FEDERAL COURT OF AUSTRALIA

NART v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1343

NART v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 700 OF 2003

NARU AND NARV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 705 of 2003

STONE J

18 NOVEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The notice of motion filed on 7 November 2003 be dismissed. 

2.         The applicant file and serve any amended application, any evidence on which she wishes to rely and written submissions in support of her application by no later than five working days prior to the hearing. 

3          The respondent file and serve written submissions by no later than two working days prior to the hearing. 

4.         Costs be reserved. 

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

THE COURT ORDERS THAT:

1.         The notice of motion filed on 7 November 2003 be dismissed. 

2.         The applicants file and serve any amended application, any evidence on which they wish to rely and written submissions in support of their application by no later than five working days prior to the hearing. 

3          The respondent file and serve written submissions by no later than two working days prior to the hearing. 

4.         Costs be reserved. 

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

REASONS FOR JUDGMENT

1                     The applicants are citizens of Kenya who arrived in Australia on 25 June 2001.  On 3 August 2001 they lodged applications for protection (Class XA) visas, under the Migration Act 1958 (Cth), which were refused by a delegate of the respondent on 6 December 2001 (NARU and NARV) and on 13 December 2001 (NART).  The applicants applied to the Refugee Review Tribunal (‘Tribunal’) for review of the delegate’s decisions.  Their applications were considered by the same Tribunal member who affirmed the delegate’s decisions on 21 May 2003 and 25 May 2003 respectively.  On 12 June 2003 NART filed, under s 39B of the Judiciary Act 1903 (Cth), an application in this Court for judicial review of the Tribunal’s decision.  On 13 June 2003 NARU and NARV filed their application which is in almost identical terms to that filed by NART.  The applications were initially allocated to different docket judges but at a directions hearing on 31 July 2003 the applicants requested that their proceedings be heard together.  Accordingly, both the proceedings were listed for hearing by me on 23 October 2003. 

2                     On 29 August 2003 the applicants filed notices of motion seeking to vacate the hearing date.  They said they needed time to gather further evidence from Kenya and also to allow them to obtain legal representation.  Although the applicants did not tender any evidence in support of their application I agreed, over the objections of the respondent, to grant a short extension of time, primarily for the purpose of the applicants seeking legal advice.  I vacated the October hearing date and listed the matter for hearing on 4 December 2003. 

3                     I have before me today two further notices of motion (one in each proceeding) seeking that the hearing date of 4 December 2003 be vacated so that the applicants can seek legal advice.  Apart from two rather uninformative affidavits sworn by NART and NARU on 5 November 2003, no evidence has been put before the Court concerning the applicants’ attempts to instruct legal advisers.  The notices of motion, and the affidavits in support of them, are substantially the same and I propose to deal with them together. 

4                     The basis of the application for a stay of the proceedings until legal advice is obtained is that, although the applicants cannot afford to pay for legal advice at the moment, they are saving money and say that they will soon be in a position to pay a solicitor to help them.  Their submissions are essentially the same as those made in relation to the applicants’ notices of motion of 29 August 2003. 

5                     The notices of motion and affidavits were not served on the respondent.  The respondent’s solicitor did not receive them until 8 am this morning, when they were provided to him by the Court.  Notwithstanding this, the respondent’s solicitor indicated today that he was prepared to deal with the motions and the Court is grateful to him for that.  The respondent made a number of submissions opposing the application for an adjournment on the basis that legal advice is sought.  These include that:

            (a)        The applicants have participated in the pro bono pilot legal advice scheme and that they have been referred to and are, or have been, in communication with a barrister, Mr Bob Wilson; 

            (b)        while the applicants state in their affidavits that they only recently became aware of legal aid they referred to it in their affidavits in support of the earlier motions for adjournment, sworn on 28 August 2003, and so have been aware that pro bono legal assistance may be available since at least then; 

            (c)        the applicants have shown no urgency in their attempts to obtain legal assistance as evidenced by the fact that their legal aid applications, annexed to their affidavits of 5 November 2003 are dated 4 November 2003; 

            (d)        there is no evidence before the Court that legal aid will not be available to the applicants.  Although the respondent conceded that legal aid was rarely provided in the migration area the respondent also submitted that there was absolutely no evidence as to any effort being made by the applicants to obtain legal assistance; 

            (e)        there is no evidence before the Court of the applicants’ impecuniosity; and 

            (f)         the cases to which the applicants referred (Dietrich v The Queen (1992) 177 CLR 292 (‘Dietrich’); R v Joyce [2003] NSWCCA 84; and R v Joyce [2003] NSWCCA 280) concern criminal proceedings and are not directly relevant to the circumstances of this case. 

6                     The respondent’s points are cogent and the applicants were unable to meet them.  They conceded that they were in contact with a barrister but said that he was waiting to receive the cassette tapes of the Tribunal hearing before helping them.  The respondent’s solicitor informed the Court that the tapes had very recently been delivered to the applicants’ barrister.  The applicants were unable to respond to the points raised by the respondent at (b), (c) and (d) above.  In relation to point (e), although there was no evidence on which to make a finding, I accept, for present purposes only, that the applicants may well be unable to afford to pay for legal advice.  I questioned the applicants about what steps they had undertaken to secure legal advice.  They replied that they had needed to use money they had saved for legal fees to meet medical expenses.  They were unable to point to any steps they had taken to find legal advice, other than the application for legal aid, filed on 4 November 2003. 

7                     As regards point (f), I agree that the cases referred to are not in point.  Very briefly, Dietrich stands for the principle that a trial judge has power to order a permanent stay of serious criminal proceedings which would result in the unfair trial of an accused indigent who is forced, through no fault of his or her own, to represent himself or herself.  Moreover, I am bound by Full Court authority on the applicability of this doctrine to cases such as that presently before me.  In Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265 the Full Court said, at [24]:

‘there is nothing in the reasoning in Dietrich to suggest that the decision applies otherwise than to a court hearing a prosecution for a serious criminal offence under Commonwealth, State or Territory law.  In particular, there is nothing to suggest that the reasoning applies to administrative hearings, including a hearing by the AAT in the course of reviewing a deportation order made by the Minister’s delegate.’ 

8                     Although the respondent conceded that it is within my discretion to stay the proceedings to allow the applicants time to obtain legal advice, I have already taken that course.  As referred to in [3] above, on  5 September 2003 I adjourned the hearings from 23 October 2003 to 4 December 2003.  It would appear from the drafting of the notices of motion and the accompanying affidavits that the applicants have access to some legal assistance.  From their submissions today, however, it is apparent that the delay has not brought them any nearer to obtaining legal representation for the hearings.   Nothing that has been said today gives me any confidence that further postponement of the hearing would make any difference.  In these circumstances I am not prepared to delay the proceedings further. 

9                     As the matter stands there is slightly more than two weeks until the hearing of these matters, on 4 December 2003.  If the applicants are able to retain a legal adviser by that time I would, if necessary, be prepared to allow a short time after the hearings for filing supplementary written submissions in support of their applications. 

10                  For these reasons, the motions for an adjournment of the hearing date are dismissed.  I will also order that the applicants file and serve any amended applications, any evidence on which they wish to rely and written submissions in support of their applications by no later than five working days prior to the hearings.  The respondent must file and serve written submissions by no later than two working days prior to the hearings.  Costs are reserved. 

Associate:

Dated:              19 November 2003