mr Pennie's application to review the Minister's decision was dismissed by a judge of this Court and he has brought an appeal against that decision. The appeal is listed for hearing on 7 August 2019. 2 Notification of the likely listing in August was given to Mr Pennie by email on 6 May 2019 and he now seeks an adjournment of the hearing of the appeal for three months so he can arrange funds to instruct lawyers to act for him in the appeal. 3 In the proceedings before the primary judge, Mr Pennie was legally represented. Two grounds of review were advanced. The reasons of the primary judge record with some care the submissions that were advanced for Mr Pennie. Therefore, those submissions will be available to the Court hearing the appeal. 4 The two grounds of appeal that are advanced correspond substantially with the two grounds of review as they came to be advanced before the primary judge. Those grounds appear to have been prepared with legal assistance. The Minister has prepared an appeal book so all of the materials necessary for considering the appeal are before the Court. On the hearing of the appeal the Court will be able to call for the written submissions prepared by counsel that were before the primary judge. For those reasons, the prejudice to Mr Pennie if the appeal was to proceed without his being able to obtain legal representation is confined. The arguments to be advanced, as articulated by counsel appearing for Mr Pennie before the primary judge are already set out in the Court record and the materials to enable the Court to evaluate their merit are before the Court. 5 Mr Pennie is presently held in detention. He is not able to advance any real basis upon which he might expect to obtain the necessary funds to be able to instruct lawyers, although I do not doubt his sincerity in seeking to secure those funds. He says his parents, who are retired, are trying to obtain funds but he has not been able to point to any reason why those funds might be expected to be forthcoming. He has today referred to the possibility of financial support from the Claddagh Association which he said was connected with the Irish Ambassador. However, as at today, he is not able to point to any matters to suggest that financial support will be forthcoming from that source to fund legal representation in the appeal. 6 Mr Pennie has acted reasonably promptly in my view in bringing the application, given that he is not legally represented and the nature of the proceedings is such that it has the potential to have very significant consequences for Mr Pennie. These are matters which weigh in favour of an adjournment if it were the case that there was an expectation that funding might be forthcoming in order to provide legal representation for Mr Pennie. Unfortunately, that is not the current position. 7 Balancing these considerations, I am not satisfied that an adjournment would be in the interests of justice. In all likelihood even if an adjournment were granted Mr Pennie would still be without representation, the appeal date would have been lost and, in the particular circumstances, the arguments to be made are set out in the appeal papers. In considering whether to grant an adjournment, the Court must have regard to the fact that the necessary consequence of an adjournment at this time is that the appeal hearing date will not be able to be allocated to other parties who are waiting for an appeal date. If the position changes and there is financial support obtained, then the matter of an adjournment could be revisited on the basis of that information but as matters presently stand, the application for an adjournment is dismissed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.