FEDERAL COURT OF AUSTRALIA

WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114

ORDERS

THE COURT ORDERS THAT:

1.    The application to adjourn the hearing of the appeal is dismissed.

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

REASONS FOR JUDGMENT

(edited from transcript)

JACKSON J:

1    At the commencement of the hearing of this appeal, the appellant made an application to adjourn the hearing for 12 weeks in order that he may be represented by a lawyer at the reconvened hearing. The Minister has opposed the application. These are my reasons for dismissing the application.

2    The principles governing an application for an adjournment to obtain legal representation in circumstances such as the present are well established and can be summarised as follows:

(1)    Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19].

(2)    Other than in the case of persons appearing before a court for a serious criminal offence, there is no absolute 'right' to legal representation in this country, in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]; Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6]; and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)].

(3)    Nevertheless, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5].

(4)    Matters that will be relevant in determining the weight to be given to that wish may include:

(a)    the amount of time the party has had to obtain legal representation;

(b)    the steps the party has taken to obtain such representation during that time;

(c)    the explanation for any delay in that respect;

(d)    the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and

(e)    the time required for the appellant to do so,

see BSY16 at [5]; and Pallas at [42].

(5)    In the end, the decision whether to adjourn is a discretionary decision for the court hearing the matter, which must be exercised judicially and will depend on the individual circumstances that are relevant: EPH17 at [18]-[19]; Jarrett at [78].

The evidence

3    An affidavit of Ms Ramanathan sworn on 6 February 2020 was received into evidence. She has recently been helping the appellant in relation to the appeal. She is a business coach who sits on the State Public Housing Tribunal and holds a Master in Taxation Law and a Bachelor of Commerce.

4    Ms Ramanathan and her husband have known the appellant for two years. She says he speaks basic colloquial Tamil and limited English. He approached her on 31 January 2020 to ask her to come to the hearing of the appeal as his support person. He met her on 4 February 2020 with the appeal book, and told her he did not fully comprehend the documents contained in it. She agreed to accompany him to court as his support person. She realised that he had no understanding of the court processes and did not appreciate the implications of the documents in the appeal book, other than a few documents he had submitted in relation to his application for a protection visa. She is concerned that as an unrepresented appellant, he may not be able to put forward his case properly.

5    Ms Ramanathan's affidavit says that the appellant was unable to obtain legal representation because the visa he presently holds prevents him from obtaining paid employment. Ms Ramanathan, along with two other people she names in the affidavit, have pledged $3,000 for the appellant to obtain legal representation. She says that a lawyer has advised that 'this amounts to procedural unfairness' (presumably a reference to proceeding with the appeal without legal representation) and the lawyer has 'suggested' that he seek an adjournment to secure legal representation. One of the people who has pledged money was, at the time of the swearing of the affidavit on 6 February 2020, in discussion with two named lawyers for their firm to represent him. It may be that one of those lawyers is the one who gave the advice referred to, but that is not clear.

6    Ms Ramanathan was sworn in so that she could give evidence of further developments in the witness box in the hearing. The additional development on which she gave evidence was that Mr Jeyendran Ramachandran has agreed to take on the appellant's case. Ms Ramanathan does not know the name of his practice but says that he is a 'registered solicitor'. She says that Mr Ramachandran has identified some errors in the decision of the Federal Circuit Court and is willing to take the matter on. It appears, therefore, that he has expressed willingness to represent the appellant up to and at any adjourned hearing of the appeal.

7    Ms Ramanathan frankly acknowledged that her evidence about Mr Ramachandran's intentions is hearsay. That is, she has only heard it from her brother, Mr Subramanian, and she is relaying what Mr Subramanian has told her to the court.

8    Mr Ramachandran has given no estimate of how much he will charge to take the matter all the way to the end of any adjourned hearing. It appears that the pledged figure of $3,000 has been arrived at in discussions between Ms Ramanathan and the friends who have contributed $1,000 each, and not on the basis of any estimate provided to her by Mr Ramachandran or any other lawyer.

9    While I have no reason to doubt that Ms Ramanathan gave her evidence in good faith, the double hearsay nature of the evidence must affect the weight to be given to it in points of detail of this sort. For example, Ms Ramanathan confirmed that Mr Ramachandran would brief counsel to appear at the hearing of the appeal. Since there is no indication that any of this is going to be done on a pro bono basis, that is likely to add to the costs that would need to be met.

Consideration

10    It may readily be accepted that the appellant in this case will face significant difficulties in presenting any case on appeal, without legal representation. But he commenced the appeal six months ago, and it must have been clear to him throughout that time that he would not be able to put his best case forward without such representation.

11    The date of the hearing was fixed and notified to the parties on 17 December 2019. There is no evidence of any attempt to obtain a lawyer until 4 February 2019, a mere six days before the hearing of the appeal. The appellant's apparent lack of funds is not a satisfactory explanation for that delay, since there are avenues open to an impecunious and unrepresented person to obtain representation, including pro bono counsel. That is not to say, of course, that those avenues would necessarily have proven successful. But there is no evidence of any attempt to pursue them.

12    The appellant was represented by solicitors and his counsel in his application to the Federal Circuit Court. It is not clear whether they were acting pro bono, but if they were, the appellant knew he might be able to secure such representation in this appeal, and if they were not, that tends to undermine the evidence that his visa restrictions prevented him from raising the necessary funds. The evidence indicates that last week he was able to raise at least some funds on short notice. That poses the question of why he did not do so earlier, since he has known Ms Ramanathan and her husband for two years.

13    It is not, in any event, clear that there will be any utility in permitting an adjournment. While I have no reason to doubt the good intentions of those involved, at present, there is a limited amount of funds which is the subject of an undefined pledge. I have already described where the figure of $3,000 has come from. It is not at all clear that will be sufficient to pay for representation, including by counsel, all the way to the end of an adjourned hearing of the appeal.

14    Another relevant matter is that there has been no appearance by Mr Ramachandran, and he has not attempted to correspond with the court. I appreciate that Ms Ramanathan gave evidence that Mr Ramachandran only arrived back in Australia from being overseas last night. But he must have appreciated the importance of at least making some contact with the court. He has not filed a notice of address of service confirming that he will act. In all the circumstances, the court cannot have a high level of confidence that the appellant will in fact obtain legal representation all the way to the adjourned hearing of the appeal.

15    The appellant was ordered to file an outline of written submissions 10 business days before the hearing of the appeal. He did not do so and did not seek to explain that on the basis of any difficulty obtaining legal representation. The Minister has filed written submissions and is in a position to proceed. As unfortunate as it may be for the appellant to proceed without legal representation, the court must not ignore the interests of the other actively involved party, and the need for efficient utilisation of public resources, including the resources of the judicial system.

16    For those reasons, I will not adjourn the hearing of the appeal.

Associate:

Dated:    13 February 2020