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MIGRATION - Adjourned pending decision of Full Court of Federal Court - factors to consider - relevance of pro bono assistance.

WABF v Minister for Immigration [2002] FMCA 99 (17 May 2002)

WABF v Minister for Immigration [2002] FMCA 99 (17 May 2002)
Last Updated: 25 June 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WABF v MINISTER FOR IMMIGRATION
[2002] FMCA 99



MIGRATION - Adjourned pending decision of Full Court of Federal Court - factors to consider - relevance of pro bono assistance.



R v Hickman Ex Parte Fox and Clinton (1945) 70 CLR 598

NABC v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 539 (30 April 2002)

Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397

Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 438

Kwan v Minister for Immigration and Multicultural Affairs (2002) FCA 498

Applicant NAAV of 2001 v Minister for Immigration & Multicultural Affairs N265/02 [2002] FCA 263

Applicant(s) NABE of 2001 v Minister for Immigration & Multicultural Affairs N282/02 [2002] FCA 281

Minister for Immigration & Indigenous Affairs v Jian Zhong Wang S84/02 [2002] FCA 167

Anare Sua Ratumaiwai v Minister for Immigration & Multicultural Affairs N399 of 2002 [2002] FCA 311

Migration Act 1958

Applicant:
WABF



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS



File No:


WZ 57 of 2002



Delivered on:


17 May 2002



Delivered at:


Melbourne



Hearing Date:


17 May 2002



Judgment of:


McInnis FM



REPRESENTATION

Counsel for the Applicant:


Ms D.S. Mortimer



Counsel for the Respondent:


Mr Jenshel



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application will be adjourned to a date to be fixed pending the delivery of the Full Court of the Federal Court's decision in the matters of Auriel Turcan v Minister for Immigration & Multicultural Affairs V225/02 [2002] FCA 397, Applicant NAAV of 2001 v Minister for Immigration & Multicultural Affairs N265/02 [2002] FCA 263, Applicant(s) NABE of 2001 v Minister for Immigration & Multicultural Affairs N282/02 [2002] FCA 281, Minister for Immigration & Indigenous Affairs v Jian Zhong Wang S84/02 [2002] FCA 167 and Anare Sua Ratumaiwai v Minister for Immigration & Multicultural Affairs N399 of 2002 [2002] FCA 311 to be heard on 3 June 2002.

(2) Liberty is granted to both parties to apply.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 57 of 2002

WABF


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The application that is before the court is an application by the applicant for an order for a review of a decision of the Refugee Review Tribunal which was delivered on the 22nd day of October 2001.

2. I note from the documents that are before the court that the applicant had in fact been interviewed in relation to his arrival in March of 2001 and hence there was a significant delay in terms of arrival and a decision by the Refugee Review Tribunal.

3. Before the court this day Ms Mortimer, Counsel for the applicant has made an application for adjournment of this case pending the outcome of a decision by a specially constituted five-member bench of the Full Court of the Federal Court of Australia which is due to hear a number of appeals which I understand relate at least in part to the interpretation and validity of section 474 of the Migration Act 1958, and to consider in particular the divergent views which appear to be expressed by several Federal Court justices in relation to applications of this kind and in particular the way in which the court should approach its task in the interpretation of section 474, assuming that that section is valid.

4. In brief terms it would appear that a number of issues are to be agitated before the Full Court including the validity of section 474, issues concerning the appropriate exercise of statutory interpretation of that section, the applicability of what Dixon J in R v Hickman Ex Parte Fox and Clinton (1945) 70 CLR 598 said in relation to the matters which may be available to a court to consider when confronted with what are described as "Hickman" clauses, and there are other matters which are also to be agitated I understand before the Full Court including the divergent views about the correct approach which a court should take when confronted with an application which involves the application of section 474.

5. During the course of submissions made by both counsel in this matter I had referred to a decision of Gyles J in NABC v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 539 (30 April 2002) where his Honour refers to a decision which he refers to being a �proper approach' namely, that of Heerey J in Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 where at paragraph 46 his Honour said:

"In my view the correct approach is to first consider whether

s 474 applies. If it does, the Court need not, indeed should not, go any further. The Court should not assess the case as if s 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the Court's jurisdiction and is to be applied at the threshold."

6. After quoting that passage, his Honour Gyles J suggests:

"That approach avoids deciding a false issue (with the consequent saving of time and court resources) and is consistent with my decision in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 (15 March 2002) at [13]-[37], particularly [29], [30], [34], [35] and [36], and with the decision of Tamberlin J in NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 (19 March 2002) ..."

7. There is also then reference by his Honour Gyles J to a decision of Wilcox J delivered on 11 April 2002 where his Honour had declined to follow NAAX and NABE and that is a decision, as I understand it, of Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 438.

8. Reference is made to a decision of his Honour Finkelstein J who appears to have adopted a similar approach to that of Wilcox J. That approach by Finkelstein J was in the matter of Kwan v Minister for Immigration and Multicultural Affairs (2002) FCA 498. Gyles J in the case to which I have referred goes on to further refer to the decision of Heerey J in the Turcan case to which I have referred. It should be noted at this stage that that case is certainly one of the matters, as I understand it, which is before the full bench of the Federal Court to be heard on 3 June 2002.

9. Gyles J, after referring to Turcan's case states:

"In my opinion, pending any decision by the Full Court, the opinions of Wilcox and Finkelstein JJ should be regarded as out of line, and the other decisions to which I have referred should be followed."

10. It is clear that, in my view, from that brief summary which has been provided by way of assistance in a sense by his Honour Gyles J in the decision of the matter NABC delivered on 30 April 2002, that there is a clear divergence of opinion even in relation to the issue of the correct approach that one must adopt as a court considering applications of this kind, that is, whether one does follow the, if I can loosely describe it as the "Gyles J line of approach", or whether one follows the alternative view that has been expressed by the Justices to whom I have referred.

11. In addition to that, I am told, and there does not seem to be any dispute, that the Full Court of the Federal Court has convened specially to provide some guidance to the single justices of the Federal Court and certainly Federal Magistrates of the Federal Magistrates Court which now has a jurisdiction to hear migration matters concurrent with the Federal Court of Australia.

12. Mr Jenshel for the respondent has opposed the application for adjournment which was sought pending the outcome of a Full Court's decision. He does not oppose the granting of a short adjournment to allow counsel for the applicant to provide an amended outline of facts and contentions having regard to a misunderstanding in relation to whether or not the decision in this case predated the commencement of the privative clause amendment to the Migration Act. The opposition, however, to the substantive adjournment which is being sought is maintained by the minister and I am asked to reject the application.

13. The applicant's counsel has submitted that it is appropriate to adjourn this matter and has provided the court with some basic background information about the applicant. Apparently, the applicant is no longer in detention. He is in Adelaide and is under what has been described as "administrative detention". It is evident from the material that the applicant is a young man who has, it would appear, been in Australia now for over 12 months and for a significant period of time was in detention. It is submitted on behalf of the applicant that the fact that he is now no longer in detention would mean that there is no direct prejudice either to him or the respondent if I were to allow an adjournment of the kind sought.

14. It is further submitted on behalf of the applicant in support of the application for adjournment that it is relevant for the court to take into account that the assistance being given to the applicant in this case is assistance by way of a pro bono assistance order, that is, an order made under order 80 of the Federal Court Rules. It is submitted by the applicant's counsel that in the event that the matter were to proceed to a full hearing, that in the circumstances the court would then be confronted with a situation where if it reserved its decision, there may be a need for further submissions of a different character or nature to those submissions made prior to the delivery of the decision of the Full Court of the Federal Court.

15. It is further submitted that it may also be necessary for the applicant to file and serve supplementary submissions and/or attend a further hearing in order to make submissions which are more relevant in the light of the guidance which one hopes will be provided by the Full Court of the Federal Court after it has considered the matters before it. It is further submitted that in cases where there is a pro bono assistance, that to embark upon that task would be onerous and indeed be a matter which would constitute a degree of hardship to those who offer their services as pro bono lawyers in this jurisdiction.

16. In opposing the application counsel for the respondent has indicated that the matter should proceed, that if the court is so minded, it should be prepared to consider, even after analysing whether indeed on the face of the material there is some error and if not, then should proceed to consider the matter without being overly troubled by the application of section 474 of the Migration Act. In any event, it is submitted that even considering the law as it currently stands the court ought to be capable of proceeding to hear the matter. At least one option foreshadowed by counsel for the respondent, as I understand his submissions, would be that this court may reserve its decision. Then it would only be a matter of receiving short written submissions in the light of what the Federal Court may decide after it has heard the appeal which, as I have indicated, is scheduled at this stage to be heard on 3 June 2002.

17. When considering an application for an adjournment, the court hearing the application has a broad discretion to consider any such application having regard to the interest of the administration of justice. It is my duty to consider any inconvenience which may arise to the parties, prejudice and matters of that kind if I were to grant the adjournment. It is particularly appropriate, it seems to me, to ensure that applications are heard in a speedy and expeditious manner. The court has to be mindful that it has limited resources which can be applied to the disposition of these applications. When an application is listed for hearing it is clear that the court allocates time and resources to dispose of that application, and it is equally clear that in the use of those resources the court should ensure that at all times it acts in the most expeditious manner.

18. However, it seems to me that it is not at all inconsistent with that objective to have regard to the fact that if I were to consider and hear submissions, which in this case will be submissions received in any event after a short adjournment, that I would be hearing those submissions possibly a week or two prior to the consideration of the appeal which is currently before the Full Court of the Federal Court. It seems to me that on the material I should have no hesitation in finding that there is going to be a delay, but a delay of what I would describe as of short duration. Hence, the delay factor itself is not a matter which should cause prejudice or concern to either party.

19. What is of concern to me and what is consistent with the duty of the court is that I might proceed to hear this matter, accept that submissions are made for and on behalf of both parties, and then within a very short time of perhaps reserving my decision, if that be the course I take, find that I am confronted with a decision of the Full Court of the Federal Court which clearly means that I have to invite either further written or oral submissions before finally determining the matter. It is also equally clear to me that if I were to deliver a decision prior to the time when the Full Court delivers its decision, it may only generate then an unnecessary appeal and indeed provide an appeal point which might not otherwise have been addressed or considered by this court.

20. In all the circumstances, it seems to me that it is in the interest of the administration of justice, having regard to the particular circumstances of the applicant, that is, that he is no longer in detention, and having regard to the nature and breadth of the matters which are going to be heard by the Full Court of the Federal Court, that I should in fact allow the adjournment.

21. I am strengthened by that view having regard to the fact that the applicant is assisted by a pro bono lawyer. In my view, the administration of justice in these courts would not be otherwise able to be conducted effectively were it not for the assistance of pro bono lawyers.

22. It seems therefore to me that it is relevant in circumstances of this kind where the court draws upon the limited resources of the available pro bono lawyers that it should add to the burden of those lawyers the refusal to adjourn a matter which may then in turn require significant and perhaps even substantial redrafting of submissions and revisiting material that should only be visited at least on the one occasion in order to ensure effective representation.

23. I am also further strengthened in the view that I should grant the adjournment as it seems to me in circumstances where a superior court such as the Federal Court of Australia has expedited the hearing of a Full Court appeal constituted by a five-member bench, that this court should at least be prepared to adjourn a matter for a few weeks in order to determine the proper course that the application should follow and to consider the matter in accordance with the law according to the decision of the Full Court in due course.

24. I am mindful of the fact that the Full Court hearing is going to take place on 3 June 2002. It is my understanding that there will be every attempt made to ensure that there is a speedy delivery of the decision of that court. In any event, it seems to me in all the circumstances, having regard to the matters to which I have just referred, that it is appropriate in the interest of the administration of justice to allow the adjournment. Accordingly, the adjournment is allowed. The application will be adjourned to a date to be fixed pending the delivery of the Full Court of the Federal Court's decision in the matter of Auriel Turcan v Minister for Immigration & Multicultural Affairs V225/02 [2002] FCA 397, Applicant NAAV of 2001 v Minister for Immigration & Multicultural Affairs N265/02 [2002] FCA 263, Applicant(s) NABE of 2001 v Minister for Immigration & Multicultural Affairs N282/02 [2002] FCA 281, Minister for Immigration & Indigenous Affairs v Jian Zhong Wang S84/02 [2002] FCA 167 and Anare Sua Ratumaiwai v Minister for Immigration & Multicultural Affairs N399 of 2002 [2002] FCA 311 to be heard on 3 June 2002. It will be noted that this matter, if it is to be relisted, will be relisted with an estimate of one day.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 17 May 2002
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