Federal Court of Australia ZXXZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1595 Review of: ZXXZ v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2910 File number: QUD 358 of 2022 Judgment of: LOGAN J Date of judgment: 6 December 2022 Catchwords: PRACTICE AND PROCEDURE – application for adjournment – application by consent – where proceeding already fixed for final hearing – where Applicant in detention – where application made following Applicant obtaining interstate pro bono legal representation – where no evidence filed in support of application – where proposed consent orders would see final hearing of the proceeding adjourned to at least April 2023 – application refused Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Federal Court of Australia Rules 2011 (Cth) r 4.12 Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 11 Date of hearing: 6 December 2022 Counsel for the Applicant: Ms S Martin Solicitor for the Applicant: Asylum Seeker Resource Centre Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The second Respondent filed a submitting notice save as to costs ORDERS QUD 358 of 2022 BETWEEN: ZXXZ Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: LOGAN J DATE OF ORDER: 6 DECEMBER 2022 THE COURT ORDERS THAT: 1. The application for an adjournment be refused. 2. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 On 7 October 2022, when acting on his own behalf, the Applicant, whose address for service was then care of the Detention Centre on Christmas Island in the Indian Ocean, (an Australian external territory) filed an originating application by which he sought to engage this Court's original jurisdiction so as to judicially review a decision of the Administrative Appeals Tribunal (Tribunal) whereby the Tribunal had declined to revoke the cancellation of his visa. The grounds of review as stated in that application were as follows: 1. Natural Justice has been denied in the decision dated 12th of September 2022. 2. AAT misapplied or misinterpreted the law. 3. The Decision dated 12th of September 2022 is legally unreasonable or irrational. 4. The AAT made a decision for which there was no evidence, or that was not reasonably open on the material. 2 Those grounds, as is evident, are unparticularised and, as unparticularised, it is difficult to discern any meaningful content in them. The case was brought on for case management on 2 November 2022. At that time, the Applicant appeared on his own behalf. The Minister was represented by a solicitor. Taking note of the state of the grounds of application and the Applicant's appearance on his own behalf, it seemed to me that it was desirable in the interests of justice that the Applicant have the benefit of legal representation. Accordingly, I made a pro bono referral order under r 4.12 of the Federal Court of Australia Rules 2011 (Cth). That yielded the result of a notice of acting being filed on 25 November 2022, by the Asylum Seeker Resource Centre of Footscray, in Victoria. 3 Today, an application has been made by counsel instructed by that firm for an adjournment of the hearing which was fixed on 2 November 2022 to occur on 31 January 2022. The hearing date, was deliberately selected, as the earliest possible date on which an application touching on a person's liberty could be heard and yet, far enough ahead to allow at least some prospect of canvassing pro bono representation. It was made plain at the time to each of the parties that the case would in all likelihood proceed on that date. 4 This morning, an application has been made for the adjournment of the hearing. It is not supported by any evidence. It is supported by proposed orders promoted, it must be said, consensually which would see any amended application, affidavit and related submissions filed as far ahead as 21 February 2023 by the Applicant, with the Minister's additional evidence, if any, and related submissions being filed by 7 March 2023. The contemplated hearing is on a date to be fixed after 21 March 2023. 5 Having regard to other commitments, including leave, the earliest date upon which the case could possibly be heard on the orders promoted by the parties is 5 April 2023. That is a period of some five months after the application was filed. 6 In the course of an exchange this morning with counsel for the Applicant and the solicitors for the Respondent, it became apparent that a date which would suit counsel for Applicant, who so very commendably acts pro bono, as well as counsel for the Respondent, would be 16 February 2023. Unfortunately, the absence as yet of allocated appellate jurisdiction duties for the February Full Court period means that it is not within my remit to give that hearing date. Indeed, as in all likelihood, the appeal list for February is in an advanced state of preparation, even to intrude upon that by seeking to stand out of the list for that day may have very particular consequential domino effects. 7 It is or should be well known in the profession that the longstanding practice of the Court is that February is a month in which priority is given to the exercise of appellate jurisdiction. It is routinely possible to fill in, after allocation of appellate jurisdiction duties dates for short cause matters in the original jurisdiction. This is, undoubtedly, such a case. In the ordinary course of events, this case should be heard by appearances in person. To countenance anything other than that, is to countenance a less than satisfactory means of exercising Commonwealth judicial power in serious cases, in my view. I would be prepared, exceptionally, to do that so as to facilitate an appearance by counsel based in Victoria acting pro bono in a case such as this. But as I have indicated, a date on which that could occur, 16 February, is really not feasible. 8 The situation which has occurred is, really, quite impossible. The ideal is that counsel and solicitor acting pro bono should be locally based. The case is filed in the Queensland Registry. It would be possible, in theory, to order its transfer to Victoria. That in turn would require the Minister to seek alternative counsel, or at least to incur greater expense of flying counsel already briefed to Victoria. I have no doubt that the resources of the Commonwealth would extend to this and for that matter, that there are numerous competent counsel at the Victorian Bar who would be able to appear but it would visit upon the judges of the Victorian Registry a case which in the ordinary course can and should be heard in Queensland. 9 Case management in modern times is always a relevant consideration: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; see also s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth). For all that, case management considerations are, when all is said and done, still a servant not a master of justice. The difficulty about this case really is one of balancing the desirability of legal representation, to which there is no right in a case such as this, with other considerations, not the least of which is that the Applicant is in detention, and seeks to challenge a decision which in turn, if overturned, might lead to his being removed from detention. Yet further, a consequence of the Applicant's not succeeding may be his being returned to, in this case, Syria. It is apparent enough from the Tribunal's reasons that the Applicant has had quite an experience there as has his family, and none of it pleasant. 10 The application calls for the exercise of judicial discretion. I cannot in all of the circumstances mentioned and in all good conscience countenance an adjournment of a case which would see a trial at the very earliest, not earlier than 5 April 2023. That is the earliest date I can offer with certainty. 11 What should occur is an expedited and serious endeavour to obtain legal representation for the Applicant on 31 January. In saying that, I indicate that I am not disposed in the circumstances to grant an adjournment. If nothing else, those presently acting may choose to participate in that expedited search and perhaps, also, at least to offer the Applicant the benefit of advice and related drawing of an amended originating application. The application for adjournment is refused. I reserve costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate: Dated: 2 February 2023