FEDERAL COURT OF AUSTRALIA

Asaad v Minister for Home Affairs (No 1) [2019] FCAFC 213

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s oral application for an adjournment be refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

THE COURT:

1    When the appeal was called on for hearing the appellant applied for an adjournment without any prior notice to the Minister. In early September 2019, a judge of the Court had referred the appellant for pro bono representation under r 4.12 of the Federal Court Rules 2011. The Registrar located counsel who accepted the referral.

2    On 13 November 2019, notwithstanding that the appellant’s submissions were overdue, the pro bono barrister informed the appellant and a case manager in the Registry that she wished to withdraw from providing legal assistance. In her email to the case manager, counsel noted that she had conveyed her wish to the appellant by telephone and had also discussed her opinion with him at length.

3    The case manager responded by email to both counsel and the appellant later on 13 November 2019 confirming that the Duty Registrar had indicated that he was minded, under r 4.16, to allow counsel to withdraw from acting, that the chambers of the judges presiding over the hearing in the following week had been advised of those events and that they would determine how the matter was to proceed.

4    On 15 November 2019, solicitors for the Minister wrote to the appellant referring to the listing of the hearing of the appeal on 22 November 2019 and attaching, by way of service, the Minister’s outline of submissions.

5    On Saturday 16 November 2019, the case manager emailed the appellant saying:

I am unsure if chambers have already contacted you, but if not, please be advised that your hearing before the Full Court is proceeding as scheduled. I understand the difficulty of your position – if you would like to continue to seek pro-bono assistance on your own behalf within this limited time frame, I note that I have sent a further email to Mr Stephen Lloyd to advise him of the circumstances. His email address is […]

Unfortunately, the Registry is now no longer in a position to assist any further. I am sorry that that is the case. 

6    The appellant gave evidence in support of his adjournment application. He said that he understood the case manager’s email of 16 November 2019 as conveying that he could talk to Mr Lloyd, but “you [are] on your own, boy. Find somebody to go with you”.

7    On 19 November 2019, the Minister’s solicitors emailed the appellant with a copy of his list of authorities and the provisions of the relevant legislation. The email noted that a sealed copy of the Minister’s submissions had been filed and served on 15 November 2019, but that the Minister’s solicitors were yet to receive a copy of the appellant’s outline of submissions.

8    On 20 November 2019, the appellant emailed the Minister’s solicitors referring to a conversation earlier that day, and stating that it appeared that the Minister had inadvertently delivered some material to Queensland, but that he had not received a copy of that material. The appellant’s email appeared to be a response to an email that the Registry had sent earlier that afternoon indicating that hard and electronic copies of the legislation and authorities bundle had not yet been delivered to the chambers of the presiding judge as required by an email from the Court on 31 October 2019.

9    The appellant said that after the email of 16 November 2019, he contacted Stephen Lloyd SC, whom he understood was not available to appear today, to see if he could appear in any event on the hearing of the appeal either today or at a later time. He testified that he had assumed that the case manager had an obligation to inform, on his behalf, the Minister and the Court about “what was going on”, and he acknowledged that he had not told the Minister he wished to apply for an adjournment. He also said that, by reason of what was in the case manager’s email of 13 November 2019, he understood that the judges would determine how they would proceed. He said that he needed pro bono assistance and thought that the Court would be providing it. However, he also said that earlier he had had some assistance in drafting his notice of appeal from a duty solicitor who had come to the immigration detention centre at which he was being held immediately following the primary judge’s dismissal of his application.

10    The appellant contended that, in all of the circumstances, including the fact that he was over 81 years of age, the Court should grant an adjournment in order that he might find legal representation to present his case on a subsequent occasion.

11    The Minister opposed the application for adjournment.

Consideration

12    While it was unfortunate that the pro bono counsel sought leave to withdraw only on 13 November 2019, from that time it was clear to the appellant that he was facing the prospect that he may have to conduct his appeal, once again, as a litigant in person today, being the day it was fixed for hearing. At that time, he was waiting to see what, if anything, came back from the Court following the indication in the case manager’s email of 13 November 2019. By 15 November 2019, the appellant was aware that the Minister was continuing to proceed on the basis that he understood that the hearing was to go ahead today, because the Minister had served his submissions and there was no indication that the Minister was aware of, let alone prepared to agree to, the appellant’s wish to defer the hearing of his appeal.

13    By 16 November 2019, the appellant was, in his own words, fully aware that “you [are] on your own, boy” and that he needed either to find legal assistance or argue the appeal himself. Yet, at no point before his appearance in Court this morning, did the appellant take any subsequent step to seek an adjournment or to inform the Minister that he wished to have one. At that time, he stated that the pro bono counsel who had returned her brief “did not have any creativity in finding a reason why the Minister’s decision should be quashed”.

14    The appellant, in effect, is seeking an adjournment to see if he can find a lawyer who can exercise such creativity. Ordinarily, in applications for an adjournment, it is best to avoid consideration of the merits of the substantive appeal in relation to the grant or refusal of an adjournment. Here, the grounds of appeal are succinct, namely that, in effect, the primary judge had not found that the Minister should have been estopped from proceeding with the cancellation of the appellant’s visa on the basis of an earlier letter in which the Minister or a delegate had decided not to cancel another visa; and that the Minister had proceeded on an erroneous basis in concluding that he was not an Australian citizen who was entitled to an Australian passport. The appellant’s own expression of his grounds in the notice of appeal was less technical.

15    The reasons that the appellant has given for seeking the adjournment without any notice today are not satisfactory. There is no basis to think that, since at least 16 November 2019, if not before, he has not been fully aware that he would have the real possibility of having to address the Court today on the substance of his appeal without pro bono counsel. He made no attempt to seek an adjournment or to inform the Minister or the Court of his intention to do so, after being told on 16 November 2019 that the Court was proceeding with the appeal today, despite his indication to the case manager on 13 November 2019. It would not promote the overarching purpose of the civil procedure provisions of the Federal Court of Australia Act 1976 (Cth) and Rules identified in s 37M of the Act to accede to the application.

Conclusion

16    In all the circumstances, we are not satisfied that it is appropriate to grant an adjournment. The appeal should proceed to hearing.

Associate:

Dated:    12 December 2019