SZKCE v Minister for Immigration and Citizenship

EX TEMPORE REASONS FOR JUDGMENT 1 On 7 December 2007, the Applicant filed what is entitled an application for extension of time to file and serve a notice of appeal. The Applicant wishes to challenge a decision given on 12 November 2007 by the Federal Magistrates Court. On that date, a Federal Magistrate declined to set aside an earlier order of that Court which had dismissed her judicial review application on the basis of a failure on her part to attend a hearing of that application. 2 The Minister, in his written submissions, submits that the correct characterisation of the application of 7 December is that of an application for leave to appeal against a pre-hearing judgment. It seems to me that that is the correct way to regard the application of 7 December 2007. The Minister, very properly, does not seek to make any adverse issue of the form of the application, but, instead, has proceeded on the basis that it is an application for leave to appeal. 3 The Applicant attended today without legal representation. She made a statement from the bar table, the import of which was that she wished to have today's hearing postponed to seek legal advice. She tendered to the Court a brochure from a body, Macarthur Legal Centre Inc, a copy of which has become exhibit "1". Because it seemed to me that an application of this nature should be based on evidence, I invited the applicant to give evidence from the witness box in support of her application. 4 It was also evident to me from my observation of the Applicant that she was extremely nervous and quite ignorant of Court procedure, as well as being ignorant of the English language. For that reason, when she took up the invitation to enter the witness box, I asked her a series of questions designed to allow her to enlarge upon what she had stated from the bar table. From her answers in evidence, it emerged that it was only a few days ago that she first sought to obtain assistance from Macarthur Legal Centre Inc. This seems to have been done informally through the assistance of an English-speaking friend whom she named in evidence. 5 She also mentioned that she had before this time sought in other ways from Legal Aid agencies to obtain legal assistance in relation to a challenge to the Federal Magistrate's decision. She was vague about the names of these other agencies, although I can understand how a non-English-speaking person could be in such a position of vagueness. I particularly noted that when asked her address, the Applicant pointed to, and used, an address which had been written in English on a piece of paper after that question had been translated for her. 6 The evidence that the Applicant gave was not the subject of cross-examination, although an invitation in that regard was extended by the Court to the Minister's legal representative. 7 The Minister's written submissions in respect of today's application, which the applicant acknowledged had been translated for her, disclose a lengthy chronology of adjournments of hearing, both before the Refugee Review Tribunal and the Federal Magistrates Court. It is not altogether surprising against that background that the Minister opposes an adjournment of today's hearing, and also points to the quite late specific attempt to secure legal advice. The Minister also makes reference to the suggested lack of reasonable prospects in the application for leave to appeal. 8 I have a discretion to exercise as to whether to grant an adjournment. It is certainly not the case that a hearing in respect of this type of application can only be conducted if an applicant has, or has consulted, legal advisers. I am also, though, very conscious of the difficulties that a person who has obviously little command of English, if any, and is, to my observation, unsophisticated in knowledge of Court procedures must face. 9 Even though I have, in a tentative way, formed a view about the prospects of the application for leave to appeal, I remind myself that it is a feature of the Australian justice system, that justice must not only be done, but be seen to be done. There is also no particular prejudice that I can discern, or to which I have been taken, in relation to the Minister, or the Executive Government of the Commonwealth, by the granting of an adjournment. That is apart, of course, from the question of costs in respect of any adjournment. 10 Further, as it happens, I am listed to sit again in Sydney in the week commencing 5 May to hear migration appeals and related matters. I expect that it will be possible, in the course of that week, to hear the application for leave if I grant an adjournment today. It seems to me that the interests of justice would be served by at least allowing the two months or so that will elapse as a time within which the applicant can avail herself of an opportunity to seek legal advice in relation to her application. 11 Balancing all of the considerations that I have mentioned, I therefore propose to grant an adjournment and to adjourn the hearing of this application to a date to be fixed in the week commencing 5 May 2008 in Sydney. The date, time and place of hearing will doubtless be communicated to the Applicant and to the Minister in the usual way by the court registry, and because of my association with this case, it would obviously be desirable if it were again listed before me, although that cannot, of course, be guaranteed. 12 The Applicant should clearly understand that the granting of this adjournment is an indulgence. It would take very compelling evidence indeed for any further indulgence to be extended. I cannot emphasise enough the importance to the applicant of taking the fullest opportunity offered by this adjournment to seek legal advice, and to do so as a matter of urgency. Of course, if she obtains that advice, and the advice is that the application is unlikely to succeed, she must seriously consider acting on that advice and discontinuing her application.