NABT of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 139 (13 May 2002)

Last Updated: 23 May 2002

FEDERAL COURT OF AUSTRALIA

NABT of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 139

PRACTICE & PROCEDURE - adjournment application.

NABT OF 2001 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. N 1529 OF 2001

BEAUMONT, CARR & SACKVILLE JJ

13 MAY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1529 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NABT OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	BEAUMONT, CARR & SACKVILLE JJ
DATE OF ORDER:	13 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Notice of Motion be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1529 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NABT OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	BEAUMONT, CARR & SACKVILLE JJ
DATE:	13 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(ON NOTICE OF MOTION)

BEAUMONT J:

1 Before the Court is a notice of motion, filed on 2 May 2002, on behalf of the appellant, applying for an adjournment of the hearing of the appeal listed before us today. The notice of motion is supported by an affidavit sworn by the appellant on 2 May 2002. The application for adjournment is opposed by the Minister.

2 By way of background, it should be mentioned that this is an appeal from a decision of Allsop J, delivered on 26 October 2001, dismissing an appeal from a decision of the Refugee Review Tribunal ("the Tribunal") on 29 June 2001, which affirmed a decision of the Minister's Delegate not to grant the appellant a protection visa.

3 The appellant is a citizen of India who arrived in Australia in September 1996. He lodged an application for a protection visa in that year, which was refused in 1997 by the Minister's Delegate, and affirmed by the Tribunal in 1998. The appellant then applied to this Court for judicial review of the Tribunal's decision. In 1999, Moore J set aside that decision and the matter was remitted to the Tribunal which, as has been mentioned, affirmed the Minister's Delegate's decision, in June 2001, not to grant the visa.

4 The appeal before us was fixed for hearing in the May sittings at the call-over held in February this year. By letter dated 5 March 2002, the Court's Registry informed the appellant that the appeal was fixed for hearing today. By way of further background, it should be mentioned that the appellant has some background as a lawyer in India, but was unrepresented before Allsop J, and has been unrepresented at all times in the appeal proceedings.

5 The notice of motion and the affidavit sworn by the appellant state essentially the same ground for the adjournment application. It will suffice, for present purposes, if I refer only to the notice of motion which is in the following terms:

"1. My date of hearing was fixed on 13^th May 2002. I was trying to get any solicitor or barrister to represent me on hearing date.

2. Finally I found Mr Jyoti Bharati Solicitor from Theodore Solomon & Partners Solicitors to appearing in next hearing in the Court on pro bono basis.

But he is not available on 13^th May 2002. He is going overseas on the 4^th May 2002 and he will return back by 21^st May 2002 so any date after 21^st May Mr Jyoti Bharati would like to represent me in the Court. I am seeking adjournment of hearing date on the 13^th May and asking to fix any date after 21^st May 2002."

6 In essence, the adjournment application is based upon the unavailability of Mr Bharati this week because he is overseas in this period. As has been noted, the notice of motion was filed on Thursday 2 May 2002. Mr Bharati, it appears, was scheduled to leave for overseas on the following Saturday, 4 May 2002, and to return on 21 May 2002. When the notice of motion was filed it was noted on the documentation that the notice of motion would be returnable "at date and time to be advised by the Registry".

7 Given the shortness of the time involved between the date of filing of the notice of motion and the date fixed for the appeal, I listed the matter for directions as the presiding Judge on Wednesday, 8 May 2002. The appellant was then informed that the notice of motion would be returnable before the Full Court today, and would be dealt with before the appeal itself was called on. The appellant was informed further, that, whether or not the adjournment would be granted was entirely a matter for the Full Bench, and that as the Judge giving directions only, I could make no prediction as to the outcome of the adjournment application and, accordingly, the appellant should prepare for the contingency that the adjournment application may not succeed, in which event the appeal would then be called on for hearing.

8 We have now heard the adjournment application. The Court inquired of the appellant when he first sought to obtain legal representation for the purposes of the appeal. We were informed that this was not done until the end of April 2002, notwithstanding that the notice of appeal was filed on 16 November 2001. In this connection, the appellant sought to rely upon the circumstance that there were family reasons why it was not possible for him to take action in this matter in the second half of March 2002. In my opinion, no proper basis for an adjournment application has been established. I am prepared to accept that in the second half of March there were family matters which required the appellant's attention, however, the fact is that it is now more than six months since the appeal was instituted and it seems that no serious attempt was made to retain legal representation until about three weeks ago. Moreover, in my view, it is quite unsatisfactory to purport to retain legal representation by a lawyer who is obviously unavailable to appear at the date fixed for hearing some two months previously.

9 The Court, of course, encourages legal representation where possible but, in my opinion, the appellant has had more than adequate opportunity to do this and has delayed in taking the appropriate steps to secure that representation.

10 I would refuse the application.

CARR J:

11 I agree that, for the reasons given by the presiding Judge, Beaumont J, the motion should be dismissed.

SACKVILLE J:

12 I also agree with the order proposed by the presiding Judge and the reasons given for that order.

BEAUMONT J:

13 It follows that the motion will be dismissed. We will now call the appeal on for hearing.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: May 2002

Solicitor for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 May 2002
Date of Judgment:	13 May 2002