FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1415

ADMINISTRATIVE LAW – natural justice –Administrative Appeals Tribunal (AAT) – refusal of adjournment – solicitor for applicant before AAT applies in writing during week before tranche of three dates fixed for hearing of application for review of decision to deport applicant for adjournment of the hearing –  adjournment refused – solicitor files notice of ceasing to act – application for adjournment made later in that week by applicant – Deputy President again refuses adjournment – hearing proceeds with applicant appearing unrepresented – applicant given ample opportunity following hearing to submit any further evidence in the form of written statements – applicant does so – respondent does not require the makers of those witness statements for cross-examination – no failure to accord procedural fairness

Squire v Rogers (1979) 27 ALR 330 cited

Scott v Handley (1999) 58 ALD 373 cited

SHANE ALI v MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR

NSD 150 OF 2005

LINDGREN J

21 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the first respondent’s costs.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

introduction

1                     The applicant (‘Mr Ali’) appeals from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) given on 7 January 2005.  By that decision the Tribunal affirmed a decision of the first respondent (‘the Minister’) to order the deportation of Mr Ali  pursuant to s 200 of the Migration Act 1958 (Cth).  The ‘appeal’ is on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).  The error of law suggested is a failure to accord natural justice consisting of a refusal to grant Mr Ali’s application for an adjournment of the hearing.

BACKGROUND FACTS

2                     On 3 April 1999 the Minister ordered that Mr Ali be deported.  Mr Ali sought review of that decision in the Tribunal on 23 April 1999, and on 24  December 1999 the Tribunal set aside the decision. 

3                     The Minister appealed to this Court under s 44, and on 29 September 2000 this Court set aside the Tribunal’s decision and remitted the matter to the Tribunal to be heard and determined again:  see Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313.  Mr Ali filed a notice of appeal from those orders but discontinued the appeal on 8 February 2001.

4                     Mr Ali’s application before the Tribunal was stood over several times for reasons and in circumstances which do not presently matter. 

5                     On 10 May 2004, the Tribunal made directions for the preparation of the matter for hearing.  At the directions hearing, Mr Ali was represented by a solicitor, Mr Levingston.  The hearing was fixed for Monday, Tuesday, Wednesday, 23, 24 and 25 August 2004. 

6                     On Monday, 16 August 2004, Mr Levingston wrote to the Deputy President of the Tribunal who was to hear the matter.  The letter asserted that Mr Levingston had agreed to act for Mr Ali in the proceeding as the duty solicitor, and that in light of the financial circumstances of Mr Ali and his family's resources, he was ‘appearing pro bono’.  Mr Levingston stated in his letter that he wished to obtain a report of a psychologist in relation to the interests of Mr Ali’s daughter.  The letter stated:

‘The applicant indicated that he was prepared (resources permitting) to commission a report from a psychologist but the practical difficulty has been the ability to be able actually to pay for such a report.’

7                     The letter went on to state:

·        that it was ‘on that basis’ that Mr Levingston applied to have the hearing date vacated with a new date to be set;

·        that since Mr Ali was in custody and was serving a term of ‘eight years’ imprisonment commencing on 21 June 2002’ with the ‘earliest date for his release [being] 15 August 2007’, there was no prejudice in a delay of the hearing;

·        that the Tribunal would be assisted by the preparation of a report from a psychologist, Dr Christopher Lennings, ‘who would be amicus curiae’;

·        that additional witness statements could be prepared, filed and served in the intervening period between the vacated hearing dates and the new hearing dates; and

·        that certain relatives of Mr Ali were travelling overseas to attend a family wedding and would be unavailable to give evidence if the hearing were to proceed on ‘24 August 2004’ [sic – 23 August 2004].

8                     On the same day, 16 August 2004, a Tribunal officer telephoned Mr Levingston and advised him that the Deputy President had decided to refuse the adjournment.  The officer observed that Mr Levingston still had four days in which to get the psychologist's report. Mr Levingston said that he would have to pay for it himself and was not prepared to do so.  He said that he would cease to represent Mr Ali.  On the same day, Monday 16 August 2004, Mr Levingston filed with the Tribunal a notice of ceasing to act.

9                     The following day, Tuesday, 17 August 2004, Mr Ali telephoned the Tribunal and requested an adjournment.  He spoke to the same Tribunal officer. Mr Ali said that there must have been a misunderstanding over payment for the psychologist's report because Mr Ali did have the money to pay for it and did not understand why Mr Levingston thought that he (Mr Levingston) would have to pay for it.  Mr Ali also said that he had the money with which to pay for a solicitor and did not understand why Mr Levingston had thought that he would not be paid for his legal services.

10                  The Tribunal officer informed the Deputy President of the telephone conversation and the Deputy President said that he remained of the view that the hearing should proceed on Monday, 23 August; that evidence would be taken from Mr Ali who could be cross examined on behalf of the Minister; and that Mr Ali could make submissions about what further evidence the Tribunal should hear.

11                  The Deputy President's decision was then conveyed by telephone to Mr Ali by the same Tribunal officer.

12                  On Thursday, 19 August, the Australian Government Solicitor (‘AGS’) wrote to the Tribunal stating that it was understood that Mr Levingston had applied for an adjournment, and that the AGS had received a copy of his notice of ceasing to act.  The AGS expressed concern over the possibility that the hearing might be adjourned, and suggested that if this was a possibility, it would be desirable for a directions hearing to be held as soon as possible, so that the Minister would not incur costs which would be wasted by a vacation of the hearing dates.

13                  On Friday 20 August 2004, the same Tribunal officer telephoned Ms Watson of the AGS and informed her that Mr Ali had indeed applied for an adjournment but that the application had been refused.  On the same day the Tribunal officer took a call from Mr Ali and again made it clear to him that the hearing was to proceed on the Monday.

14                  On Monday 23 August, 2004, the first day of the hearing, Mr Ali again protested that he was not represented.  He said that he had been told by his former solicitor that his case was not prepared.  The Deputy President explained that failure to prepare a case is not a ground for an adjournment.  The Deputy President explained that the procedure which would be followed would be that Mr Ali could testify and be cross examined, and that he could call any witnesses he wished.

15                  Mr Ali said that he had told his witnesses not to attend because he understood that the hearing was to be deferred. The Deputy President observed that there was no basis on which Mr Ali should have told them that. 

16                  The hearing proceeded.  Mr Ali testified and was cross-examined and called his mother to give evidence.  In addition, he tendered some witness statements.

17                  At the conclusion of the hearing, the Deputy President said that one way or another, the Tribunal must allow Mr Ali to put on additional evidence.  Mr Ali had suggested the filing of one or more statutory declarations.

18                  After some discussion, including a request by Mr Ali for an extension of time in which to put on any further evidence, the Deputy President directed:

·        that Mr Ali was to file and serve any further witness statements, statutory declarations, and psychological reports, together with his written submissions, by 23 September 2004;

·        that the Minister was to file and serve any further evidence in response together with her written submissions by 14 October 2004; and 

·        that Mr Ali was to file any documents and written submissions in reply by 21 October 2004.

19                  A direction was also made that the Tribunal’s decision would be made on the oral evidence of Mr Ali and his mother which had been given and on the written evidence to be submitted by the parties by 21 October 2004, and that no further hearing dates would be allocated unless the Minister's representative indicated that she wished to cross-examine any of the persons who provided witness statements or statutory declarations in support of Mr Ali’s case. 

20                  Mr Ali did indeed forward a number of documents to the Tribunal by 23  September 2004. These included statements by ‘character witnesses’ and a report dated 15 September 2004 by Dr Christopher  J Lennings in relation to Mr Ali’s daughter.

21                  On 23 September 2004, Mr Ali requested an extension of time in which to file a further psychological report and that request was granted.  On 15 October 2004, Mr Ali provided a further psychologist’s report dated 14 October 2004.

22                  On 29 October 2004, the Minister advised the Tribunal that Mr Ali’s witnesses would not be required for cross-examination.

23                  On 10 November 2004, the Minister filed submissions on the additional material supplied by Mr Ali.  Mr Ali filed his submissions in reply, apparently on 25 November 2004. 

24                  The Tribunal handed down its decision on 7 January 2005 affirming the decision under review. 

25                  On the hearing of the appeal, the only ground that has been argued is that the Tribunal failed to accord to Mr Ali procedural fairness by reason of refusing him an adjournment.

26                  I am indebted to Mr S J Duggan of counsel and to Ms D Watson of the Australian Government Solicitor for their helpful submissions on this question.

CONSIDERATION

27                  Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts.  Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances:  see, for example, Squire v Rogers (1979) 27 ALR 330 at 337; Scott v Handley (1999) 58 ALD 373 at [29]-[35].

28                  Counsel for Mr Ali points out that Mr Ali was in prison; that the respondent was in effect the Commonwealth Government; and that an urgent directions hearing could have been held in the week preceding the hearing dates, which could have then been vacated in advance.

29                  These considerations, though relevant, did not compel the granting of an adjournment.  Lack of prejudice to the other party is not conclusive. A particular matter which has been recognised in the authorities, such as in Squire v Rogers and Scott v Handley, above, is that a decision on an adjournment application may involve:

·        the assessment of competing claims by litigants in other cases awaiting hearing;

·        knowledge of the working of the listing system of the particular court or tribunal; and

·        awareness of the importance to the proper working of that system of adherence to dates fixed for hearings.

30                  Mr Ali submits:

• that the application for the adjournment was made at the beginning of the hearing and was preceded by informal applications in the week prior to the hearing;
• that the decision to refuse an adjournment has serious consequences for Mr Ali, namely, a less than adequate opportunity to challenge his deportation;
• that Mr Ali was left, through no fault of his own, unrepresented, a week prior to the hearing;
• that Mr Ali’s ability to prepare for the hearing was hampered by his being in prison;
• that there was no demonstrable prejudice to the Minister and the Minister was not in the position of an ordinary ‘private’ litigant; and
• that Mr Ali was unprepared and unable to present his case properly to the Tribunal, was forced to deal with documents and submissions on the run, was unable to make forensic decisions in his best interests, and was denied the ability to adduce oral evidence from the witnesses he wished to call.

31                  Mr Ali had in fact appeared unrepresented, apparently, in various earlier hearings and was represented for the first time by a lawyer, when Mr Levingston represented him in the proceeding before the Tribunal.  The general proposition must be accepted, however, that a litigant in person is not as well equipped to safeguard his or her interests as one who is legally represented.

32                  The most significant consideration in the present case, however, is that Mr Ali was afforded ample opportunity after the hearing to provide to the Tribunal, without limitation, such further evidence as he wished.

33                  Moreover, according to the information he gave to the Tribunal officer, Mr Ali was able to afford a lawyer to represent him, and it seems to follow that if he had wished to do so, he could have paid for a lawyer to assist him in preparing the further witness statements and written submissions.  Be this as it may, he was given a reasonable opportunity to supplement the oral evidence given by himself and his mother on 23 August 2004.  One therefore asks: in what respect, if any, was the procedure that was followed procedurally unfair? 

34                  First, Mr Ali submits that he was disadvantaged because his further witnesses provided their evidence in writing and were not cross-examined.  However, it does not lie in Mr Ali’s mouth to set up as a breach of natural justice the fact that the Minister did not wish to challenge in cross-examination the evidence which he chose to file.

35                  Secondly, Mr Ali points to an exchange which took place in the course of his oral testimony before the Tribunal.  He testified that a barrister and solicitor were advising him about the possibility of reinstating his appeal against his most recent conviction.  He declined, however, to disclose their identity to the Deputy President.  Asked why, he said that they had advised him not to discuss his recent conviction at the hearing before the Tribunal.  The Deputy President observed sceptically, in his reasons for decision (at [38]), that this seemed rather questionable advice to offer a man facing deportation.  Mr Ali’s submission must be that this course of events would not have occurred if he had been granted an adjournment. 

36                  There is no substance in this submission.

37                  The Tribunal allowed Mr Ali 28 days in which to file his submissions, partly in order to allow sufficient time for him to receive and consider any advice on the possibility and prospects of an application to reinstate his appeal.  In his submissions dated 17 September, 2004, however, Mr Ali simply repeated his assertion that on the basis of legal advice given to him by a solicitor looking into the appeal against his recent conviction, he could not comment about the offence.  He also made the further general statement that his conviction was ‘under appeal’, but again no particulars were given.

38                  If in fact Mr Ali did have a solicitor and barrister currently investigating the prospects of an appeal who told him not to discuss his recent conviction on the hearing before the Tribunal, he conducted himself in accordance with their advice as he understood it, and has no cause for complaint.  The present submission must become a submission that the disadvantage is that he lost the chance of being represented by a lawyer who would have advised him differently, so that he would have had the choice of which advice to follow.  The proposition needs only to be stated to demonstrate the fallacy of it.

39                  In any event, as noted above, there was ample opportunity following the hearing for Mr Ali to reverse his position and to provide full details to the Tribunal in relation to the question of his possible appeal, including the identity of any barrister or solicitor who had been advising him..

40                  It is difficult to resist the conclusion that Mr Ali’s claim that he had been receiving legal advice in relation to an appeal and that lawyers advising him in that respect gave him the advice which he mentioned, is itself without substance. 

41                  Taking into account the full opportunity afforded to Mr Ali to supplement his and his mother’s oral testimony and the statements filed on the hearing, I do not think that the ground of appeal is made out.

CONCLUSION

42                  The appeal should be dismissed with costs.

Associate:

Dated:              4 October 2005