Berhane Yosife v Minister for Immigration & Multicultural Affairs [1998] FCA 189 (5 March 1998)

Last Updated: 14 March 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1011 of 1997

BETWEEN:	YOSIFE BERHANE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	5 MARCH 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: When this matter was called on for hearing this morning, Ms Walker from the Law Society, who had appeared on an earlier occasion, indicated that no representation would be available to Mr Berhane under the pro bono schemes conducted by the Law Society and the Bar Association. Ms Walker then withdrew and Mr Yosife Berhane ("the applicant") then asked for an adjournment of the hearing to enable him to obtain alternative legal representation.

These proceedings were commenced on 1 December 1997 and were first before the Court on 12 December 1997. On that day I fixed the matter for directions on 6 February 1998 and gave directions concerning evidence. On 6 February 1998, as I have said, Ms Walker appeared and I fixed the matter for hearing today. I directed that the applicant file and serve no later than 27 February 1998 an outline of submissions and contentions and directed that the respondent reply no later than 4 March 1998.

The respondent did, in fact, file an outline of submissions by the appointed day but nothing was filed on behalf of the applicant. In support of the application for an adjournment the applicant gave evidence today. He says that he received the decision of the Tribunal on 11 November 1997 and at that time the agent who had assisted him in connection with the hearing before the Tribunal asked him to sign a form.

There is some confusion as to the precise sequence of events but it appears that the migration agent who assisted the applicant before the Tribunal helped complete a legal aid application on behalf of the applicant. He said, however, that the agent did not help him in preparing his application for an order of review. Sometime after making the application for legal aid, and at one stage his evidence was that it was about a month, he received a letter from the Legal Aid Commission refusing aid.

The applicant then made an application to the Law Society under its pro bono scheme. He said he made the approach by telephone. He then received a form which he completed and sent back on 29 December 1997. He said that he spoke to the Law Society on several occasions after that and that on each occasion he was told that they were considering his application. He said that he received a letter of 18 February 1998 confirming that they were still considering his application.

There is nothing in the material before me to suggest that the Law Society indicated that representation would be available. The applicant said that he was not told until this morning that he would not have pro bono representation. On 6 February 1998 Ms Walker indicated that counsel's opinion was being obtained as to whether or not the case would justify pro bono representation. Indeed, Ms Walker indicated that she had only heard yesterday that the Bar Association's pro bono scheme would not be available to give assistance.

Mr Berhane says that if he is given an adjournment, while he has no funds available to him at present, he is hoping to ask members of the Ethiopian community to give him $10 each in order to fund private representation. His evidence did not indicate that there was any basis for expecting that he was likely to be able to raise the funds necessary to obtain legal representation. He has made no effort to do so up to today.

The application itself is handwritten and specifies two grounds, although the particulars, to the extent that any particulars are contained in the application, do not appear to relate to the grounds relied on. The two grounds specified are those contained in section 476(1)(g) and 476(1)(e) of the Migration Act 1958 (Cth), although the application states that natural justice seems to have been in some way an issue. The language used in the handwritten application is not clear in that respect. I have read the reasons of the Tribunal. There is nothing immediately apparent in the reasons which would attract either paragraph (g) or paragraph (e) of section 476(1) of the Act.

In all the circumstances it seems to me that it would be an exercise in futility to grant a further adjournment. There does not appear to be any real prospect of Mr Berhane obtaining any legal assistance. His application has been rejected by two organisations, each of whom appears to have given detailed consideration to his case and, presumably, his prospects of success.

I consider that there is nothing to be gained by a further extension of time and that the only likely consequence is the incurring of further unnecessary costs. I am also mindful of the fact that Mr Berhane is presently in detention and has been since February 1997. It is essential that this matter be brought to a head. In the circumstances I do not see any basis for granting the adjournment and accordingly I refuse the application.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated: 5 March 1998

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 March 1998
Date of Judgment:	5 March 1998