SZHYH v Minister for Immigration and Border Protection

ALLSOP CJ: 1 In this matter, the appellant seeks to appeal from orders of the Federal Circuit Court of Australia dismissing an application for judicial reviewp against the decision of the Administrative Appeals Tribunal (Migration and Refugee Division). I refer to my earlier reasons on 11 May ([2018] FCA 687), in which I made orders for the further conduct of the matter, including the appointment of pro bon counsel. The matter was set down for hearing on 19 June 2018, but was later adjourned to 18 September so that pro bono counsel, Ms Gleeson, could deal with the matter appropriately. Ms Gleeson had the matter relisted today for case management. The reason for the listing is that she is unable to continue to appear for the appellant. 2 I accept it that is not appropriate for any further explanation to be given. But she has instructions today from the appellant to seek an adjournment of next week's hearing and for any orders for any timetabling. Unfortunately, my reasons of 11 May were not given to Ms Gleeson until recently. I have discussed the matter with Ms Gleeson and Mr Kaplan, who appears for the Minister. Irrespective of any wishes of the appellant, I propose to seek the assistance of counsel to act as an amicus curiae to put all submissions as can properly be put in furtherance of the appellant's appeal. 3 This will necessitate another approach to the New South Wales Bar Association and a further adjournment. One of the reasons I think this is appropriate is that the matter has been before a Tribunal on a number of occasions and set aside on a number of occasions. I don't say that out of gratuitous criticism. It is just that this appellant's confidence in the exercise of administrative and judicial power is important, in particular in the light of the serious assertions he makes as to the Chinese authorities and are which are the basis of his claim. 4 I propose to adjourn the matter to a date to be fixed for hearing, before which day I will give the appellant a further opportunity to put any submission in writing, and the amicus curiae an opportunity to put any submission to me in the interests of the appellant. This will mean that the matter will not be able to be heard probably before November. Nevertheless, I will seek to have the matter listed at a day convenient to the appellant, amicus curiae, the Court and the Minister. 5 The appellant should recognise the importance of this opportunity as he has now had two dates fixed for hearing of this appeal and earlier opportunities to put submissions to the Court, which he has not taken other than by speaking from the bar table. As I said in [10] of my reasons of 11 May 2018, "[t]he appellant should understand that it is not in his interests to ignore opportunities to put his case in writing and to simply come to the Court with assertions of matters said from the bar table." In these circumstances the appellant should understand that having already had an opportunity to address the Court, both in writing and orally, he must take this further opportunity if he has any further matters to put. 6 Therefore, the orders that I make today are:

1. The hearing listed for 18 September 2018 be adjourned to a date to be fixed.
2. On or before 15 October 2018, the appellant file and serve any further written material upon which he will seek to rely at the adjourned hearing.
3. On or before 20 September 2018, the first respondent serve upon the appellant at both his residential address and via email: (a) a copy of these orders and directions, and (b) a copy of the settled reasons delivered by Chief Justice Allsop today. I direct that:
4. On or before 20 September 2018, the District Registrar request the President of the Bar Association of New South Wales to nominate a barrister to assist the Court as amicus curiae.
5. Within 1 business day of the President of the Bar Association of New South Wales notifying the District Registrar of his nominee, the District Registrar forward the nomination to the associate to Chief Justice Allsop and the parties.
6. Upon the nomination being forwarded to the Court, the nominee be granted leave to appear as amicus curiae.
7. Within 5 business days of the grant of leave under 6 above, the District Registrar, in consultation with the representative of the first respondent, supply the amicus curiae with all relevant material.
8. Leave be granted to the amicus curiae, in consultation with the appellant and the representative of the first respondent, to communicate with the associate to Chief Justice Allsop as to appropriate dates for the hearing of the appeal. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.