Rizzotti v Minister for Immigration & Multicultural Affairs [2001] FCA 177

FEDERAL COURT OF AUSTRALIA Rizzotti v Minister for Immigration & Multicultural Affairs [2001] FCA 177

LUCA ALESSANDRO RIZZOTTI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1228 of 2000 SACKVILLE J SYDNEY 28 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1228 OF 2000

BETWEEN: LUCA ALESSANDRO RIZZOTTI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 28 FEBRUARY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter has been set down for hearing today. The hearing date was determined at a directions hearing held on 13 December 2000. The proceedings themselves were commenced in this court on 16 November 2000. 2 When the matter was called, Mr Stanford announced an appearance for the applicant. I inquired of Mr Stanford when he had been instructed, as the written submissions on behalf of the applicant were filed only this morning. This was not in compliance with the directions given by the Court on 13 December 2000. Mr Stanford indicated that he had been retained on Thursday of last week and that this was why the submissions were late. 3 When the argument commenced, I drew to Mr Stanford's attention difficulties in the path of at least some of the written submissions. These difficulties flowed from the restrictive terms of Part 8 of the Migration Act 1958 (Cth) ("Migration Act"). 4 Upon my drawing these matters to his attention, Mr Stanford sought an adjournment, presumably in order to reassess the arguments advanced on behalf of the applicant. 5 Mr Beech-Jones, on behalf of the respondent, resisted the application for an adjournment. He pointed out that the original application for a Temporary Business (Long Stay) visa had been lodged in September 1997. In that application, the applicant indicated that he wished to stay in Australia for three years. That period of three years, of course, has now expired. 6 Mr Beech-Jones informed me that if the applicant were ultimately successful in obtaining a Temporary Business (Long Stay) visa he would be entitled to remain in the country for a further period of up to four years. It is, however, relevant to this adjournment application to take into account the fact that the decision-making process has extended beyond the original period for which the applicant sought to stay in this country. I am not attributing the lengthy delays to the applicant. The fact is, however, that he has remained in this country for well over the three year period originally envisaged in his application. 7 Secondly, Mr Beech-Jones submitted that it is unlikely that the applicant will be able to formulate any more cogent grounds of review than those that can be distilled from the written submissions. 8 There is a further factor that must be considered. Any adjournment of a case set down for hearing in this Court creates considerable inconvenience. It is unlikely, having regard to Court commitments, that this case could be set down for hearing in the near future. Moreover, the time that has been set aside, from the Court's point of view, would be wasted if an adjournment were to be granted. 9 Mr Stanford has indicated that his client understands that the price of any adjournment would be an order for indemnity costs against him. But the fact that such a costs order might be made does not exhaust the considerations that have to be borne in mind in determining whether an adjournment should be granted. 10 This is a case where it must have been obvious to the applicant that legal advice was required in order to enable him to conduct the proceedings effectively. He has had legal representation in the past. The fact that he chose to obtain legal advice only very shortly before the hearing is something for which he must bear responsibility. There is no suggestion in this case, unlike many others that come before the Court in its migration jurisdiction, that the applicant is without resources to enable him to engage a lawyer. Indeed, the very basis of his claim before the MRT was that he has been performing work on behalf of an overseas company for which he has been remunerated. Moreover, the fact is that he has engaged a legal representative who has prepared submissions on the applicant's behalf. 11 Taking all of these factors into account, in my view there ought to be no adjournment. The matter should proceed. Mr Stanford should make such submissions as can be distilled from his written outline of argument and are consistent with the terms of Part 8 of the Migration Act. The application for an adjournment is refused. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE J.